author: JASPER E. JONES, Judge.

text:
    Jeannie R. BLOODWORTH, et al, Plaintiff-Appellant, v. Donald B. CARROLL, et al, Defendant-Appellee.
    No. 16374-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.

      Donald R. Miller, Shreveport, for plaintiffs-appellants.

      Charlotte Rushing, Donald B. Carroll, in pro per.
    Edward 0. Kernaghan, Shreveport, for defendant-appellee Insured Lloyds.
    Mayer, Smith & Roberts by Alex S. Lyons, Shreveport, for defendant-appellee The Phoenix Ins. Co.
    Lunn, Irion, Switzer, Johnson & Salley by Julie M. Lafargue, Shreveport, for defendant-appellee National Fire Ins. Co. of Hartford.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   JASPER E. JONES, Judge.

Amanda Lee Carroll Anderson, Phillip Anderson, Michael Owen and Jeannie Ray Bloodworth, plaintiffs in this personal injury action, appeal judgments obtained by them for damages they sustained when a Pinto driven by defendant, Donald Buford Carroll, backed into them as they were standing immediately behind a parked Chevrolet Camaro owned by James Drake. Defendant, Insured Lloyds, the insurer of defendant Carroll, answered the appeal. Defendant, Phoenix Insurance Company, insurer of Drake’s Camaro, answered the appeal. Defendant, The National Fire Insurance Company of Hartford, Mrs. Blood-worth’s uninsured insurer, answered the appeal.

Mrs. Anderson’s judgment was in the principal amount of $1,000.00 and was against Carroll and Phoenix in its capacity as the uninsured motorist carrier on the Drake Camaro.

Mr. Anderson’s judgment was in the principal amount of $323.00 and was against Carroll and Insured Lloyds.

Owen’s judgment was in the principal amount of $200.00 and was against Carroll and Insured Lloyds.

Mrs. Bloodworth’s judgment against Carroll totaled $42,582.09. Her judgment against Insured Lloyds was for the principal sum of $5,000.00. Her judgment against Drake’s uninsured insurer, Phoenix, was in the principal sum of $5,000.00. Her judgment against her own uninsured insurer, National Fire, was in the principal sum of $10,000.00.

All of the plaintiffs assign as error that their judgments are inadequate.

Mrs. Bloodworth assigns as error that her judgment against Phoenix was incorrectly limited to $5,000.00 because Phoenix’ uninsured coverage on the Drake vehicle is the sum of $50,000.00.

Insured Lloyds assigns as error all judgments rendered against it contending Carroll intentionally damaged plaintiffs and its policy excludes from coverage damage intentionally caused by its insured.

National Fire assigns as error the judgment against it as Mrs. Bloodworth’s excess underinsured motorist carrier contending Phoenix, the primary underinsured insurer, provided coverage to Mrs. Blood-worth in the amount of $50,000.00 which was more than adequate to cover the uninsured portion of her damages.

Phoenix assigns as error the judgment against it in favor of Mrs. Bloodworth and Mrs. Anderson contending they were not occupying the Camaro at the time of the accident and for this reason the Phoenix policy on the Camaro provided no coverage to them.

Phoenix assigns as error the judgment rendered against it in favor of Mrs. Anderson for mental damages on the grounds she sustained no bodily injury and for this reason she had no damages covered by its policy. Phoenix also contends its policy, which requires an accident, does not cover the emotional damages sustained by Mrs. Anderson as the result of Carroll’s intentional act of backing the Pinto toward her.

BACKGROUND FACTS

The accident upon which this litigation is based occurred on the parking lot of Blue’s Lounge in Bossier City about 2:00 a.m. on February 20, 1982. Donald Carroll backed his Pinto into the plaintiffs who were standing behind James Drake’s Camaro in which Mrs. Bloodworth, Mr. and Mrs. Anderson expected to soon be carried home by James Drake.

Amanda Carroll Anderson is now the wife of Phillip Anderson but at the time of the accident she was the judicially separated wife of Donald Carroll. Mr. and Mrs. Anderson, James Drake and his girlfriend, Pamela Bershears, arrived at Blue’s Lounge about 11:00 p.m. riding in Drake’s Camaro. At the lounge they met Mrs. Bloodworth and her husband, James Michael Owen and his wife, and others, all of whom sat together as one party at a group of tables which they pulled together. Across the dance floor from this group at another table was Mrs. Anderson’s husband Donald Carroll and his girlfriend, Charlotte. Mrs. Anderson and Carroll had two children and their separation and custody litigation, which was either in process or had been only recently terminated, had been unpleasant. There existed between them substantial animosity and Mrs. Anderson was afraid of Carroll. During the course of the evening Carroll’s girlfriend Charlotte and Mrs. Anderson on one occasion each shouted obscenities at the other across the dance floor. However, there was no confrontation of any kind or any contact whatsoever that occurred in the lounge between Mrs. Anderson and Carroll.

During the evening Mrs. Bloodworth’s husband was called to work and he left Mrs. Bloodworth at the lounge after arrangements were made for her to ride home in Drake’s Camaro.

When the 2:00 a.m. closing time for the lounge approached, Drake, Pamela, Mrs. Bloodworth and Mr. and Mrs. Anderson left the lounge enroute to Drake’s Camaro parked on the lounge’s parking lot. Drake and his girlfriend arrived at the vehicle several minutes before the others and were sitting in the Camaro on the front seat kissing when Mrs. Bloodworth and Mr. and Mrs. Anderson reached the car. Mrs. Bloodworth and Mr. and Mrs. Anderson did not enter the car and interrupt the amorous affair upon arrival at the Camaro, but went to the rear of the vehicle to await the conclusion of Drake’s embrace before entering his vehicle. While standing at the rear of the Camaro they engaged in conversation with others who had departed the lounge including Michael Owen. Mr. and Mrs. Anderson, Mrs. Bloodworth and Owen were standing in a line immediately adjacent to the rear bumper of the Camaro. Within a very few minutes after the group arrived at the Camaro, Carroll, driving his Pinto, passed alongside the parked Camaro and as he drove by he displayed to Mrs. Anderson with his hand a vulgar sign and she responded by shouting obscenities at him. When Carroll reached a point about 50 feet past the rear of the Camaro he stopped and backed the vehicle toward the Camaro on a line which would result in his passing alongside of the Camaro at a distance of about 12 or 15 feet. However, when he arrived near the rear of the Cama-ro he suddenly turned the rear of the vehicle toward the group standing at the rear of the Camaro and collided with Mrs. Bloodworth, Mr. Anderson and Owen. The backing Pinto pinned the legs of Mrs. Bloodworth against the bumper of the Ca-maro seriously injuring her right leg. Mr. Anderson and Owen received minor leg injuries as a result of the collision. Mrs. Anderson observed the approach of the backing Pinto and, suspecting possible aggressive action from Carroll, jumped upon the rear of the Camaro and was not struck by the backing Pinto. She sustained no physical injuries as a result of the incident.

The trial judge in excellent written reasons for judgment found that Carroll intentionally backed the Pinto in the direction of Mrs. Anderson intending to scare her and that he caused her such fright by her near injury that she involuntarily urinated in her pants. The trial judge concluded Mrs. Anderson’s distress was compounded by the serious injury sustained by her longtime friend, Mrs. Bloodworth, and awarded Mrs. Anderson for her emotional disturbance the sum of $1,000.00 in damages against Carroll. The trial judge denied Mrs. Anderson’s recovery against Carroll’s insurer because the Lloyds policy excluded from coverage damages expected and intended by the insured. Since Carroll was then uninsured as to Mrs. Anderson’s damages, the trial judge awarded her a judgment against Phoenix, the uninsured motorist insurer of the Drake Camaro, for the sum of $1,000.00.

The trial judge found the injuries sustained by Owen, Mr. Anderson and Mrs. Bloodworth were not intended by Carroll but were caused by his gross negligence, and were therefore covered by his 5-10-5 Lloyds liability policy.

Because the judgment awarded to Mrs. Bloodworth against Carroll ($42,582.09) far exceeded the coverage on the Pinto the trial judge awarded her a judgment of $5,000.00 against Phoenix on its uninsured coverage on the Camaro which the trial judge found to have a maximum limit as applied to Mrs. Bloodworth of $5,000.00. The trial judge then awarded Mrs. Blood-worth a judgment for $10,000.00 against National Fire which provided Mrs. Blood-worth excess uninsured coverage in the amount of $10,000.00 on a policy covering a vehicle owned by her husband, James F. Bloodworth.

LIABILITY OF LLOYDS

The Lloyds policy contains a provision defining the bodily injury coverage as being for “damage neither expected nor intended from the standpoint of the insured.”

Lloyds contends that Carroll intended to back his car into Mr. Anderson, Owen and Mrs. Bloodworth and therefore the damages which they sustained were intended by Carroll and excluded from coverage.

This provision creates an exclusion of coverage on damage intended by the insured and shall be construed strictly against the insurer and in favor of coverage. Snell v. Stein, 261 La. 358, 259 So.2d 876 (1972); Rushing v. Protective National Ins. Co. of Omaha, 315 So.2d 876 (La.App.3d Cir.1975); Zoller v. State Board of Education, 278 So.2d 868 (La.App. 1st Cir.1973). Pique v. Saia, 450 So.2d 654 (La.1984). The fact the act or conduct of the insured is established as intentional does not activate the exclusion unless the damages are intended since the exclusion requires the damages to be intended. Where the damages that result from the intentional act are only such that an insured would consider there to have been an appreciable risk that they would occur, they are not considered as intentional damages covered by the exclusion. In order for the damages to be intended they must be substantially certain to result from the act of the insured. Bourque v. Duplechin, 331 So.2d 40 (La.App.3d Cir.1976); Rambin v. Wood, 355 So.2d 561 (La.App.3d Cir.1978); Sherwood v. Sepulvado, 362 So.2d 1161 (La.App.2d Cir.1978). See Pique v. Saia, supra.

