author: CUTRER, Judge.

text:
    James F. PERCY, et ux., Plaintiffs-Appellees, v. SAFEGUARD INSURANCE COMPANY, Defendant-Appellant.
    No. 83-1129.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Writ Granted Feb. 8,1985.

      Gold, Little, Simon, Weems & Bruser, Christine Frank, Alexandria, for defendant-appellant.
    Führer, Flournoy & Hunter, Leonard Führer, Alexandria, for plaintiffs-appellees.
    Before FORET, CUTRER and CULPEPPER, JJ.

       William A. Culpepper, Judge ad hoc.

   CUTRER, Judge.

In this appeal we are being asked to determine the extent of coverage, under a homeowner’s policy, for personal property destroyed while located away from the insured premises.

James Percy and his wife brought suit to recover, under a homeowner’s insurance policy issued by defendant, Safeguard Insurance Company (Safeguard), for the loss of their personal property. At the time of its destruction, the unscheduled personal property was located away from the insured premises. Both parties filed motions for summary judgment, seeking a determination of the amount of Safeguard’s coverage under the policy at issue. The trial court granted plaintiffs’ motion for summary judgment and conversely the defendant’s was denied. The court ruled that the total amount of coverage provided by the policy was $58,200.00. The defendant appealed. We affirm.

The pertinent policy language, under the heading “Description of Property and Interests Covered,” reads:

“COVERAGE C — UNSCHEDULED PERSONAL PROPERTY

This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling and owned or used by an Insured, while on the described premises and, at the option of the Named Insured, owned by others while on the portion of the premises occupied exclusively by the Insured.
This coverage also includes such unscheduled personal property while elsewhere than on the described premises, anywhere in the world:
1. owned or used by an Insured; or
2. at the option of the Named Insured,
a. owned by a guest while in a residence occupied by an Insured; or
b. owned by a residence employee while actually engaged in the service of an Insured and while such property is in the physical custody of such residence employee or in a residence occupied by an Insured;
3. but the limit of this Company’s liability for the unscheduled personal property away from the premises shall be an additional amount of insurance equal to 10% of the amount specified for Coverage C, but in no event less than $1,000.” (Emphasis ours.)

The Safeguard policy provides coverage for unscheduled personal property in the amount of $53,000.00 if destroyed on the insureds’ premises. This coverage also includes such property away from the insureds’ premises. The amount of this coverage for the unscheduled personal property away from the premises shall be an additional amount of insurance equal to 10% of the amount specified for Coverage C, but in no event less than $1,000.00.

Plaintiffs contend that, under this “additional amount of insurance” provision, they are entitled to recover a total of $58,200.00 ($100.00 deductible) representing $53,-000.00 for the amount specified under Coverage C, plus 10%, because it was destroyed while away from the insureds’ premises. They argue that the clause is ambiguous and must be interpreted against the insurer.

Defendant’s contention is that there is liability under the policy for the property loss but it is limited to 10% of the insurance provided for in Coverage C. Since the amount specified in Coverage C is $53,-000.00, defendant claims that its liability is $5,300.00. The defendant argues that, when the policy is interpreted as a whole, it is clear that the intent of the insurer was to limit and provide less coverage for property off the premises. Further, defendant argues that the off-premises coverage is, in effect, an extra coverage. The word “additional,” it argues, reflects the fact that the coverage provided for property located away from the described premises is over and above that provided by the basic policy.

The general principles governing the interpretation of contracts is well established. In the case of Martin v. Phillips, 356 So.2d 1016 (La.App. 1st Cir.1977), the court stated as follows:

“The rules governing interpretation of written agreements apply to insurance contracts. La.C.C. Article 1901; Jennings v. Louisiana and Southern Life Insurance Company, 280 So.2d 297 (La. App. 1st Cir.1973), and authorities therein cited.
“The terms and provisions of an insurance contract, as in the case of other written agreements, are to be construed in their general and popular meaning. Schmieder v. State Farm Fire & Casualty Company, 339 So.2d 390 (La.App. 1st Cir.1976).
“Any ambiguity in an insurance contract will be construed against the insurer and in favor of the insured. Jennings, above.
“Where the terms of an insurance con-, tract are clear and express, the agreement will be enforced between the parties according to its provisions because the contract is the law between the parties. Schmieder, above.
“An insurance contract must be interpreted as a whole. All terms and provisions of such a policy must be construed together to ascertain the true intent of the parties. La.C.C. Article 1948; Elledge v. Warren, 263 So.2d 912 (La.App. 3rd Cir.1972).”

In the case of Carney v. American Fire & Indem. Co., 371 So.2d 815 (La.1979), our Supreme Court, in dealing with ambiguity in an insurance contract, stated as follows:

“We also refer to the case of Hendricks v. American Employers Insurance Company, 176 So.2d 827 (La.App. 2nd Cir.1965), writs refused, 248 La. 415, 179 So.2d 15, stating:
“The contract before the court in this case is, of course, not an ordinary business contract, but rather it is one of insurance. While it is true that the law of contracts and conventional obligations is applicable to contracts of insurance in general, there are some vital differences. One such difference is that contracts of insurance are unilaterally prepared in the confection of which the insured has no part. It is for this reason that it has become well-settled law in the field of insurance that words and phrases employed in a contract of insurance are to be construed, interpreted and defined in their ordinary and popular sense, rather than in a technical, philosophical or limited sense; that such words and phrases are to be construed liberally in favor of the policyholder and that all ambiguities are likewise to be resolved in favor of the policyholder. See Louisiana Civil Code Articles 1945 et seq., particularly Article 1957 and cases cited.
“Insurers may limit their liability where such limitation is clearly and expressly set forth in the contract of insurance. Such limitations or exclusions, however, must be free of ambiguity and sufficiently understandable to any given insured that it may be said that, in entering into the agreement containing such limitation, he understood and consented to such limitation. If the words or terms used in insurance policies are subject to more than one accepted meaning, then such words must be construed in the sense which is more favorable to the insured, unless such interpretation would lead to absurd results. See Louisiana Civil Code Articles 1957 and 1945(3).’ _” (Emphasis ours.)

As we apply these authorities to the coverage provision in question we find ambiguity in the policy provision in question.

The plaintiffs’ interpretation is summarized as follows: The policy first provides $53,000.00 in coverage for loss to personal property destroyed on the premises. Then, the policy provides that there is an “additional amount of insurance” for personal property destroyed off the premises. Thus, the policy limit for personal property destroyed off the premises is $53,-000.00 plus the “additional amount of insurance” (10% of $53,000.00) which totals $58,300.00. This interpretation was adopted by the Alabama Supreme Court while examining the exact same provision in another insurance company’s policy. Neumann v. State Farm Fire & Cas. Co., 369 So.2d 803 (Ala.1979). As noted by the Supreme Court of Alabama:

“The word ‘additional’ is not a word of limitation. It means something added to, more, or extra. In its common understanding, it does not mean less than, a part of a whole, or a reduction of something greater.”

The Alabama court held that the policy clearly contemplates that this “additional amount of insurance” (10%) is added to the amount provided for property destroyed on the premises to make up the total amount of coverage available for property destroyed off the premises.

Safeguard argues that the trial court in the present case and the Alabama court in Neumann v. State Farm Fire and Cas. Co., supra, incorrectly interprets this provision. In brief, counsel for Safeguard argues that the trial judge failed to realize that the word “additional” modifies the word insurance. Safeguard contends that the word “additional” was used merely to emphasize the fact that, in addition to insuring personal property damage on the premises for $53,000.00, the policy also insures personal property damaged off the insured’s premises for 10% of this amount, or $5,300.00. Safeguard argues that this is the intent of the policy language, citing the case of Farmer’s Home Mut. Ins. Co. v. Addelia, 122 Ariz. 180, 593 P.2d 930 (Ariz. App.1979). In Farmer’s Home Mut. Ins., the Arizona Court of Appeal held that the clause was not ambiguous. It held that the coverage provided an extra amount of insurance for unscheduled personal property not on the described premises and that such coverage was limited to 10% of the Coverage C amount.

In interpreting the meaning of an insurance contract, the courts are bound to ascertain the intent of the parties as expressed in the words of the contract. Upon examining the provision at issue in connection with the other provisions of the policy, we find nothing which makes it more reasonable to accept Safeguard’s interpretation of the policy over the plaintiffs’ interpretation of the provision. The policy provision is susceptible of two equally reasonable constructions. The conclusion that both interpretations are reasonable is bolstered by the fact that this exact same provision has been examined by two courts of different states, resulting in the Alabama court adopting the plaintiffs’ interpretation and the Arizona court adopting Safeguard’s interpretation.

We hold that the words in this insurance contract “are subject to more than one accepted meaning” and “must be construed in the sense which is more favorable to the insured.” Carney, supra.

For these reasons, the judgment of the trial court is affirmed and the case is remanded for further proceedings in accordance with law and the views expressed herein. Costs of this appeal are to be paid by defendant-appellant.

AFFIRMED AND REMANDED.

      . The actual amount of plaintiffs’ loss is not at issue on appeal. The trial of this issue has been continued pending the outcome of this appeal.

