author: CHEHARDY, Judge.

text:
    STATE BLOCK, INC. v. Eugene J. POCHE, Jr.
    No. 83-CA-527.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.

      Terrence J. Hand, New Orleans, for plaintiff-appellant.
    Patrick C. Leitz, Metairie, for defendant-appellee.
    Before CHEHARDY, GRISBAUM and DUFRESNE, JJ.
   CHEHARDY, Judge.

This lawsuit arose from a dispute between a corporation and its former vice-president/stockholder over the ownership of eight season tickets to Louisiana State University football games. The district court awarded judgment in favor of the former corporate officer, and the corporation appealed.

The following facts were established at trial:

Eugene Poche, Jr., was one of four incor-porators of State Enterprises, which later changed its name to State Block, Inc., in July 1957. Poche, vice president of the corporation, was employed in the production and sales end of the business. He described his function as “public relations.” In that capacity, one of his duties was to entertain customers; he estimated that 75% of the customers listed in the corporate accounts receivable were his customers. He was paid a salary by the corporation, and received a bonus if the corporation made money.

At some unspecified time, apparently within a year or two after the corporation was started, Poche decided to purchase season tickets to Louisiana State University football games. He testified he did not discuss the purchase with any of the other corporate officers; he stated, “I just bought them because I enjoy football and I wanted to go. I bought the tickets and I used them as entertainment.” The name on the tickets was “Eugene J. Poche, Jr., State Block, Inc., P.O. Box 642, Metairie, La. 70004.”

He admitted that State Block paid LSU directly for the tickets, and that he used them for State Block purposes, to entertain the corporation’s customers. He insisted, nonetheless, they were his tickets. He also said he “always” offered use of the tickets to other members of the firm, but the others never wanted to go to the games except when there was a special occasion and “they felt like they should show their face.”

Although State Block always paid for the tickets, Poche never felt they were being given to him as an extra benefit from the corporation: “The tickets they paid for were my tickets. Just like if I were entertaining anybody else at a restaurant, they were my customers. State Block always reimbursed me for my expenses.” He never considered the cost of the tickets as income, and it was not reported on his tax returns.

He admitted that State Block had many accounts used for entertainment purposes, for which the corporation was billed directly — “I never even had to come up with my money,” he said. He had an American Express credit card in his name and State Block’s; he agreed it was a normal custom for entertainment expenses to be placed on that charge account, and the bills would be paid directly out of State Block’s funds.

Poche testified that he left State Block in 1981, selling his stock in the corporation to Daniel Aucoin, who is the son of the corporation’s president, Dennis “Heavy” Aucoin, Jr. Poche then became involved in several new corporations. (The evidence implies that at least one of these businesses is in direct competition with State Block.)

After LSU mailed out the 1981 season tickets, Poche asked “Heavy” to send the tickets to him, but Aucoin refused. As a result, Poche went in person to the LSU Athletic Department’s season ticket office in Baton Rouge. He requested they issue the tickets for subsequent seasons to him in care of his new corporation, Baton Rouge Concrete Products. When the tickets for the 1982 football season were mailed to Poche’s new address rather than to State Block’s, State Block filed this suit.

Dennis Aucoin testified he was one of the original incorporators of State Block, and has been president of the company since 1957. He did not recall how the tickets originally were purchased, but said Poche always went to football games. Au-coin said Poche probably told him he was going to buy them, and Aucoin had probably had no objections. Poche got the tickets and the corporation used them as entertainment. State Block has paid for the tickets each and every year, he said, and the corporation charged the expense as “office and entertainment.”

Aucoin admitted Poche had never informed the other stockholders of the company how he planned to use the tickets. Poche used them as he pleased, and always offered them to anyone who wanted any. Aucoin admitted that Poche could use the tickets to entertain people who were not customers of State Block.

Aucoin also admitted that he himself seldom went to LSU games, but said that he never thought the LSU tickets were owned by Poche. Aucoin said he had never particularly wanted any control over the tickets before, but wanted them after Poche left the company because his son had taken over Poche’s former job of entertaining customers.

Aucoin testified further that he and Poche each had an American Express card for entertainment of customers; each one’s card had his own name and State Block’s name on it. Documents introduced into evidence show that Poche’s American Express card was in the name, “Eugene J. Poche, Jr., State Block Inc., P.O. Box 642, Metairie, La. 70004.” This is the same way the LSU tickets are listed. State Block always paid the American Express bills directly.

The trial judge, after hearing the evidence, ruled from the bench that the tickets belonged to Poche. In oral reasons for judgment, the court found as a fact that Poche never discussed purchase of the tickets with anyone else in the corporation prior to buying them. He also found as a fact that the tickets were in Poche’s name; he concluded that State Block’s name had been on the tickets as part of the mailing address rather than as an indication of ownership.

In reaching the last conclusion, the judge placed great emphasis on LSU’s action in changing the mailing address of the tickets at Poche’s request. The court stated,

“I have the testimony of Mr. Poche as far as changing the address of the tickets relative to the fact that they were able to be changed and I know for a fact that there are certain times, places and procedures where the ownership of LSU tickets can be changed at a certain time of year and it’s after the order forms go out and, in other words, State Block, Inc. and that address could not be taken off of the season tickets ownership unless the times and procedures were followed by Mr. Poche. So, when LSU took it off of their rolls that indicates to me, that proves to me that the ownership is in the name of Eugene J. Poche and that the address is State Block Inc., P.O. Box 642, Metairie, Louisiana 70004. So, that resolves the problem in my mind whether State Block Inc. was in the ownership name or in the address part of it.”

The court also considered it important that Poche intended the tickets to be for his personal ownership, while Aucoin did not even know the tickets had been purchased when Poche first bought them. The judge felt that State Block’s paying for the tickets did not affect the ownership, but rather that ownership was set at the time the tickets were initially purchased.

(We disregard evidence that when Poche first made an offer to sell his interest in the corporation, he sought to obtain the LSU season tickets as part of the sale price. Although the trial judge allowed this into evidence as an attempt to show Poche’s state of mind, settlement or compromise offers are not admissible to prove liability. This case presents a different situation from the tort liability situation in which the attempt to introduce such evidence is usually made, but the same principle applies: State Block’s counsel was trying to prove the central issue of the case through the settlement offer.)

The LSU season tickets order form admitted into evidence contains, among other information, the following statement:

“1. Location on top of form is reserved in your name until the deadline date. If this application card along with your remittance is not received in our office on, or before, this date we will assume that the tickets are not desired and they will be reassigned.”

Our review of this case must start with analysis of the nature of the right asserted. Each party claims to “own” the tickets. The Civil Code defines ownership as “the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.” LSA-C.C. art. 477.

Black’s Law Dictionary 1328 (5th ed. 1979) defines ticket as the following:

“In contracts, a slip of paper containing a certificate that the person to whom it is issued, or the holder, is entitled to some right or privilege therein mentioned or described; such, for example, are railroad tickets, theater tickets, pawn tickets, lottery tickets, etc.”

The “season tickets” in dispute here each embody two separate rights, as established by the statement quoted from the season ticket reorder form. First, possession of a season ticket entitles the holder thereof to attend particular functions or events — in this case, obviously, football games — at which the ticketholder is guaranteed a seat as designated on the ticket. Second, the “owner” of the ticket is granted an option to purchase season tickets for the next football season.

It thus becomes clear that the definition of ownership is patently inapplicable to the football season tickets. Looking at all the factors involved, the purchase of season tickets is more in the nature of lease than of sale:

“Lease or hire is a synallagmatic contract, to which consent alone is sufficient, and by which one party gives to the other the enjoyment of a thing, or his labor, at a fixed price.” LSA-C.C. art. 2669.
“To let out a thing is a contract by which one of the parties binds himself to grant to the other the enjoyment of a thing during a certain time, for a certain stipulated price which the other binds himself to pay him.” LSA-C.C. art. 2674.
“Certain incorporeal things may also be let out, such as a right of toll, and the like; but there are some which can not be the object-of hire, such as a credit.” LSA-C.C. art. 2679.
“The mere use, or the mere possession of a thing, may be, as well as the thing itself, the object of a contract.” LSA-C.C. Art. 1884.

Leases may be made either by written or verbal contract. LSA-C.C. art. 2683. The duration and the conditions of leases are generally regulated by contract, or by mutual consent. LSA-C.C. art. 2684.

“The lessee has the right to under-lease, or even to cede his lease to another person, unless this power has been expressly interdicted.
“The interdiction may be for the whole, or for a part; and this clause is always construed strictly.” LSA-C.C. art. 2725.

Viewing these articles in light of the facts here, we conclude that Poche’s purchase of season tickets was, in effect, a lease of the right to attend a season of LSU football games, with reserved seating an accessory of the lease, and with an option to renew the lease at the end of the football season. It is really the second right, this option to purchase tickets for future seasons, over which the parties are squabbling.

Unquestionably, when Poche initially purchased the tickets he had not been authorized by the corporation to make the purchase on its behalf. Clearly, however, the corporation ratified this action by paying for the purchase of upcoming season tickets without question. The difficulty arises in characterizing what happened. Did Poche, as “lessee” from LSU, begin “subleasing” the tickets to State Block? Or did he make an assignment of his rights in the tickets to the corporation?' Or did he act as an agent for the' corporation, in continuing to have his name on tickets that actually belonged to the corporation?