The evidence establishes that the parking lot of Blue’s was occupied by only a few vehicles at the time Carroll began his backing maneuver and it was therefore unnecessary that the backing maneuver be conducted in the immediate proximity of the plaintiffs standing at the rear of the Cama-ro. There is ample evidence in the record to establish the animosity between Carroll and Mrs. Anderson and of his past violent conduct toward her. The trial judge’s finding that Carroll backed the car into the immediate area where Mrs. Anderson was standing to scare her is therefore supported by the record. Carroll did not appeal and Phoenix, which provided Mrs. Anderson uninsured coverage, does not contend that her damages were not intended by Carroll.

The totality of the evidence establishes the backing maneuver was not one wherein Carroll contemplated that the two vehicles would collide back to back with their bumpers pressing against each other with the bodies of the plaintiffs pressed between them. The backing maneuver was rather one wherein the rear of the Pinto turned and passed parallel and very close to the rear bumper of the Camaro. There is some evidence that at some point the two vehicles may have came into contact with each other. Mr. Anderson testified the bumpers did not touch. He stated the Pinto was not backing real fast and there were skid marks in the gravel at the point where the Pinto struck the plaintiffs. The skid marks establish that Carroll applied his brakes just before or at about the time the Pinto reached the point where plaintiffs were standing behind the Camaro. Dr. Bailey, who treated Mrs. Bloodworth’s leg injury, testified that it was a shearing type injury of the soft tissue of the leg rather than a crushing injury. He stated that no bones were broken and the muscle tissues were only bruised and required no suturing.

There is no evidence that Carroll had any dislike for Owen, Mr. Anderson or Mrs. Bloodworth. The testimony established Mrs. Bloodworth and Carroll were good friends. Under these circumstances there exist no reason why Carroll would intend to cause them bodily injuries. Carroll’s backing maneuver, while unnecessarily dangerous and not slowly made, was not excessively fast as evidenced by the testimony of Phillip Anderson and the fact that Mrs. Anderson had time to avoid the Pinto by climbing upon the Camaro. Carroll belatedly applied the brake. We conclude the physical injuries sustained by plaintiffs were not substantially certain to have occurred by virtue of Carroll’s act since these plaintiffs could have avoided the path of travel of the backing Pinto or Carroll could have applied his brakes in time to have avoided colliding with them. These damages were the result of intentional conduct by Carroll from which he should have concluded that there was an appreciable risk they would occur. These damages caused by extreme reckless conduct are the result of wanton negligence. However, there was no substantial certainty they would occur and for this reason they are not intentional damages excluded from coverage under the policy.

In the cases of Bourque, supra, Rambin, supra, Sherwood, supra, and Pique v. Saia, supra, similar policy exclusions to those contained in the Lloyds policy were found inapplicable to bodily injury damages that occurred as a result of intentional acts of the insured. In all four cases the plaintiffs received from the insured a battery which produced damages which the court found were not substantially certain to result from the act committed by the insured and therefore the damages were not intended by the insured and excluded from the coverage by the exclusion.

Lloyds relies on the following cases to support its contention that the damages sustained were excluded from coverage. Wigginton v. Lumbermens Mutual Casualty Co., 169 So.2d 170 (La.App. 1st Cir.1964); Kipp v. Hurdle, 307 So.2d 125 (La.App. 1st Cir.1974); Areaux v. Maenza, 188 So.2d 633 (La.App. 4th Cir.1966); Monk v. Veillon, 312 So.2d 377 (La.App.3d Cir.1975); Freeman v. Bell, 366 So.2d 197 (La.App.2d Cir.1978); Thibodeaux v. Western World Ins. Co., 391 So.2d 24 (La.App.3d Cir.1980); Tobin v. Williams, 396 So.2d 562 (La.App.3d Cir.1981). We have reviewed these cases and find all of them except Kipp clearly distinguishable from the instant case for the reason the damages sustained by the victim in each case were substantially certain to result from the intentional act of the insured. In Kipp the insured grabbed the victim by the hair of the head and threw her upon the dance floor causing her serious injuries. The court there found the insured must be presumed to intend the consequences of her act and therefore the damages were intended by the insured and excluded from coverage under the policy. We declined to follow Kipp in Sherwood and decline to follow it here. We conclude the rationale of Bourque, Rambin and Sherwood, which require the damages to be substantially certain to follow the act in order to give the insurer the benefit of the exclusion, is more in accord with the rule requiring strict interpretation of exclusion clauses than the rule of Kipp that an insured is presumed to intend the consequences of his act. See also Pique v. Saia, supra.

Lloyds’ assignment of error is without merit.

PHOENIX’ LIABILITY

The Phoenix liability policy covering Drake’s Camaro provides uninsured motorist coverage. Phoenix contends there can be no coverage to Mrs. Anderson and Mrs. Bloodworth for the reason they were not occupying the Camaro at the time they sustained the damages for which Phoenix was cast in judgment.

Since neither of these plaintiffs were the named insured or his relatives residing in his household, the policy only provides them with coverage if they were occupying the Camaro at the time they sustained the damages.

The policy defines occupying as follows: “Occupying means in or on, getting into or out of...”

Actual physical contact with the insured vehicle is construed as being on it and comes within the definition of occupying it for the purpose of coverage under the policy. Smith v. Girley, 260 La. 223, 255 So.2d 748 (1971); Macalusa v. Hartford Acc. & Indem. Co., 343 So.2d 1217 (La.App. 4th Cir.1977); see also Hendricks v. American Employers Insurance Co., 176 So.2d 827 (La.App.2d Cir.1965).

Mrs. Bloodworth testified that she and Mrs. Anderson were leaning against the Camaro as the Pinto backed toward them. This testimony is corroborated by the fact that Mrs. Bloodworth’s leg was pressed against the Camaro bumper by the backing Pinto and by the fact Mrs. Anderson was so close to the Camaro that she was able to escape physical injury by jumping upon it as the Pinto approached.

The trial judge found the plaintiffs were leaning against the Camaro as the accident happened and this finding of fact is fully supported by the record.

The contention that Mrs. Anderson and Mrs. Bloodworth were not occupying the Camaro has no merit.

Phoenix argues that because Mrs. Anderson’s injuries were caused by an intentional assault upon her by Donald Carroll, they were not the result of an accident and not covered by its policy. The Phoenix policy provides: “The bodily injury must be caused by an accident.”

Phoenix relies upon the case of Mangum v. Weigel, 393 So.2d 871 (La.App. 4th Cir.1981) wherein the plaintiff sought to recover from his uninsured motorist insurer for injuries received when he was repeatedly struck in the face by the driver of an uninsured vehicle following a minor collision.

The Mangum court stressed that the accident was over when plaintiff received his injuries as a result of a battery by the defendant which was an intentional tort, and held the injuries were not caused by accident within the terms of the policy. The court stated plaintiffs damages were not caused from an accident which arose out of the use of the defendant’s vehicle which defendant had left in order to commit the battery. The Mangum court distinguished the facts there presented from those in Redden v. Doe, 357 So.2d 632 (La.App. 1st Cir.1978) where plaintiff had recovered from her uninsured motorist insurer for injuries sustained escaping through the broken window of her car which had been intentionally forced into a ditch of water by two cars occupied by persons intent upon robbing the plaintiff. Mangum emphasized the plaintiff's injuries in Redden were related to the accident and not to a subsequent battery performed by the robbers upon the plaintiff.

The court in Redden recognized the plaintiffs collision into the ditch was intentionally caused by the robbers deliberately forcing her off the road, but construed the incident to be an accident as these circumstances applied to the plaintiff.

We believe that the nature and purpose of the uninsured motorist coverage requires that the question of whether or not an injury is accidental must be determined from the victim’s standpoint. From this point of view, although inflicted intentionally, the victim’s injuries result nonetheless from an accident within the meaning of the policy.

We agree with the rationale of Redden v. Doe and find Mrs. Anderson was the victim of an accident covered by the Phoenix policy.

Phoenix contends that Mrs. Anderson’s fright and emotional stress caused by the Pinto backing toward her is not a bodily injury and therefore not covered by its policy. The Phoenix policy provides “Bodily injury means bodily injury, sickness, or disease ... sustained by the insured.”

This definition of bodily injury includes mental anguish, fright, distress and humiliation. Levy v. Duclaux, 324 So.2d 1 (La.App. 4th Cir.1975); Holcomb v. Kincaid, 406 So.2d 646 (La.App.2d Cir.1981).

The trial court found Mrs. Anderson suffered fright to the extent that she involuntarily urinated in her pants. Phoenix contends there is no evidence in the record to support this factual finding but this argument is without merit because we find where Mrs. Anderson testified to these facts.

The trial judge included in his reasons for judgment that Mrs. Anderson’s emotional stress was contributed to by her concern for the injury sustained by her friend, Mrs. Bloodworth. Phoenix correctly contends that one cannot receive damages for mental anguish caused by injury to another person. Steele v. St. Paul Fire & Marine Ins. Co., 371 So.2d 843 (La.App.3d Cir.1979). Our review of the record establishes the fright sustained by Mrs. Anderson caused by fear for her own safety supports the relatively modest award she received. For this reason the fact that the trial judge erroneously included as a factor in making this award Mrs. Anderson’s concern for Mrs. Bloodworth does not justify reversing or decreasing the award.

