author: GODERICH, Judge. GREEN, J. RAMIREZ, J.

text:
    John M. BYERS, as Personal Representative of the Estate of John M. Byers, Jr., deceased, Appellant, v. David RITZ and Paul Barcinas, Appellees.
    No. 3D01-3585.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.

      Eversole & Rudd, P.A.; Albert Gordon; Hersch & Talisman, P.A., and Patrice Talisman, for appellant.
    Lane, Reese, Aulick, Summers & Field and Paul Field; David K. Markarian, for appellees.
    Before GODERICH, GREEN, and RAMIREZ, JJ.
   GODERICH, Judge.

The plaintiff, John M. Byers etc. [the Estate], appeals from a final judgment in favor of the defendants, David Ritz and Paul Barcinas, in a wrongful death action. The defendants cross-appeal, in part, from the denial of their motion for summary judgment on the issue of worker’s compensation immunity. We reverse and remand for a new trial consistent with this opinion.

John M. Byers, Jr. [Officer Byers] died as a result of an accident that occurred on Ocean Reef the day after Hurricane Andrew. The accident occurred when a backhoe, which was taken without permission, was being used to push a tree. The Estate filed a wrongful death action against Officer Byers’ supervisors, Ritz and Barcinas, based on the “criminal acts” exception to worker’s compensation immunity. § 440.11(1), Fla. Stat. (1991). Following discovery, the trial court granted partial summary judgment in favor of the Estate finding that “the use and taking of the backhoe constituted a violation of law for which the maximum penalty exceeds sixty days.” The trial court, however, did not make any findings as to who committed the theft. The defendants defended the action, in part, by claiming that there was no theft of the backhoe because its taking was justified by the emergency present at the time.

At trial, the evidence showed that Ritz was the community administrator of the Ocean Reef Community Association [ORCA], Two of ORCA’s departments were the Ocean Reef Public Safety Department and the Ocean Reef Volunteer Fire Department [collectively referred to as Departments], Barcinas was the captain of the Departments, and Byers was an officer of the Departments. The day after Hurricane Andrew, Officer Byers and his co-workers were manually clearing debris and trees. Officer Delgado, one of Officer Byers’ co-workers, saw a backhoe that was owned by a construction company at a local gas station. Officer Delgado testified that he went back to the command center to share this information with Ritz, Barci-nas, and others. The consensus of the group, including Ritz and Barcinas, was that using this backhoe was a good idea. Officer Delgado then went back to the gas station and hot-wired the backhoe without attempting to contact the owner because there was no phone service. Officer Delgado used the backhoe to clear debris at the Public Safety Building. Several of Officer Byers’ co-workers testified that Ritz and Barcinas either gave instruction to Officer Delgado regarding the use of the backhoe or saw Delgado operate the backhoe. Later that day, as instructed, Officers Delgado and Byers went to Sunset Cay to remove a large tree that had fallen across the road. While they were removing the tree, the fatal accident occurred.

At trial, Ritz testified that he did not remember one way or the other whether he had talked to Delgado regarding the backhoe. Barcinas, however, testified that he did not authorize the use of the backhoe.

The Estate requested that the jury be given the following jury instruction on theft which is derived directly from the Florida Standard Jury Instructions (Criminal):

A theft is committed when a person knowingly obtains or uses the property of another with the intent to either temporarily or permanently appropriate the property to his own use or to the use of any person or entity not entitled to it. “Obtains or uses” means any manner of taking or exercising control over the property or making any unauthorized use, disposition or transfer of the property.

The trial court, however, refused to give the last sentence of the instruction defining the term “obtains or uses.” The trial court, over the Estate’s objection, also instructed the jury on the defense of necessity, after denying the defendants’ motion for directed verdict on that defense.

The jury found that neither defendant was guilty of theft, and therefore, did not answer the remaining questions on the verdict form. Thereafter, the Estate’s motion for new trial was denied. This appeal and cross appeal followed.

First, we agree with the Estate that the trial court committed reversible error by not instructing the jury with the complete instruction on criminal theft where the requested instruction contained an accurate statement of the law, the facts in the case supported the giving of the complete instruction, and the instruction, as requested, was necessary for the jury to properly resolve the issues in this case. L.K. v. Water’s Edge Ass’n, 532 So.2d 1097, 1098 (Fla. 3d DCA 1988).

On cross appeal, the defendants contend that the trial court erred by denying their motion for summary judgment on the issue of worker’s compensation immunity. We disagree.

Specifically, the defendants contend that the “criminal acts” exception to worker’s compensation immunity is not applicable in the instant case. Pursuant to section 440.11(1), Florida Statutes (1991), the “criminal acts” exception is applicable when “the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed exceeds 60 days imprisonment as set forth in s. 775.082.... ” Although Officer Byers’ injury did not occur during the theft of the backhoe, we agree that the theft of the backhoe “caused the alleged injury.” The evidence demonstrated that Officer Byers would not have been injured if a backhoe was not being used to move the tree. Therefore, we find that the “criminal acts” exception is applicable and that the trial court properly granted the Estate’s motion for summary judgment on the issue of worker’s compensation immunity.

Because we are reversing and remanding for a new trial, we address one other issue raised by the Estate. The Estate argues that the trial court erred by instructing the jury on the defense of necessity. We agree.

A defendant is entitled to have the jury instructed on his theory of defense if there is any evidence presented which supports the defendant’s theory. Bozeman v. State, 714 So.2d 570, 572 (Fla. 1st DCA 1998); L.K., 532 So.2d at 1098. In order to have a jury instructed on the defense of necessity, the evidence must show

(1) that the defendant reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others, (2) that the defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct, (3) that there existed no other adequate means to avoid the threatened harm except the criminal conduct, (4) that the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it, and (5) that the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended.

Bozeman, 714 So.2d at 572.

The evidence at trial established that the backhoe was merely taken to expedite the clearing of trees and debris following Hurricane Andrew. When the theft of the backhoe occurred, there was no indication that either the trees or the debris posed an immediate danger to anyone. Therefore, we agree with the Estate that the trial court improperly instructed the injury on the defense of necessity where the evidence failed to establish that the theft of the backhoe was “necessary to avoid an imminent threat of death or serious bodily injury to himself or others.”

In our opinion, the remaining issues raised by the parties lack merit.

Reversed and remanded.

GREEN, J.

(dissenting).

With all due respect, we should affirm the defense verdict because the undisputed record evidence supports the appellees’ argument, made on the cross-appeal, that this entire action is barred by worker’s compensation immunity because the criminal acts exception is inapplicable here as a matter of law. For that reason, I believe that the appellees’ motion for summary judgment on this issue should have been granted.

I. Facts

The majority correctly recognizes that the unfortunate demise of the decedent, John M. Byers, Jr., was solely the result of a freak accident presumably caused by a fellow employee’s negligent use of a stolen backhoe while trying to clear trees and debris from a road after Hurricane Andrew. What the majority apparently fails to recognize, however, is that the “criminal act” (i.e., the taking and continued use of the backhoe without the owner’s permission) was not the legal cause of the decedent’s death. In other words, the decedent was not killed because a backhoe was stolen, but because a branch from a tree struck Byers in the head. For this reason, the criminal acts exception to worker’s compensation immunity was not triggered, and this case is barred.

To fully understand why this case is completely barred by worker’s compensation immunity, it is necessary to first outline the undisputed evidence in more detail. As is necessary, I do so in the light most favorable to the appellants. See Turner v. PCR, Inc., 754 So.2d 683, 684 (Fla.2000) (holding that appellate court reviewing summary judgment motion must examine record in light most favorable to the non-moving party).

On August 24, 1992, Hurricane Andrew hit South Florida and caused a substantial amount of property damage. As a result of the storm, Ocean Reef was without electricity and phone service for weeks. Many of the roads were blocked by fallen debris and trees. Crew workers from the Monroe County Public Works Department were sent to clear the roads. The public safety officers could not get the emergency vehicles through the road debris. As is indicated by the majority, on the day after the storm, the public safety officers were manually clearing debris and trees when Delgado, a co-worker of Byers, spotted a backhoe at a gas station. The backhoe was owned by a construction company named Pieco which had left it at the station to ride out the storm. Delgado thought that utilizing the backhoe would be more efficient in their clearing efforts so he returned to the Public Safety Building to share Ms idea of taMng and using this backhoe with his superiors, appellees David Ritz and Paul Barcinas. Once Delgado received permission from Ritz and Barcinas to take and utilize the backhoe, Delgado and others returned to the gas station, hot-wired the backhoe, and drove it back to the Public Safety Building. They could not contact the owner of the backhoe because there was no telephone service at the time.

At the Public Safety Building, Delgado used the backhoe to clear fallen roof tiles and to move a fallen antenna and propane tank. All of Delgado’s superiors either approvingly watched him operate the backhoe and/or directed him in its use. After the parking lot was cleared, the decision was made to use the backhoe to clear the roads of Ocean Reef so emergency vehicles could pass.

Later, at approximately five o’clock in the afternoon, Delgado and Byers were sent to Sunset Cay, a cul-de-sac, with the backhoe to clear a very large tree that had fallen across the road. It was during this time that the accident which claimed Byers’ life occurred. Delgado and Byers used a chainsaw to cut some of the heavier branches from the tree and pushed them out of the way with the backhoe. Delgado testified that he then directed Byers to move away and that Byers moved at least 15 to 30 feet, if not 40 to 50 feet away from the backhoe. Delgado attempted to move one of the recently cut tree limbs; when he put the backhoe into gear he heard a loud crack, felt a jolt, and looked over to see Byers lying on the ground. The backhoe was not actually touching the tree at the moment of the accident, but was a few feet away from it. Apparently, Delgado’s actions had released another limb which unexpectedly broke free, pivoted in the air and struck Byers in the head causing massive head injuries. Byers was airlifted to Jackson Memorial Hospital where he remained in intensive care for five days before he died.