The trial judge determined Poche to be the “owner” of the tickets based on Poche’s intention at the time of the initial purchase and also based on the fact that LSU changed the mailing address — and corporate name on the tickets — at Poche’s request.

It was error, however, to consider facts not in evidence — that is, LSU’s policies and procedures regarding season ticket ownership. Those procedures are facts not generally known, and therefore not subject to judicial notice. Courts may properly take judicial notice only of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. Miranne v. State Farm Mut. Auto. Ins. Co., 54 So.2d 538 (La.1951).

Further, contrary to the trial judge’s conclusion, Poche’s stated intention at the time he bought the tickets cannot prevail, as between him and State Block, in determining who had the right to them. If he indeed intended the tickets to be a purely personal investment, why did he have them mailed to his business address rather than to his home address? Why did he allow the corporation to pay for the entire season, rather than reimbursing him on a pro rata basis for the games to which he took customers? It is apparent that his major purpose in buying the tickets, and his major use of them, was to further his business interests — that is, to foster good customer relations for the corporation of which he was one-third owner.

(The problem here arises from the difficulty owners of close corporations sometimes experience in distinguishing between their individual rights and their corporation’s rights — i.e., the problem of using the corporation as an “alter ego.”)

We conclude that, as between Poche and State Block, the corporation was the “owner” of the season tickets, and the rights accruing therefrom. Poche’s action in changing the mailing address of the tickets, therefore, may have constituted a breach of some type of fiduciary duty. The plaintiff has not sought or proven any damages, however; it has sought only return of the tickets. Both litigants have overlooked the obvious: a third party is involved, one neither named a party to the suit nor called to testify — Louisiana State University, from whom the tickets were purchased — the “lessor” of the right to attend the football games.

In light of this, we fail to see how we can grant the relief that State Block seeks. We think we may take judicial notice that the 1983 college football season is, for our intents and purposes, ended. Thus, it would be moot for us to order Poche to return the current season’s tickets to State Block. And, since all Poche has under his “lease” is an option to renew the lease for the 1984 football season, we cannot very well order LSU to renew the lease in State Block’s favor rather than Poche’s when LSU is not a party to the suit.

Although we do not agree with the trial judge’s reasoning in determining that Poche was entitled to ownership of the tickets, as a practical matter he reached the correct result by dismissing plaintiff’s suit. For the foregoing reasons, therefore, we affirm the judgment of the district court.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Terrell A. DELEON v. The HOME INDEMNITY COMPANY and Oil Country Tubular Consultants, Inc.
    No. 83-CA-590.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.

      Favret, Favret, Demarest & Russo, J. Paul Demarest, New Orleans, for plaintiff-appellee.
    Frank J. Achary, Metairie, for defendants-appellants.
    Before CHEHARDY, GRISBAUM and DUFRESNE, JJ.
   CHEHARDY, Judge.

The Home Indemnity Company and Oil Country Tubular Consultants, Inc. (OCTC), defendants, have appealed from a judgment awarding worker’s compensation benefits to plaintiff, Terrell A. Deleon. The defendants contend Deleon’s injury was caused by his willful intention to injure another employee and therefore he is not entitled to benefits. Deleon, in turn, has answered the appeal, contending he is entitled to penalties and attorney’s fees because the defendants’ refusal to pay him compensation benefits was arbitrary and capricious.

The only undisputed facts regarding causation of Deleon’s injury are that he was punched in the eye on October 6, 1981, and that a fellow employee struck the blow. Beyond that, the witnesses at trial presented radically differing versions of the incident.

Darryl E. Williams, the employee who struck Deleon, testified as follows: He was a crew foreman for Oil Field Sales and Services (OFS), a sister company of plaintiff’s employer, OCTC. On the morning of the incident in question, he and his crew were scheduled to work with Deleon; Deleon was supposed to be at work at 6:00 a.m., but did not come in until 6:25 or 6:30. Williams asked him why he was late, to which Deleon replied with obscenities and a racial slur. Deleon told Williams he was Williams’ supervisor, which Williams denied. Suddenly Deleon attacked Williams, giving him a forearm to the chest, grabbing Williams and hitting him. Williams broke loose, swung once, and connected with a “lucky” punch, striking Deleon. No more blows were exchanged. Deleon then told Williams he was fired and Williams replied Deleon did not have authority to fire him. Williams testified he had been struck in the chest and on his right cheek; he thought he had probably sustained bruises, but had not reported any injuries to the company.

Eules Paul, a forklift operator for OFS, testified he witnessed the incident. He said Williams asked Deleon why he was late, that Deleon replied he was a supervisor and did not have to be to work at six o’clock. He could not say whether any obscenities or other harsh words were exchanged, but said the next thing he knew Deleon swung at Williams, Williams threw up his hands and blocked the blow, and then Williams punched Deleon in the right eye. He said that was the only physical contact between the two.

Sidney Poche, who was operations manager of the company at the time of the incident, did not witness the fight but investigated it. He stated he had talked to Williams, to Paul, and also to Curtis Campbell, who was present during the fight but did not testify at trial. The stories told him by Williams and Paul corroborated their testimony at trial. Campbell told him he had not actually seen the blows exchanged, but had heard the derogatory remarks and racial slurs directed by Deleon to Williams. Poche said he also interviewed Deleon, who told him that the argument broke out over who got to work at what time, that he had told Williams he was fired, and that he had not thrown any punches.

Deleon testified, on the other hand, that he arrived at the OFS yard at six a.m., but the gates were locked and he could not get in, so he went to the OCTC office to make some phone calls. By the time he returned to the OFS yard, the gates had been opened. He began directing the crew members to load the materials for their job, and asked Williams to place something on the truck. Williams refused, using an obscenity and a racial slur. Deleon asked him again, and Williams refused in the same way. Deleon then told Williams if he did not want to work he should go home, to which Williams replied Deleon did not have authority to tell him to leave, repeating the racial slurs.

Deleon stated Williams continued to manifest hostility so Deleon decided to leave him alone and went to the supply room. Deleon was standing at the counter in the supply room with his back to the door and could hear Williams in the background yelling all types of things. Williams was motivating other people to become hostile.

Suddenly Deleon was hit from behind, stumbled back and lost his balance. Williams was coming at him, so Deleon placed him in a bear hug to stop Williams from hitting him again. Deleon tried to calm Williams down, but Williams kept screaming vulgarities. Deleon released him and hurried into the office to call his supervisor.

Deleon stated he took no aggressive moves, only defensive actions. The blow had connected with his left eye, which swelled completely closed, and his nose was bleeding. He left and sought medical attention.

In oral reasons for judgment, the trial court stated,

“After listening to this testimony, I am not at all sure who provoked this incident. So, I must give the worker the benefit of the doubt. I just cannot say that the insurance company has carried its burden of proving by a preponderance of the evidence that the plaintiff wilfully intended to injure his coworker, Darryl Williams.
“So, I find that he is entitled to compensation benefits.”

LSA-R.S. 23:1081 states that no worker’s compensation shall be allowed for an injury caused by the injured employee’s willful intention to injure himself or to injure another. In determining whether or not an employer shall be relieved of paying compensation for this reason, the statute provides, the burden of proof shall be upon the employer.

It is a long-settled rule of law that the reviewing court must give great weight to the factual conclusions of the trier of fact. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact shall not be disturbed, even though the appellate court may feel its own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La. 1973).

The liability issue in this case turns wholly on the credibility of the witnesses. The trial judge obviously was unable to decide which side to believe. Our own review of the record reveals no manifest error, and we cannot say the trial court’s credibility evaluation — or difficulty in making a credibility evaluation — was unreasonable, considering “the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record) * * *.” Canter v. Koehring Company, supra, at 724.

Accordingly, we must next consider the amount of benefits awarded. The defendants-appellants aver the trial court erred in awarding plaintiff benefits not only for six weeks of temporary total disability under LSA-R.S. 23:1221(1), but also for “serious permanent disfigurement” of the face and “serious and permanent impairment of usefulness of a physical function” under R.S. 23:1221(4)(p).

Defendants’ contention is partly correct. R.S. 23:1221(4)(p) relating to benefits for permanent disfigurement and impairment, states that subparagraph (p) is applicable only “[i]n eases not falling within any of the provisions already made.”

The medical testimony in this case establishes that plaintiff’s eye injury has left him with a partial loss of function of his left eye. Specifically, he sustained permanent damage to the drainage apparatus of the eye, leaving him with a much greater-than-average probability of developing glaucoma. Plaintiff testified he still experiences frequent watering of the eye and weakness of the eyelid muscle. His treating physician testified this amounted to a five- to ten-percent permanent partial loss of the use of the left eye.

This evidence clearly places plaintiff’s injury within R.S. 23:1221(4)(o), “permanent partial loss of the use or function” of a scheduled body part. Because the injury falls within a scheduled disability, benefits may not be awarded under paragraph (4), subparagraph (p) of the statute. Jones v. Brown & Root, Inc., 379 So.2d 872 (La.App. 4 Cir.1980).