DOES LOUISIANA LAW APPLY TO THE DETERMINATION OF THE AMOUNT OF PHOENIX’S UNINSURED MOTORIST COVERAGE APPLICABLE TO MRS. BLOOD-WORTH’S DAMAGES

James Drake, owner of the Camaro, was a resident of Georgia. He was on a short visit to Louisiana for the purpose of attending a wedding at the time the accident occurred. He had lived and worked in Louisiana from July to December, 1980. The Camaro was licensed and garaged in Georgia and the Phoenix policy was written and delivered in Georgia. The policy reflects the named insured as:

James P. Drake
3824 N. Cooper Lake Rd.
Smyrna, Georgia

The policy provides $50,000.00 single limit liability coverage and $10,000.00 uninsured motorist coverage for each person with a limit of $20,000.00 for each accident.

Title 33, Chapter 7, Section 11 of the Official Code of Georgia requires minimum uninsured motorist coverage of $10,000.00 per person and $20,000.00 per accident to be included in liability policies issued or delivered in Georgia on vehicles principally garaged or principally used in Georgia, unless the insured rejects the uninsured coverage in writing. The statute provides the insured shall not “be required to issue any coverage for any amount greater than the minimum coverage unless the insured shall request in writing such higher limits.”

The record establishes that James Drake did not reject the minimum limits nor request the higher limits in writing and therefore under Georgia law his uninsured motorist coverage was limited to the minimum required by the Georgia statute and the amount reflected on the face of the policy.

The Georgia statute provides that the uninsured motorist coverage shall be diminished to the extent of the insurance coverage available to an underinsured motorist. The Phoenix policy contains a diminution clause as authorized by the statute.

The trial judge found Georgia law applicable to the Georgia policy and for this reason found Drake’s uninsured motorist coverage applicable to Mrs. Bloodworth’s claim to be $10,000.00 which was then reduced by the diminution clause by the amount of Lloyds’ $5,000.00 coverage, resulting in Mrs. Bloodworth receiving a judgment against Phoenix for only $5,000.00.

Mrs. Bloodworth and National Fire, her excess underinsured motorist insurer, contend the trial judge should have construed the Georgia policy under Louisiana law, which they contend would result in the uninsured motorist coverage on the Drake vehicle being $50,000.00.

Mrs. Bloodworth and National Fire rely upon LSA-R.S. 22:1406 D(l)(a) which requires U.M. coverage to be equal to the liability coverage unless it is rejected in writing by the insured. Drake did not reject in writing the higher limits in the Phoenix policy. Mrs. Bloodworth and National Fire also rely upon LSA-R.S. 22:1406 D(2)(b) which provides an uninsured motor vehicle shall include an insured motor vehicle when the automobile liability insurance on such vehicle is less than the amount of damages suffered by a person entitled to claim uninsured coverage. The diminution clause contained in the Phoenix policy is unenforceable under Louisiana law because it eliminates the underinsu-rance coverage required by 22:1406 D(2)(b). Hebert v. Green, 311 So.2d 223 (La.1975); Earl v. Commercial U. Ins. Co., 391 So.2d 934 (La.App.2d Cir.1980).

A conflict exists between the law of Georgia and the law of Louisiana in that Drake’s U.M. coverage available to Mrs. Bloodworth is limited to $5,000.00 under Georgia law, whereas if Louisiana law is applied, Drake’s U.M. coverage is $50,-000.00.

The trial court applied Georgia law because it found no conflict existed between the Louisiana U.M. statute and the Georgia law because the Louisiana statute by its terms was limited to policies delivered or issued for delivery in this state. While it is true the legislature did not attempt to control the contents of policies issued and delivered out of the state of Louisiana, yet the legislative intent is clearly expressed that U.M. coverage as required by the statute is Louisiana public policy for the protection of victims of injuries in Louisiana accidents caused by the uninsured and underinsured motorist. The greater U.M. protection required by Louisiana statute is clearly in conflict with the lesser U.M. protection required by the Georgia statute. Under similar circumstances a conflict of law situation has been found to exist and the Louisiana U.M. statute has been chosen as the applicable law in the following cases. Sutton v. Langley, 330 So.2d 321 (La.App.2d Cir.1976); Brawner v. Kaufman, 496 F.Supp. 961 (E.D.La.1980); Bell v. State Farm Fire & Cas. Co., 527 F.Supp. 300 (W.D.La.1981); Bell v. State Farm Mut. Auto. Ins. Co., 680 F.2d 435 (5th Cir.1982); Jones v. American Fire-Indem. Ins. Co., 442 So.2d 772 (La.App.2d Cir.1983); Wilson v. State Farm Ins. Co., 448 So.2d 1379 (La.App.2d Cir.1984); Snider v. Kemper Ins. Co., 448 So.2d 1383 (La.App.2d Cir.1984). All of these cases rejected the conflicts of law rule that the law applicable to the interpretation of the contract is the law of the state where the policy was issued and applied the “interest analysis” theory of Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973), to find Louisiana law applicable to the interpretation of the U.M. provisions of foreign insurance contracts covering vehicles involved in Louisiana accidents. The underlying theory being that Louisiana interest in protecting victims on its highways is higher and of greater significance than the interest of the states wherein the policies were written.

Phoenix relies on LSA-C.C. art. 10 as applied in the cases of Abel v. White, 430 So.2d 202 (La.App. 4th Cir.1983); Powell v. Warner, 398 So.2d 22 (La.App. 4th Cir.1981); and Richard v. Beacon Nat. Ins. Co., 442 So.2d 875 (La.App.3d Cir.1983), as requiring the application of Georgia law to the Phoenix policy. These cases hold that the U.M. coverage in foreign insurance policies is to be governed by the law of the state where the policy is written.

Former Louisiana Supreme Court Associate Justice Tate addressed the application of C.C. art. 10 to out of state automobile liability policies in the opinion of the U.S. 5th Circuit Court of Appeal case of Bell v. State Farm Mut. Auto. Ins. Co., 680 F.2d 435 at page 436:

Louisiana Civil Code Article 10 provides that “[t]he form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed or executed,” but it also provides that “the effect of acts passed in one country to have the effect in another country, is regulated by the laws of the country where such acts are to have effect.” In the case of an insurance policy issued in one state on an automobile that within reasonable intention will be operated in interstate travel, the law of the forum state in which an accident occurs may be deemed to be the state in which the policy was intended to have effect and to have the most significant relationship in determining the application of a standard automobile liability policy, Deane v. McGee, supra [261 La. 686], 260 So.2d [669] at 674 [(1972)] (concurring opinion), particularly where the vehicle is principally located in such other state, Restatement of Conflict of Laws 2d, Sections 6, 193 (1971).

We decline to follow Abel, supra, Powell, supra and Richard, supra because we conclude that La.C.C. art. 10 when considered in its entirety does not preclude the application of Louisiana law to the Georgia issued insurance policy. The code article recognizes that Louisiana law can be applied to a foreign insurance contract where it is contemplated that the performance of the contract may necessarily occur in Louisiana where the insured vehicle is being used. In this highly mobile society Phoenix was required to consider that the Drake Camaro was likely to be used in states other than Georgia, including Louisiana, and that the place where the vehicle was used would have a vital interest in applying its law to the use of that vehicle and to the insurance contract issued to cover it.

James Drake had been domiciled in Shreveport slightly over a year before this accident occurred. He had probably returned to the Shreveport area to visit relatives at least one time since he moved to Georgia before his trip to attend the wedding. His Chevrolet Camaro was financed at a Shreveport bank and the bank’s lien was reflected on the face of the Phoenix policy. The accident occurred in the parking lot of a Bossier City night club and involved a Louisiana tortfeasor, and all of the persons injured in the accident were residents of Louisiana. Applying the interest analysis choice of law rule of Jagers v. Royal Indemnity Co., supra, and the application of this rule contained in Sutton v. Langley, supra (writ denied, 332 So.2d 805 (La.1976)), and its progeny, we conclude Louisiana had an interest greater than that of Georgia in determining the interpretation of the Phoenix policy as it applied to the Louisiana accident. Because Drake had not rejected U.M. coverage equal to the $50,000.00 liability coverage of the policy and because the diminution provision of the policy is unenforceable, the U.M. coverage on the Camaro at the time of the accident was the sum of $50,000.00.

QUANTUM

In awarding Michael Owen $200.00 the trial court found his only injuries were abrasions for which he received no medical treatment. The record supports this factual determination.

In awarding Phillip Anderson $323.00 the trial court found his damages were minimal. The trial judge found his testimony was impeached and for that reason the court was unable to determine the extent of Mr. Anderson’s injuries which were attributable to the conduct of Donald Carroll. Mr. Anderson testified that he had never sustained a knee injury before and that his knee was injured in the accident requiring him to be off work for approximately one month and under the active care of a doctor for approximately two months. It was established at trial that he had complained to his employer of a knee injury on November 23, 1981, about three months before the accident here sued upon. He had advised his employer the knee discomfort was the result of an old football injury. When Mr. Anderson was confronted with this information he admitted that he had injured his knee in a rodeo accident in November, 1981. He testified that he lied to his employer when he advised it that the knee discomfort was the result of an old football injury. The trial judge stated, “This court feels it is reasonable to award Anderson the amount of his doctor’s bill dated soon after the accident, i.e. $323.00.”

It is apparent the trial judge did not believe Anderson established this bill was incurred totally for the treatment of the injury sustained by Mr. Anderson in this accident and that it could have been incurred for the treatment of the earlier injury in the rodeo accident. The trial judge simply chose the amount of this bill as the sum which should be awarded to Mr. Anderson because his proof of the extent of his injury was clouded by his established lack of credibility.

There is no evidence that the emotional distress suffered by Mrs. Anderson as a result of the accident had any extended duration.