Delgado testified, in the plaintiffs case in chief, that he was familiar with the operation of heavy equipment and that he had operated a backhoe prior to the accident. This prior experience, however, did not include the removal of tree limbs and he had not foreseen the possibility that another tree branch would suddenly be released.

II. Proceedings Below

Byers’ father filed this wrongful death action against his son’s supervisors, Ritz and Barcinas. He alleged that because Ritz and Barcinas had committed a crime (i.e., the theft of the backhoe) which caused his son’s death, they were not entitled to worker’s compensation immunity as set forth in section 440.11(1), Florida Statutes (1991). This statute provides in pertinent part that:

The same immunity provisions enjoyed by an employer shall also apply to any ... supervisor, or other person who in the course and scope of his duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymak-ing duties and was not a violation of law, whether or not a violation was charged, for which the maximum penalty which may be imposed exceeds 60 days imprisonment as set forth in s. 775.082. (emphasis added).

Both parties moved for summary judgment. The appellees moved for summary judgment on grounds that the entire action was barred by worker’s compensation immunity, asserting that the theft of the backhoe was not the “cause” of the decedent’s death and, therefore, the criminal acts exception was not triggered. TMs motion was denied. The appellant moved for partial summary judgment claiming that the appellees’ taking and continued use of the backhoe constituted a violation of law, to wit, grand theft, for which the maximum penalty exceeds sixty days. Appellants claimed, therefore, that as a matter of law, the appellees were not entitled to worker’s compensation immunity. This motion was granted.

The case proceeded to trial. The jury returned a defense verdict concluding that neither of the appellees was guilty of theft of the backhoe. Appellant has taken the instant appeal and claims that a number of evidentiary and procedural irregularities occurred during the trial, requiring reversal. These are the matters addressed in the majority’s opinion. The appellees have cross-appealed the denial of their motion for summary judgment on, among other things, the worker’s compensation issue. I believe that this is the dispositive issue in this ease, yet it has gone virtually unaddressed by the majority.

III. Law

Under Florida’s Worker’s Compensation Act (“the Act”), an employer who secures worker’s compensation coverage for his workers receives extensive immunity from suit by injured workers. Immunity is lost, however, if the employer engages in an intentional act designed to cause, or substantially certain to cause, injury or death to an employee. Eller v. Shova, 630 So.2d 537, 540-41 (Fla.1993). This immunity also applies to managerial or policymaking employees unless their actions amount to culpable negligence, id. at 541, which is defined as “ ‘reckless indifference’ or ‘grossly careless disregard’ of human life”. Id at 541 n. 3. This broad immunity fits in with the overall purpose of the Act to provide employees with compensation for on-the-job injuries, regardless of fault, in exchange for giving employers and managers immunity, with few exceptions, from civil suits. See id. at 542.

Florida courts have routinely interpreted the Act broadly to preserve immunity in the face of sometimes egregious acts by employers and managers as long as those acts fell short of intentional torts or culpable negligence. See, e.g., Mekamy Oaks, Inc. v. Snyder, 659 So.2d 1290, 1291 (Fla. 5th DCA 1995)(holding that employer retained worker’s compensation immunity where supervisor removed safety switch from lawnmower, causing plaintiff to be thrown from mower and cut his foot); Emergency One, Inc. v. Keffer, 652 So.2d 1233, 1235 (Fla. 1st DCA 1995) (finding that employer retained worker’s compensation immunity where supervisor refused to obtain plastic brushes because of expense, and this refusal led to employee’s being severely burned). Moreover, managers who had passively exposed a worker to injury have been found to retain immunity even though the manager’s conduct could othenuise be deemed culpable negligence. See Kennedy v. Moree, 650 So.2d 1102, 1106 (Fla. 4th DCA 1995). Thus, the courts have routinely found that a high degree of culpability is necessary to vitiate the Act’s immunity. Id.

One of the few exemptions from this broad immunity is the “criminal acts” exception, where a managerial or policymak-ing employee loses immunity for conduct which causes injury to an employee and violates a law that has a maximum penalty exceeding 60 days imprisonment. In this case, assuming, as we must, that the appel-lees did give permission to steal and use the backhoe, the issue is whether this theft was the legal cause of Byers’ death. Clearly, it was not. The majority nevertheless concludes that the taking of the backhoe caused Byers’ injury because he would not have been injured if a backhoe had not been taken and used to move the trees. Majority Opinion at 1285. This is merely a statement of “but for” cause, or causation-in-fact, which is legally insufficient and does not address the crucial question of whether defendants’ actions were the proximate or legal cause of Byers’ death.

Important policy considerations underlie the distinction between cause-in-fact and proximate cause. As this court has said:

Florida courts ... have for good reason been most reluctant to attach tort liability for results which, although caused-in-fact by the defendant’s negligent act or omission, seem to the judicial mind highly unusual, extraordinary, bizarre, or, stated differently, seem beyond the scope of any fair assessment of the danger created by the defendant’s negligence. Plainly, the courts here have found no proximate cause in such cases based solely on fairness and policy considerations, rather than actual causation grounds.

Stahl v. Metropolitan Dade County, 438 So.2d 14, 19 (Fla. 3d DCA 1983). To this end, the Florida Supreme Court has held that proximate cause is concerned with whether and to what extent a defendant’s conduct foreseeable/ and substantially caused the plaintiffs injury. McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992). Most recently, in Florida Power & Light Co. v. Goldberg, 856 So.2d at 1033 (Fla. 3d DCA 2003) (en banc), rev’g 856 So.2d 1011 (Fla. 3d DCA 2002), we concluded that where an electrical utility company terminated the power to a traffic light and a fatal automobile accident ensued, any negligence on the part of the utility company regarding the traffic light could not be the legal or proximate cause of the collision because it was causally superseded, as a matter of law, by the actions of the drivers. Id. at 1034.

Similarly, the Fifth District applied this proximate cause principle to a criminal case in Todd v. State, 594 So.2d 802 (Fla. 5th DCA 1992). There, the defendant stole $110 from the collection plate at a church. A member of the congregation who had a preexisting heart condition gave chase in his car, experienced cardiac dys-rhythmia, lost control of his car, and collided with a tree at low speed. He died of cardiac arrest. The state charged the defendant with manslaughter. Id. at 803. The Fifth District, using a tort analysis, found that although the defendant’s petty theft may have been a cause-in-fact of the heart attack, it was not the proximate or legal cause of his death. Id. at 805. The court relied on a First District case, with similar facts, which concluded that in a criminal case, “a closer relationship between the result effected and that intended or hazarded is required.” Id. at 805 (quoting Penton v. State, 548 So.2d 273, 275 (Fla. 1st DCA 1989)). In analyzing the nexus between the crime committed and the result effected in Todd, the court found that:

[although the petty theft did trigger a series of events that concluded in the death of [the victim] and was, in that sense, a “cause” of the death, the petty theft did not encompass the kind of direct, foreseeable risk of physical harm that would support a conviction of manslaughter. The relationship between the unlawful act committed (petty theft) and the result effected (death by heart attack during pursuit in an automobile) does not meet the test of causation historically or currently required in Florida for conviction of manslaughter.

Todd, 594 So.2d at 806.

TV. Conclusion

Section 440.11 plainly states that supervisors will have the same immunity as an employer if the conduct which caused the employee’s injury: 1) arose within the course and scope of the supervisor’s duties, and 2) was not a violation of law. § 440.11(1), Fla. Stat. Given the legislature’s intent to provide employers with broad immunity, and the court’s practices of preserving this immunity, I believe that the “cause” described in section 440.11 can mean nothing other than “proximate” or “legal” cause.

In the instant case, although the theft of the backhoe did trigger a series of events that ultimately resulted in Byers’ death and was in that sense a “cause” of the death, the theft was not the “proximate cause” because it was causally superseded as a matter of law, by the unintentional actions of Delgado, the backhoe’s operator. See Goldberg, 856 So.2d at 1034. Thus, because the stolen status of the backhoe was not the legal cause of the decedent’s death, the criminal acts exception is inapplicable and this entire action is barred by worker’s compensation immunity.

For this reason, I would affirm the final judgment under review. See Chase v. Cowart, 102 So.2d 147, 150 (Fla.1958)(result in trial court must be affirmed if right, even if right for wrong reason).

RAMIREZ, J.

(concurring).

I concur with the majority based on my reading of section 440.11, Florida Statutes (1991), which provides for worker’s compensation immunity if “the conduct which caused the alleged injury ... was not a violation of the law.” Under the explicit language of section 812.014, Florida Statutes (1991), it is clear that both Ritz and Barcinas committed theft of the backhoe, an offense which is a continuing one.

Section 812.014 explicitly proscribes “use” of “the property of another” as a necessary element for the offense of theft. Thus, the continued “use” of the backhoe can be construed as a “continuing” offense. This means that at the moment in which Byers was killed, the theft was still ongoing and, had a law enforcement officer happened on the scene, the officer could have arrested the perpetrators. I thus see no support in the statute or the case law for a distinction between cause-in-fact or proximate cause, nor do I see the need for such an analysis.