We reject defendants’ argument that plaintiff, if entitled to benefits, should receive them only for the six weeks after the incident when he was totally disabled. Although he returned to work after that period, he is still eligible for further benefits under paragraph (4), subparagraph (o), as discussed above. However, defendants are entitled to deduct the compensation to be paid under the award under paragraph (1) from the compensation allowed under paragraph (4), subparagraph (o). LSA-R.S. 23:1223.

As to the amount to be awarded, R.S. 23:1221(4)(o) states, “compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member * * Paragraph (4), subparagraph (i), dealing with loss of an eye, allows 66⅜ percent of wages during 100 weeks. Accordingly, the amount awarded shall be the proportionate disability of plaintiff’s eye, multiplied by 66⅜ percent of his wages during 100 weeks.

Deleon’s average weekly wage was determined by the judge to be $438.00. Accordingly, the calculation to be used would be as follows:

66% x 100 x .10 (percentage disability established by doctor) x $438 = $2,921.46.

As pointed out by defendants, however, this amounts to less than the statutory minimum allowable on the date of the accident, which was $55.00 per week. Accordingly, plaintiff is entitled to receive the statutory minimum during 100 weeks, or $5,500.00, plus interest on each payment from the date each became due until paid.

Finally, we find no merit to plaintiff’s contention, raised in his answer to the appeal, that he is entitled to penalties and attorney’s fees. The party seeking penalties and attorney’s fees in a worker’s compensation case bears the burden of proving that the defendants acted arbitrarily and capriciously in refusing to pay benefits. The plaintiff contends that because the insurer never contacted him to obtain a statement or a deposition regarding his side of the story, the insurer was arbitrary in denying his claim.

The evidence establishes, however, that the insurer did conduct an investigation, questioning Williams, Paul and other OFS employees about the incident. They related the stories they told at trial; which portrayed Deleon as the aggressor of the fight. Based on this information, the insurer denied the claim.

The trial judge stated, “I cannot say they were arbitrary under the evidence that I have heard today.” We find no manifest error in this conclusion.

For the foregoing reasons, the judgment of the district court is affirmed in part, amended in part, and recast.

It is ordered, adjudged and decreed that there be judgment in favor of Terrell A. Deleon and against The Home Indemnity Company and Oil Country Tubular Consultants, Inc., in solido, for worker’s compensation benefits as follows:

1. Defendants are to pay to the plaintiff the sum of $163.00 weekly benefits for a period beginning October 6, 1981 through November 17, 1981, a total of six weeks, with legal interest on each payment from the date each became due until paid.

2. Defendants are to pay plaintiff the sum of $5,500.00, representing the statutory minimum average weekly wage for 100 weeks, commencing November 18, 1981, with interest on each payment from the date it became due until paid. Defendants are to receive a credit against this award for amounts paid pursuant to the award in paragraph 1 above.

It is further ordered, adjudged and decreed that there be judgment in favor of plaintiff and against the defendants, in soli-do, for reimbursement of medical expenses totalling $379.18, and for the sum of $511.80, representing expert witness fees paid by the plaintiff to Dr. George Haik, cost of the deposition, and court reporting fees, together with legal interest from date of judicial demand until paid.

Defendants are cast for all costs of these proceedings, in solido.

AFFIRMED IN PART; AMENDED IN PART; AND RECAST.


author: KLIEBERT, Judge.

text:
    Arthur MATTHEWS v. CELOTEX CORPORATION and ABC Insurance Company.
    Nos. 83 CA 519, 83 CA 520.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    J. Courtney Wilson, New Orleans, for plaintiff-appellant.
    René A. Pastorek, Windhorst, Pastorek & Gaudry, Gretna, for defendants-appel-lees.
    Before KLIEBERT, BOWES and GAU-DIN, JJ.
   KLIEBERT, Judge.

The plaintiff, Arthur Matthews, brought this appeal from a judgment dismissing, after a trial, his claim for workmen’s compensation benefits against his former employer, Celotex Corporation, the defendant. The trial judge dismissed the claim due to insufficient evidence to show an accident and a work related injury. Plaintiff assigns as error the judge’s rejection of his testimony as to a work-related accident and his failure to find plaintiff was totally and permanently disabled. We affirm.

Mr. Matthews testified he was injured in September 1978 when his leg was caught between two twenty-five hundred pound jacks. According to his testimony, several fellow employees were there at the time the accident occurred and assisted him; however, none were called to testify. Mr. Albert Lejaunie, a production supervisor for Celotex, testified that at the time Mr. Matthews asked him for a slip to go to first aid, he did not notice an injury and although he made an investigation into the alleged accident, he was unable to find anyone who saw or knew anything about the accident.

Several neurology and orthopedic specialists who had examined and/or treated Mr. Matthews testified at the trial. None found objective symptoms of injury. All of the physicians who treated plaintiff believed he was able to return to work at the time of his discharge from treatment. Only one doctor who had examined Mr. Matthews during delays in the trial was of the opinion Mr. Matthews might not be able to perform some duties of a laborer. But even he testified he could find no organic basis for Mr. Matthews’ complaints and based his findings on his acceptance of Mr. Matthews’ credibility at the time of his examination.

Celotex’s insurance carrier had paid Mr. Matthews compensation for all of the time he was absent from work between the time of the alleged injury and the time he voluntarily terminated his employment because he learned he would be terminated for sleeping on the job. This had included a non-court approved payment of 19 weeks of compensation while plaintiff was represented by an attorney other than the trial counsel.

After hearing the testimony and seeing the demeanor of the live witnesses, the trial judge, when weighing the plaintiffs testimony against that of the expert witnesses and Celotex’s production supervisor, seriously questioned Mr. Matthews’ credibility and concluded he had not received a disabling injury in a work related accident and had in fact been over compensated. We have carefully reviewed the record and cannot say the trial judge was manifestly erroneous in his conclusion. In the absence of manifest error, we cannot reverse the trial judge. Canter v. Koehring, 283 So.2d 716 (La. 1973). Rather, even when viewed from the typewritten record and without the advantage of seeing the live witnesses, we reach the same conclusion as did the trial judge. Accordingly, the judgment of the trial judge is affirmed. Costs to be borne by the plaintiff.

AFFIRMED.


text:
    CHRYSLER CREDIT CORPORATION v. GENERAL ACCIDENT INSURANCE.
    No. 83 CA 531.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Roger B. Jacobs, Jacobs & Loeffelholz, New Orleans, for plaintiff-appellant.
    Michael P. Mentz, Hailey, McNamara, Hall, Larmann & Papale, Metairie, for defendant-appellee.
    Before CHEHARDY, KLIEBERT and BOWES, JJ.
   KLIEBERT, Judge.

Plaintiff, Chrysler Credit Corporation, brought this devolutive appeal from a judgment, on a motion for a directed verdict, dismissing their action to recover for damages to a repossessed vehicle from Pennsylvania General Insurance, the collision insurer of the vehicle. Chrysler was the loss payee on the collision insurance policy, issued by Pennsylvania to Richard and Al-vina Ball, providing collision coverage on a 1980 Dodge Omni repossessed from them by Chrysler. On a motion for a directed verdict, the trial judge dismissed the suit because he concluded the plaintiff had failed to show the damages to the Dodge were incurred in a manner insured against in the policy. We affirm.

On February 6, 1981, Richard Ball applied for and received a discharge in bankruptcy in New Orleans, La. During the bankruptcy proceeding, Chrysler learned the Balls had separated and that Mrs. Ball had taken the 1980 Dodge Omni, on which it held the mortgage, to California. Then, in response to a demand by Chrysler, made when the mortgage payments became delinquent, sometime before April 13, 1981, Mrs. Ball voluntarily brought the car to Pete Ellis Dodge, a Dodge dealership in South Gate, California.

A representative of Pete Ellis Dodge completed a repossession report on May 4, 1981, showing the car had some rear-end damage. Consequently, Chrysler’s attorney, by letter dated November 11, 1981, made a formal demand on Pennsylvania for the estimated cost of repairing damage to the car. Pennsylvania denied coverage for the loss, claiming the damage occurred after the policy was cancelled on May 8,1981, or, if incurred prior to that date, the damage was not incurred from a hazard covered under the policy.

Chrysler then instituted this suit alleging the damage to the vehicle occurred prior to the cancellation of the policy (May 8, 1981). Pennsylvania defended on the grounds that the damage to the automobile occurred in a June 7, 1980 accident, which claim had already been fully paid by them to the insured and former owners under the policy.

At trial, Chrysler introduced the repossession report made by Pete Ellis Dodge and attempted to prove the cost of repairing the damages to the Dodge Omni by the introduction of a repair estimate dated September 4, 1981, made by an employee of Pete Ellis Dodge. Pennsylvania objected to its introduction on the grounds it was hearsay. The trial judge maintained the exception and Chrysler proferred the estimate.

The attorney for Chrysler made no effort to prove specifically how the damage to the car was incurred or when the damage occurred. The only other witness was a representative of Pennsylvania who testified the insured had made a claim for collision damages which occurred on June 7, 1980, for which Pennsylvania had made a payment of $607.11.

At the close of plaintiffs case, Pennsylvania motioned for a directed verdict. The trial judge granted the motion, thus dismissing plaintiffs case. In his oral reasons for judgment, the trial judge stated that although it might appear the present damages to the insured vehicle were greater than those paid for in the June 7, 1980 accident, Chrysler failed to prove these damages were incurred in a collision covered under the policy.