Mrs. Bloodworth’s soft tissue injury to the leg was extensive and required hospitalization for approximately one month. She sustained no permanent injury to the muscles or bones of the leg and returned to work in about two months. She has no permanent functional disability in the leg though she will require plastic surgery to improve the appearance of the extensive scar on her leg. The trial court awarded her past and future medical expenses, loss of wages and $15,000.00 in general damages.

The quantum award made to each of the appellants reflects no abuse of discretion by the trial judge in determining the amount of each of the awards. We cannot disturb them on appeal. Reck v. Stevens, 373 So.2d 498 (La.1979).

LIABILITY OF NATIONAL FIRE

Because we have concluded that the primary uninsured motorist coverage on the Camaro is adequate to cover the award made by the trial judge to Mrs. Bloodworth, there is no award which can be assessed against the National Fire Insurance Company of Hartford which provided the U.M. coverage on the Bloodworth family automobile which was not involved in the accident. The judgment against National Fire will be reversed and set aside. Mrs. Bloodworth is entitled to a judgment against Phoenix under its underinsured motorist coverage for the total amount of her judgment of $42,582.09, less the $5,000.00 covered by Carroll’s policy with Insured Lloyds.

For the reasons set forth we recast the judgment by deleting the last three paragraphs which read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Jeannie Ray Bloodworth, and against defendants, Donald Buford Carroll, and The Phoenix Insurance Company, in solido, in the amount of $5,000.00, together with legal interest thereon from date of judicial demand until paid;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favpr of plaintiff, Jeannie Ray Bloodworth, and against defendants, Donald Buford Carroll and The National Fire Insurance Company of Hartford, in solido, in the amount of $10,-000.00, together with legal interest thereon from date of judicial demand until paid;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Jeannie Ray Bloodworth, and against defendant, Donald Buford Carroll, in the amount of $22,582.09, together with legal interest thereon from date of judicial demand until paid; and for all costs of these proceedings.

and substitute for the deleted paragraphs the following paragraphs:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment rejecting the demands of Mrs. Jeannie Bloodworth against The National Fire Insurance Company of Hartford.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Jeannie Ray Bloodworth, and against defendants, Donald Buford Carroll, and The Phoenix Insurance Company, in soli-do, in the amount of $37,582.09, together with legal interest thereon from date of judicial demand until paid. Donald Buford Carroll is east for all costs in the trial court.

As AMENDED the judgment is AFFIRMED. Insured Lloyds and The Phoenix Insurance Company are equally cast for all costs on appeal.

      . § 1406 D(l)(a)
      No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits ... (emphasis added)

      . § 1406 D(2)(b)
      For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of an accident, as agreed to by the parties and their insurers or as determined by final adjudication.

      . Art. 10 The form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed or executed.
      But the effect of acts passed in one country to have effect in another country, is regulated by the laws of the country where such acts are to have effect...


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    The FIRST NATIONAL BANK OF SHREVEPORT, Plaintiff-Appellant, v. Ruth May CRAWFORD, Defendant-Appellee.
    No. 16389-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Writ Denied Nov. 9, 1984.

      Blanchard, Walker, O’Quin & Roberts by J. Jay Caraway and L. David Cromwell, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by James Robert Jeter and Bernard S. Johnson, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   HALL, Judge.

Plaintiff, The First National Bank of Shreveport, filed suit against the defendant, Ruth May Crawford, seeking to recover the balance of $2,053,007.68 allegedly due on a promissory note executed by Mrs. Crawford, Maxie G. Howe and Dina C. Howe in the amount of $2,250,000, and for recognition of a mortgage executed by Mrs. Crawford and the Howes affecting certain immovable property located in De-Soto Parish. Plaintiff’s suit was dismissed by the district court on defendant’s exception of nonjoinder of necessary parties but that decision was reversed by this court upon a holding that the Howes, although necessary parties as joint obligors on the note, were not within the jurisdiction of the court because of the exclusive jurisdiction of the bankruptcy court arising out of the Howes’ Chapter 11 bankruptcy proceedings. First Nat. Bank of Shreveport v. Crawford, 426 So.2d 1348 (La.App. 2d Cir.1983). Upon remand defendant answered denying liability and raising several defenses including the contention that the power of attorney under which Dina Crawford Howe, defendant’s daughter, purported to sign the note and mortgage on defendant’s behalf did not give the agent express authority to execute any promissory notes or mortgages on property owned by the defendant for the purpose of securing the Howes’ indebtedness to the bank.

After trial the district court, in written reasons for judgment, found that the action of Mrs. Howe in executing the promissory note and mortgage on behalf of her mother was not for the purpose of managing and preserving her mother’s estate as provided in the power of attorney and that the power of attorney did not authorize Mrs. Howe to execute the note or the mortgage on her mother’s property to secure the loan made by the bank to the Howes in order to salvage the Howes’ floundering dairy business. From a judgment rejecting the bank’s demands the bank appealed. For reasons expressed in this opinion, we affirm the judgment of the district court.

On appeal the bank poses the issues to be considered on appeal as follows:

(1) Did the mandate granted by defendant vest in her daughter an indefinite power as contemplated by Civil Code Article 2995 to perform all acts appearing to the agent to be conducive to the best interest of the principal?

(2) Were the agent’s actions in refinancing an existing loan and mortgage affecting the defendant’s property and mortgaging the defendant’s property to the bank to secure a long-term loan commitment from the bank, within her discretion for the managing of her mother’s estate?

(3) Did defendant’s inaction and silence upon learning of her daughter’s actions amount to a ratification of the acts of her agent?

(4) Was defendant’s estate benefited at the expense of the bank so as to allow the bank recovery from her on the basis of unjust enrichment?

Background Facts

The defendant and her husband owned a tract of land containing approximately 640 acres near Gloster in DeSoto Parish. Upon Mr. Crawford’s death in 1974, Mrs. Crawford was vested with ownership of an undivided one-half interest in the property and her daughter, Mrs. Howe, was vested with ownership of an undivided one-half interest, subject to her mother’s usufruct. Shortly after Mr. Crawford’s death and while Mrs. Crawford was in the hospital, Mrs. Crawford executed a power of attorney naming Mrs. Howe as her agent, granting the agent full and general power to manage, administer, and control the affairs of the principal, and specifically to manage, administer, and control the affairs of the principal in the succession of Mr. Crawford. The agent was expressly authorized to borrow money for the account of the principal and to grant mortgages on real estate as security for any apiount borrowed for and on behalf of the principal for the purpose of and in order to properly care for, maintain, and provide for the comforts and conveniences of the principal, or for the management and preservation of the principal’s estate.

Starting in 1957, Mrs. Howe and her husband operated a dairy farm business, utilizing the Crawford property, an adjoining or nearby tract of approximately 600 acres owned by the Howes, and leased property. Mr. Crawford may have at one time been involved in the dairy farm operation but he was no longer involved in it at the time of his death, and it is perfectly clear from the evidence that Mrs. Crawford took no part in the management of the dairy business and received no benefits from it. The business was operated solely by the Howes.

Mrs. Crawford had assisted the Howes by joining with them in executing notes and mortgages to The Equitable Life Assurance Society of the United States to enable the Howes to borrow money for use in their dairy business. There was in existence in 1980 at the time the events giving rise to this lawsuit took place, a note executed by Mrs. Crawford and the Howes in solido to The Equitable in the amount of $275,000, payable in monthly installments over a long term, which note was secured by a mortgage on the Crawford property. The Howes received the proceeds of The Equitable loan and made the monthly payments on the loan.

The Howes experienced severe financial difficulties in the operation of their dairy farm business. They obtained the services of Ben Vaughan, a dairy farm expert, and largely through his efforts were able to negotiate a $1,800,000 loan commitment from The First National Bank through its vice president and agricultural loan officer, Jess Lloyd. A condition of the loan commitment was that the bank receive as collateral security a first mortgage on the Crawford property, along with other collateral security to be furnished by the Howes including a first mortgage on the'ir property, chattel mortgages on the cattle and equipment, assignments of life insurance, and the like.

A few days prior to the loan closing on January 28, 1980, Mrs. Howe advised the attorney handling the transaction, who is not the bank’s counsel in this lawsuit, that she would like to sign the loan instruments as agent for her mother under the 1974 power of attorney so her mother would not have to come to town for the closing. The attorney examined the power of attorney, approved it, and the collateral mortgage and note were prepared accordingly. As found by the trial court, the note and mortgage were executed by Mrs. Howe as agent for Mrs. Crawford without Mrs. Crawford’s knowledge or consent. Mrs. Crawford testified she knew nothing about the First National Bank transaction until this suit was filed. Mrs. Howe testified she told her mother something about it at sometime, maybe a month, after the closing but her testimony as to what she told her mother was very vague and indefinite.

It is perfectly clear from the evidence that the loan was made by the bank to the Howes for the refinancing and operation of the Howes’ dairy business and that the loan proceeds were disbursed for the Howes’ account. The hand notes representing the indebtedness owed to the bank for which the mortgage note was pledged as collateral were signed by the Howes, and not by Mrs. Crawford or on her behalf. The act of pledge was signed by the Howes. Approximately $1,600,000 was disbursed to various creditors of the Howes and to the Howes for the purchase of cows, equipment, improvement of their dairy barn, and the like. One of the Howes’ creditors paid out of the loan proceeds was The Equitable Life Assurance Society of the United States which had the existing mortgage on the Crawford property. The amount paid to The Equitable was $279,000 and The Equitable mortgage was canceled. Additional disbursements were later made to the Howes under the line of credit until the total amount owed the bank exceeded $2,000,000.