      . Section 440.11(1), Florida Statutes (1991), provides, in part, as follows:
      The same immunity provisions enjoyed by an employer shall also apply to any ... supervisor, or other person who in the course and scope of his duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penally which may be imposed exceeds 60 days imprisonment as set forth in s. 775.082.

      . Section 812.014, Florida Statutes (1991) provides that a person commits a theft if
      he knowingly obtains or uses ... the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit therefrom; [or] (b) Appropriate the property to his own use or to the use of any person not entitled thereto.

      . Indeed, if this were the correct legal standard, untenable arguments could be made that, but for the occurrence of the hurricane, the decedent would not have been killed or but for the fact that the decedent, went to work on the date of the accident, he would not have been killed.

      . See Stahl v. Metropolitan Dade County, 438 So.2d 14, 17 (Fla. 3d DCA 1983), wherein we stated:
      the “proximate cause” element of a negligence action embraces, at the very least, a causation-in-fact test, that is, the defendant’s negligence must be a cause-in-fact of the plaintiff’s claimed injuries.... [T]here can be no liability for any tort unless it be shown that the defendant’s act or omission was a cause-in-fact of the plaintiff’s claimed injuries. To be sure, such a showing, without more, is insufficient to establish the "proximate cause” element of a negligence action, but it is plainly a sine qua non ingredient thereof.

      . See Eller v. Shova, 630 So.2d 537, 541 (Fla.1993).

      . See Mekamy Oaks, Inc. v. Snyder, 659 So.2d 1290 (Fla. 5th DCA 1995) and the other cases cited and discussed at page 1288.

      . Indeed, had the backhoe in this case been borrowed, rented or purchased from its owner at the time of the accident, there would be no question that this action is barred by worker's compensation immunity. Given how the accident actually occurred, it makes no sense to me to conclude that the result should be different because of the legal status of the backhoe.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph Edward RENNE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 02-3458, 02-3455.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin K Zack, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

We affirm on the basis that the Federal Bureau of Prisons has determined that Joseph Edward Renne’s federal sentence commenced on the order of imposition pursuant to a nunc pro tunc designation. Were such not the case we would be inclined to grant relief.


text:
    ESTATE OF Royal B. NEWMAN, and Rebecca E/ Newman, Personal Representative of the Estate of Royal B. Newman, and Trustee of the Royal B. Newman Trust, Appellants, v. Joann S. NEWMAN, Appellee.
    No. 3D03-672.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.
    Greene, Smith & Associates, P.A.,; Paula Revene, Miami; Bonnie J. Helms, Key West, for appellants.
    Gerald V. Walsh, Coral Springs, for ap-pellee.
    Before COPE, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

The Estate of Royal B. Newman appeals a final judgment determining that the property settlement agreement between the decedent former husband, and the ap-pellee former wife, retained its character as property settlement agreement subsequent to the parties’ execution of an addendum to that agreement in 1992. We conclude that the trial court’s findings, entered after an evidentiary hearing, are supported by the record and correctly characterize the agreement. See Salomon v. Salomon, 196 So.2d 111 (Fla.1967); Karch v. Karch, 445 So.2d 1077 (Fla. 3d DCA 1984).

Affirmed.


author: HAWTHORNE, Justice. McCALEB, Justice HAMITER, Justice

text:
    229 La. 316
    UNION OIL COMPANY OF CALIFORNIA v. Sevignier TOUCHET et al.
    No. 42132.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Rehearing Denied Feb. 20, 1956.

      Hussey & Smith, Shreveport, for defendants-appellants.
    Kibbe & Bailey, Abbeville, for defendant-appellee.
   HAWTHORNE, Justice.

This concursus proceeding, provoked by the Union Oil Company of California, involves a %2 royalty. Under an order of court the company has been depositing in the registry of court the funds accruing to this royalty interest, and has cited the claimants to appear and assert their respective ownership and rights to the funds deposited. The fund accruing to the royalty interest in dispute amounted to $2,924.13 when the suit was filed. The claimants are Nemours Corporation and C. B. Small, Jr., on one part, and Sevignier Touchet on the other. Nemours Corporation and Small claim the %2 royalty interest by virtue of a sale of this interest made by Touchet, the landowner, on March 6, 1940. The trial judge held that the royalty interest acquired by Nemours and Small became extinguished on March 6, 1950, by the prescription of 10 years liberandi causa. Accordingly he rendered judgment ordering Union 'Oil Company of California to pay to Touchet all funds accrued and accruing to this royalty interest. Nemours and Small have appealed.

As we have stated above, the Vs2 royalty interest was sold by the landowner Touchet on March 6, 1940. On February 19, 1945, approximately five years after the sale of this royalty interest, Touchet executed in favor of Union Oil Company of California an oil, gas, and mineral lease having a primary term of five years and covering the property affected by the royalty interest which he had conveyed, a tract of 55.14 acres in Vermilion Parish, Louisiana. Oii October 28, 1948, Paragraphs 3 and 5 of this lease were amended by an instrument signed by the lándowner, Touchet, and by the royalty owners,’Nemours Corporation and Small. The amendment to Paragraph 3 will be discussed later in this opinion. Paragraph 5, insofar' as pertinent, was amended as follows:

“Lessee at its option is hereby given the right and power without any further approval from Lessor to pool or combine the acreage, royalty, or mineral interest covered by this lease, or any portion thereof, with other land, lease or leases, royalty and mineral interests in the immediate vicinity thereof, when, in Lessee’s judgment, it is necessary or advisable • to do so in order to properly develop and operate said premises so as to promote the conservation of oil, gas or other minerals in and under and that may be produced from said premises or to comply with the spacing or unitization order of any Regulatory Body of the State of Louisiana or the United States having jurisdiction. * * * Such pooling shall be of tracts which will form one contiguous body of land for each unit, and the unit or units so created shall not exceed substantially forty (40) acres each, surrounding each oil well and substantially 320 acres each for each gas or gas condensate well, unless a larger spacing pattern or larger drilling or producing units (including a field or pool unit) have been fixed and established by an order of a Regulatory Body of the State of Louisiana or the United States, in which- event the unit or units may be of the size fixed by said order. Lessee shall execute and record in the Conveyance Records of the Parish in which the land herein leased is situated an instrument identifying and describing the pooled acreage; and upon such recordation, the unit dr units shall thereby become effective. In lieu of the royalties elsewhere herein specified, Lessor shall receive from production from the unit so pooled only such portion of the royalties stipulated herein as the amount of his acreage placed in the unit, or his royalty interest therein, bears to the total acreage so pooled in the particular unit involved. Drilling or reworking operations on or production of oil, gas, sulphur, or other minerals from land included in such pooled unit shall have the effect of continuing this lease in force and effect during or after the primary term as to all of the lands covered hereby (including any portion of said land not included in said unit) whether or not such operations be on or such production be from land covered hereby. * * * ” For an interesting discussion of this type of lease pooling clause, see Hoffman, Voluntary Pooling and Unitization, c. 3 (1954).

Flo well was drilled on the Touchet tract. Union Oil Company, however, drilled a well on a piece of land owned by Louise Thibo-deaux in the immediate vicinity of the Tou-chet property covered by the above lease as amended. This well was completed on June 4, 1949, with 15 feet of producing formation and gas volume of 5050 MCF per day, as evidenced by the well completion report filed by the operator with the Department of Conservation.

Immediately after this well, designated as Louise Thibodeaux Well No. 1, was completed as one capable of producing gas and gas condensate in paying quantities, it was shut in because no market was available to the Union Oil Company of California for the gas which the well was capable of producing, and the rules and regulations of the Commissioner of Conservation prohibited the production of gas and other minerals from this well in the absence of a market.

On February 13, 1950, after the completion of this well and within 10 years of Touchet’s sale of the royalty interest here in dispute, the lessee, Union Oil Company, filed in the conveyance records an instrument declaring that it created the Louise Thibodeaux Unit No. V. and describing a specific area of 320 acres more or less. In this unit the lease granted to the oil company by Touchet was included by authority of Paragraph 5 of the lease as amended, and among the other leases embraced in the unit was the lease of the Louise Thibodeaux tract on which the well was situated capable of producing gas in paying quantities.

Within the area of the unit as described in this declaration were the lands of one Basil Sonnier. Although the company had a lease from Sonnier, there was no provision in this lease at that time which gave the company the right to pool without further authorization by the lessor. In short, there was no provision in the Sonnier lease permitting the company to unitize by merely filing for record a declaration of unitization, as could be done under the amended Touchet lease.

The oil company was evidently aware that it had included the lands of Basil Son-nier within the area described in the pooling declaration filed by it for record on February 13, 1950, without having obtained his prior consent, because, the Sonnier lease was not listed in the declaration. Moreover, on October 31, 1950, the oil company obtained an amendment to Sonnier’s lease authorizing unitization. This amendment was similar to the provision of the Touchet lease. Thereafter, on February 13, 1951— more than 10 years from the date of the sale of the %2 royalty interest by Touchet, which is in dispute here — , a second declaration was filed by the oil company pooling the identical area described in the declaration of unitization filed February 13, 1950; and included in this unit was the lease of Sonnier.

On January 19, 1951, the Department of Conservation authorized the oil company to produce the Louise Thibodeaux Well' No. 1 to supply the gas market, and from this production the instant dispute has arisen over the funds accruing to the %2 royalty interest in question.

