text:
    Edward G. JARDELL, Plaintiff and Appellee, v. SABINE IRRIGATION COMPANY, INC., Defendant and Appellant.
    No. 5915.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Jones, Patin, Harper, Tete & Wetherill by Carl H. Hanchey, Lake Charles, for defendant-appellant.
    Cox, Cox & Knapp by Leonard K. Knapp, Lake Charles, for plaintiff-appellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   CULPEPPER, Judge.

The plaintiff, a farm lessee, asserts the following causes of action against defendant, an irrigation company with canals servicing the property leased by plaintiff: (1) An action for damages sustained as a result of defendant’s alleged breach of a contract to supply plaintiff with water in sufficient quantities to properly irrigate his rice crop in 1974. (2) An action in tort for damages to plaintiff’s soybean crops in 1974 and 1975, allegedly caused when water from defendant’s canals flooded portions of plaintiff’s soybean crops. The leakage from the canals was allegedly caused by defendant’s negligence in maintaining, operating and inspecting the canal system. (3) An action to recover bonus or incentive payments under the terms of an incentive program begun by defendant in 1967 and allegedly never discontinued.

The trial court rendered judgment in plaintiff’s favor awarding (1) damages for breach of the contract to supply water; (2) damages in tort for flood damage to the soybean crops in 1974 and 1975; (3) sums due under the incentive program for the years 1973, 1974 and 1975. The total amount of the damage award is $23,852.47. Defendant appealed. Plaintiff answered the appeal, seeking an increase in the award.

Defendant’s five assignments of error raise the following issues: (1) Are the laws of registry, LSA-R.S. 9:2721 and 2722, applicable to the present case? (2) Are the owners of the land leased by plaintiff indispensable parties to this action? (3) Did the trial court err in concluding that defendant’s negligence or improper maintenance of the canal system caused the escape of water from the canal onto a portion of plaintiff’s soybean crops, resulting in damages? (4) Assuming plaintiff is liable to defendant in tort, did the trial court employ an appropriate method of calculating crop damages? (5) Did the trial court err in awarding damages for mental anguish.associated with the tortuous damage to plaintiff’s soybean crops? (6) Did the trial court err in holding defendant breached his contractual obligation to supply sufficient water for plaintiff’s rice irrigation needs in 1974? (7) Assuming defendant breached his irrigation contract, did the trial court employ an acceptable method in calculating crop damage? (8) Did the trial court err in holding that the incentive program continued in force through 1975, thus obligating defendant to pay plaintiff rebates for the years 1973, 1974 arid 1975?

GENERAL FACTS

Defendant, Sabine Irrigation Company, or its predecessors (Sabine) began operating a farm irrigation system in the area near Vinton, Louisiana in about the year 1900. The system consists of a main canal from the Sabine River and many miles of “laterals” or branches extending into the various fields. Water is pumped from the river into the canal. The canal operates primarily on a gravity flow principle. The water in the canals and laterals is above normal ground level and is confined by levees and a series of gates and other structures which can be opened in order to flood the fields. The irrigation system, including the water gates through which water flows onto the fields, is maintained and operated by Sabine.

There are no written contracts between the farmers and Sabine. However, it is mutually understood and agreed each year that Sabine receives one-fifth of the proceeds from the sale of rice crops in return for furnishing the farmers with the water necessary to grow a healthy rice crop. Before the growing season begins, employees of the canal company ask the farmers how many acres of rice they intend to plant in order to make preparations for the forthcoming growing season. During the growing season, the farmers inform the canal company of their specific water needs within a few days of the day water will actually be needed. Usually, employees of the canal company operate the water gates to control the flow of water from the main canal into laterals servicing the various fields.

Ample quantities of irrigation water at the proper time are essential to rice cultivation. The fields must be flooded at several stages during the growth cycle. In addition to nourishing the plants, the irrigation water covering the fields prevents growth of grass and is necessary for application of certain fertilizers, herbicides and other chemicals. Time is a critical factor in rice irrigation. If the fields are flooded too slowly or at the wrong time, damage to the rice crop results and yields are reduced.

The plaintiff, Edward Jardell, had farmed in the Vinton area for many years on land irrigated by the defendant’s canal system. During 1974 and 1975, the time pertinent to this suit, plaintiff was the lessee of four separate tracts of land referred to in the record as the “Miller Farm”, the “Jardell Estate Farm”, the “Granger Farm”, and the “Cormier Farm”. All of the leases were oral except that for the Jardell Estate Farm. It was written and recorded. On the Miller Farm, the land rent was set at one-fifth of the crops grown thereon. On the three remaining farms, land rent was set at one-sixth of the crops.

During 1974 and 1975, Jardell grew rice and soybeans on the previously mentioned farms. The record shows that despite his repeated requests during 1974 that Sabine supply him with water necessary for irrigation of his rice, sufficient water was never made available. On July 1, 1974, Jardell made a written demand on the canal company in an effort to secure sufficient water for irrigation. Even after the written demand, Jardell was unable to obtain sufficient water for irrigation.

The evidence shows that Sabine maintained a water level in the main canal that was too low to provide plaintiff with the water he needed to irrigate his crops. As a result, certain portions of his rice crops were insufficiently watered. The yields (in barrels of rice per acre) were substantially lower on the portions of the fields which were inadequately irrigated than yields from the portions of the fields which were adequately watered.

Damages to plaintiff’s soybean crops occurred in 1974 and 1975 when water escaped from the canal and inundated portions of the fields. The evidence is sufficient to support the finding of fact by the trial judge that plaintiff’s crops were, damaged as a result of the inaction of defendant in not properly maintaining its canal system. A dragline essential to preventive maintenance “in the off-season”, and for general maintenance at other times, remained for several months in a repair shop, in operating condition, awaiting payment of the repair bill by the canal company. Sabine employed too few “canal walkers” or inspectors to properly monitor the canal system. Finally, there was abundant testimony to the effect that in recent years Sabine drastically curtailed its maintenance operations.

After the close of plaintiff’s case, defendant presented no evidence in its defense, taking the position that plaintiff had proved no damages to either his rice or soybean crops.

APPLICABILITY OF THE REGISTRY LAWS

Citing LSA-R.S. 9:2721 and 2722, defendant argues that it is a third party entitled to rely on the laws of registry, that plaintiff’s unrecorded oral leases can have no effect against defendant, and that plaintiff therefore cannot sue defendant for damages to standing crops, which must be considered as part of the land owned by the owners of the land.

The registry laws are inapplicable to the present case because this is an action between the parties to a contract for breach of a personal obligation under the contract. The canal company contracted directly with plaintiff to furnish him water for irrigation of his rice crops in return for one-fifth of the crop. Therefore, the trial court did not err in refusing to sustain the exception of no right of action on the grounds that three of the four leases were not recorded in the public records.

FAILURE TO JOIN INDISPENSABLE PARTIES

LSA-C.C.P. Article 641 provides:

“Indispensable parties to an action are those whose interest in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.”

Defendant argues that the landowners-lessors are indispensable parties. We do not agree.

LSA-R.S. 9:3204 declares:

“In a lease of land for part of the crop, that part which the lessor is to receive is considered at all times the property of the lessor.”