After carefully reviewing the record, we cannot say the trial judge erred in granting the motion for a directed verdict. To recover, Chrysler was required to prove by a preponderance of the evidence the cost of repairing the damages to the car and that the damages were caused in a collision covered under the policy. Not only did Chrysler fail to prove the alleged damages were incurred in a collision, it also failed to prove the amount of the damages. The trial judge's refusal to admit the repair estimate was correct. See Allen v. Brandt, 438 So.2d 712 (2nd Cir. La.App. 1983).

Accordingly, the judgment of the trial court is affirmed; plaintiff-appellant to pay all costs of the appeal.

AFFIRMED.


text:
    Peggy M. CHILDERS v. Frederick W. DAVIS.
    No. 83 CA 547.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.

      J. Morris Dunn, III, Dunn & Rasch, Neil Levith, Neil Levith & Associates, Metairie, for plaintiff-appellee.
    Sydney J. Parlongue and P.R. Riegel, Jr., Parlongue & Riegel, New Orleans, for defendant-appellant.
    Before CHEHARDY, KLIEBERT and GRISBAUM, JJ.
   KLIEBERT, Judge.

The plaintiff, Ms. Peggy Childers, brought this suit against the defendant, Mr. Frederick W. Davis, an automobile repairman, for the inconvenience and the cost of repairing damages to her 1976 Porsche 912E automobile while it was in Mr. Davis’ custody. Following a judge trial, Mr. Davis was cast in judgment for $4,250.00 plus interest and costs. The trial judge did not give written reasons for the judgment, nor did his judgment specify how the damages were computed, nor which of the prayed for damages he intended to compensate the plaintiff for.

On this devolutive appeal, Mr. Davis urges three assignments of error: (1) the trial judge improperly decided the case pri- or to its submission; (2) damages for aggravation, distress and inconvenience were improperly included in the amount of the award, and (3) inadequate proof of the pecuniary damages to the Porsche. For the reasons hereafter stated, we affirm the trial judge.

We consider Mr. Davis’ first contention, i.e., the trial judge was premature in deciding the case. His contention is grounded in the following colloquy between the plaintiff’s counsel and the judge:

MR. DUNN:
I have one other witness. I would like to have Miss Childers under oath if they asked this bill be padded if the Court feels like it would like to hear it.
THE COURT:
That doesn’t make any difference. I will hear that witness at any day you can produce them.

Immediately prior to this colloquy, counsel for the defendant implied by his questions that the plaintiff had asked a repairman to pad his bill. Hence, as we interpret this colloquy, which occurred after defense counsel rested, the trial judge, without specifying a time limit for same, held the case opened to permit plaintiffs counsel to bring in a rebuttal witness. For whatever reason plaintiff had, he elected not to produce the rebuttal witness. When plaintiff failed to produce the witness, the trial judge considered the case under submission and rendered judgment. The plaintiff does not complain of the judge’s action, but rather argues the case was in fact submitted to the trial judge for decision. Mr. Davis’ counsel complains but fails to show by argument or otherwise how his client had been prejudiced by the plaintiff or the judge’s action in considering the case submitted.

The situation here and that presented in Curro Underwriters, Inc. v. Guastella Construction Company, 195 So.2d 300 (La.App. 4th Cir.1967) urged by the defendant as supporting his contentions, are factually different. In Curro, supra, the trial judge’s action in continuing the case and ordering an audit report prevented the plaintiff from completing his examination of a witness and from fully presenting his case. Further, his failure to inform plaintiff of the filing of the report or furnishing a copy thereof to the litigants denied plaintiff due process of law. We concur with the holding of the Curro case, but hold here that Davis’ contentions are without merit because he fails to show how or in what manner he has been prejudiced by the judge’s action.

Before considering Davis’ two assignments of error as to the damage award it is necessary to first review the circumstances under which they arose.

Sometime prior to February 1979, Mr. Davis had repaired the clutch on Ms. Child-ers’ Porsche. In February 1979, at Ms. Childers’ request, he took possession of the Porsche to fix a damaged left front fender. The car was promptly returned to Ms. Childers, however, she was dissatisfied with the matching of the paint on the repaired fender to the paint on the rest of the vehicle. Mr. Davis took the vehicle back to make the required changes. Then, in May, 1979, while the auto was in the process of being returned to Ms. Childer’s by one of Mr. Davis’ employees, it skidded into an embankment on the interstate and sustained damage to the right rear section. Ms. Childers implies she learned of this only when she was notified by the Parish authorities that the auto was abandoned on the interstate. Mr. Davis subsequently assured her that the accident was covered by insurance and that the necessary repairs would be made.

The auto was again returned to Ms. Childers in August of 1979; however, she was again dissatisfied with the workmanship. She testified that there was difficulty in shifting the auto from second to third gear and that white smoke bellowed from under the hood. Also, she contends the auto had an additional 2,200 miles on the odometer. According to her, the car was returned to Davis to correct the problems.

Finally in December 1979, Ms. Childers became extremely dissatisfied with Mr. Davis’ efforts and decided to retrieve her car. She took the vehicle to Mr. Leon Greff, Jr., of Greff Motor, Inc., to estimate the cost of placing the car in its original condition. There was testimony showing a Porsche automobile was an expensive German sports car that was somewhat of a collector’s item and the keeping of it in tip-top condition was very important.

At trial, Mr. Greff testified that when the auto was brought to him he found that the car needed a new rear sway bar and that the transmission repairs were needed to correct the shifting problem, but he could not estimate the extent of the transmission damage until it was disassembled. He further testified that the damages to the transmission could have been occasioned by either driver abuse or a collision. He surmised a Porsche, being a rear engine auto, would more likely than not, encounter transmission problems as a result of a rear-end collision than in a front-end collision, and that if the damage was a result of driver abuse more likely than not the damage would have been caused by the person who had possession of the car within the last ten and a half months. (Mr. Davis was the prime possessor during this time period.) His estimate of $1,161.85 for repairs was exclusive of hidden damages which might be found in the transmission.

Ms. Childers next took her auto to Fer-rand & Danigole, Inc. to have it repainted. She testified that the entire auto had to be repainted because it was practically impossible to now match the two repaired fenders to the rest of the automobile. Further, according to her testimony, Ferrand & Danigole, Inc. gave her an estimate of $2,112.79 to complete the paint job.

During the time Mr. Davis had Ms. Child-ers’ car, she continued to pay the monthly notes on the Porsche and during some periods rented substitute automobiles. Hence, she claims note payments as well as the rental payments as damages for the ten and one-half months Mr. Davis had possession of the car and was using it.

Mr. Davis denied the 2,200 additional miles had been placed on the Porsche odometer while it was in his possession. He did, however, admit he had used the car to go on a fishing trip and that some of his salesmen had used the car. According to Davis’ testimony, after the accident which damaged the right rear section, he had the car repaired by Guy’s Foreign Car Service and had paid them over $1,800.00 to repair the mechanical damage to the car.

The record contains no information as to how the trial judge arrived at the damage award of $4,250.00. The essence of Davis’ last two assignments of error is that the trial judge erred either in awarding damages for inconvenience and/or in computing the pecuniary damages.

In support of his contentions relative to damages for aggravation, distress and inconvenience, Mr. Davis cites Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976). In the Toyota case damages were sought for the breach of a contract for repairs because an excessive amount of time was taken to repair the foreign car. Stating that it had never adopted a strict interpretation of La.C.C. Article 1934(5), the Supreme Court concluded damages for inconvenience and aggravation could not be recovered where the primary object of the contract was physical gratification, but could be recovered where the primary object of the contract was intellectual gratification. The case pointed out, however, that damages for mental anguish, aggravation, distress and inconvenience are recoverable in an action sounding in tort. Recovery in the Toyota case was denied because the contract had as its main object physical gratification.

Here Ms. Childers was seeking damages sounding in tort as well as those sounding in breach of contract. As was pointed out by the Supreme Court in the Toyota case, damages for aggravation and inconvenience are recoverable under La. C.C. art. 2315 where the action is one sounding in tort. Hence, the trial court could properly consider the aggravation and inconvenience an element of damages.

Therefore, we cannot say the trial court erred here. There is ample evidence in the record from which the trial judge could conclude the actual pecuniary loss sustained by Ms. Childers was not less than $3,275.00 ($1,162.00 for mechanical repairs and $2,114.00 for painting). Further, there is ample evidence to support an award of $1,000.00 for the rental cost of a substitute automobile and/or the unauthorized use of the automobile by Davis and his employees. Additionally, since the action here is one sounding in tort, in addition to one for breach of contract, an award of $1,000.00 for the unauthorized use of the vehicle and the mental anguish involved in obtaining possession of her vehicle would not be excessive.

For the reasons stated, therefore, the judgment of the trial judge is affirmed. All costs to be borne by the defendant-appellant.

AFFIRMED.


text:
    Ilka B. Smith, Wife of/and Henderson SMITH, and Progressive American Insurance Company v. Martin L. LEE, Individually and as Administrator of the Estate of his Minor Daughter, Rose Lee.
    No. 83 CA 553.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Geoffrey P. Snodgrass, Christovich & Kearney, New Orleans, for plaintiff-appellant.
    Don Almerico and Jerome A. Kunkel, Destrehan, for defendant-appellee.
    Before CHEHARDY, KLIEBERT and GRISBAUM, JJ.
   KLIEBERT, Judge.