As we have already pointed out, Louise Thibodeaux Well No. 1 was completed as a well capable of producing gas and gas condensate in paying or commercial quantities within 10 years from the date of the sale óf the V&2 royalty by Touchet to Nemours and Small, as evidenced by the completion report filed by the operator with the Department of Conservation and the potential report made by the department after gauging the well. That it was such a well is fully established by the fact that the claimants here are litigating over the funds accruing to this royalty interest from production resulting from the completion of this well.

It is well settled that the right of the owner of a royalty interest is restricted to a share in production if and when it is obtained. Union Sulphur Co. v. Andrau, 217 La. 662, 47 So.2d 38, and numerous authorities therein cited. The completion of a well capable of producing oil or gas in paying quantities constitutes production, and, if such a well is completed within 10 years of the royalty sale, the royalty owner is entitled to share in the production from it.

Consequently, if the Louise Thibodeaux Well No. 1 had been located on the Tou-chet tract, Nemours and Small, the owners of the V32 royalty interest, would have been entitled to share in the production, because the. well was completed capable of producing gas and gas condensate in paying quantities within 10 years from the date of. the royalty sale, and their right to share in such production would not have been lost by the fact that the well was shut in for want of market and no gas was sold or marketed from it until after the expiration of 10 years from the date of the royalty sale. See Sohio Petroleum Co. v. V. S. & P. R. R., 222 La. 383, 62 So.2d 615.

Since the Louise Thibodeaux Well No. 1 was not located on the lands subject to the royalty right, there was no production from this tract and the royalty right here in dispute has prescribed for warit of production, unless the operating unit formed by means of the declaration filed by the Union Oil Company on February 13,' 1950, within 10 years of the date of the royalty sale, was valid; for, if so, then the area comprising the unit is treated as one tract and one. lease, and production from any portion óf the area making up the operating unit has the same effect on property situated within the unit as if the'well was drilled and completed on each of the various tracts of land embraced in the area and under each of the leases. Accordingly, if the operating unit formed by the first declaration filed by the oil company was valid and effective, the royalty right has not prescribed.

Touchet’s land and lease were included within the area of the operating, unit as described in the declaration filed by the oil company pursuant to the provisions of Paragraph 5 of the amended lease granted by Touchet to the company. The right granted the oil company under this lease pooling clause was very broad. It gave to the company “the right and power without any further approval from Lessor to pool or combine the acreage, royalty, or mineral interest covered by this lease, or any portion thereof, with any other land, lease or leases, royalty and mineral interests in the immediate vicinity * * * ”. (Italics ours.) The question thus presented is whether the company had authority under this broad provision to combine Touchet’s land with any other land or lease in the immediate vicinity in the absence of consent and approval by that particular landowner. If the lease gave such authority, the oil company would be permitted, by pooling Touchet’s land or lease with any tract or lease in the immediate vicinity on which there was production, to perpetuate its lease beyond the primary term without drilling or securing production from the property covered by its lease from Touchet, and this could be done without objection on the part of the landowner. Such a result would be unthinkable.

Obviously the only meaning that this provision of the lease could have was that the lessor ‘ granted to the lessee authority to combine his lease with any other land or lease in the vicinity which the oil company also had authority to unitize.

As we have heretofore pointed out, the operating unit formed by the first declaration of February 13, 1950, included within the unitized area the lands of Basil Sonnier, which were placed in the area of the unit without Sonnier’s consent. Consequently, this unit was not a unit created pursuant to the power and authority granted to the oil company by Touchet under the provisions of Paragraph 5 of his lease as amended, and hence the unit was not valid. This being so, production from the Louise Thibodeaux Well No. 1 could not at that time be considered production from the Touchet land. Therefore, since there was no production from the Touchet tract within 10 years from the date of the royalty sale, the %2 royalty interest has been lost by the prescription of 10 years liberandi causa.

Immediately after the invalid unit was formed on February 13, 1950, the oil company deposited to the account of Touchet in the Bank of Erath each month a sum equal to Vvz of the annual rental of $275.70 provided in the original lease. The first of these deposits was made on February 14, 1950, and they were continued until production from the well was marketed in January, 1951. Only one of these deposits, amounting to $22.98, was made within 10 years of the royalty sale. These deposits were made under the terms of Paragraph 3 of the lease as amended, which provided, among other things, that, if during the primary term of the lease there was on the land leased a well or wells capable of producing gas or gas condensate and this lease was not being maintained by production of such gas, the lessee could maintain its rights under the lease from month to month by paying the lessor or by depositing to his credit in the Bank of Erath a sum equal to. %2 of the annual rental provided in the original lease; that each payment was to extend the lessee’s right for a period of one month from the due date thereof, and during each month for which payment should be made the lessee would be relieved óf all drilling or other requirements under the lease.

The royalty purchasers argue that these deposits were “shut-in royalties”, and that, because these payments were deposited to Touchet’s account in the bank without protest on his part, he is now estopped to contend that their royalty interest has prescribed.

To sustain this plea of estoppel we should have to hold, under the conclusion we have reached in this case, that Tou-chet is estopped to contend that the operating unit formed by the declaration of the oil company filed on February 13, 1950, was ineffective.

Estoppel is not favored under our jurisprudence, and the burden of proving the facts to establish it rests on the one relying on the doctrine. Arkansas Louisiana Gas Co. v. Thompson, 222 La. 868, 64 So.2d 202. For the plea of estoppel to be well founded in the instant case, t^ie royalty purchasers would have had to prove that Touchet acted with knowledge of all the facts and of his rights. See Michel v. Efferson, 223 La. 136, 65 So.2d 115 (on rehearing). There is no evidence whatever showing that at the time these deposits were made Touchet had any actual knowledge that the declaration of unitization filed by the oil company on February 13, 1950, included in the area of the unit the lands of Basil Sonnier which the oil. company did not have authority to pool or unitize. See 31 C.J.S., Estoppel, § 109(b), p. 349.

As we have already pointed out, Paragraphs 3 and 5 of the original lease were amended by instrument dated October 28, 1948. Small and Nemours joined in this amendment by signing the instrument for the purpose shown in the document itself, namely: “And now comes and joins herein C. B. Small, Jr., and Nemours Corporation, the owners of royalty rights in said land and ratify and confirm the agreements herein set forth and particularly ágrée that in the event of pooling or unitization of said land 'or any part thereof, their royalty rights shall be subject to the provisions of Paragraph 5 of said lease as herein amended.”

The' royalty' claimants say that-the execution of this document preserved their royalty rights beyond the 10-year prescriptive period. We fail to see' any valid basis for this argument. ’ It would have been possible for Touchet to have expressed his intention in the amended lease either to interrupt the 10-year prescription that was running against the royalty owners, thus starting it anew, or to extend these royalty rights during the entire existence of the lease. However, it is a firmly- entrenched principle of Louisiana mineral law that no act on the part of a landowner will have the effect of extending the life of a mineral interest unless it is shown that there was a clear intention on the part of the landowner to achieve that very result. Thus, mere ac-knowledgement by a landowner of the existence of a mineral servitude is insufficient to interrupt the running of prescription unless the instrument containing that acknowledgement, or extraneous evidence submitted by the parties, clearly shows that it was the purpose of the landowner in making acknowledgement to interrupt the running of prescription. Barnsdall Oil Co. v. Succession of Miller, 224 La. 216, 69 So.2d 21, and authorities there cited. In the instant case there is nothing in the amended lease to suggest that Touchet wanted to interrupt the 10-year prescription that was running against the royalty owners, or to extend their rights for the duration of the lease, and no extraneous .evidence was submitted by the royalty owners to .show such an intent on Touchet’s part. The document signed by Small and Nemours in October of 1948 is no more than their written consent to the pooling of their royalty rights by the oil company.

- The judgment is affirmed, all costs to be paid "from the fund on deposit in the registry of the court.

PONDER,. J., absent.

McCALEB and HAMITER, JJ., dissent with written reasons. ‘

McCALEB, Justice

(dissenting in part).

I am in accord with the ruling that the completion of the Louise Thibodeaux Well No. 1, which was capable of producing gas in paying quantities, preserved the rights of the royalty owners despite the fact that the well was shut in for want of a market and that no gas was sold or marketed from it until after expiration of ten years from the date of the royalty sale. And I am also willing to concede that, notwithstanding the unqualified right granted by Touchet in his lease to the oil company to pool or combine his acreage with any other land, leases or mineral interests in the immediate vicinity’ for the purpose of forming a production unit, it was subject to an, implied condition that the oil company had or would obtain similar authority from the owners of all other lands forming the unitized area and that, in the ‘absence of the consent of all such owners, the unit could be dissolved by any person adversely affected thereby.

But I do hot agree it necessarily follows that, because the oil company did not have the consent of Basil Sonnier, whose lands were included within the unitized area, ■ at the time the operating unit was formed by the declaration of February 13, 1950, the original formation of the unit was illegal in view of the fact that the oil company subsequently obtained Sonnier’s consent which, in my opinion, was nothing more than his ratification of the oil company’s act in placing his land within the unit prior to the time prescription had accrued against the rights of the royalty owners.

If, as above pointed out, the unqualified consent to unitize given the oil company by Touchet is considered burdened with the implied condition that it was not to be effective unless the oil company obtained the consent of all of the landowners whose land formed the unit (a ruling most favorable to Touchet), his contention should not be sustained as it is a familiar principle of law that, when an obligation is dependent upon the performance of a condition, the condition, when performed by the obligor, has retroactive effect.-

'Article. 2041 of the Civil Code provides, in part, “The condition being complied with, has a retrospective effect to the day that the engagement was contracted”. Thus, when' the oil company obtained the consent of Sonnier to the formation of the unit by the pooling declaration filed by it for record on February 13, 1950, that declaration became binding on all parties thereto, not from the date that Sonnier gave his consent but as of the date of its filing. To hold otherwise would deny to the other 'members of the pooling unit,, other than the owner of the well site, the right-to participate in production until such time as’ a new unit is formed with the express consent of all parties thereto.