Although under this statute the lessor-landowners own the portion of plaintiff’s crops designated as rent, the landowners are not indispensable parties. They are instead, “necessary parties” under the terms of LSA-C.C.P. Article 642, because their interests in the subject matter are separable [see Yiannopoulos, La. Civil Law Treatise — Property, Vol. 2, Section 44.5, pages 47-48 (1977 p. p.)] and are not directly affected by the judgment.

Failure to join necessary parties is a dilatory exception which must be filed before answer or judgment by default. LSA-C.C.P. Articles 926(8), 928. Since defendant failed to timely file the exception, it waived its right to compel joinder of the landowners. LSA-C.C.P. Article 926.

In oral argument before this Court, plaintiff abandoned any claim for damages to the portion of the crop which is owned by the landowners. Furthermore, in calculating damages the trial court allowed defendant a credit equal to the portion of the crop designated as rent for the landowners. Thus, the interests of the lessor-landowners are not affected by or involved in this litigation.

RECOVERY IN TORT FOR DAMAGES TO SOYBEAN CROPS

Having concluded the registry laws are inapplicable and the landowner-lessors are not indispensable parties, we now address plaintiff’s tort claim for damages to his soybean crops in 1974 and 1975. It is now well settled that the predial lessee owns growing crops as movables by anticipation. See Yiannopoulos, La. Civil Law Treatise — Property, Section 44.5 (1975 p. p.) and cases cited in Footnotes 44.42 and 44.43 therein. Our courts have often recognized the right of the predial lessee, under Article 2315 of our Civil Code, to recover from those who cause damage to his growing crops or other property. See, for example, Watkins v. Gulf Refining Company, 206 La. 942, 20 So.2d 273 (1944); Trahan v. Florida Gas Transmission Company, 208 So.2d 550 (La.App. 3rd Cir. 1968). In addition, under the terms of Article 2703 of our Civil Code, the lessee has a right of action against any person not claiming a right to the premises for damages caused by disturbance of the lessee’s use or enjoyment of the leased premises, regardless of whether the lease is recorded. Bergeron v. Con-Plex, Inc., 255 So.2d 397 (La.App. 1st Cir. 1971); Cane River Needle Art v. Reon, Inc., 335 So.2d 751 (La.App. 3rd Cir. 1976), writ refused, no error of law, La., 339 So.2d 15. Thus, plaintiff has a right of action and a cause of action against defendant for damages to his soybean crops caused by leakage of water from defendant’s canals, where defendant had no right to allow water to leak from its canals onto the soybean fields.

The trial court found as a matter of fact that the damages to plaintiff’s soybean crops were caused by defendant’s negligent maintenance of the canal system. We affirm this factual determination, because it is supported by a reasonable evidentiary basis.

Defendant argues that it is implicit in the holdings in Andrepont v. Acadia Drilling Company, 255 La. 347, 231 So.2d 347 (1969) and Hargroder v. Columbia Gulf Transmission Company, 290 So.2d 874 (La.S.Ct.1974) that a lessee under an unrecorded lease cannot recover in tort against third persons who cause damage to his standing crops. In both cases, farm lessees with unrecorded leases sued for damages to their growing crops caused by persons who had acquired real rights in the leasehold property. In Andrepont, the defendant was a mineral lessee who damaged plaintiff’s crops in the course of its oil and gas exploration and production. In Hargroder, the defendant grantee of a pipeline servitude damaged plaintiff’s crops during the construction of its pipeline.

In its original hearing in Andrepont, the Supreme Court followed the holding of the Court of Appeal that since plaintiff’s farm lease was verbal and unrecorded, he could not assert his' separate ownership of the standing crops against the defendants, since they were third persons relying on the law of registry, LSA-R.S. 9:2721, and defendant had a right to be on the premises and to damage the crop. On rehearing, the Supreme Court reversed and allowed the plaintiff farm lessee to recover on the basis that defendant’s mineral lease contained a stipulation pour autre agreeing to pay all damages to standing crops, including those of a lessee under an unrecorded farm lease. In the subsequent Hargroder case, the Supreme Court followed the same rationale, basing its decision in favor of the farm lessee on the basis of a stipulation pour autre in the servitude agreement.

Defendant in the present case argues that since the Supreme Court decided the Andrepont and Hargroder cases on the basis of stipulations pour autre contained in the agreements under which defendants were on the premises, it is implicit that in the absence of these stipulations pour autre contained in these instruments, the court would have held that the lessees under unrecorded farm leases could not recover against third parties for damages to growing crops.

The Andrepont and Hargroder cases are readily distinguished from the present matter. The defendant in Andrepont and Har-groder had a right, acquired from the landowner, to go onto the premises and to cause the damages to the crops. This was obviously the problem which caused the Supreme Court on rehearing in Andrepont to use the stipulation pour autre as the basis for holding in favor of the tenant farmer. In the present case, the defendant irrigation company had no right acquired from the landowners to allow water to leak from its canals and flood the soybean fields of the plaintiff farmer.

A reading of LSA-C.C. Article 2703 shows that it takes cognizance of this distinction between a situation where the third person has a right to be on the premises and a situation where he does not. The article reads:

“The lessor is not bound to guarantee the lessee against disturbances caused by persons not claiming any right to the premises ; but in that case the lessee has a right of action for damages sustained against the person occasioning such disturbance.” (Emphasis supplied)

In Bergeron v. Con-Plex, Inc., 255 So.2d 397 (La.App. 1st Cir. 1971), the court recognized this distinction in holding that a lessee under an unrecorded lease of a borrow pit, used as a turtle farm, could recover against a highway contractor who damaged plaintiff’s turtle farming operation. The court noted that the leased premises were outside the highway servitude, and the defendant contractor had no right to be on the leased premises. The opinion states that in this situation the lessee can sue under LSA-C.C. Article 2315, our general tort law, pursuant to the authority granted to lessees under LSA-C.C. Article 2703.

AMOUNT OF DAMAGES IN TORT TO SOYBEAN CROPS

In both 1974 and 1975, plaintiff grew his soybean crops on the Miller Farm, planting 109.4 acres each year. In 1974, water from the canal flooded and destroyed 6.5 acres of the crop. 102.9 acres of the crop remained undamaged and yielded 26.84 bushels of soybeans per acre. The selling price of the soybeans was $6 per bushel.

In calculating damages, the trial court simply multiplied the number of acres lost due to flooding (6.5) by the number of bushels per acre produced on the undamaged portion of the field (26.84). This multiplication resulted in 174.46 bushels, an estimate of the yield which plaintiff would have gotten from the 6.5 acres if they had not been flooded and destroyed. The court then multiplied the figure of 174.46 bushels by the selling price ($6 per bushel) to arrive at a total damage figure of $1,045.80. From this amount, the court deducted $174.23 as the landowner’s one-sixth interest in the crop. Damages of $870.57 were awarded for loss of the 6V2 acres of the soybean crop in 1974.

In 1975, 19.5 acres of soybeans were lost due to flooding. Employing the same method as in 1974, the trial court calculated losses to be $2,256.47. As plaintiff points out in his brief before this Court, however, a $10 mathematical error was made in subtracting the land rent ($449.08) from the total damages ($2,695.55). Thus, the correct loss figure for 1975 is $2,246.47 rather than $2,256.47.