This is a suspensive appeal brought by Ilka B. Smith and her insurer, American Progressive Insurance Company (Progressive), from a trial court judgment denying a preliminary injunction pending a hearing on a petition to annul a default judgment in the amount of $51,015.00 rendered on November 18, 1982 against Ilka B. Smith, Henderson Smith and Progressive, in soli-do. The Smiths and Progressive contend the default judgment was improvidently granted because it was not supported by competent evidence in that the record did not contain any returns of services or a policy of insurance to prove the insurance coverage and hearsay evidence was admitted to support the quantum award. After a hearing on the rule for a preliminary injunction, the trial judge annulled the suit against Henderson Smith for lack of service and denied the rule for the preliminary injunction. For the reasons which follow, we set the judgment aside and remand the case to the trial judge.

Two issues were raised on the appeal, (1) whether the preliminary injunction should have issued, and (2) whether the Smiths and Progressive were entitled to introduce evidence to support their contention the default judgment was improvidently issued.

Although there was some discussion relative to converting the March 30, 1983 hearing to a hearing on the merits, it was ultimately agreed only the rule for a preliminary injunction would be heard. Hence, the appeal and our review is limited to the trial judge’s denial of the rule for a preliminary injunction. The annulment of the default judgment against Henderson Smith is not before us.

To prevail at a hearing for a preliminary injunction under LSA-C.C.P. art. 3601, the moving party must show that the injury, loss or damage he will suffer may be irreparable if the court fails to issue the injunction. Further, to be entitled to the relief sought, he must make a preliminary showing that he will prevail on the merits of the case. Lamb v. Quality Inspection Services, Inc., 398 So.2d 643 (3rd. Cir.1981) and the cases cited therein.

During the course of arguments in the hearing, it became apparent counsel’s effort and intention was to show the default judgment was a nullity by introducing in evidence the entire record supporting the default judgment and then introducing testimony and point to (1) the lack of actual service on Henderson Smith, (2) the absence of the return of services on the Secretary of State, (3) the absence of evidence showing the existence and/or provisions of an insurance policy, and (4) the use of hearsay evidence to support the amount of damages. Although the record clearly shows counsel for the appellants offered to introduce evidence, the transcript does not contain a specific ruling by the trial judge denying the counsel’s offer to introduce evidence. It appears the trial judge believed the taking of evidence was unnecessary because, if proven, counsel’s contentions would not, as a matter of law, constitute ill practice' within the meaning of LSA-C.C.P. art. 2004. Neither the record in which the default judgment was rendered nor the nature of the testimony of the prospective witness was introduced or proffered in evidence in the record before us. We cannot and do not consider the portions of the record of the case which are attached to the appellant’s brief.

In Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (1983), the Supreme Court said any judgment obtained by fraud or ill practice may under the provisions of LSA-C. C.P. art. 2004 be annulled and further set out two criteria to determine whether a judgment has been obtained by actionable fraud or ill practice: (1) when the circumstances under which the judgment was rendered show the deprivation of legal rights of the litigants who seek relief, and (2) when the enforcement of the judgment would be unconscienable and inequitable. The court also cited Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980), and Johnson v. Jones-Journet, 320 So.2d 533 (La.1975), as cases leading to the formulation of the criteria. Then, in applying the criteria, said at page 1070 “the article [LSA-C.C.P. art. 2004] is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal rights, and where the enforcement of the judgment would be unconscionable and equitable.” (citations omitted).

In Smith v. Cajun Insulation, Inc., supra, however, the Supreme Court concluded that although a final judgment can, under LSA-C.C.P. art. 2004, be annulled for a fraud or ill practice, the article is not a substitute for an appeal from a judgment that might be erroneous due to insufficiency of evidence or misinterpretation of substantive law, but, rather is a separate remedy designed to afford relief against the judgment procured by methods viewed with disdain by the judiciary.

In the Kem-Search case, two of the justices concurred in the results of the case, but believed the annullment should have been predicated on the grounds the default judgment was invalid because there was inadequate proof the defendant, David A. Sheffield, was doing business as J-L Petroleum Services. Consequently, the requisite of LSA-C.C.P. art. 1702, i.e., “proof of the demand sufficient to establish a prima facie case” was lacking and constituted an ill practice sufficient under LSA-C.C.P. art. 2004 to require annullment of the judgment. The First Circuit in Temple v. Jackson, 376 So.2d 972 (1st Cir.1979), a case which preceded the Supreme Court decisions discussed above, held (1) the failure to enter into evidence adequate testimony or documents to prove items of damages at a confirmation hearing, and (2) misrepresentations of material facts, i.e., the ability to perform on an agreement to purchase, were ill practices within the meaning of LSA-C.C.P. art. 2004.

Here, Smith and Progressive have raised in arguments questions as to the services on defendants and potential misrepresentations as to the insurance coverage which, if proven, may under the jurisprudence above discussed, meet the criteria set by the Supreme Court in the Kem-Search case for an annullment. Although we are not here concerned with the merits of the case, our function nevertheless is to apply the precepts of the law as initiated by the Supreme Court to determine whether Smith and Progressive have made a pri-ma facie case which would entitle them to the relief prayed for. We are unable to perform that function because the facts upon which the precepts of the law are to be applied are not in the record before us.

Accordingly, the judgment denying the rule for a preliminary injunction is hereby set aside and the case remanded to the trial judge to hold an evidentiary hearing on the rule for a preliminary injunction.

SET ASIDE AND REMANDED.


author: BOWES, Judge. KLIEBERT, Judge, GAUDIN, Judge,

text:
    TEXAS BANK OF BEAUMONT v. Kazem Michel BOZORG.
    No. 82-CA-57.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Rehearing Denied Feb. 17, 1984.
    Writ Granted April 23, 1984.

      Thomas G. Donelon, Metairie, for plaintiff-appellant.
    Richard T. Regan, Metairie, for defendant-appellee.
    Before KLIEBERT, BOWES, CUR-RAULT, GAUDIN and GRISBAUM, JJ.
   BOWES, Judge.

Plaintiff appeals from a judgment by the district court in favor of intervenor, Massey-Ferguson, Inc., recognizing interve-nor’s mortgage executed by the defendant and his wife on September 11, 1978, to be superior to all mortgages of plaintiff, Texas Bank of Beaumont (hereinafter referred to, sometimes, simply as “Texas”). We reverse the judgment of the trial court.

Plaintiff, Texas Bank of Beaumont, filed suit to recover amounts due under hand notes payable to the order of plaintiff dated March 21, 1981, and February 4, 1980. Plaintiff filed executory process against defendant, Kazem Michel Bozorg, to enforce their rights. Massey-Ferguson, Inc. intervened, asserting their mortgage claim against defendant was superior to that of plaintiff.

In order to properly determine the ranking of the competing claims, it is necessary to review the sequence of events, which are as follows:

1. On August 12, 1975, Kazem Michel Bo-zorg executed a hand (promissory) note secured by a collateral mortgage and collateral mortgage note in the sum of Two Hundred Thousand and No/100 ($200,-000.00) dollars, note payable on demand to the order of Bearer (held by First Metropolitan Bank of Jefferson Parish).

2. On January 12, 1978, Maryam Safavi, wife of/and Kazem Bozorg executed a hand note (promissory note) secured by a collateral mortgage note and collateral mortgage in the sum of Thirty-five thousand and No/100 ($35,000) dollars, said note payable on demand to the order of Bearer (held by First National Bank of Jefferson Parish).

3. On September 11, 1978, Maryam Sa-favi, wife of/and Kazem Bozorg executed a hand note (promissory note) secured by a collateral mortgage note and collateral mortgage in the sum of Three hundred forty-four thousand four hundred six and 59/100 ($344,406.59) dollars, said note payable on demand to the order of Bearer (held by Massey-Ferguson, Inc., intervenor and appellee herein).

4. As of January 4,1980, the indebtedness owed by Kazem Bozorg to First Metropolitan Bank (under the hand note of August 12, 1975 — Item 1 above) amounted to Eighty-eight thousand twenty-five and 34/100 ($88,025.34) dollars. On the same date, January 4, 1980, First Metropolitan Bank executed an Assignment of the hand note, the collateral mortgage note and collateral mortgage to Texas Bank of Beaumont. Both notes and the mortgage were delivered to Texas.

5. On February 4, 1980, Kazem Bozorg executed a new promissory note (a hand note) to Texas Bank of Beaumont in the amount of Two Hundred Thousand Dollars ($200,000.00), which note is secured by the pledge of the collateral mortgage and note executed August 12, 1975 (Item 1 above), which was assigned and delivered to Texas.

6. As of March 21, 1980, the indebtedness owed by Maryam Safavi, wife of/and Ka-zem Bozorg to the First National Bank of Jefferson Parish under the hand note of January 12, 1978 (Item 2 above) amounted to Thirty-three thousand nine hundred eleven and 01/100 ($33,911.01) dollars. On the same date, the First National Bank of Jefferson Parish executed an assignment of the hand note, the collateral mortgage note and collateral mortgage to Texas Bank of Beaumont. Both notes and the mortgage were delivered to Texas.