      . The Alabama court reached this result without even finding policy ambiguity. Thus, the court adopted its interpretation without strictly construing the provision against the insurer.


source: Caselaw Access Project

author: YELVERTON, Judge.

license: Public Domain

text:
    Blyn ROZAS, Plaintiff-Appellee, v. EUNICE IMPLEMENT CO., Defendant-Appellant.
    No. 83-1132.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Young & Burson, M. Terrance Hoychick and H. Kent Aguillard, Eunice, for defendant-appellant.

      Guy O. Mitchell, Ville Platte, for plaintiff-appellee.
    Before LABORDE, DOUCET and YEL-VERTON, JJ.
   YELVERTON, Judge.

Eunice Implement Company, seller of a farm tractor to plaintiff, Blyn Rozas, appeals a judgment awarding Rozas a reduction of price in the amount of $12,325, occasioned by redhibitory defects in the tractor. The appeal attacks both the finding of redhibitory defects and the amount of the award. We affirm.

Rozas purchased a new White “Field Boss” 2-150 tractor for farm use from defendant, Eunice Implement Company, on November 29, 1976, for $23,430.39. The purchaser had numerous problems with the tractor until it was traded to a dealer in Arkansas on January 14, 1982, for a trade-in allowance of $8,000. The defects of which plaintiff complained in his petition, and concerning which evidence was offered at the trial, focused on the brakes, the engine, the transmission and the rear end of the tractor.

The evidence disclosed that plaintiff began using the new tractor in March 1977 about three months after its purchase. The brakes went out two to three days after it was first used. Defendant repaired the brakes but they soon failed again. It was returned to defendant’s place of business for further repair. Defendant worked on the brakes 15 times while the plaintiff owned the tractor. The last time was in Décember of 1981 when a factory repairman discovered that the internal brake housing was warped. On that occasion plaintiff told defendant to try to fix it but that he was going to trade it regardless, and he in fact did trade it in the next month. A tender to the defendant and to the manufacturer, which had been made in July 1981, was refused.

The brake problem was only one source of difficulty; there was testimony that plaintiff had even more problems with the transmission, the engine and the rear end. The repair invoices in evidence total over $9,000 during the four years plaintiff owned the vehicle. These repairs were made in the areas where the complaints of malfunction were concentrated, including an engine overhaul. We agree with the trial court, based upon a study of the numerous invoices in the record, that over $7,000 of the invoices are readily attributable to repairs of defects, not ordinary maintenance costs. These invoices support the extensive testimony of witnesses, including the testimony of plaintiff, regarding the tractor’s defects, and we have no difficulty affirming the trial court’s determination that the tractor was defective. His ruling in this regard is correct and will not be disturbed.

Plaintiff originally sued the seller, Eunice Implement Company, as well as the manufacturer, White Farm Implement Company. Pending trial, White was placed under Chapter 11 bankruptcy and a stay order was issued prohibiting further proceedings against it except through the bankruptcy court. For that reason, Rozas moved to sever the manufacturer, and the motion was granted. The present case involves only the seller.'

The trial court found that the tractor had redhibitory defects but that since plaintiff no longer had possession of it, plaintiff was entitled only to an action for reduction of the price. It found the seller was in good faith. It granted plaintiff a judgment for $12,325.50 in quanti minoris. Of this amount, $7,478.78 was itemized as plaintiff’s reimbursement for repair costs paid by him occasioned by the defects. The difference was the result of a calculation by the trial court that took into account the depreciation of the tractor over the four years plaintiff had it, reduced by an allowance representing a credit for use.

This judgment is attacked by two assignments of error. We have already discussed the first issue, whether or not there existed redhibitory defects, finding that the evidence clearly supports a judgment awarding plaintiff a reduction of price. The primary issue on appeal is the amount of the judgment, or reduction of price, which was awarded. We have carefully examined the evidence in this regard, and, although we do not fully agree with the trial court’s calculations employed in reaching the total award, we find that the amount awarded is supported by the evidence, and we affirm it.

The process of reasoning by which the trial court reached its award of $12,325.50 was as follows: first, the court subtracted the trade-in allowance of $8,000 which plaintiff received when he sold the tractor, from the purchase price of $23,430.39, which he paid defendant when he bought it, and came up with a figure of $15,430.39. To this the trial court added $7,478.78, representing its calculation of what plaintiff paid for repairs made necessary by the defects. This total, $22,909.17, was determined by the trial court to have been the total loss suffered by plaintiff. The court then calculated depreciation at the rate of $2,343 per year for four years, or a total of $9,372, and also a credit for use which the court determined was 20 percent of the difference between the purchase price less the trade-in and the depreciation, the credit for use being $1,211.67. Deducting these two amounts, totaling $10,538.67, from the total loss, the trial court reached the figure for which it gave plaintiff judgment, $12,-325.50.

Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold. La.C.C.Code art. 2520. There are times when the vices of the thing sold occasion only a reduction of the price. La.C.C. articles 2541-2544. One such circumstance is where, as here, the buyer has sold the thing purchased and can no longer return the thing to the seller. Capitol City Leasing Corp. v. Hill, 404 So.2d 935 (La.1981). In the instant case the trial court properly limited plaintiff’s recovery to a reduction of the price.

The reduction in price is determined by figuring the difference between the sale price and the price a reasonable buyer and seller would have agreed upon if they had known of the defects. Capitol City Leasing Corp. v. Hill, supra. There is no mathematical formula for a determination of this price. Baham v. Community Motors, Inc., 428 So.2d 867 (La.App. 1st Cir.1983). Certain factors should be considered, such as the number of problems, the inconvenience associated with breakdowns and repairs, repair costs paid by the purchaser, and the overall poor performance of the thing in relation to what was expected. Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir.1974), writ denied 303 So.2d 186 (La.1974). As Judge (now Justice) Lemmon said in Men-ville:

“[WJhen the defects are numerous and the repairs lengthy and frequent, then a greater reduction is warranted, because a forewarned buyer would not reasonably pay the full price, reduced only by the cost of repairs, if he knew the extensive repairs of the defects would significantly curtail his use and cause him considerable inconvenience and aggravation. The diminution which the trial judge may decree under C.C. art. 2543 is theoretically the difference between the sale price and the price the reasonable buyer and seller would have agreed upon if they had known of the defects.”

There is also a measure of discretion involved in the trier of fact’s determination of reduction of price. Menville, supra; Bendana v. Mossy Motors, Inc., 347 So.2d 946 (La.App. 4th Cir.1977). If the purchaser has resold the thing, the resale value is not particularly relevant to the action in quanti minoris. Id.

In a good faith sale credit for use may sometimes justifiably reduce the recovery by a plaintiff, but, as was said in Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978), quoted in Capitol City Leasing Corp. v. Hill, supra:

“[Ejven the value of an extensive use may be overridden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller’s attempts to repair.”

Based on the above authorities, we disagree with the trial judge’s reasoning in several particulars. First, we disagree with the use of the trade-in allowance in the calculations of the reduction in price. In addition, we have found no authority for using depreciation as a factor. Also, we cannot agree that a credit for use should be given; for the same reasons as given by our Supreme Court in Capitol City Leasing Corp. v. Hill, supra, we think any credit for use was overridden by the inconvenience and constant interruption in service occasioned by the defects and attempts to repair this tractor. We note in this regard that a farm tractor is used seasonally, and that the constant repairs to which this vehicle was subjected occurred for the most part during the times that plaintiff needed the tractor for his soybean cultivations. Finally, we disagree with the trial court as to the amount of reimbursement to which the plaintiff is entitled for his own actual repair costs. Our calculation of this amount comes to $5,062.55.

Nevertheless, we think that the total award of $12,325 represents a fair amount for which plaintiff should have judgment. In our opinion, considering that the original price was $23,430, had a reasonable buyer and seller known of the defects at the time of the sale, the price would have been in the vicinity of $7,500 less than what plaintiff paid. (Compare Baham v. Community Motors, Inc., supra, where the First Circuit found a similar reduction in price justified for a $23,000 defective motor home.) Adding this amount to the figure which we have determined was the out of pocket cost of plaintiff occasioned by the defects in the tractor, we reach an award which is substantially the same as the award granted by the trial court. We accordingly find that the evidence in the case supports the judgment.

For these reasons, the judgment of the trial court is affirmed, appellant to pay the cost of this appeal.

AFFIRMED.


text:
    Barney BRADY, Jr., Plaintiff-Appellee, v. Charles O. SLAY, Defendant-Appellant.
    No. 83-1141.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Gist, Methvin, Hughes & Munsterman, Howard B. Gist, Jr., Alexandria, for defendant-appellant.
    Walter M. Hunter, Jr., Alexandria, for plaintiff-appellee.
    Before FORET, CUTRER and CULPEPPER, JJ.

       William A. Culpepper, Judge ad hoc.

   CUTRER, Judge.

In this mandamus proceeding, Barney H. Brady, Jr., brought suit to compel Charles 0. Slay, the assessor of Rapides Parish, to assess to him various unredeemed tracts of land purchased by him at tax sales over the last several years. From a trial court judgment ordering Slay to make the assessments as requested, Slay appeals. We affirm.

Brady, over the last six years, had purchased various tracts of immovable property at tax sales conducted by the Rapides Parish Sheriffs Department. Some of the properties purchased were unredeemed and other pieces of the property still remained within the three year redemption period. Slay has refused to enter Brady’s tax purchases upon the tax rolls of Rapides Parish.