The Howes were never able to generate enough cash flow in their business to begin making the contemplated monthly payments to the bank. In the early part of 1981 the Howes filed a Chapter 11 bankruptcy proceeding. Thereafter the * bank filed this suit against Mrs. Crawford. In the bankruptcy proceeding the tract of land owned by the Howes which was mortgaged to the bank was adjudicated to the bank for a credit against the indebtedness of over $900,000. Payments on the indebtedness are being made to the bank under the bankruptcy plan. The balance on the indebtedness at the time of trial was approximately $1,073,000.

The Power of Attorney

The power of attorney executed by Mrs. Crawford several years prior to the First National Bank transaction does not purport to authorize the agent, Mrs. Howe, to mortgage the principal’s property as collateral security for a loan made to the agent and her husband.

Particularly pertinent to the issues involved in this case are LSA-C.C. Arts. 2995, 2996, and 2997 dealing with mandate:

“Art. 2995. It may vest an indefinite power to do whatever may appear conducive to the interest of the principal, or it may restrict the power given to the doing of what is specified in the procuration.”
“Art. 2996. A mandate conceived in general terms, confers only a power of administration.
“If it be necessary to alienate or give a mortgage, or do any other act of ownership, the power must be express.”
“Art. 2997. Thus the power must be express and special for the following purposes:
“To sell or to buy.
“To incumber or hypothecate.
“To accept or reject a succession.
“To contract a loan or acknowledge a debt.
“To draw or indorse bills of exchange or promissory notes.
“To compromise or refer a matter to arbitration.
“To make a transaction in matters of litigation; and in general where things to be done are not merely acts of administration, or such as facilitate such acts.”

As to the general powers and some of the express powers granted to the agent in the power of attorney executed by Mrs. Crawford, the mandate is “indefinite”, authorizing the agent “to do whatever may appear conducive to the interest of the principal.” As to the express powers to borrow money and to mortgage property, the mandate is restricted “to the doing of what is specified in the procuration.”

The instrument authorizes the agent “to pay all debts due and owing by the principal and to expend any moneys appearing proper in her discretion for the care, maintenance and comfort of the principal and for the purpose of managing and preserving her estate; and for such purposes said agent may borrow moneys for the account of the principal and expend the same for any such purposes.” The agent is authorized to grant oil, gas, and mineral leases covering real estate owned by the principal, and “to buy, sell, exchange, rent, lease and let, and otherwise to manage, sell, dispose of or affect any such real estate, all to be upon such terms and conditions as may appear proper in the discretion of said agent.” The instrument authorizes the agent to “grant mortgages on such real estate as security for any amount borrowed for and on behalf of the principal in order to properly care for, maintain and provide for the comforts and conveniences of the principal, or for the management and preservation of the principal’s estate.” (Emphasis supplied)

It is clear from the specific and express language of the mandate that the power of the agent to mortgage property of the principal is limited and restricted to granting mortgages as security for amounts borrowed “for the account of the principal” and “for and on behalf of the principal.” In this case money' was not borrowed by or for the principal. The principal did not contract a loan from the bank. The loan from the bank was to the agent and her husband, the Howes, and not to Mrs. Crawford, the principal. The collateral note and mortgage executed by the agent on behalf of Mrs. Crawford was simply security for the loan made by the bank to the Howes. That the loan was made to the Howes and not to Mrs. Crawford is evidenced by the testimony of Vaughan and Loyd as to negotiations between the bank and the Howes and that the mortgage of the Crawford property was required by the bank as collateral security, by the fact that only the Howes signed the hand notes representing the indebtedness and the pledge agreement, and by the fact that the money loaned was disbursed under the bank’s supervision to pay indebtedness owed by the Howes and for operating capital in the Howes’ business.

In Buckley v. Woodlawn Development Corporation, 233 La. 662, 98 So.2d 92, 98 (1957) the court held:

“ 'Whoever deals with an agent is put on his guard by the very fact and does so at his risk. It is his right and duty to inquire into and ascertain the nature and extent of the powers of the agent and to determine whether the act or contract about to be consummated comes within the province of the agency and will or not bind the principal.
“ ‘If the power exhibited is sufficient, the principal will not be permitted to gainsay the acts of his representative, but if it is not, he is warranted in repudiating them.’ Chaffe v. Stubbs, 37 La. Ann. 656; See, Natchitoches Motor Co., Inc., v. Campbell, 17 La.App. 425, 136 So. 133.

Here, the power of attorney does not grant the agent the power to mortgage property of the principal to secure the payment of money borrowed by the agent and her husband from the bank. Such act was not within the province and power of the agent and is not binding on the principal. Since the power exhibited in the instrument was not sufficient to authorize the transaction, the principal is warranted in repudiating it.

The bank argues that the obtaining of the loan from the bank and the mortgaging of Mrs. Crawford’s property by her agent was conducive to the interest of the principal and was done in management and preservation of the principal’s estate. It is argued that the existing Equitable mortgage on the Crawford property could not have been repaid if the Howes’ business failed, exposing Mrs. Crawford’s interest in the property to foreclosure, and that the loan arrangement with the bank offered the best and most prudent prospect of preserving the property. The bank urges that at the time the loan was consummated and the mortgage granted, the actions of the agent were done in good faith pursuant to the agent’s broad and unlimited discretion to borrow money arid mortgage property for the management and preservation of the principal’s estate. Citing Weinhardt v. Weinhardt, 214 So.2d 254 (La.App. 4th Cir.1968), writ refused, 253 La. 57, 216 So.2d 305 (1968), the bank argues that an agent with indefinite authority who acts with good intentions in exercising such discretionary authority is not liable to the principal even though the discretionary acts may later prove to be unwise or ill advised; a fortiori, a third party dealing with the agent is protected from the principal’s avoidance of obligations incurred by the agent in the exercise of the agent’s discretion.

The first answer to these arguments is that regardless of whether the agent’s actions could be viewed as being for the purpose of managing and preserving the principal’s estate, the power of attorney does not authorize the action taken as previously discussed.

Secondly, the facts of the transaction, as known to the bank, in no way support a conclusion from the viewpoint of the bank that the granting of a $2,250,000 mortgage to the bank on the Crawford property to secure a loan to the agent, with only a portion of the loan proceeds used to pay the $275,000 Equitable mortgage, was an act in preservation or management of Mrs. Crawford’s estate. There was no proof that the Equitable mortgage was past due or in imminent danger of foreclosure or could not otherwise be satisfied. Payment of the Equitable mortgage was obviously done to discharge one of the Howes’ debts, which were being consolidated, and to provide the bank with a first mortgage on the Crawford property. The Equitable mortgage was paid for the benefit of the borrower and the lender and not to manage or preserve the estate of Mrs. Crawford.

The bank also urges that the power of attorney grants to the agent indefinite discretionary authority to “affect” the property of the principal. Whether the term “affect” might ordinarily include “mortgage” or “incumber” need not be determined; whatever authority is granted in this instrument to “affect” property must give way to the more specific, express, but limited authority to mortgage property as specifically set forth in the instrument.

Since the power of attorney did not authorize the agent to execute a collateral mortgage and note to secure a debt incurred by the agent and since the mortgage of the principal’s property was not done for the management or preservation of the principal's estate, the agent’s act is not binding on the principal. Insofar as the mortgage purports to affect Mrs. Crawford’s interest in the property mortgaged, it is voidable and of no effect.

Ratification

The bank argues that Mrs. Crawford, by her silence and inaction after being informed of the bank transaction, ratified the action of her agent in executing the note and mortgage, and is bound thereby regardless of the agent’s original authority.

The concept of ratification by a principal of an agent's unauthorized acts is recognized in two articles of the Civil Code:

LSA-C.C. Art. 3010:
“The attorney can not go beyond the limits of his procuration; whatever he does exceeding his power is null and void with regard to the principal, unless ratified by the latter, and the attorney is alone bound by it in his individual capacity.”
LSA-C.C. Art. 3021:
“The principal is bound to execute the engagements contracted by the attorney, conformably to the power confided to him.
“For anything further he is not bound, except in so far as he has expressly ratified it.”

The applicable principles are well expressed in Bamber Contractors v. Morrison Engineering, 385 So.2d 327 (La.App. 1st Cir.1980):

“Ratification, in the law of agency, is the adoption by one person of an act done on his behalf by another without authority. Ratification amounts to a substitute for prior authority. Ledoux v. Old Republic Life Insurance Company, 233 So.2d 731 (La.App. 3rd Cir.1970), writ refused 256 La. 372, 236 So.2d 501 (1970). The burden of proving ratification is on the party asserting it, Tyson v. Robinson, 329 So.2d 781 (La.App. 2nd Cir.1976), and to find ratification of an unauthorized act, the facts must indicate a clear and absolute intent to ratify the act, and no intent will be inferred when the alleged ratification can be explained otherwise. Nationwide Finance Co. of Gretna, Inc. v. Pitre, 243 So.2d 326 (La.App. 4th Cir.1971). Ratification will occur when the principal, knowing of the contract, does not repudiate it but accepts its benefits. Gallioto v. Trapani, 238 La. 625, 116 So.2d 273 (1959); Ledoux, supra.”

The bank did not prove by a preponderance of the evidence that Mrs. Crawford knew and understood what her agent had done in this case. Mrs. Crawford denied knowing anything about the transaction until this suit was filed. Mrs. Howe’s testimony was vague and indefinite as to what she told her mother about the transaction and when she told her. A clear intent to ratify the collateral note and mortgage cannot be inferred from the facts of this case. Ratification was not established.

Unjust Enrichment

The bank urges in the alternative that it should be allowed recovery from the defendant because her estate would otherwise be unjustly enriched at the expense of the bank. It is argued that Mrs. Crawford was enriched by reason of the $275,000 Equitable mortgage being paid and the expenditure of $100,000 for improvements to the dairy barn located on the Crawford property, and that the bank was impoverished to that extent without compensation from Mrs. Crawford.