The method employed by the trial court in calculating crop damages is substantially the same as one approved by this Court in Williams v. Trunkline Gas Corporation, 149 So.2d 160 (La.App. 3rd Cir. 1963), and is consistent with the formula employed in Bryant v. McCann, 297 So.2d 262 (La.App. 3rd Cir. 1974) and Trahan v. Florida Gas Transmission Company, 208 So.2d 550 (La.App. 3rd Cir. 1958). Consequently, we find no error in the trial judge’s calculation of damages to the soybean crops.

In tort actions, damages may be awarded for inconvenience, mental anguish, and worry occasioned by injury to one’s property. Trahan v. Florida Gas Transmission Company, supra, and cases cited therein. The trial judge awarded plaintiffs $1,000 as compensation for inconvenience and problems in trying to grow his soybean crop in 1974 and awarded the same amount for the 1975 crop year. It is clear from the record that defendant was troubled and inconvenienced by the leakage of the canal. The damage award of $1,000 per year seems more than adequate, but it is within the broad discretion afforded the trial judge in fixing the amount of damages.

As modified by the correction of the mathematical error, we affirm the judgment of the trial court granting plaintiff a total of $5,117.04 for soybean crop damages and inconvenience caused by defendant’s negligent maintenance of the canal system.

BREACH OF CONTRACT TO SUPPLY IRRIGATION WATER

Defendant admits it entered into a verbal agreement with plaintiff to supply water for irrigation of his rice crops. The evidence supports the trial court’s finding that the primary purpose of the contract between plaintiff and defendant was to furnish plaintiff with an adequate supply of water when he needed it in order to grow a good crop of rice. The trial court concluded that in 1974 and 1975 defendant breached its irrigation contract with plaintiff by failing to provide plaintiff with sufficient water to properly grow his rice crops. This finding of fact is amply supported by the testimony of several farmers, including plaintiff, who are serviced by the canal. These farmers saw the damage to plaintiff’s rice crops and attributed it to lack of water at crucial stages of growth. Further support for this conclusion is provided by the testimony of Allen L. Cox, an agricultural and civil engineer, who was qualified as an expert in the field of soil and water engineering.

After studying the canal system, Cox concluded the water level of the canal was too low to flood plaintiff’s fields at the rate required for proper irrigation. He attributed the inadequacy of the canal system to lack of preventive maintenance and noted there were signs indicating the water level in the main canal was six to eight inches lower than it had been for extensive periods in the past. The evidence indicates that a drop of only a few inches in the level of the main canal can result in disastrous consequences for crop irrigation.

Clearly, there is a reasonable evidentiary basis for the trial court’s conclusion that the irrigation contract was breached and damages to plaintiff’s rice crops resulted.

Defendant does not seriously contest the trial court’s finding that it breached its obligation to supply plaintiff with sufficient quantities of water for proper irrigation. Instead, defendant takes the position that no damages were proved. We think plaintiff proved damages to his rice crops, and the trial court calculated the amounts of damages by an acceptable method. The amount of damages to the rice crops is the subject of the following section of this opinion.

AMOUNT OF DAMAGES TO RICE CROPS

In calculating damages to the rice crops on each of the four farms leased by plaintiff, the trial court employed the same formula we approved in Williams v. Trunkline Gas Company, supra. All of the rice was planted at the same time and received the same care. The'damaged areas of each rice field were harvested separate from the undamaged portion. The yield (in barrels of rice per acre) was calculated separately for the damaged and undamaged portions of the field. The yield on the damaged fields was subtracted from the yield on the properly watered portions of the fields. The result was the reduction in yield attributable to the lack of water. In order to arrive at the total number of barrels of rice by which the harvest was reduced by the water problems, the reduction in yield per acre was multiplied by the number of acres suffering from lack of water. When this figure was obtained, it was multiplied by the price per barrel obtained for the undamaged rice to arrive at the total pecuniary loss attributable to lack of proper irrigation. From this amount, the trial court deducted the landowner’s rental portion (Vs or Ve) and the “water rent” due to Sabine (Vs). The remainder was awarded to plaintiff as damages to his portion of the crops.

The only deviation from the formula approved by us in Williams occurred in calculations for damages to rice on the Jardell Estate. On the Jardell Estate, there was no undamaged acreage. The entire crop suffered from lack of water. Since there was no undamaged acreage to compare to the damaged acreage, the trial judge averaged the yields per acre on the undamaged portions of the Granger and Miller Farms for use as a standard. This amount, 27.64 barrels per acre, was compared to the actual yield per acre of 20.03 to calculate damages on the Jardell Estate. We think this is a reasonable deviation from the Williams formula. The trial court has broad discretion in selecting a method of calculating damage to crops.

We affirm the trial court’s award of the following amounts (as amended by correction of mathematical errors) for damages to plaintiff’s rice crops in 1974: Miller Farm— $5,469.96; Granger Farm — $4,211.55; Jar-dell Estate — $4,144.28; Cormier Farm — . $2,704.33.

' [12] Defendant argues that no damages can be awarded because Jardell was significantly above the production of the over-all canal system, and his production in past years had not attained the level for which damages were awarded. However, there was no evidence presented as to whether the figures submitted by Sabine for other farmers on the system were crops of the same kind, planted in the same manner, and cared for in the same manner. Furthermore, the record establishes that Jardell was an above average farmer in terms of production. Therefore, the average yield of the other farmers on the system is not the best measure for calculating damages to Jardell’s rice crops.

As a part of damages for breach of contract, the trial court awarded plaintiff $500 for the extra work caused by the rice irrigation problems. There is sufficient evidence in the record to support this award. As a result of defendant’s failure to properly maintain levees, plaintiff was forced to use his own labor for maintenance. In addition, more labor was necessary to check the erratic water supply. Plaintiff incurred further additional expenses from the increased use of his equipment and horses in the maintenance and inspection of the canal system. These additional expenses resulted in a loss of profits. Awards for loss of profits resulting from breach of contract are specifically authorized by Article 1934 of the Civil Code. Therefore, we affirm the judgment of the trial court awarding $500 to compensate plaintiff for increased expenses associated with the breach of the irrigation contract.

THE INCENTIVE PROGRAM

After negotiations with a number of farmers on the canal system, the company instituted an incentive program to encourage better farming methods to increase rice yields. The terms and purpose of the incentive program are stated in a letter dated March 1, 1968 from the manager of Sabine to all of the farmers on the system. In the letter, Sabine agreed to pay bonuses ranging from $1.20 to $3 per acre for rice yields between 21 and 30 barrels per acre. A bonus of $1 per acre was to be paid for rice yields under 21 barrels per acre. The obvious purpose of this bonus offer was to increase crop yields and thereby increase defendant’s profits.

No termination date for the incentive program is fixed in the letter. The trial court concluded from the evidence that Sabine never terminated the program, and that the agreement remained in full force through 1975. We agree. The bonus or incentive program is an accessory to the contract to provide irrigation water in return for one-fifth of the crop. In effect, the program results in a decrease in water charges for those farmers who qualify for bonuses. It remained in effect until terminated. Therefore, we affirm the judgment of the trial court ordering defendant to pay plaintiff bonus payments due him for 1973, 1974 and 1975. By stipulation, the amount of bonus payments due is $1,085.81.