Slay, the Rapides Parish assessor, refused to assess the property in Brady’s name, contending that the tax rolls should not be changed until at least the redemption period has expired and the tax purchaser has quieted title by an action in monition. He takes the position that LSA-R.S. 47:2193 is not operable under the facts and circumstances but, in the event that, as assessor, he is required to follow the statute, such action would be unconstitutional under Art. VII § 25 of the 1974 Louisiana Constitution, which states:

“There shall be no forfeiture of property for nonpayment of taxes. However, at the expiration of the year in which the taxes are due, the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property on which the taxes are due. The advertisement shall be published in the official journal of the parish or municipality, or, if there is no official journal, as provided by law for sheriffs’ sales, in the manner provided for judicial sales. On the day of sale, the collector shall sell the portion of the property which the debtor points out. If the debtor does not point out sufficient property, the collector shall sell immediately the least quantity of property which any bidder will buy for the amount of the taxes, interests, and costs. The sale shall be without appraisement. A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.”

Article VII § 25 goes on to make provisions for redemption and annulment of tax sales, and for quieting tax titles.

Brady contends that, because he is a tax purchaser, he is entitled to have the properties assessed in his name from the date of recordation of a tax deed from the Rapides Parish Sheriff’s Office. He relies on LSA-R.S. 47:2193, which provides:

“From the date of recording a tax deed to property, all taxes thereon shall after that date, be assessed to and paid by the purchaser, until the property, or any part thereof, be redeemed. If redeemed, in whole or in part, the person redeeming shall pay all taxes assessed upon the property redeemed, subsequent to the tax sale.”

The trial court, in its reasons for judgment, resolved the contentions in favor of. Brady, stating in part, as follows:

“The Assessor urges that the heart of Art. 7, Sect. 25 of the Louisiana Constitution is the beginning sentence, ‘There shall be no forfeiture of property for nonpayment of taxes.’ However, close scrutiny of that article and section reveals that the first sentence merely means that property will not be automatically lost to the state. It does not mean that the land cannot be seized and sold for the owner’s failure to pay taxes. The second sentence begins with the word, ‘However,’ and then goes on to provide for seizure and sale of property when taxes are not paid.
Sfc ⅜! ⅜ * * ⅜
“This clearly contemplates a sale transferring title to the tax purchaser. Thus, R.S. 47:2193 does not violate Art. 7, Sect. 25....”

Further, the court found that the language of LSA-R.S. 47:2193 clearly states that, after property has been seized and sold for failure to pay taxes, and the deed has been recorded, it is mandatory that the property be assessed in the name of the tax purchaser. We fully agree that, under this statute, it is mandatory that the assessor enter the property on the tax rolls in the name of the tax sale purchaser after recordation. Also, while the trial court’s ruling on the constitutionality of the statute appears imminently correct, we have concluded that we must dispose of this issue on other grounds, i.e., that the assessor has no interest or right to question the constitutionality of the statute under these circumstances.

Brady objected in the trial court to the consideration of the plea of unconstitutionality, but the trial judge did not rule on it since he found that the statute was constitutional.

In the case of Dore v. Tugwell, 84 So.2d 199 (La.1955), the court stated:

“The Heard ease, which represents the majority view in this country, enunciates the general rule that a public officer, charged with statutory duties of a ministerial character, is without interest or right to question the constitutionality of the statute affecting or prescribing such duties as a defense to a mandamus proceeding to compel their performance. See Annotation 129 A.L.R. 941, supplementing 30 A.L.R. 378, and cases there cited. This doctrine is founded in the basic tenent that, forasmuch as legislative acts are entitled to great respect and are presumptively constitutional, it would be inimical to public policy to allow a party without interest in a statute, and who is not injuriously affected by its enforcement, to assail its validity. City of New Orleans v. Dameron, 149 La. 535, 89 So. 685.”

See also, Smith v. Flournoy, 238 La. 432, 115 So.2d 809 (1959).

The instant case falls squarely within the doctrine of the Heard case and we, consequently, conclude that Slay is without interest or the right to question the constitutionality of LSA-R.S. 47:2193. Slay is a public official, charged with the statutory duty of assessing property sold at tax sales according to the provisions of LSA-R.S. 47:2193. These duties are ministerial in nature and Slay is without the interest or right to question the constitutionality of the statute prescribing these duties, as a defense to this mandamus proceeding.

Brady answered Slay’s appeal seeking $750.00 in damages asserting that Slay’s appeal is frivolous. LSA-C.C.P. art. 2164 states:

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

In the case of Mauboules v. Broussard Rice Mills, 379 So.2d 1196, 1198 (La.App. 3rd Cir.1980), this court discussed art. 2164 as follows:

“In a recent case, Moity v. Busch, 368 So.2d 1134 (La.App. 3rd Cir.1979), cited approvingly Coleman Oldsmobile, Inc. v. Cobb, 366 So.2d 994 (La.App. 1st Cir. 1978), and Jackson v. East Baton Rouge Parish School Board, 348 So.2d 739 (La.App. 1st Cir.1977) we stated:
‘Article 2164 of the Code of Civil Procedure authorizes a claim for damages for frivolous appeal, but its provisions are penal in nature and must be strictly construed. Appeals are favored, and the imposition of penalties for a frivolous appeal will not be granted unless they are clearly due. Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay or that appealing counsel does not seriously believe in the position he advocates, even though the appeal lacks serious merit. Avondale Shipyard Inc. v. LaRose Shipyards, Inc., 289 So.2d 192 (La.App. 1st Cir.1973); Conques v. Hardy, 337 So.2d 627 (La.App. 3rd Cir.1976), and Franklin v. Franklin, 338 So.2d 1199 (La.App. 3rd Cir.1976).’ (348 So.2d at 741.)”

With these principles in mind, we are of the opinion that, even though Slay’s position is untenable, it is not frivolous.

For the foregoing reasons, the request for damages for a frivilous appeal is denied. The judgment of the trial court is affirmed. The costs of this appeal are assessed to defendant-appellant, Charles 0. Slay.

AFFIRMED.


author: YELYERTON, Judge.

text:
    Wallace Owen HORNSBY, Jr., Plaintiff-Appellee, v. Aldon Joseph RICHARD, et al., Defendants-Appellants.
    No. 83-1142.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Donald J. Richard, Opelousas, for defendants-appellants.
    Brinkhaus, Dauzat & Falgoust, Jerry J. Falgoust, Opelousas, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEN VERTON, JJ.
   YELYERTON, Judge.

A mobile home being moved caught fire and burned while in transit, and the mover, Aldon Richard and his son, Danny Joe, d/b/a Danny Richard Mobile Home Movers, cast in judgment for the loss in a suit brought by the owner, Wallace Hornsby, appealed. Damages were stipulated, and the only issue in the trial court was whether the mover or the owner was responsible for the loss. Because no evidence was presented by either side to fix the cause of the fire, the trial judge determined liability in accordance with the rules of burden of proof. Finding that our Civil Code articles dealing with the obligations and liability of carriers govern the burden of proof in the case, and, finding, further, that the trial court was not clearly wrong in his assessment of what was proved and what was not proved, we affirm the judgment.

Some of the facts are undisputed. Hornsby hired the Richards to move his mobile home from Buras on the Gulf of Mexico to Washington, Louisiana, in the central part of the state. The move occurred on November 25, 1980, with Danny Joe Richard driving the moving truck, assisted by Randy Stelly, an employee of the movers. Plaintiff himself was a passenger in the towing vehicle. All parties knew the home had a bent frame toward the rear but the trip was nevertheless undertaken. At a weigh station enroute it was discovered that the frame was bent more, but the trip continued. Some four hours into the move, smoke was seen coming from the rear of the mobile unit. They stopped and used fire extinguishers, unsuccessfully. The home burned up.

Other facts are disputed. The plaintiff, Hornsby, testified that Danny Joe Richard told him it would not harm the mobile home to move it with a bent frame. Hornsby said Richard never told him that he would have to assume the risks of moving the home or that he would have to hold the defendants harmless from liability. He said no one warned him that they should stop the moving of the home. The movers only stopped once, at a weigh station, to check the trailer. At the weigh station the frame was bent a little more, but Danny Joe Richard told him it would not hurt it to keep moving it. No one checked the inside of the trailer at the weigh station. The only reason plaintiff came on the trip was to show the defendants where to move the trailer. After the fire occurred the defendants informed him he could have obtained insurance from them for an extra charge. This was the testimony of the plaintiff.

According to the testimony of Danny Joe Richard, the mobile home was still on blocks when he and Randy Stelly arrived in the towing vehicle at Buras. The plaintiff had disconnected the electricity. They unblocked the trailer and checked the inside, finding nothing wrong internally. On the outside they discovered that the frame was damaged. The supporting structure on the back left of the trailer was bent down and not supporting the back end of the home correctly. He told the plaintiff that this might cause moving problems, and that if he wanted them to move it plaintiff would have to assume full responsibility. During the trip they checked the trailer several times including the inside of the trailer. During the trip the back end was hanging down more and getting considerably worse. At the weigh station he carefully checked the trailer and the frame was not rubbing on the tires. At the weigh station the plaintiff inspected the inside. This was the substance of the testimony of Danny Joe.

Aldon Richard, the owner, was not present at any time during the move. He testified that his son was in charge of the operation and that he had sent his son and Stelly to do the job.