An action for unjust enrichment or actio de in rem verso is founded upon the equitable principle embodied in LSA-C.C. Arts. 21 and 1965 that no one should be enriched at the expense of another. To successfully invoke the action there must be: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) an absence of justification or cause for the enrichment and impoverishment; and (5) no other remedy at law. Edmonston v. A-Second Mortgage Co. of Slidell, Inc., 289 So.2d 116 (La.1974); Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

If it can be said that Mrs. Crawford was enriched by payment of the Equitable loan for which she was obligated in solido with the Howes, the bank was impoverished by reason of its funds being used to pay the Equitable loan without corresponding consideration, and that there is a connection between the enrichment and the impoverishment, the action must nevertheless fail because there was justification or cause for the enrichment and impoverishment.

The enrichment is justified if it is the result of, or finds its explanation in, the terms of a valid juridical act between the impoverishee and the enrichee or between a third party and the enrichee. Edmonston v. A-Second Mortgage Co. of Slidell, Inc., supra. Legal cause or justification exists where there is a lawful contract or provision of law intended to permit the enrichment or to prevent the impoverishment or to bar attack on the enrichment or the impoverishment. See Tate, The Louisiana Action for Unjustified Enrichment, 50 Tul.L.Rev. 883 (1976) and 51 Tul.L.Rev. 447. An enrichment has legal justification when it flows from the proper application of a rule of law or contractual provision. G. Woodward Jackson Co., Inc. v. Crispens, 414 So.2d 855 (La.App. 4th Cir.1982).

Here, the payment of the Equitable loan by the Howes with part of the proceeds of their loan from the bank and the resulting benefit to or enrichment of Mrs. Crawford was justified by reason of the Howes’ obligations under the Equitable note and mortgage for which they were obligated in soli-do with Mrs. Crawford, and the provisions of LSA-C.C. Art. 2106. Article 2106 provides:

“If the affair for which the debt has been contracted in solido, concern only one of the co-obligors in solido, that one is liable for the whole debt towards the other codebtors, who, with regard to him, are considered only as his securities.”

The proceeds of the Equitable loan were received by the Howes. The Equitable debt contracted in solido with Mrs. Crawford concerned only the Howes and they were liable for the whole debt to Mrs. Crawford who, as between the codebtors, was considered only as the Howes’ surety.

Under the juridical act or contract (the Equitable note and mortgage) between the enrichee (Mrs. Crawford) and the third party (the Howes) and the provisions of law applicable thereto (LSA-C.C. Art. 2106), the third party was liable to the enrichee for the payment of the debt. There was legal cause or justification for the satisfaction of the Howes’ obligation to Mrs. Crawford and to Equitable out of the proceeds of the loan to the Howes from the bank, just as there was legal cause or justification for payment of other obligations owed by the Howes. The bank is no more entitled to recover from Mrs. Crawford than it is from Equitable or any other creditor or obligee of the Howes who received payment from the Howes out of the loan proceeds.

The evidence does not support the bank’s contention that $100,000 of the loan proceeds was used to make improvements to the dairy barn located on the Crawford property. There was testimony that some improvements to the barn were made, but the extent and value thereof, or the benefit to Mrs. Crawford, was not established. The testimony is not clear, but the $100,000 figure mentioned seems to refer to dairy equipment which may have been located in the barn. The bank failed to prove that defendant was enriched in this respect.

Conclusion and Decree

Because of the conclusions reached in this opinion on the issues considered which result in affirmance of the judgment rejecting the plaintiff’s demands, it is unnecessary to consider the other defenses raised by defendant.

For the reasons assigned, the judgment of the district court is affirmed at the cost of plaintiff-appellant.

Affirmed.


author: NORRIS, Judge.

text:
    James JORDAN, Appellee, v. SOUTHERN NATURAL GAS COMPANY and Home Insurance Company, Appellants.
    No. 16399-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Culpepper, Teat, Caldwell & Avery by Bobby L. Culpepper, Jonesboro, for appel-lee.
    Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for appellants.
    Before HALL, MARVIN and NORRIS, JJ.
   NORRIS, Judge.

Southern Natural Gas Company and Home Insurance Company appeal a judgment awarding worker’s compensation benefits for total and permanent disability and penalties. The pivotal issue presented by this appeal is whether a claimant who has a disabling mental condition caused by job conditions and more particularly a job transfer comes within the contemplation of the Louisiana Worker’s Compensation Act, specifically the provisions of La.R.S. 23:1021(1) and (6).

James Jordan filed a petition for worker’s compensation benefits alleging that on March 27, 1981 he was employed by Southern Natural Gas Company when he became disabled. Specifically, he alleged:

That petitioner was required to work under stressful conditions which caused him to experience stomach trouble, chest pains and depression and other related problems.

These symptoms were further alleged to be work-related.

Defendants answered the petition generally denying its allegations. Thereafter, defendants filed an exception of no cause of action claiming that the petition did not state a cause of action because Jordan did not allege that he suffered a “physical injury” as a result of an accident within the contemplation of the Louisiana Worker’s Compensation Act and more particularly that he did not show that a particular incident caused him an injury by violence to the physical structure of his body resulting in the alleged psychological disability.

Jordan amended his original petition to reword the above quoted paragraph to read:

That on or about the 27th day of March, 1981, the petitioner was backfilling ditches, undoing pipes, digging ditches, climbing in and out of ditches, when he acci-dentaly (sic) injured himself and experienced stomach trouble, chest pains, and depression, and other related problems.

After trial on the merits, in written reasons, the trial court found that Jordan was totally and permanently disabled thereby entitling him to compensation benefits, stating:

* * * However, in this case, the medical testimony (from the first general practitioner who saw him to the last psychiatrist who saw him) agrees that plaintiff has a disabling mental condition that manifested itself in serious physical problems. The only question is whether that condition is job connected.
The Court concludes that plaintiff is (and from March 27, 1981, has been) disabled from performing any type of work. Plaintiffs disability is an emotional or mental one, caused by stress and anxiety he encountered when he began to perform heavy, physical work after having done less physically demanding work for many years. The Court, therefore, feels plaintiffs present disability is job related. [Emphasis added.]

Accordingly, the trial court awarded worker’s compensation benefits for total and permanent disability, penalties for arbitrary and capricious refusal to pay benefits, medical expenses, costs, and $5000 attorney’s fees.

Our review of the evidence presented at trial reveals the following context facts. Jordan, who had been employed by Southern Natural Gas for 24 years, had been the operator of its dehydration plant in Bien-ville Parish from 1966 until one week prior to March 21, 1981. One week prior to that date, Jordan was informed by his supervisor that he was being transferred from the dehydration plant to a maintenance gang which worked out of Ruston. Jordan worked at the dehydration plant for the remainder of the week following the notification and took a week’s vacation. On March 21,1981, Jordan reported to work on the maintenance gang which was at the time laying a pipeline in Bienville Parish near the location of Jordan’s home. Despite the location of the pipeline under construction, Jordan was required by his employer to drive to Ruston "each morning and then ride back with the gang to the job site. During this week, Jordan performed regular maintenance pipeline crew work, e.g., moving skids, shoveling, and connecting, doping and testing pipe. Admittedly, this type of work was of a more physical nature than the duties which he had formerly performed as operator of the dehydration plant.

It is uncontradicted that the fact of his being transferred caused Jordan great emotional stress in that he felt the move was a “demotion.” This stress was further heightened by the fact that the company required him to travel to Ruston prior to reporting to the job site which was near his home, his requests to the contrary notwithstanding. According to the testimony of Jordan, on either Wednesday or Thursday of the week in question he experienced cramping in his stomach, pain in his chest, side, leg and left shoulder and some dizziness. Jordan further testified that at some point during the week he was forced to lie across the hood of a truck to rest and reported these symptoms to Larry Penuell. Although Jordan worked from Monday to Friday of that week, he called his superintendent, Billy Taylor, on Saturday informing Taylor of his stomach problems. Jordan has not worked since.

Taylor’s testimony is corroborative of Jordan’s transfer, his having worked for a week, and his phone call on Saturday with complaints of stomach problems. However, Taylor’s testimony is further indicative that Jordan never reported any physical injury which occurred on the job.

Crew leader, Larry Penuell’s testimony is to the effect that while Jordan did complain that his stomach was “growling,” he did not relate this complaint to any job activity. Penuell had no recollection of any incident when Jordan had to rest by lying across the hood of a truck.

There is no testimony that Jordan ever complained to any of his co-workers or his employer of his having suffered any injury to his body which was job related. The extent of the testimony of the co-workers of Jordan relating to his difficulties is that there was some general discussion of Jordan’s having had stomach problems and a complaint of stomach problems on his last day of work around the lunch break. In fact, a review of this record reveals that prior to the filing of the exception of no cause of action, Jordan did not contend that his alleged disabling condition was a result of any accidental job-related injury or that it was even caused by any physical exertion connected with his work on the maintenance gang.

It is obvious and clear from the extensive medical evidence [based to a great extent on the revelations of Jordan] and the testimony of Jordan himself that the cause of Jordan’s disability was the emotional impact of his transfer from the position of operator of the dehydration plant to the maintenance gang.

Dr. John S. Robinson’s report states that Jordan talked excessively about his work, was preoccupied with his job and was worried about not only its stresses but also his various hostilities toward certain individuals and his employer. Dr. Robinson’s impression was that “Mr. Jordan has a severe psychiatric problem complicated by hypertension and gastritis.”

The report of Dr. J.V. Jones opins that the majority of Jordan’s problems are psychosomatic and job related in that he was “brought down” from a management position to working on the gang, which transfer or “demotion” was greatly affecting him. It was his impression that Jordan exhibited much anxiety about returning to work and that this anxiety probably caused the abdominal complaints.