There is no merit in defendant’s argument that it discontinued or revoked the incentive program by failing to make bonus payments in 1973, 1974 and 1975. Several of the farmers, including plaintiff, continued to submit their requests during these years thinking that Sabine would eventually pay them. This belief is justified by Sabine’s history of slow payment under the incentive plan. Therefore, the failure to make payment promptly in 1973, 1974 and 1975 cannot be considered an implied revocation of the incentive offer.

PLAINTIFF’S ANSWER TO THE APPEAL

Plaintiff answered the appeal seeking an increase in the amount of damages. However, he has made no argument to support an increase. On the contrary, plaintiff has attached to his brief an appendix in which he has recalculated the damages using the trial judge’s method, which we have approved, and these calculations show that due to errors of computation the award should be decreased by $619.60. Therefore, we will amend the judgment so as to decrease the award by $619.60.

DECREE

For the reasons assigned, the judgment appealed is amended so as to reduce the award for damages from the sum of $23,-852.47 to the sum of $23,232.87. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against the defendant.

AFFIRMED, AS AMENDED.

STOKER, J., concurs in the result.

      . In his argument before this Court, plaintiff abandoned any claim he may have had to the one-sixth due to the landowner as rent.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Leonard R. BOURQUE, Plaintiff and Appellant, v. OLIN CORPORATION et al., Defendants and Appellees.
    No. 5916.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Francis E. Mire, Lake Charles, for plaintiff-appellant.
    Scofield, Bergstedt & Gerard by Thomas M. Bergstedt, Arnette & George, W. Gregory Arnette, Jr., Jennings, Brame, Bergstedt & Brame by John E. Bergstedt, Lake Charles, for defendants-appellees.
    Before HOOD, CULPEPPER and STOKER, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries. Plaintiff, a truck driver for Mat-lack, Inc., was burned by a liquid chemical when a hose came loose from a coupling of his truck during loading operations. The truck was being loaded at the plant of defendant, Olin Corporation. Also named as defendants are three employees of Olin Corporation and two employees of Matlack.

The case was tried before a 12-man jury which found Olin and two of its employees negligent, plaintiff contributorily negligent, and the remainder of the defendants free of negligence. Plaintiff filed a motion for a new trial which was denied. Plaintiff then appealed that portion of the judgment declaring him to be contributorily negligent.

The issues are: (1) Is there a reasonable evidentiary basis for the jury’s conclusion that plaintiff was contributorily negligent? (2) Did the trial court err in instructing the jury that contributory negligence was a defense? (3) Did the trial court err in not instructing the jury to apply the doctrine of comparative negligence? (4) Did the trial court err in instructing the jury on two occasions to continue deliberating to try to reach a verdict, even though the jury was apparently having difficulty in reaching a decision?

GENERAL FACTS

Plaintiff was employed as a truck driver by Matlack, Inc., and worked out of Mat-lack’s Lake Charles terminal. On Sunday night, August 10, 1975, plaintiff was ordered by the Matlack terminal manager to report to the Olin plant in Lake Charles on the following morning, August 11, with a truck (tractor) equipped with a pump and hoses to be used in the loading of a Matlack tank-type trailer at the plant. After the trailer was loaded, plaintiff was to attach it to his tractor and haul it to Ohio.

Ordinarily, this chemical was loaded into tank trucks by the gravity flow method from an elevated holding tank. On this occasion, however, there was not a sufficient quantity of chemical in the holding tank to fill the tank trailer by the gravity flow method. For this reason, plaintiff was instructed to drive a tractor equipped with a pump on Monday morning.

When plaintiff arrived at the Olin plant on Monday morning with his truck and hoses, he found the Matlack tank-type trailer partially loaded with a chemical substance known as “Ortho-TDA” (TDA). TDA is not caustic, but must be heated to a temperature of about 180 degrees to assume the liquid state necessary for loading and transport. Plaintiff attached the end of one of the truck hoses to the TDA ’’feed-line” and the other end of the hose to the intake on his pump. He attached a second truck hose between the intake valve on the tank-type trailer and the discharge outlet on his pump. Matlack owned and maintained these hoses. Each end of the hoses was equipped with a coupling device.

Three Olin employees, Booth, Sirman and Comeaux, conducted the loading operation for Olin. Booth had considerable experience in loading TDA and other chemicals. He was designated as the “operator”. Sir-man and Comeaux were “trainees” who had been working for Olin only a short time. These three men met plaintiff at the Olin plant shortly after he arrived to begin the TDA loading operation.

Plaintiff started the pump by operating a switch located in the cab of the truck. The truck’s engine provided power for the pump. Booth, who was on top of the tank trailer, saw that no TDA was flowing into the trailer and informed plaintiff that the pump was not working. Plaintiff got out of the truck cab and looked under it to discover what was wrong. He noticed the drive shaft for the pump was missing.

Plaintiff then went to the nearby control room and telephoned the shop foreman at the Matlack terminal in Lake Charles. Mr. Peoples, the shop foreman, told Bourque to measure the shaft and call back. Bourque measured the shaft and called back, but did not wait for the part to arrive. Instead, he and Booth returned almost immediately to the truck to resume the loading operation.

When Booth and plaintiff returned to the truck after making the telephone call, there was a sufficient, amount of TDA in the holding tank to fill the trailer by the gravity flow method without the necessity of using the pump on the truck. TDA from the partially loaded trailer and from the TDA feedline had filled the two hoses previously attached by Bourque. In conformance with the standard practice in the Olin plant, Booth decided to purge TDA from the hoses into the trailer with nitrogen pressure, rather than allowing the chemical to run onto the ground or into the atmosphere. Booth and Sirman testified that Booth asked plaintiff if the chemical would “flow through” his pump without the pump operating. Both testified that plaintiff answered “Yes”. Plaintiff did not recall Booth’s question, but could not deny that Booth asked it.

Many different types of trucks with various types of pumps are loaded at the Olin plant. Olin loading crew employees necessarily rely on the knowledge of the truck drivers regarding the operation of the equipment on their trucks, including pumping equipment. Plaintiff was quite familiar with the general operation of the pump, as he had used it on many previous occasions. Plaintiff did not test the operation of the pump before he arrived at the Olin plant.

After hearing from Bourque that the chemical could be purged through his pump, the Olin loading crew attached a nitrogen line to the TDA feedline. A gate-type nitrogen block valve had to be opened before the pressurized nitrogen would enter the hoses and push the TDA from the hoses into the trailer. Comeaux and Sirman opened the nitrogen block valve only slightly. Within a few seconds of the opening of the valve, the hose between the pump and the TDA feedline slipped or popped off the coupling at the point where it was attached to the TDA feedline. Hot TDA escaped from the hose, inflicting first, second and third degree burns on plaintiff’s legs. Plaintiff’s legs eventually healed with no residual disability.