Stelly did not help in resolving the conflicts in the testimony between plaintiff and Danny Joe Richard. He said that when they unblocked the trailer before starting the move, he thought that plaintiff had already disconnected the gas and electricity. He did not check the inside of the trailer but noticed that the frame was bent. He heard Danny Joe ask the plaintiff if he wanted the trailer pulled but he did not hear anything else. The only place they stopped was at the weigh station. The frame was bent worse and the plaintiff told them to continue to pull it. They did not check the inside, only the outside. They never told the plaintiff it was too dangerous to move but merely asked him if he wished them to keep pulling it. The witness, Stelly, perceived no trouble as a result of the bent frame since it was still above the wheel and the ground. He stated that plaintiff had nothing to do with the moving of the trailer.

There was nothing in writing. Before they arrived on the scene the morning of the move, the entire contract between plaintiff and the movers was an oral agreement to move the mobile home from Buras to Washington for $418. The trial judge made a credibility and fact determination that it was not proved that a new and supplementary contract was made after the discovery of the bent frame. Contrary to the contention of the appellant that the plaintiff agreed to hold appellant harmless for any damage that happened, and that plaintiff assumed the risk of the accident, the trial judge made the finding that there was no such agreement, saying that “[a]t the best for defendant, there is a standoff on whether plaintiff assumed responsibility for moving with the bent or damaged frame.”

There was no evidence presented in the case as to what caused the fire. While the bent frame was suspected as having had something to do with the loss (if we properly interpret the reason why it was the subject of so much discussion in the case) there was no evidence at all that it caused, or did not cause, the fire.

Since nothing was really proved, the issue comes down to which party failed to carry his burden of proof.

Because the defendants were in the business of moving mobile homes, by pulling them behind a truck from one location to another, we regard this type of business as included within the definition of a “common carrier by motor vehicles” as that term is defined by LSA-R.S. 45:162(5), which reads:

(5) “Common carrier by motor vehicle” means any person, the essential nature of whose business comprises engaging in, soliciting or accepting persons or property for transportation for hire, charge, or compensation as an employment or holding himself out as so available to the public generally and indiscriminately for such business, whether or not the business is conducted over a regular route, between fixed termini, within a defined area, or upon a regular or irregular schedule. There shall be two main classes of common carriers, “common carriers of commodities over regular routes”, and “common carriers of special commodities over irregular routes”. “Common carriers of special commodities over irregular routes” means any person, as a common carrier, transporting commodities which require special equipment, service or handling over irregular routes and not between fixed termini. All certificates of public convenience and necessary now issued and validly outstanding shall continue in full force and effect until the further orders of the Commission. Any person who, with or without specific contracts, furnishes such transportation to more than five separate shippers of property or more than five passengers shall be, prima facie, held to be a common carrier and the burden shall rest upon him to show by a clear preponderance and to the satisfaction of the Commission that the character of his operations is not that of a common carrier. This paragraph shall not apply to the business of any person conducted mainly within the corporate limits of one incorporated municipality but within a radius of seven miles of the limits of the incorporated municipality but this exemption shall not apply to motor carriers of passengers operating beyond the limits of the parish of their domicile unless the major portion of such carrier’s operations are conducted within the corporate limits of one municipality.

The obligations and liability of carriers are expressed in the following codal provisions:

Art. 2751. Obligations of carriers and watermen
Art. 2751. Carriers and watermen are subject, with respect to the safe keeping and preservation of the things intrusted to them, to the same obligations and duties which are imposed on tavern keepers in the title: Of Deposit and Sequestration.
Art. 2752. Liability for things delivered for shipment
Art. 2752. They are answerable, not only for what they have actually received in their vessel or vehicle, but also for what has been delivered to them at the port or place of deposit, to be placed in the vessel or carriage.
Art. 2754. Liability for loss or damage
Art. 2754. Carriers and waterman [watermen] are liable for the loss or damage of the things intrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events.

In any case against a carrier for damage to goods, the claimant must prove (1) receipt by the carrier in good condition; (2) arrival in a damaged condition; and (3) the amount of the loss. Home Furniture and Appliance v. Red Ball Motor Freight, Inc., 343 So.2d 319 (La.App. 2nd Cir.1977), writ denied 345 So.2d 1193 (La.1977); Illinois Central Gulf Railroad Company v. City of New Orleans, New Orleans Public Belt Railroad, 426 So.2d 1385 (La.App. 4th Cir.1983). After the claimant has proved these elements the carrier may escape liability if he proved that such loss or damage was occasioned by accidental or uncontrollable events. LSA-C.C. art. 2754.

This relationship and burden of proof is similar to that of a depositor-depositary relationship. Once a depositor establishes the existence of a deposit and the loss of the property while deposited, it is presumed that the loss resulted from the depositary’s lack of care and the depositary has the burden to exonerate himself from fault. Harper v. Brown & Root, Inc., 391 So.2d 1170 (La.1980).

In the present case the defendants’ employees received the mobile home for shipment in good condition. Although the frame was bent, the trial court found that there was no evidence that this damage caused the fire. In transit the mobile home caught fire and was totally damaged. The value of the trailer was stipulated at $5,000. It is clear from the evidence that plaintiff sustained his burden of proof. The defendants made no showing that the accident was not occasioned by their neglect, and offered no evidence of the cause of the fire. Further, the defendants failed to prove that the damage or loss had been occasioned by accidental or uncontrollable events. Therefore, the trial court properly found the defendants liable for the damage occasioned by the unexplained fire while the mobile home was in transit.

Such a conclusion is not unfair since the defendants are the experts in the moving of mobile homes and are in a much better position to know of the hazards of the occupation and to guard against them. When damage or loss occurs to the transported goods the mover is in a better position to explain the occurrence.

The defendants also argue that they should escape liability since the plaintiff agreed to hold the defendants harmless for any damage. We disagree.

The trial court was correct when he stated in his reasons for judgment that “[a]t best for defendant, there is a standoff on whether plaintiff assumed responsibility for moving with the bent or damaged frame. Even if there was a loss-assumption agreement, it would not extend to the fire damage. It was not shown to be attributable to the bent or damaged frame.”

As we interpret the trial court’s reasons, which are supported by the evidence, the defendants failed to prove by a preponderance of the evidence that there was a loss-assumption or hold harmless agreement between the parties. The plaintiff testified that he never agreed to assume the responsibility for the moving of the trailer and that the defendants never warned him of the dangers in moving it. The defendants’ employee, Randy Stelly, also did not hear the conversation allegedly made by the plaintiff assuming responsibility.

The evidence also supports the finding that the plaintiff’s presence in the moving vehicle did not affect the defendant’s obligations as a carrier, as plaintiff had no control over the moving operation.

For these reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: CULPEPPER, Judge Pro Tern.

text:
    Rose Marie DUGAS, Plaintiff-Appellant, v. Ernest MOUTON, et al., Defendants-Appellees.
    No. 83-1144.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Cormier & Curtis, Ernest J. Cormier, Lafayette, for plaintiff-appellant.
    Edward J. Marquet, and John K. Hill, Jr., Lafayette, for defendants-appellees.
    Before FORET, CUTRER, JJ., and CUL-PEPPER, J. Pro Tern.
   CULPEPPER, Judge Pro Tern.

Plaintiff, Rose Marie Dugas, appeals from the dismissal of her suit for personal injury against Ernest Mouton, his liability insurer, Maryland Casualty Company, Inc., and Ronald Coleman. The trial court dismissed plaintiffs suit, finding that she failed to prove that she had sustained any injury in the accident out of which this action arose. We affirm.

Defendant Mouton and his liability insurer filed a third party demand against the State of Louisiana, Department of Transportation and Development (DOTD) asking for contribution in the event that they be found liable to Ms. Dugas. The judgment rendered in this matter was silent as to Ms. Dugas’s claim against defendant Coleman and the third party demand; therefore, these demands are considered rejected. Guaranty Bank & Trust Company of Alexandria, Louisiana v. Carter, 394 So.2d 701 (La.App. 3d Cir. 1981), writ denied, 399 So.2d 599 (La.1981). There has been no appeal from those claims, and that portion of the judgment is now considered final.

Rockwood Insurance Company, the worker’s compensation insurer for plaintiff’s employer, intervened in this matter asserting its right of subrogation against Mr. Mouton and seeking reimbursement for $4,400 in benefits and $6,005.87 in medical payments paid to Ms. Dugas. Rockwood also filed a separate suit against Mr. Mouton seeking the same relief. Although that matter was consolidated with Ms. Dugas’s action at trial and on appeal, there was no appeal by Rockwood and judgment against it is now final. A separate opinion will be rendered this date in that companion case. Rockwood Insurance Company v. Mouton, 460 So.2d 742 (La.App. 3d Cir.1984).