Dr. Charles W. Armistead, a psychiatrist and neurologist, was of the opinion that Jordan’s transfer to the maintenance gang was an “emotional shock to him”, causing him from that time to change and have dizzy spells and stomach cramping. Dr. Armistead’s diagnosis was that Jordan had a severe, neuortic, depressive illness.

Dr. Paul Ware, a psychiatrist who also evaluated Jordan, opined that Jordan suffered from a paranoid personality adaptation of a standing duration that existed prior to his complaints at work. This disorder caused him to become overwhelmed when faced with several “stressors” or conflicts. These conflicts were identified as being a property dispute between Jordan’s family and his employer and the transfer itself. It was Dr. Ware’s conclusion that Jordan’s present problems were related to his previously existing psychiatric disease rather than to any overwhelming stresses caused by his work situation.

Dr. Donald K: Gucker, a psychologist, performed psychological testing on Jordan for Dr. Ware. This evaluation reveals that on the date of the evaluation, Jordan was anxious to relate details concerning his transfer but became resistant when Gucker attempted to administer psychological tests stating that he did not feel able to take the tests, he was under much stress and strain, and he was beginning to cramp and experience physical discomfort. However, Dr. Gucker noted “[i]n my extensive experience in doing diagnostic evaluations with chronic pain patients they invariably display external indicators of pain by their body position, movement of muscles, and none of these usual indications of pain were noted in observing this patient.” It was further noted that after Jordan talked with his attorney, he “seemed to feel recovered enough to cooperate and take the tests, although under some protests.” The results of Dr. Gucker’s evaluation were considered by Dr. Ware in arriving at his ultimate conclusions.

Jordan’s treating physician was Dr. W.A. McBride, a psychiatrist whom he consulted from June 1, 1981 until the trial. Dr. McBride testified that Jordan complained of feeling depressed relating the transfer itself as the incident that brought about his problems. Dr. McBride testified that soon after being advised of the transfer Jordan developed cramping in his stomach, and feelings of being depressed, lost value and an inability to cope with life. Jordan’s physical complaints as described, were opined to be consistent with the development of psychophysiological manifestations. The long term anxiety caused hypertension and stomach cramps because Jordan could not “stomach” the way he felt that the company had mistreated him. Dr. McBride prescribed physical activity as an important part of Jordan’s treatment. However, Jordan’s response was that he was afraid of doing an amount of physical work commensurate with his ability because the company would take that as an indication that he could work despite the fact that Dr. McBride had informed him that his problem was psychological rather than physical. It was Dr. McBride’s final opinion that Jordan was disabled from substantial gainful employment because he suffered from depression and anxiety, obviously believing this disability to be “job-related” based on Jordan’s subjective determination that he had been demoted as a result of the transfer and his resulting loss of self value.

Jordan’s testimony is devoid of any injury that he suffered while on the job which resulted in his physical complaints. By deposition, he admits that he had no accident on the job and attributes his condition to the “long tired out hours and straining and stress and blow that I got when all this happened.” His trial testimony obviously further admits that the referred to “blow” that brought about his problems was the emotional impact of the transfer coupled with his feelings that he was being mistreated by his employer.

Thus, the record illumes the obvious— the emotional shock of the transfer, superimposed upon Jordan’s land dispute with his employer and his mother’s death, caused him acute anxiety and depression. The anxiety and depression manifested themselves in physical symptoms.

Accordingly, the question, simply stated, becomes whether or not this factual situation falls within the contemplated coverage of the worker’s compensation act; that is, did Jordan suffer an “accident” or “injury” within the ‘contemplation of the act, particularly, La.R.S. 23:1021(1) and (6) which provide:

As used in this Chapter, unless the context clearly indicates otherwise, the following terms shall be given the meaning ascribed to them in this section: (1) “Accident” means an unexpected or unforseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.
(6) “Injury” and “personal injuries” include only injuries by violence to he physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease of derangement, however caused or contacted. [Emphasis added.]

Under the provisions of the act, worker’s compensation is premised on the traditional concept of “personal injury by accident arising out of and in the course of ... employment.” La.R.S. 23:1031. Our research has revealed no case where compensation benefits have been granted to a claimant solely because of a mental disorder caused by job conditions. But see and compare Taquino v. Sears, Roebuck and Co., 438 So.2d 625 (La.App. 4th Cir.1983).

However, mental disabilities have been held to be compensable under the act when certain circumstances are present. See Faucheux v. Hooker Chemical Corp., 440 So.2d 1377 (La.App. 5th Cir.1983) and the cases cited therein. This condition must be proven as in any other disabling injury, by a preponderance of the evidence. Such a condition must not only be shown to exist but also it must be shown that the condition was causally related to a work related accident. Faucheux v. Hooker Chemical Corp., supra; Andrus v. Rimmer and Garrett, Inc., 316 So.2d 433 (La.App. 3d Cir.1975). Therefore, it is clear under the present state of the law that when a plaintiff develops a disabling anxiety syndrome, traumatic neurosis, or other mental disorder as a result of a work related physical injury, he can recover compensation benefits even if he has recovered physically from the injury. The rationale behind such recovery is that nervousness, neurosis, or emotional disturbances, supe-rinduced by the worker having suffered an injury, can be just as devastating to the ability to return to work as physical or anatomical injuries. Faucheux v. Hooker Chemical Corp., supra. However, when a claimant seeks benefits for a neurotic or mental disability such as a traumatic neurosis, the court must proceed with extreme caution and exercise extreme care in view of the nebulous characteristics of such a condition and the possibility of the symptoms being easily feigned. The evidence in cases of this nature should be scrutinized carefully and every precaution taken to protect employers and insurers against unjustified claims because of alleged mental affliction. Andrus v. Rimmer & Garrett, Inc., supra, and cases cited therein.

It is equally clear that injuries which occur on the job because of emotional shock, fright or stress, are considered to come within the ambit of the act and are compensable. Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972). The Ferguson Court resolved a worker’s compensation claim which arose when the employee had a stroke after an argument with his employer over the amount of his paycheck in favor of the employee. It was undisputed that the stroke was caused by emotional shock or excitement. In reversing its earlier position in Danziger v. Employers Mutual Liability Insurance Company of Wisconsin, 245 La. 33, 156 So.2d 468 (1963), the court held that the employee had suffered an injury arising out of the course of his employment because he suffered “violence to the physical structure of the body” without which he would not have been paralyzed, the injury was accidental because it was unexpected and unforeseen, it happened suddenly and violently, and it produced at the time objective symptoms of injury. The Ferguson Court found no reason to deny recovery in a case where the injury occurred because of emotional shock, fright or stress. Accordingly, where a worker suffers a heart attack or a stroke caused by extraordinary mental or emotional exertion, as opposed to ordinary physical exertion, he is covered under the worker’s compensation act. See McDonald v. International Paper Co., 406 So.2d 582 (La.1981); Lonzo v. Town of Marksville, 430 So.2d 1088 (La.App. 3d Cir.1983); Cook v. Marshall Brothers Lincoln-Mercury, Inc., 427 So.2d 655 (La.App. 5th Cir.1983); Small v. J.C. Penney, Inc., 367 So.2d 1277 (La.App. 3d Cir.1979).

However, we consider both of these lines of jurisprudence to be factually distinguishable from the instant case where we have a claimant who has suffered no job related physical injury or damage to any physical structure of his body but rather has solely suffered from mental problems caused by job condition and which mental condition has manifested itself in physical symptoms resulting in a disabling condition.

In attempting to resolve the instant issue, we have found cases which are anala-gous and instructive in arriving at a solution.

The claimant in Rachal v. Tennessee Gas Pipeline Co., 308 So.2d 459 (La.App. 3d Cir.1975), attempted to extend the rationale of Ferguson by attempting to show an “accidental injury” by way of emotional shock or excitement resulting from his job transfer and reclassification. That plaintiff was employed by a pipeline company for 21 years as a clerk-typist and field accountant. Much of his job responsibility involved working in the main office of the company although periodically he was assigned to follow construction projects outside that office. While on a construction assignment, plaintiff received a phone call from his superior informing him that he was being transferred back to the main office and being reclassified to a position below the one held by him at that time. This turn of events caused the plaintiff much consternation, frustration, and stress. His consultation with a physician revealed that he was suffering from hypertension or high blood pressure. Following this transfer, plaintiff remained in the employment of the company and was continually treated by numerous doctors for high blood pressure. It was eventually suggested by his physicians that he discontinue working until his blood pressure could be stabilized. The Rachal Court construed the worker’s compensation law to require that a claimant receiving benefits thereunder receive a personal injury as a result of an accident arising out of and in the course and scope of his employment and concluded that Ferguson and its progeny did not eliminate the necessity of showing such an accident in order to fall within the provisions of the act because the Ferguson Court expressly found that the stroke due to emotional shock was the job connected accidental injury. It was the opinion of the court that the plaintiffs worry, frustration with his job, work load and geographical movements with the company were proven to have kept his blood pressure elevated, that these conditions did not constitute an “accident” as that term is defined in the statutes and explained in the jurisprudence.