The cause of the hose coming loose from the coupling is uncertain. It may have been excessive pressure. It may have been improper attachment of the coupling device to the end of the hose. It may have been a combination of these or other factors. The hose was repaired and returned to service. It could not be located at the time of trial. Its manufacturer was unknown.

The following facts regarding causation were developed at trial. First, the hose assembly which failed had a rated capacity of 50 pounds per square inch (psi) but had been tested at anywhere from 75 psi to four times its rated capacity. Second, Olin’s nitrogen pressure available at the TDA loading site ranged from 80 to 120 psi. Third, if there was a blockage or obstruction anywhere between the nitrogen source and the open vessel (tank trailer) into which the TDA was being purged, the hoses would have been pressurized to the full plant pressure almost immediately after the nitrogen valve was opened. Fourth, contrary to what Bourque told Booth, liquid substances cannot ordinarily be purged through an inoperative rotary-type positive displacement pump as the one installed on Bourque’s truck. Significant quantities of liquid could be purged through the pump only if its interior working parts were severely worn. There is no evidence that the pump was severely worn. Thus, the pump probably blocked or impeded the free flow of the TDA through the hoses and into the tank trailer after the nitrogen pressure was applied.

Previously, the contents of chemical hoses had often been purged into open vessels with nitrogen pressure without the hoses separating from their couplings. Unlike certain other nitrogen drop lines at the plant, however, the drop line in the TDA loading area was equipped with neither a pressure regulator nor a pressure gauge.

PLAINTIFF’S CONTRIBUTORY NEGLIGENCE

The case was submitted to the jury on eight interrogatories, none of which indicate the specific acts constituting plaintiff’s contributory negligence. There is, however, a reasonable evidentiary basis for a conclusion that plaintiff was negligent in telling Booth that TDA could be purged through the truck pump when it probably could not be. Similarly, there is a reasonable evidentiary basis for concluding the blockage at the pump caused the pressure in the hose to build to the point that it caused the hose to separate from the coupling. The hose failure could have been caused by other factors, but the jury could reasonably have concluded the blockage at the pump was the cause.

Since there is a reasonable evidentiary basis for the jury’s verdict with regard to plaintiff’s contributory negligence, the verdict should not be disturbed on appeal. We pretermit the issue of the negligence of the several defendants.

The remainder of plaintiff’s arguments are directed at alleged errors made by the' trial court in charging or instructing the jury. The negligence charge, itself, is not contested.

ALLEGED ERRORS IN JURY CHARGE AND INSTRUCTIONS

At the outset, we note that plaintiff made no objection to the charges before the jury retired to consider its verdict. LSA-C. C.P. Article 1793 provides:

“A party may not assign as error the giving or the failure to give any instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection.”

Failure to timely object to the jury charge waives the right to urge on appeal errors in the charge as grounds for reversal and remand. Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3rd Cir. 1975) (writ denied, La., 321 So.2d 363); Renz v. Texas & Pacific Railway Company, 138 So.2d 114 (La.App. 3rd Cir. 1962), v/rit denied. Likewise, the right to attack on appeal an allegedly improper instruction given after the case has been submitted to the jury must be preserved by an objection made at the time the supplemental instruction is given. See Renz v. Texas & Pacific Railway Company, supra. The policy considerations underlying these rules are obvious. As Judge Tate stated in Renz, “Counsel may not permit or acquiesce in an easily corrected procedural error and then, after an adverse verdict, urge such error for the first time as a ground for setting aside the jury verdict reached by the expensive and cumbersome method of a jury trial.”

However, we need not rest our decision to reject plaintiff’s jury charge arguments on his failure to timely object to the charges. For the reasons which follow, we find no merit in any of the arguments.

First plaintiff argues the trial judge erred in charging the.jury that contributory negligence could bar plaintiff’s recovery. Specifically, plaintiff argues that this is a case where defendant was engaged in an ultra-hazardous activity to which plaintiff’s contributory negligence is not a viable defense, citing Langlois v. Allied Chemical Company, 258 La. 1067, 249 So.2d 133 (1971). The simple answer to this argument is that the present case does not involve an ultra-hazardous activity, but is instead an ordinary negligence action. Contributory negligence, of course, is a viable defense in a negligence action.

Along the same lines, plaintiff argues that contributory negligence is not a defense in a products liability case. Khoder v. AMF, Inc., 539 F.2d 1078 (5th Cir. 1976); Hastings v. Dis-Tran Products, Inc., 389 F.Supp. 1352 (W.D.La.1975). Without addressing the issue of whether contributory negligence is a defense in such an action, we note the present case is not a products liability case. The manufacturer of the subject hose and coupling assembly is not a party. The owner of the hose and coupling is Matlack, plaintiff’s employer, against whom plaintiff’s sole remedy is for workmen’s compensation.

Second, plaintiff argues the trial court erred in not instructing the jury to apply the doctrine of “comparative negligence”. This doctrine has consistently been rejected by Louisiana courts and is inapplicable.

Third, plaintiff alleges the trial court erred in instructing the jury on two separate occasions to try to reach a verdict,' even though it was obviously having difficulty doing so. Plaintiff argues these instructions amounted to the “Allen charge”, which the Louisiana Supreme Court has prohibited in criminal jury trials. See State v. Nicholson, 315 So.2d 639 (1975). Briefly, the “Allen charge” is an instruction calculated to break jury deadlocks and achieve jury unanimity. It is characterized by a coercive suggestion to the minority members that they change their votes to those held by the majority. Plaintiff has cited no case applying the “Allen charge” rule in civil cases.

The jury reached its verdict after deliberating a total of five hours. The contested instructions were given on two separate occasions, once when the jury returned with a legal question and once when the judge called the jury into the courtroom when it became obvious they were having difficulty in reaching a verdict. At no time did the jury declare it was deadlocked.

We have reviewed the contested instructions and find them neither prejudicial nor coercive. The judge merely recognized the difficulty which the jury was having in deciding the case and, in effect, asked them to keep trying. He asked the jury to “give it another effort, just go back and sit down and talk it out among yourselves.” He noted that even, hard cases could be decided. He clarified his instructions on one occasion stating, “I don’t want you to misinterpret what I’m saying as any kind of pressure, because it is not pressure.” He closed his special instructions with these impartial words of encouragement:

“It’s a time when a lot of patience is-required, when a lot of understanding is required, and please don’t get mad at each other; nobody else is mad at you so why should you get mad at each other. Just be as patient with each other as you possibly can. Remember that this is a very serious matter. We are going to abide by your decision, whatever it is. If you cannot decide it, the next time you come back I will accept that, but we would all be very grateful to you if you can reach a decision. Please try once more.”

In our opinion, the' contested comments of the judge were permissible because they did not prejudice plaintiff’s case. The judge’s gentle coaxing toward a verdict was qualified by his repeated statement that he was not pressuring the jury and would accept their failure to reach a verdict.

Plaintiff obtained affidavits from five of the jurors after trial. These affidavits were introduced into evidence in connection with plaintiff’s motion for a new trial. Two of the nine jurors who voted that plaintiff was contributorily negligent stated they did so because they were tired of “fussing and bickering”. There were no allegations of wrongdoing in the affidavits, however.