7. On March 21,1980, Kazem Bozorg executed a new promissory (hand) note to the Texas Bank of Beaumont in the sum of Thirty-five thousand and No/100 ($35,-000.00) dollars, which note is secured by the pledge of the collateral mortgage and note of January 12, 1978 (Item 2 above), in the amount of Thirty-five thousand and No/100 ($35,000.00) dollars which was assigned and delivered to Texas.

Plaintiff, Texas Bank of Beaumont, contends that the new hand notes, upon which the present suit is based, obtain their ranking through the retrospective protection of LSA C.C. Article 3158 . Thus they contend that the new hand notes executed February 4, 1980, and March 21, 1980, would be ranked August 12, 1975, and January 12,1978, respectively. The court now becomes concerned with applying the protective retroactive ranking provisions of Article 3158 to the new hand notes secured, respectively, by the pledge of the original collateral mortgage notes, which are not now in the hands of the original pledgee, but instead have been sold, assigned, transferred and delivered to a subsequent pledgee and holder by a legal and proper authentic act of assignment for adequate consideration.

Louisiana Civil Code Art. 3158 provides that when certain requisites are met, subsequent advances, secured by the pledge of the original collateral mortgage, rank retrospectively to the date of the initial issuance. The retrospective protection of article 3158 comes into play under these conditions:

1. The initial pledge is properly confect-ed, with the parties mutually agreeing that the pledge will secure obligations arising thereafter;
2. Each succeeding loan must be specifically secured by a pledge of the original collateral;
3. The collateral must continuously remain in the hands of the pledgee, and
4. The parties must act in good faith at all times.

Appellee relies heavily on the case of Odom v. Cherokee Homes, Inc., 165 So.2d 855 (La.App. 4th Cir.1964), writ refused 167 So.2d 677 (1964), as did the trial court. In Odom, four collateral mortgage notes issued by the debtor, Cherokee Homes, Inc., were transferred from the original creditor (Morgan) to Odom. The court explained at page 864:

It cannot be contended that the four collateral mortgage notes which were handed to Odom by Talbot [Morgan’s attorney] became Odom’s property by purchase because on the same day they were pledged by the corporation as security for the $120,000.00 note [hand note] it gave Odom, and Odom sued as pledgee of these collateral notes. The corporation could not have re-pledged the [collateral mortgage] notes without at least constructively having them in its possession. [...]
We entertain no doubt that what took place in Talbot’s office was not a sale of Morgan’s collateral to Odom, but was a payment of the corporation’s indebtedness to Morgan with funds loaned to the corporation by Odom. [Emphasis ours]

In Odom, no hand note was either assigned or transferred. Subsequent to the transfer, Cherokee Homes, Inc., executed a hand note in favor of Odom and secured by the previously transferred collateral mortgage notes. The Fourth Circuit held that without the transfer of the primary indebtedness, the hand note, by the original creditor, said creditor had no right to transfer the pledged collateral mortgage notes, and that no pledge can exist minus the primary obligation it secures [emphasis ours]. Hence, when Odom paid the corporation’s indebtedness (the hand note — its primary obligation), the pledge ceased to exist and the pledged collateral mortgage notes constructively returned to the hands of the corporation. The subsequent pledge of these notes to Odom, as security for the new $120,000 note held by Odom, was a reissuance of the collateral mortgage notes [emphasis ours] by the corporation.

In the present case, plaintiff has attained its position with regard to the notes through sales, assignments and transfers. These notes-, then, are not in the hands of the original pledgee, and, at first blush, it appears the requisites of Article 3158 have not been satisfied. However, the same Fourth Circuit Court of Appeal has affirmed the transfer, assignment and sale of a hand note which was secured by pledge of a collateral mortgage note and collateral mortgage and ranked the hand note as effective from the date of existence of the original debt. Richey v. Venture Oil and Gas Corp., 346 So.2d 875, 876 (La.App. 4th Cir.1977).

The relevant facts in the Richey case are as follows: Venture Oil and Gas Corporation executed a promissory note (hand note) dated September 10, 1974, payable to Merchants National Bank of Mobile and secured by a pledge of a collateral mortgage note and a collateral mortgage. On the following day, September 11,1974, Venture purchased by credit sale, a State Mineral Lease from H & W Oil, secured by a vendor’s lien and mortgage. Subsequently, on January 26, 1975, Merchants National Bank transferred, sold and assigned to La-nier Richey the hand note of September 10, 1974, secured by the pledge of the original collateral mortgage note and collateral mortgage, and all were delivered to Rich-ey-

As holder and owner of the hand note dated September 10th, Richey, after default in payment, foreclosed on the mortgaged property under executory process. H & W Oil intervened to have its vendor’s lien and mortgage prime Richey’s collateral mortgage. The Court rejected all of the intervenor’s contentions and held the sale, assignment and transfer of the hand note, and the collateral note and mortgage, to Richey, valid and the ranking superior to the intervenor’s mortgage and vendor’s lien.

The court gave great weight to the fact that a transfer of the primary debt (the hand note) took place and that both the hand note and the collateral mortgage and note were assigned to Richey. It is true that the court took note of the language of the credit sale which contained a subordination clause acknowledging the collateral mortgage to be superior and to the language of the collateral mortgage, which provided that the mortgagee could transfer, negotiate, pledge or otherwise dispose of the promissory note. However, this does not change the fact that the court, in Richey, applied the protective retroactive ranking of Art. 3158 to a note not in the hands of the original pledgee, but which had been validly assigned and transferred and was now in the hands of a subsequent pledgee and holder. Thus, this holding recognized that when article 3158 states “remains and has remained in the hands of the pledgee” and “without withdrawal from the hands of the pledgee”, it does not necessarily mean the original pledgee but may be another “pledgee” to whom the note has been validly assigned.

We concur in the holding of the Fourth Circuit in Richey.

Even though the instant case is somewhat different from Richey in that the Richey suit was based upon the original hand note, whereas our case is based on new hand notes (but the same original collateral mortgage notes), it is important to note that in the present case, as in Richey, a notarial act of assignment was executed by the transferring bank to Texas; and, further, that, unlike Odom where the hand note was not assigned or transferred, here both the original hand notes and the collateral mortgages and notes were assigned, transferred and delivered to Texas. It was only because Bozorg wished to increase his indebtedness that the new hand notes were issued.

Additionally, the language in the mortgages executed by the Bozorgs does not refer to any specific holder in whose favor they were drawn, but to “any future holder or holders”, making it unquestionably clear that the maker of the mortgages and notes did not intend that the instruments be restricted to the hands of any one holder or pledgee. This interpretation of this language in the mortgages is strengthened by the fact that both collateral mortgage notes (the “Ne Varietur” notes) were made payable to “Bearer”, rather than to a specific payee.

La.C.C. art. 3158 refers to the pledged instrument or item remaining in the “hands of the pledgee.” The article states that if the pledged property is not withdrawn from the hands of the pledgee, the pledge shall date back to the time the pledged item or instrument was originally pledged. Like the court in Richey, we are of the opinion that the phrase “remaining in the hands of the pledgee” and “without withdrawal from the hands of the pledgee” should be interpreted to mean not only the hands of the original pledgee, but also the hands of any subsequent pledgee to whom the collateral mortgage, mortgage note, and hand note are properly assigned and transferred without the pledged property being returned to the possession of the mortgagor (Pledgor). We feel that prevention of the pledged property from returning to the possession of the mortgagor was the real evil that article 3158 intended to guard against, as apparently happened in Odom. For what difference does it make if the pledged property is validly assigned from one pledgee to another — especially if it is at the request of the mortgagor and for his convenience, as was the case here.

Such an interpretation is consistent with the laws governing the transfer and assignment of negotiable instruments and, in our opinion, to hold otherwise would result in a restraint of trade in commercial transactions which encompass a huge market in the financial world and would curtail the use of ordinarily-accepted commercial practices which have evolved through eustom, usage and agreement of the parties.

We find still further authorities for the final position we take here. In New Orleans Silversmiths, Inc. v. Toups, 261 So.2d 252 (La.App. 4th Cir.1972), writ refused 263 So.2d 47, the plaintiff sued the defendant upon default on a note and the Hibernia National Bank intervened, claiming that it was the holder of a collateral mortgage and collateral mortgage note, which secured the defendant’s debt to Hibernia, and that their collateral mortgage primed the mortgage held by the plaintiff. Relying on Odom, supra, the plaintiff argued that because the original indebtedness to Hibernia had been paid in full, and because the hand notes still held by the bank were executed after the recordation of plaintiff’s mortgage, plaintiff’s mortgage primed that held by Hibernia and pledged by the defendant to secure his debt. Relying on LSA-C.C. article 3158, the Court found that the new hand notes held by Hibernia ranked from the date of the first indebtedness which was secured by the collateral mortgage and notes, even though the original primary debt (original hand note) had been paid in full. Therefore Hibernia’s mortgage primed plaintiff’s.

More recently, in First Guaranty Bank v. C.D. Alford, et al., 366 So.2d 1299 (La.1978), Rehearing Denied 1979, the Supreme Court stated:

A collateral mortgage note may be pledged to secure future obligations. In that event full payment of a given obligation will not extinguish the collateral mortgage note and accompanying mortgage (and in such cases the collateral mortgage will have a ranking from the initial pledge. La. Civil Code, art. 3158) [emphasis ours].