The accident which is the subject of this litigation occurred on May 9, 1980, shortly after 3:30 p.m. Ms. Dugas was a passenger in a dump truck driven by Ronald Coleman and owned by DOTD, the employer of Ms. Dugas and Mr. Coleman. The DOTD truck was traveling west on Second Street in Crowley, Louisiana, toward its intersection with Avenue G and was pulling a large roller used in repairing highways. Ernest Mouton was traveling south on Avenue G and stopped for the red traffic light at the intersection. Mr. Mouton testified that he saw the left signal indicator blinking on the DOTD truck, so he attempted to make a right turn on red from Avenue G onto Second Street. Mr. Coleman, who was traveling with the favored light, swerved left and applied his brakes in an attempt to avoid a collision with Mr. Mouton. The truck and Mr. Mouton’s car did not collide; however, the roller swung around and struck the left front of the car. Mr. Mouton and Mr. Coleman both testified that the impact was slight. Mr. Coleman testified that the impact would not have overturned a soft drink bottle on the truck seat. Officer McBride, the policeman who investigated the accident, stated that no one indicated they had been hurt.

Ms. Dugas testified that when she returned to her work unit on Friday afternoon after the accident, she told a coem-ployee and her acting supervisor that she was injured. She did not complete an employee’s report of injury until May 12, the Monday following the accident. Ms. Dugas claims to have suffered lower back pain from shortly after the accident up until the time of trial.

Ms. Dugas was first examined and treated by Dr. Joseph A. George, her family practitioner, on May 12, 1980. Dr. George noted some back spasm and his diagnosis was that Ms. Dugas had suffered a lumbo-sacral strain. He prescribed muscle relaxers and pain killers. Dr. George noted, “... she was so big that it was really very difficult for me to examine her.” Ms. Du-gas is five feet three inches tall and has weighed approximately 190 pounds since shortly after the accident. He saw her again on May 13, and decided to hospitalize her on May 14 because she was complaining of weakness in her legs and severe pain. Ms. Dugas remained in the hospital until June 2, during which time she received physiotherapy, traction, muscle relaxants, analgesics, and steriods. She was discharged with a secondary diagnosis of pelvic inflammatory disease.

Dr. George testified that Ms. Dugas never seemed to get well, and he reached a point that he could no longer tell if her problem was back spasm.or simply obesity. Dr. George saw her approximately fifty times between May 12, 1980 and May 1, 1981, when he released her to return to work. During this time Dr. George indicated that Ms. Dugas should have improved at least a little; however, it seemed that she did not. Dr. George admitted that in cases such as this where obesity is a factor, the diagnosis is made up of the patient’s complaints.

Ms. Dugas was examined on referral from Dr. George by Dr. James C. McDaniel, an orthopedic surgeon, on July 9, 1980. His examination revealed no objective findings, and he indicated that if she had had a sprain, it was healed at the time of his examination. Dr. McDaniel also indicated that Ms. Dugas’s lower back problems could be related to her obesity or pelvic inflammatory disease.

On April 21, 1981, Ms. Dugas was examined by Dr. Fred C. Webre, an orthopedic surgeon, at the request of the State Adjusters. Dr. Webre’s examination revealed no objective signs of any medical problem, and he agreed that her complaints could be related to her obesity.

Dr. George also referred Ms. Dugas to Dr. Louis E. Blanda, an orthopedic surgeon, who first examined her on May 18, 1981. At that time Dr. Blanda noted tenderness in the lower lumbar area and a mild degree of spasm. He recommended that Ms. Dugas undergo nerve conduction and electromyographic studies in order to determine whether she suffered from nerve root compression. He based this recommendation on her subjective complaints, but made no objective findings. Dr. Blan-da saw her again on June 8, at which time she had not yet had the recommended testing done. He advised her to continue conservative treatment, including exercise and heat. The nerve conduction and electro-myographic studies were conducted by Dr. Norman E. Anseman, a specialist in physical medicine and rehabilitation, on October 5 and October 13, 1981. The results were within normal limits.

Dr. Blanda saw Ms. Dugas twice more, on October 14, 1981, and February 3, 1982. He testified that her subjective symptoms were consistent with a disc injury; however, he could find no objective signs of such an injury. He suggested that a CAT scan and a myelogram be performed. Dr. Blanda also testified that Ms. Dugas’s complaints of lower back pain were consistent with that caused by pelvic inflammatory disease.

Evidence at trial established that Ms. Dugas had been involved in a second accident on June 26, 1980, in which she was struck from the rear by another vehicle. None of the doctors whose testimony was offered into evidence in this case were advised that Ms. Dugas had been involved in another accident. She testified at trial of this matter that she had not been injured in that accident; however, defendants offered into evidence a petition for damages in the amount of $45,000 for injuries arising out of the June 26 accident.

Although the trial judge found that the sole and proximate cause of the May 9 accident was the negligence of Mr. Mouton, he found that Ms. Dugas failed to prove that she sustained any injury in that accident. In reaching this decision the trial judge considered the characterization of the impact by Mr. Coleman and Mr. Mouton, the failure of the doctors to find any objective signs of injury and their indications that her complaints could be due to her obesity or pelvic inflammatory disease. The trial judge also considered Ms. Dugas’s failure to report to any of the physicians the occurrence of the second accident, and that despite her denial that she suffered any injuries in that accident, she has filed suit seeking damages for personal injury.

It is well settled that the trial court’s factual conclusions, particularly where the credibility of a witness is involved, are entitled to great weight and will not be disturbed on appeal unless clearly wrong. Bruins v. United States Fleet Leasing, Inc., 430 So.2d 386 (La.App. 3d Cir.1983). After reviewing all of the evidence and testimony in this case, we can not conclude that the trial court clearly erred in its determination that Ms. Dugas was not injured as a result of the accident on May 9, 1980.

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

AFFIRMED.


text:
    ROCKWOOD INSURANCE COMPANY, Plaintiff-Appellant, v. Ernest MOUTON, Defendant-Appellee.
    No. 83-1145.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Hicks & Breedlove, Roger J. Breedlove, Alexandria, for plaintiff-appellant.
    John K. Hill, Jr., Lafayette, for defendant-appellee.
    Before FORET, CUTRER, JJ., and CUL-PEPPER, J. Pro Tern.
   CULPEPPER, Judge Pro Tern.

For the reasons set out in the companion case of Dugas v. Mouton, et al, 460 So.2d 739 (La.App. 3d Cir.1984), in which a separate opinion is being rendered this date, the judgment of the trial court in this matter is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: DOUCET, Judge.

text:
    Gregory THIBODEAUX, Plaintiff-Appellant, v. Norris STAGG et al., Defendant-Appellee.
    No. 83-1153.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Edward J. Milligan, Jr., Lafayette, for plaintiff-appellant.
    Fruge & Yidrine, Jack C. Fruge, Sr., Ville Platte, for defendant-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   DOUCET, Judge.

Gregory Thibodeaux, plaintiff-appellant, brought this suit against Norris Stagg and his liability insurer, Louisiana Farm Bureau Casualty Insurance Company, the defendant-appellees, seeking damages incurred in a vehicular collision between the parties. Norris Stagg reconvened seeking damages for his loss in the collision. The trial court held that Thibodeaux’s negligence was the sole cause of the accident and denied recovery, and awarded Stagg $517.00 in damages on his reconventional demand. The plaintiff-appellant perfected this devolutive appeal.

The collision occurred on Louisiana Highway No. 29 on May 24, 1982 at approximately 3:15 p.m. The plaintiff was riding his motorcycle in a southerly direction when he approached the defendant’s truck, also traveling in a southerly direction at a very low rate of speed. As the plaintiff was passing the defendant, the defendant began to execute a left turn and collided with the plaintiff. The plaintiff was thrown from his motorcycle and sustained several injuries to his right knee, right shoulder and right rib cage. The plaintiff was assisted by the defendant and a third party to the Ville Platte General Hospital where he was treated by nurses in the emergency room and then released. No physician was consulted until January 14, 1983 when Dr. John Tassin examined the plaintiff.

The plaintiff then filed this lawsuit on February 8, 1983 seeking damages caused by the defendant’s alleged negligence in attempting to make the left turn. The defendant denied this allegation in his answer and also reconvened for the damage to his truck caused by the collision. A trial was conducted on the matter in which both parties testified as well as the investigating police officer. Stagg testified that he was going about 5 to 10 mph when he began to execute a left turn which resulted in the collision. Stagg testified that he took all precautions and made the proper left turn signal. Thibodeaux testified that he was traveling at about 50 mph as he attempted to pass the defendant and that without a warning the defendant began to turn left, thereby resulting in their collision. The investigating officer testified that from the skid marks and the position of the motorcycle that the plaintiff was traveling at least 50 mph. Also adduced at trial was the fact that a curve in the road was just beyond the point of the collision which was followed by a bridge.

The trial court found that the plaintiff was contributorily negligent and that the defendant was not negligent in any way. The plaintiffs demand was rejected and his claim dismissed. The court then awarded the defendant $582.12 for the damages to his truck caused by the collision pursuant to his reconventional demand. Following is the crux of the trial court’s reason for judgment:

“From the evidence adduced at the trial, the court finds as a fact proven that plaintiff was proceeding at an excessive rate of speed under the circumstances. He was coming to a curve at a fast rate of speed and could not see around the bend, heedless of what might await him beyond. This the court finds constituted contributory negligence on his part.”
“Contributory negligence is an affirmative defense, the burden of proving which rests with the defendants. The court finds that they have carried this burden successfully.”
“Defendant Fontenot was proceeding in at a very slow speed, and in a very prudent manner. He had ascertained that no vehicles were either coming toward him or following him and had begun his turning manouver [sic] when his truck was struck with great force and violence by plaintiffs motorcycle. The Court finds that Fontenot was free of all negligence.”