, I am also of the opinion that Touchet’s acceptance of “Shut-in royalties” estops him from now contending that there was no production attributable to his land during the ten year royalty period.

I respectfully dissent.

HAMITER, Justice

(dissenting).

As is shown in the majority opinion the-unitization declaration of February 13, 1950, which contained a description of the-Sonnier land, was initially invalid solely .because .the lessee had not previously obtained authority from Sonnier to incorporate his property in the unit. However,, in my opinion, such declaration was retroactively ratified by implication and rendered valid as of such date by the authorization to unitize which Sonnier granted on October 31, 1950. LSA-Civil Code Article 1840; Acadian Production Corporation of Louisiana v. Savanna Corporation, 222 La. 617, 63 So.2d 141 (and cases therein cited). As a consequence,, particularly since in the meantime Touchet made no complaint as to the unit originally-.creatéd but rather received shut-in royalties .from the unitized lands, the royalty-interest of appellants was not lost by the-prescription of ten years liberandi causa, (apparently for the same reason the Tou-chet lease, dated February 19, 1945, continued in force and effect after the expira?tion of its primary term of five years.

I respectfully dissent.

      . The second declaration discussed here-' in was filed by the oil company more than 10 years after the date of the royalty sale.


author: HAWTHORNE, Justice.

text:
    229 La. 335
    Etta Mae PATTON v. HEIRS OF John PATTON.
    No. 39973.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Louis' Berry, New Orleans, for plaintiff-appellant.
    J. M. Henagan, Jena, for appellee.
   HAWTHORNE, Justice.

Etta Mae Patton has appealed from a judgment dismissing a suit in which she sought to have annulled and set aside a judgment of divorce obtained by John Patton on September 27, 1929. Defendants are the heirs of her former husband. The grounds of nullity alleged are (1) that the judgment of divorce was obtained by fraud -on the part of John Patton, and (2) that the appointment of a curator ad •hoc to represent Etta Mae Patton in those proceedings was improper, illegal, and null since she was residing in the state at the time, and that the divorce proceedings were absolutely null because she was not legally cited and made no appearance in the divorce suit.

Etta Mae Patton and John Patton were married in 1920 and separated in 1928. In the latter part of 1929 John Patton instituted suit for a divorce on the ground of adultery. Upon the allegation that his wife was a non-resident of the state, he obtained an order appointing a curator ad hoc to represent her in the proceedings. Judgment granting him an absolute divorce was rendered by the district court of LaSalle Parish on September 27, 1929. In ■1930 John Patton married Zella Mae Franklin. Patton died on October 18, 1936, his succession was opened, and a judgment was rendered recognizing Zella Mae Patton as his surviving spouse and recognizing her and his father, James Patton, as his surviving heirs.

In 1948, almost 20 years after the divorce had been granted and 12 years after John Patton’s death, Etta Mae Patton instituted this suit to annul the judgment of divorce, motivated, according to the trial judge in his reasons for judgment, by the hope of establishing some right in herself to certain anticipated benefits to be received from the federal government.

According to plaintiff’s testimony, she did not learn that John Patton had obtained a divorce from her until she was so informed by the Veterans Administration in 1945, but we are convinced that this statement is untrue. We think it is fully established by the testimony in this case that she had knowledge of this divorce as early as 1931, and also knew that Patton had remarried. In fact, she admitted at the trial that she and Patton had divided the proceeds from the sale of their community property in 1930.

There is'no evidence to sustain the charge that fraud was practiced by John Patton in obtaining the judgment of divorce. In this connection, the trial judge was convinced that Patton had no motive to resort to fraud because it was'unnecessary for him to use illegal methods in order to obtain his divorce decree. Etta Mae Patton had been living in adultery, and she and the man with whom she was living had left the Parish of LaSalle with the announced intention of going to Mississippi. Moreover, if. we should assume that fraud was actually practiced by John Patton, plaintiff’s action to annul the judgment on this ground is barred by the one-year prescriptive period, of Article 613 of the Code of Practice,, since, as pointed out above, she knew of the divorce in 1931 at the latest.

We now come to appellant’s contention that the appointment of a curator ad hoc to represent her in the 1929 divorce suit was improper, illegal, and null because she was a resident of the State of Louisiana at the time of the suit, and that consequently the judgment of divorce was a nullity because she was never legally cited and made no appearance in the divorce suit.

Citation is undoubtedly the essential ground of all civil actions, and proceedings had without it are absolutely null unless the defendant has voluntarily appeared and answered the demand. Arts. 206, 606(4), La.Code Practice; Wilson v. King, 227 La. 546, 79 So.2d 877. Thus, this court has held that a wife not an absentee cannot be cited in divorce proceedings through a curator ad hoc, and a judgment rendered contradictorily with a curator under such circumstances is void. Elmore v. Johnson, 121 La. 277, 46 So. 310; see Spence v. Spence, 158 La. 961, 105 So. 28. However, in view of the fact that this suit to annul was instituted long after the death of John Patton, we think that this plaintiff should be required to establish by exceptionally strong and convincing proof that she was actually residing at Bunkie in the State of Louisiana during the fall of 1929, and that consequently citation addressed to her through a curator ad hoc was no citation at all. This she has not done. Her testimony with reference to these facts has been considered with extreme care, both by the lower court and by us. The trial judge, who heard and saw the plaintiff testify, weighed her testimony and the documentary ■ evidence she introduced to prove her residence, and he concluded that she had failed to discharge the burden of proving that she was not absent from the state when the petition for divorce was filed and the judgment of divorce granted. After reading the entire record we cannot say that there is any manifest error in.his conclusion.

The judgment is affirmed at appellant’s costs.


author: HAMITER, Justice.

text:
    229 La. 341
    Will BIGHAM v. SWIFT & COMPANY et al. In re Will BIGHAM Applying for Certiorari or Writ of Review to the Court of Appeal, Parish of Caddo.
    No. 42576.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Ferdinand A. Cashio, Shreveport, for relator.
    Browne, Browne & Bodenheimer, Shreveport, G. M. Bodenheimer, Jr., Shreveport, of counsel, for respondents.
   HAMITER, Justice.

On September 23, 1954 Will Bigham instituted this suit against his employer, Swift & Company, and also against the latter’s compensation insurer, Security Mutual Insurance Company of Chicago, Illinois, seeking recovery under the Workmen’s Compensation Act, LSA-R.S. 23:1021 et seq., as for total and permanent disability. In his original and supplemental petitions he alleged that an accident that occurred on or about September 24, 1953, while he was acting in the course and scope of his employment, caused certain described injuries in the region of his back, or aggravated a pre-existing condition in that area, which resulted in the disability.

In bar of the demand the defendants specially pleaded the prescription of one year and the peremption of two years under LSA-R.S. 23:1209. They averred, to quote from their exception containing the pleas, that: “ * * * this claim is barred by the prescriptive period of one year since the alleged ■ accident which is the basis of the suit occurred on- September 1, 1953, instead of occurring on September 24, 1953, as alleged in the petition, the suit herein having been filed on September 23, 1954. * * * Appearers’ plea of peremption is based on the theory that the actual cause of disability, if any, is the result of a preexisting condition of hypertension and heart ailment ensuing'on Octobér 30, 1951, more than two years prior to the filing of this suit and is, therefore, perempted under the specific terms of the Workmen’s Compensation Act.”

No answer was ever filed by the defendants.

A hearing was had in the district court solely on the mentioned pleas of prescription and peremption, and it resulted in a judgment maintaining the pleas and dismissing the suit.

On an appeal to the Court of Appeal of the Second Circuit such ruling was affirmed. ' We granted certiorari.

The evidence adduced on defendants’ pleas of prescription and peremption conclusively establishes the following pertinent facts: While engaged in his employment plaintiff experienced an accident on either August 31 or September 1, 1953 (not on September 24, 1953 as he alleged), he having stumbled and fallen while carrying a heavy piece of meat. He continued his regular duties until September 24, 1953, on which date a company physician examined him following his complaint that he was hurt on September 1, 1953 and suffered pain in the lower back. A diagnosis of sacroiliac strain was made. According to the physician “a belt was put on him and he was treated for ■ about three weeks and probably lost about ten or twelve .days from work. ■ .

On returning to his employment, the record further shows, plaintiff performed light duties for awhile. But later, “in the first of 1954” as stated by the employer’s superintendent, he resumed • his usual activities which included the tipping and rolling of 300 pound barrels of meat, handling of boxes weighing up to 125 pounds, and carrying, quarters of beef and veal. This continued for several months, until he complained .of illness and went again to the company physician for examinations ' and treatments.' The latter, in a final written report to the employer of date June 8, 1954, concluded that plaintiff had not responded to treatment and that he was totally and permanently disabled. While away from his work and undergoing those examinations and treatments, a period of ten or eleven weeks, plaintiff was paid his regular weekly wages, less the- usual deductions for income tax, social security, etc. And at the end of that period (apparently about the time of the physician’s final report) he was discharged from his employment.