The preceding cases and others make it abundantly clear that the law and jurisprudence today is that a collateral mortgage and accompanying collateral mortgage note(s) ranks from the date of its first pledge for or up to its full original amount regardless of the number of times that the hand note(s) is paid in full and a new one made. Likewise, it is obvious that such transactions are not novations since the underlying debt, the collateral mortgage note(s), is not extinguished. The new (hand) note(s) merely constitutes an extension of the maturity date of the original obligation.

More recently, in a case strikingly similar to the case before us, our fellow judges of the Second Circuit appeared to follow the same line of reasoning as we do here, when, in Mardis v. Hollanger, 426 So.2d 392 (La.App. 2nd Cir.1983) Writ Denied, they held that transfer of a collateral mortgage, collateral mortgage note and hand note from Farmers and Merchants Bank to the Bank of Morehouse and the subsequent executing of a new note by the pledgor did not effect the ranking of the mortgage acquired by the second lending institution.

Thus, applying the above-cited jurisprudence and codal article to the present case, we are of the opinion the trial court was clearly incorrect in relying on Odom and in its conclusion that the mortgage held by the intervenor, Massey-Ferguson, Inc., primes the collateral mortgages held by plaintiff, Texas Bank of Beaumont. Part of the reason for this is the trial court’s incorrect appreciation of the facts. The trial judge’s reasons for judgment state that only the collateral mortgage notes were transferred and assigned to Texas and that the hand notes were “paid off” by Texas; this was not the case. The transcript clearly reflects that the intent of all the banks involved in the Bozorgs’ transactions was to place Texas Bank into the same position and with the same right as First Metropolitan Bank and First National Bank, respectively.

The officer from the First National Bank ■ of Jefferson Parish testified that Texas Bank requested they not stamp the note paid but rather assign their interest, rights and claims to the payment of the note as Texas Bank wanted to buy out First National’s position in the debt of Mr. Bozorg. He further testified he delivered the promissory note (hand note), the collateral mortgage note and collateral mortgage to Texas Bank. The Bank officer with First Metropolitan Bank was unable to recall all of the specifics of his transaction with Texas Bank, but, in our opinion, his testimony definitely preponderates to the effect that he delivered the bank’s whole collateral file, which included the hand note, to Texas.

We have concluded that the hand notes were not paid off but they, as well as the collateral mortgage and collateral mortgage notes, were validly assigned, transferred and delivered to Texas. In this connection, it is important to remember that the hand notes, being bearer instruments, can be validly assigned and transferred simply by delivery. Accordingly, the argument advanced by counsel for intervenor to the effect that the hand notes were not validly assigned because they were not mentioned in the acts of assignment is without merit.

Consequently, it is clear that Texas Bank paid First Metropolitan Bank and First National Bank of Jefferson Parish not as a “pay-out” on behalf of the Bozorgs but rather to buy the interest owned by the respective banks in Bozorg’s debts. Subsequent to Texas Bank acquiring the hand notes and the accompanying collateral, then they were owed the debt by the Bo-zorgs, just as the first two banks had been.

Accordingly, the judgment of the trial court is reversed and we find that the mortgages of plaintiff, Texas Bank of Beaumont, in the amount of Two Hundred Thousand ($200,000) Dollars and the sum of Thirty-Five Thousand ($35,000) Dollars rank respectively from August 12, 1975 and January 12, 1978, and, therefore, are superior to and prime the mortgage of in-tervenor, Massey-Ferguson, Inc.

REVERSED.

KLIEBERT, J., dissents with reasons.

GAUDIN, J., dissents with reasons.

KLIEBERT, Judge,

dissenting.

I respectfully dissent from the majority opinion.

The majority concludes that First Metropolitan Bank and First National Bank of Jefferson executed an assignment of the hand note, the collateral mortgage note and the collateral mortgage to Texas Bank of Beaumont. The assigning language contained in the notarial assignment (P-8) from First Metropolitan to Texas Bank reads as follows:

“[First Metropolitan] ... assigns to the Texas Bank of Beaumont all of its rights, title, interest, priority and privilege in connection with a certain collateral mortgage note, dated August 12, 1975, in the principal amount of $200,000.00 Dollars, payable on demand to the order of bearer and signed by Kazem Bozorg; and a collateral mortgage by act before Robert J. Skinner, Notary Public, on August 12, 1975 mortgaging in favor of any person, firm, or corporation the following described real estate ...”

The assigning instrument from First National Bank of Jefferson (P-8) to Texas Bank contains similar language. In both instances, the stated consideration for the assignment was the exact amount then owed on the hand notes by Bozorg to the assigning bank.

Over objection of counsel for the interve-nor, Massey-Ferguson, the trial judge admitted into evidence the testimony of Mr. M.C. Meller, formerly of the First National Bank of Jefferson. In essence, he testified that the agreement between the banks was for Texas Bank to buy out First National Bank of Jefferson’s position on the loan. Accordingly, without cancelling the notes or marking them paid, he delivered the entire loan package, i.e., the promissory note (the hand note), the collateral mortgage note (the ne varietur note), and the collateral mortgage to the Texas Bank at the time of the assignment.

Also, over objection of counsel for the intervenor, Mr. Vollenweider of Metropolitan Bank appeared and testified that Texas Bank was to buy Metropolitan Bank’s “collateral position” and as to the hand note said:

“Q. What did you deliver to Texas Bank of Beaumont when you executed that assignment?
A. I delivered a collateral mortgage and, as far as I recollect, I cannot find my collateral file at the bank since I talked to you on the phone last week and, I presume I must have given him my whole collateral file because usually we keep them in our vault after they are paid out. I couldn’t find any recollection .... But I know I delivered the collateral mortgage note to them.
Q. Were there any other notes delivered?
A. I don’t recall.
Q. Do you know what happened to the, what is called the ‘hand note’?
A. No. As I was listening to Miller give his testimony I was trying to recall what happened to our hand note. I don’t recall if we_if I brought that the same day or that was mailed. I don’t recall.
Q. Do you know whether or not it was returned to Kazem Bozorg?
A. Honestly, I don’t know.”

Although there may have been an intent to assign the indebtedness represented by the hand notes, since there is no testimony from a representative of Texas Bank as to the intended transaction and the original hand notes are not in evidence, the evidence submitted leaves a serious question as to whether the intended transaction was in fact consummated. Further, “_what they say their intentions were is of no consequence if their actions had a legal effect different from such intentions.” Odom v. Cherokee Homes, Inc., 165 So.2d 855 (4th Cir.1964), writ refused 167 So.2d 677 (La.1964), at page 864. The trial judge concluded the transaction was a payment of the indebtedness owed to the Louisiana banks by Bozorg with a portion of the funds loaned to him by Texas Bank under a pledge of the collateral mortgage note for new hand notes. Although he concluded the hand notes were delivered to Texas Bank, he refused to rank the indebtedness here sued on from the initial pledge of the collateral mortgage notes to First National Bank of Jefferson and to Metropolitan Bank. The majority opinion concluded the trial judge erred. I disagree.

As recognized by the majority, a collateral mortgage note is ranked from the date of its negotiation or issuance by the maker, not from the date of its confection. Its pledge as security for a hand note is a negotiation of the note.

Under the provisions of La.C.C. Article 3158, the indebtedness secured by pledge of a collateral mortgage note is ranked from the date of the initial pledge even though incurred subsequent to the initial pledge, provided:

(a) The initial pledge is properly confect-ed, with the parties mutually agreeing that the pledge will secure the obligations arising thereafter;
(b) Each succeeding loan must be specifically secured by a pledge of the original collateral;
(c) The collateral must continuously remain in the hands of the pledgee; and
(d) The parties must act in good faith at all times.

True, in Richey v. Venture Oil & Gas Company, 346 So.2d 875 (4th Cir.1977) the Fourth Circuit applied the earlier ranking (the date of the initial pledge) to a hand note which was not then in the hands of the original pledgee. The trial judge distinguished the Richey case by pointing out that the indebtedness sued on in the Richey case were represented by the same hand notes which had been assigned by the original pledgee; whereas, here the indebtedness is represented by hand notes made and pledged to Texas Bank, the new pledgee, subsequent to the assignment. In my view, the trial judge’s distinction was a valid one.

Likewise, the case of Mardis v. Hollanger, 426 So.2d 392 (2nd Cir.1983) presents a different factual situation from the Richey case and the one presented here. In Mar-dis, supra, prior to assigning the indebtedness to the new pledgee, the original pledgee had the debtor execute a hand note, for the amount of the indebtedness owed to it and the hand note, representing the indebtedness owed to it, was transferred to the new pledgee.

The majority seeks to justify its extension of the provisions of La.C.C. Article 3158 on the grounds the collateral mortgage, by its terms, runs in favor of all holders of the collateral mortgage note and not merely the original holder. The fallacy lies in the fact we are not here concerned with the validity of the collateral mortgage, but rather, the rank of the indebtedness for which it stands as security when measured against other earlier indebtedness secured by valid liens imposed against the mortgaged property subsequent to the confection of the collateral mortgage.