The plaintiff-appellant contends that the trial court was in error when it concluded that he was contributorily negligent and that the defendant was free of all negligence. The appellant also contends that the trial court was in error when it did not apply comparative negligence in deciding the case.

It is axiomatic that an appellate court should not disturb the factual conclusion of a trial court absent a manifest error which makes the factual determination clearly wrong. Boustany v. Fluid Dynamics, Inc., et al., 392 So.2d 750 (La.App. 3rd Cir.1980); Johnson v. Coca Cola Bottling Co., 386 So.2d 993 (La.App. 3rd Cir. 1980). In Canter v. Koehring, 283 So.2d 716 (La.1973) the Supreme Court explained the basis for this principle:

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

After reviewing the record, we find that there existed a reasonable factual basis for the trial court’s factual conclusion. The testimony of Mr. Stagg supports the trial court’s conclusion that he was free from negligence in this matter. Although Mr. Thibodeaux’s testimony directly contradicted Mr. Stagg’s testimony, the trial court was satisfied with the truth of Mr. Stagg’s version of the events leading to the collision. This is precisely the situation where the appellate court’s deference to the trial court’s factual determination is warranted. The conclusion that Mr. Stagg was completely free of negligence in this matter is not manifestly erroneous and therefore will not be disturbed on this appeal. Canter, supra. Also, the trial court’s conclusion that Mr. Thibodeaux was solely responsible for the collision will remain undisturbed on this appeal. As the negligent party, the plaintiff is liable to Mr. Stagg for the damages claimed in his re-conventional demand for losses caused by the collision. Because we affirm the trial court’s holding that only one party was negligent in this matter, the issue of comparative negligence need not be addressed.

For the foregoing reasons we affirm the trial court’s judgment. The plaintiff-appellant is assessed the costs of this appeal.

AFFIRMED.


author: LABORDE, Judge.

text:
    CBM ENGINEERS, INC. & Colaco Engineers, Inc., Plaintiffs-Appellees, v. TRANSCONTINENTAL INSURANCE COMPANY, Defendant-Appellant.
    No. 83-1157.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Landry, Watkins & Bonin, William 0. Bonin, and Ann Garber Stevens, New Iberia, for defendant-appellant.
    Dodge, Friend, Wilson & Spedale, Gordon F. Wilson, Jr., New Orleans, David Foster, Lafayette, for plaintiffs-appellees.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Defendant-appellant Transcontinental Insurance Company is the general liability insurer of plaintiffs-appellees CBM Engineers, Inc. and Colaco Engineers, Inc. Defendant appeals a partial summary judgment by the trial judge which declares that defendant is obligated to defend plaintiffs in personal injury and wrongful death suits filed against plaintiffs. The trial judge did not err by granting partial summary judgment in favor of plaintiffs. We affirm.

Plaintiffs are business firms that provide structural engineering services. Plaintiffs were consulting structural engineers on a construction project in Lafayette. An elevator at the construction site used by construction workers fell from a hoisted position. Two workers were severely injured in the accident, and one of the workers eventually died from the injuries that he sustained.

Separate suits (now consolidated) were filed by the injured worker and on behalf of the deceased worker. Among the many named defendants in those suits are plaintiffs in this case. The allegations against plaintiffs are virtually identical in both suits. One of the petitions filed against plaintiffs alleges that plaintiffs are liable for the damages suffered by the workers on the following grounds:

“A. As engineers of the building under construction with its expertise in such matters, in failing to inspect the elevator in question to determine whether or not it was in a safe condition as to all personnel involved in the construction of said building.
B. In failing to properly instruct and supervise the operator and/or operators of the elevator in question as to its proper use, maintenance and control and safety standards to be followed.
C. In failing to make certain that the said operator and/or operators of the elevator had proper knowledge of all safety mechanisms and how to employ them while the elevator was in a hoisted position.
D. In failing as engineers of the construction project to have placed on the elevator and all other machinery and/or equipment in use warning signs and/or instructions as to the dangers inherent in the usage of said equipment.
E.In general, in failing to make certain that all phases of the construction project including its machinery was [sic] in proper operating conditions [sic] as well as to make certain no defects were present.”

Plaintiffs demanded that their insurers defend them in the personal injury and wrongful death suits. The insurers refused to provide a defense, and plaintiffs subsequently filed suit against their insurers for damages, penalties, and attorney fees on the basis that the refusal to defend was wrongful, arbitrary and capricious, and without probable cause.

Plaintiffs’ professional liability insurer then agreed to defend plaintiffs, and suit against that insurer was dismissed. However, defendant general liability insurer would not agree to defend plaintiffs. Instead, defendant filed a motion for a summary judgment to have the suit against it dismissed. Plaintiffs opposed this motion, and they also filed a motion for partial summary judgment. In their motion for partial summary judgment, plaintiffs prayed that defendant be adjudged obligated to provide a defense for plaintiffs in the suits filed against them. The trial judge denied defendant’s motion for summary judgment, but he granted plaintiffs’ motion for partial summary judgment.

Defendant now appeals. Defendant contends that the trial court erred by finding that it is obligated to defend plaintiffs.

Defendant correctly states that it is plaintiffs’ general liability insurer and that its coverage of plaintiffs specifically excludes liability incurred in the course and scope of certain professional acts. An endorsement attached to plaintiffs’ general liability policies provides:

“It is agreed that the insurance does not apply to bodily injury or property damage arising out of the rendering of or the failure to render any professional services by or for the named insured, including (1) the preparation or approval of maps, plans, opinions, reports, surveys, designs or specifications and (2) supervisory inspection or engineering services.”

In American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969), the Louisiana Supreme Court stated:

“Generally the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. And the insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage.
Thus, if, assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Additionally, the allegations of the petition are liberally interpreted in determining whether they set forth grounds which bring the claims within the scope of the insurer’s duty to defend the suit brought against its insured.”

Id. at 269, 230 So.2d at 259 (citations omitted).

Defendant and plaintiffs agree that Czamiecki provides the legal principles for the resolution of this dispute, but they differ in their interpretations of its effect on the undisputed facts of this case. Defendant argues that its coverage of plaintiffs could not extend to any of the alleged acts or omissions contained in the petitions filed against plaintiffs, even if the allegations of the petitions are accepted as completely true. Therefore, defendant’s argument continues, it is not obligated to defend the suits against plaintiffs. Plaintiffs argue that, “liberally interpreted,” some of the allegations of the petitions filed against plaintiffs could, if accepted as true, result in the liability of plaintiffs on grounds other than those specifically excluded in plaintiffs’ general liability insurance policies.

The trial judge found that a liberal interpretation of the pertinent allegations contained in the petitions filed against plaintiffs would not foreclose the possibility that plaintiffs may be found liable for acts or omissions not excluded in plaintiffs’ general liability insurance policies. We agree. For example, allegation (E) (see above) could be construed to include the breach of the general duty of reasonable care, owed by all involved in the construction project, to report unsafe conditions, whether the hazard was caused by a failure or omission involving engineering, or from another source. Furthermore, under the liberally interpreted allegations of the petitions, plaintiffs conceivably could be found liable for failure to warn individual workers of problems (if any) that they had noticed with the elevator. We do not believe the possibility is totally precluded that such a failure to warn may be outside of the “professional” or “supervisory” services plaintiffs agreed to perform in their contract with the building constructor.

Whether plaintiffs are liable to the personal injury and wrongful death claimants on the basis of professional or nonprofessional acts or omissions, or indeed, whether plaintiffs are liable at all, are matters to be resolved in other proceedings. We cannot foresee all theories of liability that might be advanced in the underlying tort suit, and even less can we predict which theories (if any) might carry the day for the personal injury and the wrongful death claimants. Furthermore, we will not explore the language of all of the insurance policies issued to plaintiffs in an attempt to set forth, in advance, under which outcomes at trial one or the other insurer would be obligated to provide indemnification. Clearly, however, the petitions filed against plaintiffs, the language of the general liability insurance policies, and the law of this state, all taken together, at least require defendant insurer to defend'plaintiffs in the underlying case.

The trial judge achieved a just and proper result through the use of a summary proceeding. If the mover is entitled to a judgment as a matter of law on the basis of undisputed facts, then a summary judgment should be granted. See La.Code Civ. Proc. art. 966. In this case, the law of this state limits the relevant facts to (1) the allegations of the petitions and (2) the relevant language of the insurance policies. As discussed above, the law was properly applied to the facts.

The nature of the judgment rendered in this suit may appear curious. The usual remedies in a suit for wrongful failure to defend are damages, penalties, and attorney fees. Under the circumstances of this case, however, the judgment is proper, see La.Code Civ.Proc. art. 1841; see also La.Code Civ.Proc. arts. 1871, 1872, 1875, and indubitably in the best interests of all parties. The judgment in this case is an interlocutory decree of liability that does not decide the issue of damages. See La. Code Civ.Proc. art. 966. Defendant can avoid liability for a larger damages award to plaintiffs, or possibly avoid any liability for damages, by heeding the judgment of the trial court and defending plaintiffs in the underlying tort suit. In any event, the trial court has continuing jurisdiction in this suit to award damages and other proper relief. La.Code Civ.Proc. art. 968. Defendant is required to defend plaintiffs, and, therefore, should defendant persist in its refusal to defend, it will be liable, as a matter of law, for damages, penalties, and attorney fees. The extent of damages (if any) suffered by plaintiffs because of defendant’s past refusal to defend in the underlying tort suit is a matter for the determination of the trial court, as is the propriety of attorney fees and penalties for the past refusal to defend. Only the extent of damages and the issue of penalties and attorney fees are open to question in further pursuance of this action, should plaintiff seek further relief in this matter.