The testimony of jurors to impeach their own verdict is inadmissible in Louisiana. Dieudonne v. Guidry, 336 So.2d 990 (La.App. 3rd Cir. 1976), writ refused; Renz v. Texas & Pacific Railway, supra. Thus, the affidavits are not grounds for setting the verdict aside.

For the reasons assigned, the judgment appealed is affirmed. The costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    CUSTOM METAL & AIR CONDITIONING COMPANY, Plaintiff-Appellee, v. Raymie BOUDREAUX, Defendant-Appellant.
    No. 5918.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Hunt, Godwin, Painter & Roddy, by Fred R. Godwin and Thomas L. Lorenzi, Lake Charles, for defendant-appellant.
    Anthony (A. J.) Fazzio, Lake Charles, for plaintiff-appellee.
    Before HOOD, FORET and HEARD, JJ.
   FORET, Judge.

On September 4, 1975, plaintiff-appellee, Custom Metal & Air Conditioning Company, filed suit on open account against defendant-appellant, Raymie Boudreaux. Boudreaux answered same and raised the affirmative defense of failure of consideration and reconvened, and based upon a red-hibitory cause of action, prayed for rescission of the sale and for return of the purchase price. From judgment in favor of Custom and against Boudreaux, rejecting his reconventional demand, defendant-appellant appeals.

On trial on the merits, the testimony established that: Custom entered into an agreement with Boudreaux whereby it would inspect the latter’s place of business in Holly Beach and make a proposal as to the number and type of air conditioning units necessary to cool the place; Custom proposed that three air conditioning units be installed, which proposal Boudreaux modified by reducing to two the number of units to be installed; two units were installed by Custom; the air condition ducts “sweated”; plaintiff-appellee repaired them; quite often the multibreakers shut off; the air conditioners did not operate continuously, and defendant-appellant’s place of business was not kept cool. An electrician-serviceman, Jesse Hoffpauir, testified that if a breaker problem existed, it was not due to a defect in the air conditioning units, but rather to a defect in the electrical connections and wiring of the building.

To maintain an action of redhibition, a vendee must prove that the vendor sold the thing to him; that the thing contained a hidden vice not apparent from ordinary inspection, which subsequently rendered the object sold useless and unfit for use such that vendee would not have purchased it had he known of the defect; that the defect existed as of the date of the sale, and that the vendor did not advise vendee of such defect. The burden of establishing that cause of action may be, as in most other causes of action, proved by direct and/or circumstantial evidence. The vendee is not required to negate all possible causes in order to succeed in such an action. If the circumstantial evidence excludes other reasonable hypotheses with a fair amount of certainty, he has borne his burden of proof. LSA-C.C. Art. 2520; Moreno’s, Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975); Reiners v. Stran-Steel Corp., 317 So.2d 657 (La. App. 3 Cir. 1975), writ denied La., 320 So.2d 914; Womack and Adcock v. 3M Business Products Sales, Inc., 316 So.3d 795 (La.App. 1 Cir. 1975).

In this case, plaintiff-in-reconvention Boudreaux has not borne the burden of establishing a redhibitory cause of action. No direct evidence of a defect in the thing sold — the air conditioning units and appliances — was shown. Rather than excluding other reasonable hypotheses, the circumstantial evidence presented at trial tended to establish that a defect in the electrical components of Boudreaux’s place of business existed, and that same was the cause of the lack of continuous operation of the air conditioning units sold.

We are of the opinion that the trial court correctly analyzed the facts and the applicable law. Accordingly the judgment appealed from is affirmed.

All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.


author: HOOD, Judge.

text:
    James E. PICKENS et al., Plaintiffs-Appellants, v. BEAUREGARD PARISH POLICE JURY et al., Defendants-Appellees.
    No. 5926.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Baker, Culpepper & Brunson, by Bobby L,. Culpepper, Jonesboro, Martin S. Sanders, Jr., Winnfield, for plaintiffs-appellants.
    David W. Burton, DeRidder, Carmack M. Blackmon, Baton Rouge, James K. Nichols, DeRidder, for defendants-appellees.
    Before HOOD, CULPEPPER and STOKER, JJ.
   HOOD, Judge.

Plaintiffs, Duane Williams, George Stoma, James E. Pickens and Vivian Rowell, instituted this suit to enjoin defendants from holding local option elections on December 4, 1976, from promulgating the returns of those elections and from adopting ordinances prohibiting the sale of beverages containing more than one-half of one percent alcohol by volume and less than 3.2 percent alcohol by weight. The defendants are Beauregard Parish Police Jury, The City of DeRidder, The Town of .Merryville and State of Louisiana. After trial of a rule directing defendants to show cause why a preliminary injunction should not issue, judgment was rendered by the trial court in favor of .defendants, rejecting plaintiffs’ demand for such an injunction. Plaintiffs appealed.

The principle issue presented is whether the local option elections called and held by defendants on December 4,1976, were valid insofar as they related to the sale of beverages containing less than 3.2 percent alcohol by weight.

Plaintiffs are the holders of valid permits issued by the State of Louisiana, authorizing them to sell alcoholic beverages containing more than one-half of one percent alcohol by volume and not more than 3.2 percent alcohol by weight. Plaintiffs Williams and Stoma hold valid permits issued by The City of DeRidder, authorizing him to sell such beverages in that city. Plaintiff Ro-well holds such a permit from The Town of Merry ville, and James Pickens holds a permit to sell the type beverage from the Beauregard Parish Police Jury.

The Beauregard Parish Police Jury was presented with petitions prior to October 12, 1976, requesting that a local option election be called and held in each of the individual wards of that parish, under the provisions of LSA-R.S. 26:581, et seq. Pursuant to the request contained in those petitions the police jury ordered and called an election to be held in each ward of the parish on December 4, 1976. Local option elections also were ordered and called to be held at the same time in The City of DeRid-der and in The Town of Merryville. The ordinances provided that at those elections the following propositions were to be submitted to the electors:

“1. Shall the sale of beverages of low alcoholic content containing more than three and two-tenths percent alcohol by weight, and not more than six percent alcohol by volume, be permitted in .
“2. Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted in ....
“3. Shall the sale of beverages of high alcoholic content, containing more than six percent alcohol by volume for consumption on the premises be permitted in .
“4. Shall the sale of beverages of high alcoholic content, containing more than six percent alcohol by volume by the package only and not for consumption on the premises be permitted in . .

Plaintiffs instituted this suit on November 30,1976, and on that date the trial court issued -a rule ordering defendants to show cause why a preliminary injunction should not be granted enjoining them from holding the above elections, from promulgating the returns of those elections and from adopting ordinances prohibiting the sale of beverages containing less than 3.2 percent alcohol by weight. A hearing on the above rule was held on December 9, 1976, and judgment was rendered by the trial court on that date denying plaintiffs’ demand for a preliminary injunction. Plaintiffs appealed, and that appeal is before us at this time.

The above local option elections were held on December 4, 1976, while this suit was pending, with the result that a majority of the electors voted “No” to all four of the propositions submitted, including Proposition No. 2. The issues presented at the hearing on the rule for a preliminary injunction, therefore, were whether defendants should be enjoined from promulgating the returns of those elections and from adopting ordinances prohibiting the sale of the beverages described in Proposition No. 2.