It is contended by plaintiff’s counsel that (1) the prescription ' of one year did not commence to run until the disability manifested itself in March or April, 1954 or that (2) if the prescription started as of the date of the accident (September 1, 1953) it was interrupted by the payments of full wages to defendant for ten or eleven weeks while he was totally disabled, they having been in the nature or in lieu of compensation; and that, in either event, the filing of this suit on September 23, 1954 was timely.

Defense counsel, in opposing such contentions, say that (1) “the only testimony in the record conclusively shows that the alleged accident had nothing whatsoever to do with' the total disability” and (2) the “payments as made here were ’sick benefits’, based upon the established custom of the employer and would have been paid unto the employee if he had been off working suffering with the ‘measles’, which, of course, have no connection with the Com-pénsation Act.”

On the hearing of the pleas under consideration the company physician, it is true, testified that the total and permanent disability of plaintiff did not result from an accident during his employment, it having been due to old age and particularly to a congenital breakdown of his blood vessels and heart. But the question of what caused the employee to be disabled is one that addresses itself to the merits of the case, which, as before shown, have not as yet been tried in this litigation (defendants have never filed an answer).

The provisions of the Workmen’s Compensation Statute on which the instant pleas are predicated, LSA-R.S. 23:1209, presuppose that the' accident and injury of a claimant resulted in the disability for which he seeks compensation. Accordingly, for the purpose of this consideration, it must be assumed that plaintiff’s disabling condition was caused by the accident of September 1, 1953. This being true, there is merit in the first contention of .plaintiff’s counsel which is that the current of prescription did not commence .until March or April, 1954 when the disability first manifested itself and that, consequently j the filing of this suit on September 23, 1954. was timely.

Our decision in Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218, 219, supports this conclusion. In that case (which incidentally was tried on its merits, contrary to the instant matter) the accident occurred on January 27, 1946. Thereafter, the plaintiff was put on lighter work at his request until March 11, 1947 when he was forced to cease his employment entirely because of total and permanent disability. In discussing the plea of one year prescription we said: “ * * * The Workmen’s Compensation Act was amended by Act 29 of 1934 so as to provide that the prescription or peremption should not commence until the injury had developed. In our opinion this amendment was designed to take care of cases similar to the one herein involved. From the very wording of this amendment, an employee who receives an injury flowing from an accident that later develops into disability is excepted from the general rule and his right of action is not perempted until one year-after the injury has developed. In this case the injury did not develop into total disability until March 11, 1947, at which time the plaintiff could no longer pursue his trade as a glass cutter. For us to say that he was disabled to perform the duties of his trade prior to that time would be mere conjecture on our part because he had, in fact, continued to perform the duties of his trade until that date. His suit was filed on August 4, 1947, a short time after he became disabled, and within a year from that time. Such being the case the plaintiff’s suit was timely filed and the plea of peremption cannot be maintained.”

In the instant case plaintiff, after the accident, continued his employment on lighter work and later resumed his full duties until the total disability developed in March or April, 1954; and this suit was filed within a year thereafter and within two years from the date of the accident. In the light of our-holding in the Mottet case, therefore, the pleas of prescription and peremption will have to be overruled. Whether plaintiff’s disability is‘'attributable to the alleged accident and injury is a question, as áforestatéd, to be determined on a remand of the case following the answering by defendants and a trial of the merits.

In view of our above stated conclusion we. need not and do not consider plaintiff’s second contention that if the prescription of one year commenced to run on September 1, 1953, the date of the accident, it was interrupted by the employer’s paying to him his regular wages for ten or eleven weeks during the early part of 1954 and while he was totally disabled.

For the reasons assigned the judgments of the district court and Court, of Appeal are reversed and set aside, the pleas of prescription and peremption are overruled, and the case is remanded to the district court for further proceedings according to law and not inconsistent with the views above expressed. Costs of the Court of Appeal and of this court shall be paid by defendants and all other costs shall await the final determination of the litigation.


author: PONDER, Justice. McCALEB, Justice

text:
    229 La. 349
    L. H. NUNLEY v. SHELL OIL COMPANY et al. (Vanson Production Company).
    No. 42197.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Blanchard, Goldstein, Walker &• O’Quin, Shreveport, for relator.
    Colvin & Hunter, Mansfield, for respondent.
   PONDER, Justice.

Writs were granted in this case limited to the question of whether or not the plaintiff was entitled to attorney’s fees under the provisions of LSA-R.S. 30 :102.

The plaintiff brought suit seeking the partial concellation of an oil and gas lease on the ground of non-development and for attorney’s fees. The lease in question covered 84 acres of land. , Forty-four acres of this land, was included in a 640. acre drilling unit established by the Department of Conservation. The plaintiff-lessor is seeking in this suit, to have the lease cancelled on the remaining forty acres of land, lying outside of the drilling unit, on the ground of non-development. The suit was opposed by the defendant oil company and on trial the district court rejected the plaintiff’s demand. On appeal, the court of appeal reversed the judgment of the district court and gave judgment in favor of the plaintiff ordering the cancellation of the lease insofar as it affected the forty acres of land lying outside of the drilling unit and awarded the plaintiff $1,000 as attorney’s fees together with all costs. The defendant applied to this Court for writs which were granted limited to the question of its liability for attorney’s fees. The matter has been submitted for determination.

The defendant-relator contends that LSA-R.S. 30:102 is a penal statute and that its provisions must be strictly construed. The relator takes the position that the statute applies only where the entire léase is cancelled on the ground that it has lapsed by failure to pay delay rentals or by the failure on the part of the lessee to comply with the condition for prevention of forfeiture. Relator takes the further position that equitable defenses are available when there is a demand for the partial cancellation of the lease.

LSA-R.S. 30:102 provides:

“Cancellation of lease at termination of option required; liability for failure to cancel — Whenever an optional oil or gas lease shall lapse because of the termination of the full period within which it may be kept alive by the payment of rentals, or because of failure on the part of the lessee to comply with the condition for the prevention of forfeiture, the lessee shall within ten days after written demand on the part of the lessor furnish the lessor with an acknowledged instrument, directing the cancellation of the lease on the records.
“If a lessee, having been given written notice demanding cancellation of the lease, fails or refuses to comply within ten days, he shall be liable to the lessor for a reasonable attorney’s fee incurred by the lessor in bringing suit to have the cancellation adjudged. He shall also be liable to the lessor for all damages suffered by him by reason of his inability to make a lease because of the non-cancellation.”

In Humble Oil & Refining Co. v. Romero, 194 F.2d 383, Fifth Circuit, there was a partial cancellation of an oil and gas lease and the court held that the plaintiff therein was not entitled to attorney’s fees under the provisions of LSA-R.S. 30:102. Therein the attorney’s fees were denied on the ground that the lease had not lapsed and that since the plaintiff was not entitled to have the lease cancelled from the record “as lapsed” the statute did not apply.

In the case of Wilcox v. Shell Oil Co., 226 La. 417, 76 So.2d 416, the lease was cancelled for failure to pay delay rentals, and attorney’s fees were allowed.

In the case of Eota Realty Co. v. Carter Oil Co., 225 La. 790, 74 So.2d 30, wherein this Court ordered a partial cancellation of the lease on the ground that no well had been drilled on the property and the primary term had expired, attorney’s fees were allowed under the provisions of LSA-R.S. 30:102.

In the case of Wier v. Grubb, 228 La. 254, 82 So.2d 1, handed down after the writs were granted in the present case, the sublessor sought the cancellation of a lease and two assignments thereunder on the ground of forfeiture resulting from the defendant’s failure to sufficiently and diligently develop the land; this Court ordered the cancellation of the sublease save and except as to an area of five acres around a producing well and allowed attorney’s fees under the provisions of LSA-R.S. 30:102.

While the Romero case, a Federal decision, is in conflict with the decisions of this Court, heretofore referred to, we feel bound to follow the jurisprudence of this state recognizing an award for attorney’s fees wherein a partial cancellation of a lease has been ordered.

For the reasons assigned, the judgment awarding the respondents attorney’s fees is affirmed at relator’s cost.

McCALEB, J., concurs with written reasons.

McCALEB, Justice

(concurring).

A literal interpretation of LSA-R.S. 30:102, which is quoted in the main opinion, furnishes much support to the contention of defendant that attorney’s fees are recoverable by a mineral lessor only in event of a lapse and complete forfeiture of the lease. Hence, it appears to me that the decision in the case hinges upon whether R.S. 30:102 is a penal statute, which must be strictly construed, or whether the attorney’s fees provided for therein may be regarded as compensatory damages, thus warranting a more liberal interpretation of the law.

It is my opinion that the provision for liability “for a reasonable attorney’s fee incurred by the lessor in bringing suit to have the cancellation adjudged” is not a penalty inflicted on the lessee for the breach of his obligations under the lease; it is simply recognition of a right to recompense for an expense incurred by the lessor which would not be recoverable in the courts in the absence of a statute or special agreement between the parties. Thus viewed, the statute is entitled to a reasonable interpretation, which would seem to justify the conclusion of the majority that its provisions apply to cases involving a partial cancellation of the lease because of the lessee’s breach as well as those in which a complete lapse or forfeiture has been adjudged.

I concur in the decree.


author: McCALEB, Justice.

text:
    229 La. 355
    E. L. RESWEBER v. Robert A. JACOB et al.
    No. 42720.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Mestayer & Mestayer, New Iberia, for opponent and appellant.
    Helm, Simon & Gordy, by Lawrence Simon, New Iberia,' for defendant in re-convention-appellee.
   McCALEB, Justice.