In further support of its position, the majority cites New Orleans Silversmiths, Inc. v. Toups, 261 So.2d 252 (4th Cir.1972) and First Guaranty Bank v. Alford, 366 So.2d 1299 (1978). The factual situations involved in those cases are totally different from the one involved here. There, the collateral mortgage notes had been re-pledged, but to the original pledgee; whereas, here, the collateral mortgage notes were repledged to a new pledgee and it is the new, not the old, indebtedness which is being sued on. Here, the indebtedness sued on (the new hand notes) was incurred subsequent to the assignment and the security for the hand notes confected by the repledge of the collateral mortgage notes to a new pledgee. Hence, the prerequisites of La.C.C. Article 3158 have not been complied with.

According to the majority, its interpretation of La.C.C. Article 3158 is consistent with the laws governing the transfer and assignment of negotiable instruments and to hold otherwise would result in a restraint of trade in commercial transactions. To me, the interpretation is contrary to the laws governing the transfer and assignment of negotiable instruments because it fails to adhere to the fundamental principle that a mortgage is an accessory right which is granted to the creditor over the property of another as security for a debt. La.C.C. Article 2378, 3284. As an accessory right, it falls when the debt falls. The exception to this is La.C.C. Article 3158 which provides that a collateral mortgage note can be pledged for future obligations, provided the prerequisites [itemized as (a), (b), (c) and (d) above] of the article are met. To me, to rank the indebtedness sued on here as of the time of the initial pledge of the collateral mortgage note is an unwarranted extension of the provisions of the article. If such an extension is to be made, then it should be made by the legislature, not the courts. For those reasons, I respectfully dissent.

GAUDIN, Judge,

dissenting.

I respectfully dissent, being of the opinion, as was the trial judge, that the claims of the Texas Bank of Beaumont should be ranked from the dates of the new notes, which were subsequent to the maturing of the Mossey-Ferguson, Inc. claim.

      . Art. 3158
      ... It is further provided that whenever a pledge of any instrument or item of the kind listed in this article is made to secure a particular loan or debt, or to secure advances to be made up to a certain amount, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge, and the pledged instrument or item remains and has remained in the hands of the pledgee, the instrument or item may remain in pledge to the pledgee or, without withdrawal from the hands of the pledgee, be repledged to the pledgee to secure at any time any renewal or renewals of the original loan or any part thereof or any new or additional loans, even though the original loan has been reduced or paid, up to the total limit which it was agreed should be secured by the pledge, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge, without any added notification or other formality, and the pledge shall be valid as well against third persons as against the pledger thereof, if made in good faith; and such renewals, additional loans and advances or other obligations or liabilities shall be secured by the collateral to the same extent as if they came into existence when the instrument or item was originally pledged and the pledge was made to secure them....

      . Acadiana Bank v. Foreman, 352 So.2d 674 (La.1977); American Bank v. Red Diamond Supply Co., Inc., 402 So.2d 729, 731 (La.App. 4th Cir.1981); Tallulah Production Credit Association v. Turner, 391 So.2d 885 (La.App. 2nd Cir.1980) writ refused 396 So.2d 900; Richey v. Venture Oil and Gas Corporation, supra; McLendon v. Brewster, 286 So.2d 513 (La.App. 2nd Cir.1973) writ refused, 288 So.2d 354.


author: BOWES, Judge.

text:
    Michael J. WELCH, as natural tutor of his minor son, Dwayne D. Welch v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Terry M. Parker.
    No. 83-CA-540.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.

      Dan Dorsey, River Ridge, for plaintiff/appellant.
    Henry Leon Sarpy and Daniel R. Hynes, Porteous, Hainkel, Johnson & Sarpy, New Orleans, for defendant/appellee.
    Before CHEHARDY, KLIEBERT and BOWES, JJ.
   BOWES, Judge.

Plaintiffs appeal a judgment of the district court denying their claim for personal and property damages sustained by them in a car-bicycle collision. We affirm the finding of the trial court.

All parties agree that on July 26, 1979, there occurred an accident involving defendant, Terry Parker, who was operating his automobile in an easterly direction on Cypress Street in Metairie, and Dwayne Welch (then eight and one-half years of age), who was riding his bicycle home from a friend’s house. There were no witnesses to the accident and the respective versions of what actually happened tendered by the principals are conflicting and remains unreconciled.

Dwayne Welch testified that he had been visiting at a friend’s house located down the block and across the. street from his own home. Dwayne stated that he rode down the sidewalk until he was directly opposite his house; that he stopped and looked both ways and, at that time, thought he saw the defendant wave to him to proceed across the street, and that he was almost across the street when struck by the defendant’s car. We have read young Dwayne’s testimony very carefully, taking into consideration the fact that he is a child. Nevertheless, his testimony is so confusing, contradictory and illogical, that it lacks credibility. However, since his testimony accurately reflected his age, date of the accident, and details concerning rules involving operation of his bicycle given him by his parents, we are convinced that the boy had the capacity and maturity necessary to be contributorily negligent. See Wilkinson v. Hartford Acc. & Indent. Co., 411 So.2d 22 at 24 (La.1982).

On the other hand, Terry Parker testified that he was proceeding east on Cypress Street when the Welch boy, who was previously unobserved, without any warning, rode his bicycle out of a driveway on the right hand side of the street and struck his automobile on the right side.

Although there were no witnesses to the accident, the court did have the benefit of the testimony of the investigating officer, Vic Amstutz, which was submitted after the trial by deposition. Excerpts of that deposition follow:

Q ... Can you tell me, please, where the respective locations of the vehicles involved were when you came on the scene?
A The vehicle which Mr. Parker was driving was headed east on Cypress. He was in the right side of the roadway. The vehicle which the boy was driving, the bicycle, it was on the south side of the roadway, partially in the road, partially on the grass in front of Mr. Parker’s vehicle. The boy was lying in the driveway, 3740 Cypress, about two feet off the driveway ..".
Q In what direction was the bicycle facing?
A It was facing toward the roadway. ...
Q All right. Now, did you inspect the vehicle, the automobile in question that was driven by Mr. Parker?
A Yes sir. I remembered checking the front and hood and the side, the passenger’s side there. And the only place that I could see any type of fresh damage was right there by the quarter panel.
Q On what side of the vehicle would that have been.
A That’s the passenger’s side.
Q Okay. Did you look at the bicycle at that time?
A Yes, sir.
Q Could you tell whether or not it had been damaged?
A I don’t remember any damage. But according to my report I did see damage on the left side of the bicycle.
Q Now, did you check the roadway for any skid marks?
A Yes. I did. There was no skid marks....
Q All right. Subject to that objection, would you answer the question, please?
A Okay. It appeared to me that the boy was riding the bicycle westbound on the sidewalk. And that’s when he turned into the driveway toward the street, right there at 3740 Cypress. Because the sidewalk ended right past that residence.
Q Okay. Now, the — referring to your report, Deputy Amstutz, under the column Violations, you have a violation marked there. Can you tell me what that is and what that’s for, please?
A The violation is failure to yield. It was failure to yield while entering roadway from a private drive.
Q That was on which participant?
A Vehicle # 2, the bicycle.

The foregoing testimony tends strongly to corroborate Parker’s version of the collision and leaves no doubt in our mind but that young Dwayne Welch was at least contributorily negligent in causing the accident, which bars his recovery since the accident happened before the effective date of our comparative negligence law.

On the question of whether the negligence of the minor, Dwayne Welch, bars the recovery by the father-tutor of his expenses, arising out of the minor’s injuries, we recognize there is a split of authority among our brother circuits and that our Supreme Court has yet to address the question. After careful consideration of the opposing views, we have decided to agree with and adopt the more logical position taken by our brothers of the First Circuit. See Otzenberger v. Atlas Const. Co., 408 So.2d 363 (La.App. 1st Cir.1981); Gaudet v. G.D.C., 383 So.2d 1289 (La.App. 1st Cir. 1980) and authorities cited therein. It is our opinion that if a child is barred from any recovery by his own negligence, then it would be inconsistent and unjust to allow his tutor to recover in the child’s stead. Thus would be the result if the child’s negligence were not imputed to the parent.

Finally, addressing plaintiff’s claim that the trial court erred in holding the doctrine of last clear chance inapplicable, we point out the testimony of defendant, Terry Parker, who stated:

... I don’t know if he hit the car first or if I saw him first. All I know is that I didn’t have time to put on my brakes. I didn’t have time. It happened so fast there was, you know, nothing I could do. I don’t know, there might have been a period of time and there might not have been. It just happened too quick to judge.

We agree with the learned trial judge who found the doctrine inapplicable since the negligence of the plaintiff arose contemporaneously with any negligence of the defendant.

We have reviewed the entire record and our examination of all the testimony (both live and by deposition) convinces us (1) that the evidence presented to the trial judge forms an adequate basis for the judge’s finding and (2) that the district court was certainly not clearly wrong in its findings. In fact, we concur in most of them. Accordingly, this court should not disturb the evaluations and conclusions reached by the trier of fact. See Carollo v. Shoney’s Big Boy Enterprises, 433 So.2d 803 (La.App. 5th Cir.1983); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) and Canter v. Koehring, 283 So.2d 716 (La.1973).

Accordingly, for the reasons stated above, we affirm the judgment of the district court. Because of our holding, we do not address the issue of “stacking” herein. Each side is to bear its own costs in this appeal.

AFFIRMED.