The arguments made by plaintiffs in the instant suit are identical to those which were presented by the plaintiffs in Wyatt v. Vernon Parish Police Jury, 341 So.2d 468 (La.App. 3 Cir. 1977) and Albritton v. Vernon Parish Police Jury, 341 So.2d 475 (La.App. 3 Cir. 1977). We decided in both of those cases that a local option election held under the provisions of LSA-R.S. 26:581, et seq., submitting to the electors the four propositions above set out, was valid as to all four propositions, including Proposition No. 2, and that the plaintiffs in those suits were not entitled to the type of injunctive relief which plaintiffs seek in the instant suit. Our Supreme Court denied writs in both of those cases on February 25, 1977, assigning as reasons therefor that “There is no error of law in the court of appeal’s judgment.” (342 So.2d 677).

We are aware of the fact that the Wyatt and Albritton cases, supra, were not decided by our court until after the instant suit was decided by the trial court and the present appeal had been perfected. Plaintiffs and their astute counsel thus did not have the benefit of those decisions, or of the denial of writs by the Supreme Court, when this case was instituted, tried and appealed.

All of the issues presented in the instant suit, however, were considered and determined in Wyatt and Albritton, supra. For the reasons which we assigned in those cases, we conclude that there is no error in the judgment rendered by the trial court in the instant suit rejecting plaintiffs’ demands for a preliminary injunction.

The judgment appealed from is affirmed. The costs of this suit and of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.


author: CULPEPPER, Judge. STOKER, Judge,

text:
    Vertie L. HOLLIDAY, Plaintiff and Appellee, v. Andrew S. HOLLIDAY, Defendant and Appellant.
    No. 5948.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Gahagan & Gahagan, by R. E. Gahagan, Natchitoches, for defendant and appellant.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff and appellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   CULPEPPER, Judge.

The plaintiff wife sued the defendant husband for separation from bed and board on the grounds of cruelty. She also prays for alimony pendente lite and for child custody and child support. The district court granted to the plaintiff wife a judgment of separation from bed and board on the grounds of cruelty, awarded the wife $400 per month as alimony pendente lite and awarded her custody of one child and the sum of $50 per week as child support. The defendant husband appeals only that portion of the judgment which awards to the wife alimony pendente lite.

The issue is whether the waiver by the wife in an antenuptial contract of all claims for alimony is an agreement against public policy and therefore an absolute nullity. We ultimately conclude that Nelson v. Walker, 250 La. 545, 197 So.2d 619 (1967) is controlling on the issue. That case holds that a waiver of alimony pendente' lite, by the wife in a community property settlement following a judgment of separation from bed and board is not an absolute nullity but is only a relative nullity, since the statutory requirements for alimony penden-te lite are established for the protection of an individual and not for the protection of public order and good morals.

The facts of the present case are that in April of 1963 the plaintiff and the defendant entered into an antenuptial contract in which they agreed that there would be no community of acquets and gains during the marriage. In paragraph 13 of the contract the wife expressly waived all claims for alimony by the following language:

“It is further understood, agreed and contracted by and between the parties hereto, and the said Vertie Eagles, Nee Leeper, does specifically and especially waive, give up and relinquish any and all rights or claims which she might have to claim or collect sustenance, alimony, support, maintenance or funds for any reason from the said Andrew Sampson Holliday, his property, estate, succession, funds or otherwise in the event the parties shall discontinue living together as man and wife in the same house or under the same roof after the contemplated marriage between them, or in the event a judicial separation or divorce is obtained by either of the parties hereto. This relinquishment and waiver to be binding and effective regardless of the cause or reason for the discontinuance of the parties living together and regardless of who is at fault in the event of a judicial separation or divorce between them.”

The parties were married in May of 1963. On June 25,1976 the plaintiff wife filed the present suit for separation from bed and board on the grounds of cruelty. She also prayed for alimony pendente lite. The defendant husband denied cruelty on his part and filed a reconventional demand for judgment of separation from bed and board on the grounds of the wife’s cruelty. The district court rendered judgment of separation from bed and board in favor of the wife, rejected the husband’s reconventional demand, and awarded the wife alimony pen-dente lite in the sum of $400 per month.

The defendant husband contends the antenuptial contract was drawn in strict compliance with the provisions of LSA-C.C. Article 2325, et seq. regarding marriage contracts, and that the waiver by the wife in that contract of any claim for alimony following a judicial separation is not against public policy and is a valid and binding agreement.

LSA-C.C. Article 2325 expressly provides for antenuptial contracts as follows:

“In relation to property, the law only regulates the conjugal association, in default of particular agreements, which the parties are at liberty to stipulate as they please, provided they be not contrary to good morals, and under the modification hereafter prescribed.”

LSA-C.C. Article 2326 provides that an antenuptial contract cannot alter the order of inheritance by the children or posterity of the parties. Article 2327 provides that such a contract cannot derogate from the power of the husband over his wife and children. Article 2392 expressly provides that the parties may stipulate that there shall be no community of acquets and gains. Article 2395 provides that where the parties agree that they shall be separate in property, each contributes to the expenses of the marriage in the manner agreed to in their contract, or, if there be no agreement in the contract, the wife contributes one-half of the expenses of the marriage.

From a review of the above codal provisions regarding antenuptial contracts, it is apparent that there is no provision in the articles prohibiting a waiver by the wife of her claim for alimony pendente lite. To the contrary, Articles 2392-2396 appear to contemplate that where the parties agree there shall be no community of acquets and gains and that each shall be separate in property, the expenses incurred during the marriage shall be borne one-half by each. Since alimony pendente lite, under LSA-C.C. Article 148, arises from the husband’s obligation to continue to support his wife during the existence of the marriage, Gravel v. Gravel, 331 So.2d 580 (La.App. 3rd Cir. 1976), it would appear that Articles 2392-2396 contemplate that the parties can agree in an antenuptial agreement that the husband will not have the duty to support his wife following a judgment of separation from bed and board.

The plaintiff wife relies on LSA-C.C. Article 119, which provides with reference to the duties of married persons that “The husband and wife owe to each other mutually, fidelity, support and assistance.” Plaintiff cites Favrot v. Barnes, 332 So.2d 873 (La.App. 4th Cir. 1976) in support of her contention that her waiver of alimony is an absolute nullity since it is against public policy. In that case, an antenuptial contract contained a waiver by each party of every “claim to the property” of the other in case of divorce. In denying the wife’s claim for alimony after divorce, LSA-C.C. Article 160, the court held that the waiver by the wife in the antenuptial agreement of any “claim to the property” of the husband in case of divorce is not a waiver of alimony, but instead is only a waiver of any claim to the property of the husband. However, the court stated in dicta, without deciding, that there may be some question as to whether such a waiver of alimony after divorce is against public policy. The court stated:

“We first reject the husband’s argument that the agreement’s waiver by each of every ‘claim to the property’ of the other in case of divorce or death is a waiver of alimony. If public policy were to allow such a waiver, this agreement does not constitute one. Alimony to a divorced wife is not a ‘claim to the property’ of the husband; it is a claim against the husband, limited by his ‘income’, C.C. 160.” (Emphasis supplied)

In Favrot v. Barnes, supra, the antenup-tial agreement also contained the provision whereby the parties agreed to limit sexual intercourse to about once a week. The husband asserted, as divorce-causing fault, that the wife did not keep this agreement but sought intercourse three times a day. Quoting the provisions of LSA-C.C. Article 119 that “The husband and wife owe to each other mutually, fidelity, support and assistance.”, the court held that LSA-C.C. Articles 2325, et seq., permitting antenup-tial contracts does not authorize contractual modification of the “conjugal association”. The court stated that marriage obliges the spouses to fulfill “the reasonable and normal sex desires of each other.”, citing Mudd v. Mudd, 206 La. 1055, 20 So.2d 311 (1944).