This is an appeal from a judgment dismissing a reconventional demand. The judgment was rendered and signed in open court in the Parish of St. Martin'on September 6, 1955 and, on October 21, 1955, appellants presented to the Judge in his chambers at New Iberia, a motion for an appeal which was granted. Citation was neither prayed for nor issued. Because of lack of citation and service, appellee now moves for the dismissal of the appeal.

The motion is well founded. Citation of the appellee is essential to the appeal unless the motion or petition is presented in open court during the same term at which the judgment was rendered. Article 574, Code of Practice. When, as here, the appeal is applied for by motion pre--sented in chambers and the appellant does not pray for or otherwise request issuance and service of citation and no service is made, the appeal must be dismissed. State v. Salmen Brick & Lumber Co., 149 La. 968, 90 So. 273; Ducre v. Succession of Ducre, 167 La. 133, 118 So. 864; Harding v. Hackney, 189 La. 132, 179 So. 58 and Bascle v. Perez, 224 La. 1014, 71 So.2d 551.

In opposing the motion, appellants primarily assert that dismissal of the appeal would accomplish nothing other than a delay in proceedings and expenditure of additional costs, as they have until September 6, 1956, to take another devolutive appeal.

The point is without merit. That a new appeal may be requested and granted furnishes no reason to deny appellee the right under the law and jurisprudence to have this appeal dismissed.

Alternatively, appellants maintain that they should be permitted to withdraw the appeal in view of Articles 595 and 901 of the Code of Practice.

Article 595 is without application as it pertains to the withdrawal of an appeal on motion made in the lower court while that court still has jurisdiction. And Article 901 is not authority for the withdrawal of the appeal once it has been lodged in this Court as it provides that the Court cannot “in any case” permit the withdrawal of the appeal “without the consent of the appellee”. See State v. Salmen Brick & Lumber Co., where the identical contention was made by appellant and rejected by the Court.

As a final alternative, appellants request that their right to renew the appeal be reserved in the judgment of dismissal. As precedent therefor, counsel cite Ducre v. Succession of Ducre, supra, and two cases, Jackson v. Martin, 58 So.2d 248 and Robertson v. Isacks, 71 So.2d 361, of the Court of Appeal, First Circuit.

While it appears that appellants in the, cited cases were reserved the right of perfecting other appeals, 'we think that the course adopted by the Court in State v. Salmen Brick & Lumber Co., supra, is more appropriate. There, in answer to a similar request, the Court said [149 La. 968, 90 So. 274] :

“ * * * -This is unnecessary. Whatever right the appellant may have, in this respect, exists independently of such reservation. It may be that, if a second appeal should be taken within the year, no question will be raised conCerning it; or it may be that other questions concerning the right to the appeal may be presented of which we now know nothing.”

Appellants’ motion to withdraw the appeal is denied and the appeal is forthwith dismissed.


author: MOISE, Justice.

text:
    229 La. 360
    HOLMES COMPANY v. Dillard FORET.
    No. 42446.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Earl Edwards, Marksville, for plaintiff-appellant.
    Edwin L. Lafargue, Baton Rouge, for defendant-appellee.
   MOISE, Justice.

Plaintiff, Holmes Company, appeals from a judgment of the trial court, which decreed the manner in which an amount deposited by the defendant in the registry of the court should be distributed between plaintiff and defendant.

Defendant, Dillard Foret, asks this Court to affirm the judgment in all respects, with the exception of the allowance of attorney’s fees to plaintiff.

As a predicate in this suit we adopt the following well-stabilized jurisprudence of this Court that where the trial judge has seen, heard, and observed the witnesses and the many tilings that transpire in the courtroom that are not susceptible to being taken down by a stenographer, his judgment on a question of fact will not be disturbed unless manifestly erroneous. Olivier v. Abunza, 226 La. 456, 76 So.2d 528; Nalty v. Nalty, 222 La. 911, 64 So.2d 216; Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367. Since this case presents a matter of fact, we adopt the following reasons of the trial judge in full:

“This action is in the nature of an accounting between plaintiff and defendant, growing out of a rice farming venture engaged in by the parties. In ■the year 1952, the parties entered into a verbal agreement whereby plaintiff was to furnish the land, seed rice and water for the crop, and defendant was to plant, raise and harvest the rice crop. Proceeds from the sale of the rice were to be divided equally between them. In addition, however, and in order to permit defendant to carry on in their venture, plaintiff agreed and did, from time to time, make cash advances or loans to defendant; and, on December 9, 1952, defendant executed a promissory note secured by chattel mortgage and delivered it to plaintiff to be used as collateral security for the loans made to him. Under this arrangement, the parties proceeded to raise rice crops during each of the years 1952, 1953 and 1954.
“At the end of the 1954 crop season, plaintiff instituted this suit on the promissory note it held, claiming a total of $2,807.50 for alleged unpaid advances made to defendant during the years 1952, 1953 and 1954, together with 6% interest and 10% attorney’s fees thereon, as provided for in said note. Defendant answered the suit, and admitted owing plaintiff $1,700.00 for advances made to him in 1954, and $97.60 carried over from the 1953 advances made to him, but denied that any of the remaining items set forth in plaintiff’s statement were loans or advances made to him. Specifically, the alleged indebtedness which defendant denies owing consists of the. following items: (a) $601.80 claimed by plaintiff for the construction of two rice flumes on the property farmed in the years 1952 and 1953; (b) $457.50 claimed by plaintiff for weed poison purchased and applied to the 1954 rice crop; and, (c) $50.00 claimed by plaintiff ■ and represented by its check to defendant dated February 11, 1954. Additionally, and by way of set-off, defendant alleges that plaintiff is indebted to him in the amount of $711.33 for the use of defendant’s tractor during the 1954 crop season.
.“The issues involved in this cause are primarily questions of fact, the solution to which must be found in a verbal agreement between the parties. In view, however, of the hopeless conflict apparent in the testimony of plaintiff and defendant as to what was and was not agreed upon, the court will treat each item separately and in light of the evidence adduced concerning it.
“It is admittedly true that throughout the years 1952, 1953 and 1954 plaintiff made its regular advances to defendant by way of its personal check drawn against the plaintiff company account and payable to the order of the defendant. These checks were, always in the amodrit'of either $100.00 or $200.00, and the totál amount advanced each month was generally $400.00. At the end of each crop year, the plaintiff then furnished defendant with a statement setting forth each advance or loan made to defendant during the year, and defendant paid the advances out of his share of the rice crop.
“Turning now to the first claim of plaintiff, which is for $601.80 for two rice flumes constructed on the property farmed, the evidence discloses that the first flume was constructed in April, 1952, for a total cost of $350.00, and that the second flume was constructed in September 1953, for a total cost of $251.80. .In each instance, plaintiff contracted with the Avoyelles-St. Dandry Soil Conservation District for the construction of the flumes, and likewise in each- instance, issued its check payable to the order of that concern when it completed the work. Plaintiff contends, however, that under the verbal agreement entered into between the parties, it was the plaintiff’s obligation to bring the water up to the field only, and thereafter 'it was tip to the defendant to construct whatever flumes and ditches were necessary to distribute the water over the field. The only witness to testify for plaintiff on this question was Hubert Holmes, one of the partners of the plaintiff company. The witriess stated that he had never raised rice before, arid did not know anything about rice farming, but that under like arrangements between landowners and farmers, the farmers always paid for the rice flumes. On the other hand, the defendant testified that plaintiff agreed to pay for the flumes under their verbal agreement. He stated further that he had raised rice crops for many years on other people’s property, and that the landowners had always paid for the construction of the flumes necessary to convey the water through the fields.
“The evidence further discloses that at the end. of the year 1952, plaintiff presented its statement to, defendant for all of the advances or loans made to defendant during that year, and the statement did not include the amount paid by plaintiff for the construction of the first flume. Likewise, at the end of the year 1953, plaintiff again presented its statement to defendant of all advances made to him, and the statement did not include the amount paid by plaintiff for the construction of either the first or the second flume. Plaintiff endeavors to explain away this obvious departure from the normal manner in which advances were made and accountings had between the parties, by asserting that these advances were not ordinary loans or cash advances, and were therefore not included on the statements to defendant, but carried along from year to year under a separate gentleman’s agreement between the parties.
“The Court thinks it evident that the preponderance of evidence on this issue is heavily in favor of the defendant. Plaintiff itself adopted a sane and .prudent manner of making its advances, and accounting, to defendant. By that method, in making the checks payable to defendant, both parties were put on notice that a loan was being made, and, in furnishing defendant a statement of all advances.made during the year, both parties could understand ■and verify the amount of the indebtedness. Eor plaintiff to now recover for alleged advances made to defendant several years ago in a manner at variance with .their generally accepted practice of dealing with one another, would at the very least require that it bear the burden of proving the indebtedness, This it has failed to' do.
“The second item claimed by plaintiff is the sum of $457.50 for weed poison used on the 1954 rice crop. This claim is represented by two checks filed in evidence by plaintiff, both of which are drawn against the account of , the plaintiff company and payable to the Dixie Spraying Service, Inc. It is admitted that these checks were drawn by plaintiff Hubert Holmes, delivered to defendant, and that defendant purchased the weed killer in the name of Holmes Company and had it shipped to him, defendant, at the rice farm. There was nothing in the original agreement between the parties concerning the purchase of weed killer, but plaintiff contends that the weed killer takes the place of hoeing, and inasmuch as it was defendant’s duty to raise the crop he should be held responsible for the cost of the weed killer. Defendant admitted having himself purchased some weed killer during the 1952 and 1953 crop season, but contends that he informed plaintiff that he did not consider it his obligation to do so, and that plaintiff agreed to buy the weed killer for the 1954 crop if defendant would spread it.
“Again in this instance, the checks upon which plaintiff bases its claim are not made payable to defendant, as was the normal manner of making advances to him. However, across the face of each of the checks is the notation “For Dillard Foret”, the defendant. Plaintiff’s witness Hubert Holmes, a partner in the plaintiff company, testified that the notations were placed upon the checks at the time that he drew and handed them to defendant. Under careful cross examination, and after having been warned by counsel for defendant that the bank upon which the checks were drawn would undoubtedly have a picture of them at the time they were paid, this witness unqualifiedly stated that he was positive he placed the notations on the checks at the time he drew them. .After this case was closed, however, it was subsequently reopened by agreement of counsel, and a joint stipulation of fact was filed herein by counsel for plaintiff and defendant, wherein it is stated that notwithstanding' the testimony of plaintiff’s witness Hubert Holmes, at the time the checks in question were paid by the bank upon which they were drawn the notations “For Dillard Foret” did not appear on either of the checks. In view of this extraordinary development, the court cannot help but interpret the testimony of the witness as a deliberate attempt to distort the facts and mislead the court in reaching its decision. If the plaintiff thought so little of its claim that it felt it necessary to resort to such tactics, then the court is at a loss to understand how plaintiff could expect the court to loan the claim much credence.”
“The third item claimed by plaintiff is the sum of $50.00, represented by its check, payable to the order of defendant, dated February 11, 1954. Plaintiff admits that this was not one of the regular advances made to defendant during the rice crop season, but contends that defendant was in need of groceries at that time, and borrowed the money from it. Defendant testified that plaintiff hired him to plow some thirty acres of cottonland during the first part of February, for an agreed price of $50.00, and that he had his son plow the field and the check was given to him' by plaintiff in payment for said work. Defendant’s testimony is corroborated by that of his wife,' who saw her son plow the field. On‘the other hand, plaintiff Hubert Holmes testified that he often times hired defendant for odd jobs around its farm, and admitted that defendant had been hired to plow some cotton land, but denied that he agreed to pay a price of $50.00 for the job. This witness also stated that he know he paid defendant for plowing the field, because the defendant never had to ask him for it, and if he had not paid him, defendant most certainly would have done so. Plaintiff also asserts that if it had any intent of ‘framing’ tide defendant on this check, it could just as easily have sued him on many more checks of a like nature, and it introduced fourteen of such checks in evidence, all payable to the order of defendant, for work done by him outside of the scope of the rice farming agreement.
“The evidence clearly established the .fact that defendant did plow some thirty acres of land for plaintiff in the first days of February. Plaintiff admits that it paid him for that work, but it has made no effort to show when or in what manner it paid defendant. From the checks introduced in evidence by plaintiff, it is apparent that from the 1st day of February to the 6th day of April, the only check issued to defendant that could have possibly been in payment of the plowing is the $50.00 check here in question. In the absence of any further light being shed on the question by plaintiff, it is abundantly clear that the check, was given defendant in payment of the services he had rendered plaintiff.
“One other question arises in this issue, which is due to the fact that when the check was introduced in evidence it bore the notation ‘Loan’ written across its face. Plaintiff Hubert Holmes testified that he had written the check, and that he wrote the word loan across its face at the time he gave it to ' defendant. The witness • made that statement at the same time he testified about the notations present on the two checks was unquestionably false, the court can find no '.reason to give credence to his testimony ’ in this instance. In his brief, however, learned counsel for plaintiff contends that inasmuch as defendant and his counsel went to the bank .to ascertain whether or not the three checks had the notations written upon them at the time they were paid, and the s'tipulátion subsequently filed made no mention of the $50.00 check, then the court must •assume that the word ‘loan’ was written on the check when it was paid. Apparently learned counsel for plaintiff overlooks the fact that he himself was a party to that stipulation, and that he too went-to the bank to inspect the pictures of the checks, and if the bank had a picture of the check with the word'‘loan’ written on it, it is inconceivable that counsel would have failed to make that fact known in the stipulation which he signed. The only ■ assumption the court can draw from 'the stipulation is that the bank did not have any information at all concerning the $50.00 ’ check in question. Therefore, notwithstanding the notation written on the check, the court is •satisfied that a preponderance of the 'evidence is in favor of the defendant.
“The final issue involved is a claim by defendant for $711.33, allegedly due him for the use of his tractor during 1954. . Plaintiff admits having hired the use of . the tractor, and having agreed to pay defendant a reasonable rental. therefor. By agreement of coun'sel, the court appointed two experts to arrive at the fair hourly rental value óf the tractor, and the experts reported that the rental value was $2.00 per hour. Therefore, the only •question now to be determined is the number of hours the tractor was used.
“Defendant alleges that his tractor was used a total of 355 hours and 40 minutes. In support of that contention, defendant, his wife and their daughter all testified that they had assisted in keeping track of the number of hours the tractor was used. They all stated that when the use of the tractor was completed, the daughter made a detailed statement, consisting of two pages which set forth the number of days the tractor was used, as well as the number of hours in each day that it was used. Two copies of the statement were prepared, and defendant testified that he delivered one of the statements to the plaintiff. All of the witnesses stated that the tractor was used a total of 355 hours and 40 minutes. Defendant introduced the statement in evidence, and it is apparent that the first page is principally a list of the days and dates that the tractor was run continuously; the notation ‘total 180 hours’ is set opposite the list of the days, obviously indicating the .total number of hours the tractor ran during, the days listed. The rest of the first page and all of the second page is then devoted to a detailed breakdown of the exact number of hours the tractor was used intermittently on the days that followed the ones first listed, and at the end of this list, at the bottom of the second page, is the notation ‘total 175 hours and 40 minutes.’ Adding the two figures together, we' arrive at the grand total of 355 hours and 40 minutes, which is the time claimed by defendant.
“The only evidence to conflict with the defendant’s contention is the testimony of plaintiff Hubert Holmes. This witness stated that he left it up to defendant to keep account of the number of hours the tractor was used, and that he himself had no idea how long it was used. He stated, however, that prior to the institution of this suit, defendant presented him with a statement of the number of hours the tractor was used, and that according to that statement, the total number of hours was 175 and 40 minutes. He thereupon produced the second sheet of the statement, explaining that he had apparently misplaced or lost the first sheet. This second sheet is an exact duplicate of the second sheet of the defendant’s statement, and does have, as explained above, the total of 175 hours and 40 minutes at the bottom thereof.
“The court does not find anything inconsistent in the two Statements presented; if plaintiff had been misled, it is due to the fact that he lost the first sheet of his statement. When the statement is read as a whole, it is obvious that it reflects the tractor was used a total of 3SS hours and 40 minutes, and there is nothing- in the record to seriously dispute that fact.
“In an effort to avoid the payment of attorney’s fees called for in the note plaintiff sued upon, defendant attempted to show on the trial that he had made a tender of the amounts due plaintiff on the note, prior to the institution of this suit. The evidence presented on that score is rather vague, but the court is convinced that defendant did not make a legal tender, as prescribed by law, and should therefore be cast for 10% attorney’s fees called for in the note.”

We have reviewed the jurisprudence with respect to tender, LSA-Revised Civil Code, Article 2168, Code of Practice, Article 155, and we agree with the trial judge that in the instant case a valid tender was not made.

“At the time that defendant filed his answer herein, on October 7, 1954, he deposited in the registry of the court, the sum of $3,012.53, and prayed that this court distribute those funds between plaintiff and defendant in accordance with judgment rendered herein.
“Accordingly, for the reasons set forth above, let there be judgment herein in favor of plaintiff for the following advances or loans made to defendant and set forth on the itemized statement of account attached to plaintiff’s petition, to-wit: March 8, 1954— $200.00; March 19, 1954-$200.00; April 2, 1954-$200.00; April 16, 1954-$200.00; May 3, 1954-$200.00; May 15, 1954-$200.00; May 31, 1954-$100.00; June 7, 1954-$100.00; June 16, 1954 — $100.00; June 19, 1954-$100.00; July 3, 1954-$100.00 and $97.60 carried over from the 1953 account; together with interest on each of said advances at. the rate of 6% per annum from the respective dates thereof until the 7th day of October, 1954; thereby making a total amount due plaintiff, including both principal and interest of One Thousand Eight Hundred Forty-Eight and no/100 ($1848.00) Dollars. In all other respects, excepting the award for attorney’s fees hereinafter set forth, let the demands of plaintiff be and they are hereby rejected.
“Let there be further judgment herein in favor of the defendant, .and against the plaintiff, for the full sum of $711.33 as rent for the use that plaintiff made of defendants tractor during the year 1954; and, let the amount of the judgment hereinabove awarded plaintiff, that is, $1,848.00, be set-off by the amount of the judgment in favor of defendant, that is, $711.33, thereby leaving a net balance due plaintiff of $1,136.67.
“Let there be further judgment herein awarding unto plaintiff 10% of $1,250.34 as attorney’s fees,- and let the funds deposited in the registry of the court by defendant, in the amount of $3,012.53, be distributed between the parties as follows: to plaintiff the sum of $1,250.34; — to defendant, the sum of $1,762.19.”

For the- ’reasons assigned, the judgment of the trial court is affirmed; plaintiff to pay all costs.

      . The tactics resorted to are shown in the reasons of the trial judge which we have adopted in full.