There is no error. Based on the above reasons, the judgment of the trial court is affirmed at defendant Transcontinental Insurance Company’s cost.

AFFIRMED.

      . The personal injury and wrongful death claims against plaintiffs have not been brought to trial or compromised or settled.

      . See supra note 1.


author: FORET, Judge.

text:
    Leroy Joseph GARY, Plaintiff-Appellant, v. Chester LOPEZ, et al., Defendants-Appellees.
    No. 83-1159.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Barry J. Heinen, Lafayette, for plaintiff-appellant.
    Roy, Forrest & Lopresto, L. Albert Forrest, New Iberia, for defendants-appellees.
    Before FORET, CUTRER and CULPEPPER , JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

This appeal is from a judgment of the trial court denying the damages sought by the plaintiff, Leroy Gary, against the defendants, Chester Lopez and his insurer, State Farm Fire & Casualty Company.

The issues presented by the plaintiff in this appeal are:

(1) Whether the defendant, Lopez, was liable for damages under LSA-C.C. Art. 2315 and/or LSA-C.C. Articles 2317 and 2322, and
(2) Whether the plaintiff could be afforded recovery under Louisiana’s rescuer doctrine.

We affirm the judgment of the trial court and adopt the written reasons of the trial court as contained herein.

“Leroy Gary’s right wrist was cut by broken glass as he attempted to control a fire at an unoccupied dwelling belonging to Chester Lopez and insured by State Farm. Gary saw the building aflame as he was traveling in his automobile. Totally motivated by his own volition, he attempted to preserve the property. Reluctantly, this Court holds that neither defendant breached any duty owed to plaintiff and that there can be no recovery against them.

“THE NEGLIGENCE THEORY

“In order' to ascertain whether the landowner negligently breached a legal duty imposed to protect against a particular risk involved, the following inquiries must be made:

(1) What, if any, duty was owed by the landowner to the plaintiff?
(2) Was there a breach of this duty?
(3) Was the risk and harm caused, within the scope of protection afforded by the duty breached?

“The landowner is not liable for injury resulting from a condition which should have been observed by an individual with the exercise of reasonable care or which was as obvious to a visitor as to the landowner. Richard v. Sonnier, 363 So2d 961 (3rd Circuit, 1978).

“Thus, the only duty owed by the owner to plaintiff was to discover any unreasonably dangerous condition and correct it or warn of its existence. A fire in an occupied dwelling, or with other dwellings nearby is clearly an unreasonably dangerous condition as to the occupants. But in the present case, plaintiff did not occupy the dwelling, nor was he in any danger from the fact the dwelling was on fire. There is no unreasonably dangerous condition posed to a passing motorist by an unoccupied burning dwelling, removed from the road. “Further, if defendant Lopez had a duty to warn plaintiff Gary of the particular defect, i.e. the dwelling was burning, the fact that this defect was as obvious to the visitor as to the landowner insulates defendant Lopez from liability. Indeed, as the evidence clearly shows, Gary, the visitor was acutely aware of the defect; the defect was precisely what brought Gary on the premises. Between the owner and the plaintiff, the person in the best position to know of the defect, and indeed the only person with actual knowledge of the defect was plaintiff. The Court is unpersuaded that the dwelling owner, Chester Lopez, owed any duty to warn a passing motorist, Leroy Gary, that Lopez’s unoccupied dwelling was afire. With no duty embracing plaintiff, there can be no breach by defendant Lopez.

“Learned counsel for plaintiff has strongly argued to the Court that Gary was a rescuer, and thus entitled to a special status, permitting his recovery. Although the rescuer is indeed favored in the eyes of the law, generally speaking the rescuer doctrine is used as a defense to liability. Gambino v. Lubel, 190 So2d 152 (4th Circuit, 1966), [writ denied, 191 So2d 642 (La.1966) ].

“Not every person who is involved in a situation at the scene of an accident enjoys rescuer status, Dodge v. Pierre, 348 So2d 167 (3rd Circuit, 1977), [writ refused, 351 So2d 165 (La.1977) ]. In Louisiana, the jurisprudence is clear that for a plaintiff to enjoy rescuer’s status, enshrouded with a tortfeasor’s heightened duty of care, the rescuer must be attempting to protect human life, Stevenson v. Delahaye, 310 So2d 651 (1st Circuit, 1975). Then Judge Blanche, in his Stevenson opinion, wrote: ‘These cases have one common thread in that the rescuer was making some effort or taking some action to protect the personal safety of another who was or who appeared to be in imminent peril.’ Albeit in dictum, the United States Fifth Circuit Court of Appeal has refused to extend rescuer status to a night watchman, allegedly injured while protecting his company’s property. Kinchen v. Missouri Pacific Railroad Co., 618 [678] F.2d 619 (USCA, Fifth Circuit, 1982).

“Counsel for plaintiff has been unable to provide this Court with any authority for extending the rescuer status to one injured in the completely voluntary attempt of protecting property, occupied or unoccupied. Although the plaintiff’s efforts were highly laudable, the Court cannot judicially reward him by cloaking him with a status the jurisprudence does not.

“THE STRICT LIABILITY THEORY

“Counsel for plaintiff advances a second theory of recovery, that of strict liability established by Civil Code Article 2322 and the Loescher v. Parr (324 So2d 441, La.1975) line of jurisprudence. In making out a prima facie case for recovery under this theory, the plaintiff must prove the vice, or the unreasonable risk of harm to others in the person or thing whose act causes the damage and that the damage resulted from this vice.

“Again, the Court returns to the special circumstances of this case, and holds that the defect, the fire, caused an unreasonable risk of injury only to those who occupied the dwelling. There simply was no risk of harm to plaintiff when he discovered the defect. The owner of a burning dwelling simply has no duty to a passing motorist to protect the motorist against injury incidental to the fire.

“There is no necessity for the Court to address the issues of the defenses of victim fault or fault of a third person, as the Court holds there was no unreasonable risk of injury to plaintiff created by defendant Lopez’s ownership of this dwelling.

“The Court is fully cognizant of the benefits bestowed on both defendants by plaintiffs gratuitous efforts to protect the premises. However, the Court draws a distinction between the benefits incidental to the ownership of a commercial building, or an animal, or vehicle or other thing — the direct economic or esthetic benefits to the owner constituting the basis of the owner’s strict liability when these things cause.injury to an unbenefited third party — and the benefits bestowed by plaintiffs gratuitous, unsolicited efforts to save the premises. Again, the Court is reluctant to deny recovery, due to the admirable efforts to help, but the defendant owner owed no duty to plaintiff.”

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are to be borne by plaintiff-appellant.

AFFIRMED.

      . Since the insurer’s interests are aligned with the owner’s, and any rights plaintiff has as to the insurer arise from the duties owed to the plaintiff by the owner, reference to the owner by the Court encompasses both owner and insurer.


author: FORET, Judge. WILLIAM A. CULPEPPER, J. Ad Hoc,

text:
    Leander MENARD, Plaintiff-Appellant, v. Ida Vivian MENARD, Defendant-Appellee.
    No. 84-1.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Oliver Schrumpf, Sulphur, for plaintiff-appellant.

      Hunt, Godwin, Painter & Roddy, John S. Hood, Lake Charles, for defendant-appel-lee.
    Before FORET, CUTRER and CULPEPPER , JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

Leander Menard, plaintiff-appellant, filed a petition to partition community property that he held in common with his former wife, Ida Vivian Menard, defendant-appel-lee. An appointed notary inventoried and appraised the property. The defendant traversed the inventory of the notary, which failed to include the military retirement pay of the plaintiff. The trial court, in accordance with the Uniformed Services Former Spouses’ Protection Act (10 U.S.C.A. § 1408(c)(1)), rendered a judgment designating a portion of plaintiffs military non-disability retirement pay as community property. The plaintiff appeals. We affirm.

Leander Menard entered the United States Air Force on June 7, 1954. On January 17, 1958, he married Ida Vivian Pruitt, in Sherman, Texas. Upon the plaintiffs retirement from the Air Force, the parties came to live in Louisiana.

On June 26, 1981, the United States Supreme Court, in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), held that federal law precludes a state court from dividing military nondisa-bility retirement pay pursuant to state community property law.

After the McCarty decision, on November 16,1981, the plaintiff filed for a separation from the defendant. On November 30, 1981, the defendant reconvened. The separation was tried on March 18, 1982. The plaintiff, in accordance with a compromise agreement, moved to dismiss his suit, allowing a judgment to be rendered against him in defendant’s reconventional suit for separation.

On July 27, 1982, the plaintiff filed a petition to partition the immovable property he held in common with the defendant. The court appointed a notary, who inventoried and appraised the property.

Before the property was partitioned, the Congress of the United States, on September 8, 1982, adopted the Uniformed Services Former Spouses’ Protection Law, Public Law 97-252, now codified in 10 U.S.C. § 1408, providing in Section (c)(1):

“A court may treat disposable retired or retainer pay, payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member, or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.”