This court was called upon to determine whether a claimant had suffered an injury or personal injury within the ambit of the compensation act in Franklin v. Complete Auto Transit Co., 397 So.2d 60 (La.App. 2d Cir.1981). In Franklin, the claimant was employed as a truck driver. In 1975 or 1976, his truck collided with an automobile which was driven into his path and the driver of the automobile was killed. Additionally, the driver’s child passenger suffered permanent brain damage. In late 1977, in the same area on the same highway, the claimant had to drive his truck off the highway and into a ditch to avoid colliding with another automobile which also drove into his path. It was claimed that as a result of the first accident psychological upset and anxiety were sustained but that plaintiff had managed to continue working. It was further claimed that the 1977 incident triggered, aggravated and intensified the anxiety of the first accident causing the claimant to become extremely depressed, have nightmares, and develop an uncontrollable fear of having another accident. Two psychiatrists opined the claimant to be disabled from driving a truck and related the disability to the fatal accident and the later incident. Therein, we stated:

* * * the crucial issue is whether this claimant suffered an injury or personal injury within the meaning of the law when he fails to mention in his testimony that he was injured by violence to the physical structure of his body in the 1977 incident.
The employee’s cause of action under the workers’ compensation law is expressed in § 1031 and § 1221:
“If any employee ... receives personal injury by accident arising out of and in the course and scope of his employment, his employer shall pay ...” (§1031)
“Compensation shall be paid ... in accordance with the following schedule of payments:
“(1) For injury producing temporary total disability ...
“(2) For injury producing permanent total disability ...
“(3) For injury producing partial disability ...” (§ 1221)
Emphasis supplied.
The terms injury and personal injury have been legislatively defined in § 1021(6):
“Injury and personal injuries include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease of derangement, however caused or construed.”
Emphasis supplied.
In allowing benefits for psychological disability such as anxiety conversion reactions (neuorsis) following the healing of a physical injury, our courts have effectively followed the legislative definition of § 1021(6). In such cases, the neurosis is a [mental] disease that naturally results from a physical injury. Thus where the claimant does not show that a particular incident caused him an injury by violence to the physical structure of his body, a psychological disability resulting from the incident, however disabling, is not within the statutory meaning of injury-personal injury. We are expressly admonished by the legislature not to construe the definition of injury-personal injury to include any other disease or derangement, however caused or contracted. § 1021 supra. The mental disease or derangement must naturally result from and be causally related to injury by violence to the physical structure of the body, and not from other causes.
Larson observes that while some jurisdictions permit recovery in these “mental-mental cases”, as distinguished from “physical-mental” cases, Louisiana is among the substantial minority of states which do not provide for recovery. See Larson, Workmen’s Compensation Law, § 42.23 at p. 7-624. Louisiana, of course, recognizes Larson’s “physical-mental” distinction and, as we have observed, allows recovery for mental disorder following a physical injury.
Under the circumstances shown, claimant’s relief must come from the Legislature and not the courts. * ⅜ * [Footnotes omitted.]

Franklin was cited with approval in Sutherland v. Time Saver Stores, Inc., 428 So.2d 972 (La.App. 1st Cir.1983). In Sutherland, the claimant was employed in a Time Saver Convenience Store as a cashier when it was robbed. After the robbery, the perpetrator of the crime led the claimant out of the store by placing his hand or a knife on her neck and ordered her to disrobe. Before she was fully undressed, the police arrived and the attacker fled the scene. Examination by a physician revealed that she had suffered no physical injuries. The appellate court concluded that under the facts of this case, the claimant had suffered no injury within the meaning of the worker’s compensation laws, stating:

Though Louisiana is in the minority, it is the law of ⅛⅛- state, from which we are not ready to depart, that in order to recover in worker’s compensation for a mental disability there must first exist a physical detriment as a causative or contributory factor. In other words, there must exist some objective symptoms of injury, either at the time of the incident or subsequent thereto, which naturally result from violence to the physical structure of the body. Franklin v. Complete Auto Transit Co., 397 So.2d 60 (La.App. 2nd Cir.1981). When the legislature employed the “objective symptoms of injury” terminology in the definitional provisions of the worker’s compensation statutes, it envisioned a situation where only observable physical symptoms of injury could result in coverage. Symptoms exclusively within the subjective mindset of the plaintiff will not satisfy the requirements of the statute. When LSA-R.S. 23 § 1021(1) and (6) are read in para materia, one can see that the legislature intended to compensate only those workers who could demonstrate objective evidence of violence to the physical structure of the body. Franklin; see also, Davis v. St. Paul Fire & Marine Insurance Company, 409 So.2d 288 (La.App. 1st Cir.1981), and Larson, Workmen’s Compensation Law, § 42.23 at page 7-428 n. 82 (Supp.1982). [Emphasis added.]

Based on the court’s interpretation of the current state of the worker’s compensation law, it was concluded that the relevant statutes require objective symptoms of injury to the physical structure of the body and that as a matter of current Louisiana compensation law, the defendants were entitled to a summary judgment as a matter of law.

To the contrary, Taquino v. Sears, Roebuck and Co., supra, appears to hold that an alleged emotional injury claim absent any physical injury claim in a worker’s compensation may be compensable under the current state of the Louisiana Worker’s Compensation law. In Taquino, the appellate court reversed the trial court’s granting of an exception of no cause of action based upon the claimant’s petition which alleged that he was a salesman for Sears and that he had a mental problem because of being transferred from one store to another, a reduction in commission and base pay and an inordinate amount of pressure from his superiors. While those allegations were found to state a cause of action under Louisiana law, it is interesting that the appellate court found it necessary to remand the case to the district court stating: “plaintiff’s bare bones petition is vague and this matter is remanded to allow plaintiff fifteen days to amend his petition to specify, if he can, a factual basis to support his mental disability.”

The Taquino court obviously construed the holding of Ferguson to mean that the line of cases precluding recovery for mental breakdowns caused by job stress have also been overruled. See Johnson v. Hartford Accident & Indemnity Co., 196 So.2d 635 (La.App. 3d Cir.1967) and Samson v. Southern Bell Telephone & Telegraph Co., 205 So.2d 496 (La.App. 1st Cir.1967) in which both courts relied expressly on Dan-ziger.

In Johnson, it was specifically held that a total disability resulting from a nervous breakdown and work fatigue but not by a single physical incident or trauma nor by any physical cause except possibly the wearing effects of constant fatigue over a period of many months was not compensa-ble. The claimant was a traveling circulation representative of a daily newspaper whose work included long hours from 2:00 a.m. seven days a week. One morning he suffered a mental breakdown requiring hospitalization. All of the evidence was conclusive that the cause of the breakdown was the demands and pressure of his work together with the fatigue of unbroken work days of long hours and much tension. However, there was no single physical incident or trauma which precipitated the condition nor was their any physical cause contributing to the mental collapse. The court denied benefits.

In Samson, the claimant’s demand for total and permanent benefits was based on mental and physical pressure caused by his work resulting in severe headaches and other physical ailments and finally in a complete mental breakdown. His injury was diagnosed as schizophrenic reaction of the chronic paranoid type with occasional catatonic episodes occurring during the course and scope of his employment. The court denied recovery finding the settled law to be that nervous or mental breakdown does not constitute an accidental injury within the meaning of the terms of the compensation act.

Although the language in Danziger that “emotional strain or upset cannot be the cause of an accident under our workmen’s compensation act” was expressly overruled in Ferguson, we do not construe the holding in Ferguson, as the Taquino court did, to mean that the jurisprudential holdings that preclude recovery for mental breakdowns caused by job stress have also been overruled. Both Danziger and Ferguson involved strokes, i.e., injury or violence to a physical structure [organ] of the body, caused by job related stresses. Thus, they are factually distinguishable.

Accordingly, we conclude that under the jurisprudence, if (1) a physical injury on the job leads to disabling mental problems or (2) emotional or mental stress on the job leads to a physical injury to the structure of the body, then the worker is entitled to compensation benefits. However, we have found no support for and do not find that any other type of mental disease or derangement is contemplated to be compensable under the worker’s compensation act.

This record is devoid of any evidence which would show that Jordan suffered a physical injury on the job which led to his disabling mental problems. Nor is there any evidence that his emotional or mental stress led to any physical injury or violence to the structure of his body. Rather Jordan’s disability is clearly caused by mental problems aggravated by self imposed stress on the job. Unfortunate though the result may be, this type of “derangement” is not compensable under the applicable legislation. Our rationale in Franklin is equally applicable and controlling here, and we adhere to that position.

Accordingly, for the foregoing reasons, the judgment of the trial court was clearly wrong, the judgment is reversed and judgment is rendered in favor of Southern Natural Gas Company and Home Insurance Company and against James Jordan rejecting his demands at his cost.

JUDGMENT REVERSED and RENDERED.

      . Additionally, in answers to interrogatories, Jordan stated: No. 9
      I had made a complaint to Larry Pennweld of Ruston Warehouse, Ruston, Louisiana, on Wednesday or Thursday out on job as of cramping in my stomach about three hours before we went into warehouse. I also had a headache and felt weak. I went to get water and leaned upon truck for about 15 minutes. I never did get any response out of Larry except in a few minutes he turned around and said 'Jordan help those men hook up that trailer,’ which could have been done, without my help. We got into warehouse at Ruston and he, Larry, began to tell each man what time for them to return to work the next morning. My time was 5:00 a.m. I asked if I could meet them on the job which would have given me at least one more hour to rest and would not have had to drive to Ruston and catch work truck and come back within one mile of my home. He said no, you be here at 5:00 a.m. That just added more strain to me on top of what had already happened, or which you will know I had been in charge of operating a D.A. plant within 1½ miles of my home for several years for Southern Natural Gas, which I had instructed the hook up of this plant and also one in Logansport, Louisiana. I think that was in the summer of 1980 which they put me in a strain at that time. I can see where they were at me for some time. On Sunday night before I went to the doctor in March 1981, I could tell something was wrong with me again. I was having headaches and stomach cramps and weakness, so I called my supervisor, B.Y. Taylor, of Ruston. He told me to go get a checkup and said to me ‘James, you better get checkup, for you know as well as I do that they are watching you.' Referring to company officials over him.