The defendant moved to traverse the inventory of the property as it did not include the plaintiff’s military nondisability retirement payments. On September 26, 1983, after a hearing on the matter, the trial court held that the military retirement payments were community property and partitioned them accordingly.

The issue on appeal is whether the trial court erred in applying the Uniformed Services Former Spouses’ Protection Law to divide community property of a marriage dissolved between the date of McCarty, June 26, 1981, and the effective date of the Act, February 1, 1983.

Prior to McCarty, our courts had recognized that military retirement pay must be classified as community property when acquired during the community. Swope v. Mitchell, 324 So.2d 461 (La.App. 3 Cir.1975) and Moon v. Moon, 345 So.2d 168 (La.App. 3 Cir.1977), writ denied, 347 So.2d 250 (La.1977). In McCarty, however, the Supreme Court held that federal law precludes a state court from dividing military retirement pay received by the husband.

The Louisiana Supreme Court, in Dedon v. Dedon, 404 So.2d 904 (La.1981), followed McCarty, overruling the prior jurisprudence, and held that under the federal scheme of military retirement benefits, which preempted state community property law, a former wife was not entitled to a community interest in the military retirement pay received by her husband.

Subsequent to McCarty, Congress enacted the Uniformed Services Former Spouses Protection Act, Public Law 97-252 (10 U.S.C. § 1408(c)(1)), hereinafter referred to as the “Act”. This Act had the effect of overruling McCarty by removing the federal preemption of state laws in the division of military pensions. The effect of this congressional action was to allow our state courts to render' judgments which were consistent with decisions rendered prior to McCarty. Rohring v. Rohring, 441 So.2d 485 (La.App. 2 Cir.1983); Smith, v. Smith, 458 A.2d 711 (Del.Fam.Ct.1983); In Re Marriage of Hopkins, 142 Cal.App.3d 350, 191 Cal.Rptr. 70 (1983). Both parties agree.

The plaintiff contends that inasmuch as his marriage with the defendant and the effects thereof ended after June 25, 1981, the date of the McCarty decision, but before February 1, 1983, the effective date of the Act, the McCarty decision should control despite the specific wording in the Act quoted above. We disagree.

Since the adoption of the Act, state courts in Delaware and California, a community property state, found that Congress intended the Act to apply retroactively to the day before the McCarty decision. See Smith and Hopkins, supra.

In Smith, the court found as follows: “It appears rather clear that Congress, in passing the Act, intended to obliterate the adverse effect of McCarty upon the divorced spouse of military personnel by making it retroactive to the date of that decision. The Committee Report which accompanied the bill (copy attached) states at p. 1:
‘The primary purpose of the bill is to remove the effect of the United States Supreme Court decision in McCarty v. McCarty, 458 [453] U.S. 210 [101 S.Ct. 2728, 69 L.Ed.2d 589] (1981). The bill would accomplish their objective by permitting Federal, State, and certain other courts, consistent with the appropriate laws, to once again consider military retired pay when fixing the property rights between the parties to a divorce, dissolution, annulment, or legal separation.’ ”

In Smith, the Delaware court was faced with a similar set of facts. There, as here, the parties dissolved their marriage after the McCarty decision, but prior to the passage of the Act. After the passage of the Act, the wife moved to reopen the case to have a portion of her husband’s military nondisability retirement payments allocated to her. The court found that it was Congress’ intent to overrule McCarty and applied the Act retroactively. The Delaware court reasoned that if it did not apply the Act retroactively, it would carve out a category of people whose cases happened to be decided between June 25, 1981, and September 8, 1982, and deprive them of substantial property interests which all other similarly situated litigants have been awarded.

In Hopkins, the California court applied the Act retroactively and gave similar reasons as follows:

“Not to apply the Act retoractive to June 25, 1981, would yield far more problems than would any mechanical application of a calendar-determining set of laws. To allow cases decided, but not yet final, either before or during the relatively short interval of McCarty to be subject to the McCarty rule would carve out of the many persons entitled to military pensions a fortunate or unfortunate few who had substantial rights determined by the vagaries of the calendar. It would create a gap of some 20 months in which their future entitlements were or were not to be determined in a manner different from the 40 years before or the indefinite future after. Most importantly, it would allow the happenstance of the calendar to thwart the meaning of Congress when the Congress did' quickly and affirmatively act to clearly and fully make these pension rights subject to the state’s control. Indeed, not to apply the .Act retroactively would be to thwart the very title of the Act, the ‘Uniformed Services Former Spouses’ Protection Act’.”

Although the decisions of the Delaware and California courts are not controlling here, we agree with their reasoning. By not applying the Act retroactively, we would carve out a category of people whose cases happened to be decided between June 26, 1981, and February 1, 1983, and deprive them of substantial property interests which all other similarly situated litigants have been awarded.

We find that Congress, in passing the Act, intended to obliterate the adverse effect of the McCarty decision, by making it retroactive to the date of that decision. Therefore, the trial court was correct in declaring the plaintiff’s military nondisability retirement pay as community property and partitioning it accordingly.

The plaintiff further contends that should we affirm the trial court’s retroactive application of the Act, that the case should be remanded to the lower court for taking of testimony regarding the places and times the plaintiff and defendant were domiciled in community and non-community states, so that the military nondisability retirement payments can be partitioned correctly.

The trial court, after finding the military retirement payments to be community property, partitioned it in the following manner:

“Leander Menard, Social Security No. ⅛35-50-994⅛, was in active military service for 21.3 years during which 3.6 years of retirement benefit earnings accrued prior to the marriage with Ida Vivian Menard; therefore, 17.7 years of retirement benefit earnings accrued during the existence of the marriage until retirement and, accordingly, 17.7/21.3 years (83.09859%) of the disposal [sic] retired pay of Leander Menard is community property; accordingly, Ida Vivian Me-nard, Social Security No. [ XXX-XX-XXXX ], is entitled to payment of one-half of said community portion, or 41.54929% of disposable retired pay since November ,16, 1981, and to continue each month thereafter.”

The formula used by the court has been used by many courts and is based on a fraction, the numerator of which is the number of years the parties were married while Mr. Menard was in the military and the denominator of which is the total number of years Mr. Menard was in the military. The fraction is 17.7/21.3. This amount is community property and, as co-owner of one-half of the community, Mrs. Menard is entitled to one-half of 17.7/21.3 or 8.85/21.3 of the monthly retirement benefits. Rogers v. Rogers, 401 So.2d 406 (La.App. 1 Cir.1981); Moon and Swope.

Rights to retirement benefits accrue continuously throughout the husband’s period of service, and the wife’s entitlement to those benefits should be determined under the law of the states in which the parties were domiciled for the respective periods during which retirement benefits accrued, in accordance with the formulas employed in Swope and Rohring. Therefore, the trial court’s computation is correct, assuming that the plaintiff and defendant maintained their matrimonial domicile in community property states throughout their marriage.

However, the record fails to disclose any information concerning the origin of the matrimonial domicile or what changes, if any, were made in its location and for how long. The record only discloses that the plaintiff and defendant were married in Sherman, Texas, on January 18, 1958, and that the last matrimonial domicile was established in Calcasieu Parish, Louisiana.

Our recent case of Moreau v. Moreau, 457 So.2d 1285 (La.App. 3 Cir.1984), dealt with the same issue of entitlement to military retirement benefits by a spouse based on whether the benefits had accrued while the parties were domiciled in a community property state. This Court found that Hoover Moreau had been born in Louisiana and joined the service while residing in this State and that, despite subsequent moves out of state and overseas by the parties, Hoover Moreau remained a domiciliary of Louisiana, based on his continuous and substantial contact with the State. Therefore, his military retirement benefits were community property. This Court found LSA-C.C. Art. 46 and LSA-R.S. 1:54 to be controlling.

In this instance, we have none of that information available to us, such as where the matrimonial domicile was located before Louisiana and for how long is unknown. Because the plaintiff contends that the matrimonial domicile existed in non-community property states which, under the laws of those states, may require an alteration in the computation, the case is remanded to the lower court for taking of testimony concerning the location of the matrimonial domicile and for a recomputation in accordance with the laws of the states for the periods of time the parties held their matrimonial domicile there.

For the foregoing reasons, the judgment of the trial court is affirmed and is remanded to the trial court for reconsideration in accordance with the directives contained herein.

Costs in the lower court and on appeal shall be assessed after final disposition of this matter.

AFFIRMED AND REMANDED.

WILLIAM A. CULPEPPER, J. Ad Hoc, dissents in part and assigns written reasons.

WILLIAM A. CULPEPPER, J. Ad Hoc,

dissenting in part.

I respectfully dissent from that part of the majority opinion which remands this case to the district court to allow the plaintiff-husband to introduce additional evidence to show the states in which the parties had matrimonial domiciles and the laws of those states regarding community property. I would apply the well established rule that where a party contends that the law of another state applies to certain issues, but has not introduced evidence to show what the law of that state is, it is presumed that such law is the same as that of Louisiana. See Robertson v. Jimmy Walker Chrysler-Plymouth, 368 So.2d 747 (La.App. 3d Cir.1979) and the many cases cited therein.

I would affirm the judgment appealed.