Our Supreme Court denied the application for writs by the husband in Favrot v. Barnes, indicating agreement with the holding by the Court of Appeal which construed LSA-C.C. Article 119 and Article 2325, et seq., as prohibiting an agreement in an antenuptial contract limiting sexual relationships between the parties. We note, in passing, that the wife’s application for writs was granted and the Supreme Court held, on another issue, that the unemployed wife’s earning capacity did not bar her from alimony after divorce under Article 160. See 339 So.2d 843 (S.Ct.1976).

Thus, neither the Court of Appeal nor our Supreme Court held in Favrot v. Barnes, supra, that the wife cannot waive, in an antenuptial contract, her claim for alimony pendente lite.

Of course, the jurisprudential rule is that a waiver of alimony pendente lite by the wife in a community property settlement following a judicial separation is null, since it is not one of the permissible contracts between husband and wife during marriage under LSA-C.C. Articles 1790 and 2446. As stated in the Casenote, 13 Loyola Law Review 179, on Nelson v. Walker, supra, some of the early cases had held this was an absolute nullity. But Nelson v. Walker settled that issue by holding the nullity in those cases is only relative. In the present case we are not concerned with relative nullity under LSA-C.C. Articles 1790 and 2446, since the antenuptial contract at issue here was entered into before marriage, and its provisions are valid unless they are against public policy.

We recognize persuasive arguments can be made that a waiver of alimony pen-dente lite, as in the present case, should be against public policy' because the husband has the management and control of community property and his obligation to support his wife during the marriage, which would include the period between the judgment of separation from bed and board and the time of the final divorce, should be a duty which arises out of the basic nature of marriage, described in LSA-C.C. Article 119 as the mutual duty of “fidelity, support and assistance.” Our brothers of the Fourth Circuit apparently reasoned in Favrot v. Barnes that the duty of “fidelity”, including the duty to fulfill the reasonable and normal sexual desires of each other, is a matter of public policy and cannot be waived or modified by contractual agreement between the spouses, and the Supreme Court apparently agreed with this by denying the husband’s application for writs. Nevertheless, as to the duty of the husband to pay alimony pendente lite under Article 148, we are constrained to follow the express holding of our Supreme Court in Nelson v. Walker, 250 La. 545, 197 So.2d 619 (1967) where the court stated:

“We find that Mrs. Brashear’s error in waiving her right to alimony pendente lite constituted a relative nullity. The nullity stemmed from an act in derogation of laws enacted for the individual’s protection and was not in violation of public order or good morals. Cf. Succession of Delesdernier, La.App., 184 So.2d 37, 56. ‘This court has differentiated between absolute nullities in derogation of public order and good morals and those which are established in the interest of individuals. The latter nullities are susceptible of ratification, either expressly or impliedly, and may be prescribed against, while the former are never susceptible of ratification and can never be prescribed.’ ”

For the reasons assigned, the judgment appealed is amended so as to delete therefrom the award to the plaintiff wife of alimony pendente lite. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against the plaintiff wife.

AFFIRMED, AS AMENDED.

STOKER, J., concurs and will assign written reasons.

STOKER, Judge,

concurring.

The majority opinion in this case rests entirely on the pronouncement in Nelson v. Walker, 250 La. 545, 197 So.2d 619 (1967) which held that in the absence of incapacity of the parties, there could be an agreement to waive the right to claim alimony in the future. In the Nelson case, the Louisiana Supreme Court held the agreement in that case was a nullity because it had been entered into while the parties were still married although judicially separated. It was made as a part of a community property settlement after the separation judgment. However, the Supreme Court held that the nullity in question was only relative and not absolute, and, therefore, it could be ratified. Ratification was found on the ground that prior to the divorce the wife had not attacked the waiver agreement and years had passed. This pronouncement made in 1966 in Nelson v. Walker, supra, was apparently a dictum statement inasmuch as the Court found that the alimony waiver did not form such an integral part of the community settlement agreement that the settlement could not be upheld independently of the alimony waiver. Thus, the pronouncement was not necessary to the resolution of the basic question in Nelson v. Walker which was concerned with the validity of title to real property acquired by Mrs. Nelson in the community property settlement. Mrs. Nelson was not claiming alimony in contravention of the waiver of alimony which she had made in what purported to be a part of the consideration for the transfer of the real property to her by her former husband in the community property settlement.

In view of the fact that in Nelson v. Walker the Louisiana Supreme Court did not consider the validity of the waiver of alimony, either as necessary for a decision in the case, or in a direct contest over the issue, it may be open to question at this time whether the Louisiana Supreme Court would adhere to the basic rationale of the dictum of Nelson v. Walker, supra. That rationale was that, where the parties are not incapacitated from contracting with one another, the right to future alimony may be waived because alimony is a right established in favor of the person rather than for purposes of public order.

Our appellate courts have recently considered the constitutionality of alimony in the context of challenges on the ground of constitutional prohibitions against sex-oriented discriminations in statutes and laws. For example, see Williams v. Williams, 331 So.2d 438 (La.1976), which upheld the constitutionality of alimony under Article 148 of the Louisiana Civil Code. Traditional rules relative to alimony in several other aspects have also been under attack. An example has been the contention that in alimony considerations the earning capacity of a non-working wife should be considered the same as where a wife actually accepts employment and earns income. Ward v. Ward, 339 So.2d 839 (La.1976).

It would seem implicit in the pronouncements in these cases that the courts view alimony owed by spouses, or former spouses, as something more than a provision for the benefit of the individual, that it must have some broader foundation and would seem to be based on public order or public good. If such a postulate is correct, then a waiver of alimony in a marriage contract or antenuptial agreement, would be null by reason of the prohibition of Article 11 of the Louisiana Civil Code.

A distinguished former Chief Judge of this Court, Judge J. Cleveland Frugé, once (while a district judge) declared Article 160 of the Louisiana Civil Code to be unconstitutional on the ground that it treated men and women unequally. The Louisiana Supreme Court reversed. Hays v. Hays, 240 La. 708, 124 So.2d 917 (1960). In referring to that case one reviewer has made this comment: “There may be much validity, too, to the argument advanced but not answered in an alimony case some years ago: if alimony is not in the public interest, then to order anyone to pay alimony to another amounts to taking private property for private use.”

It would seem to me that if alimony has such a strong constitutional basis, as it has been held to have, and has such a fundamental public policy position in our law, as it has been held to have, then it is not established in favor of the individual but in favor of the public good. I would agree with the comment statement quoted above that if alimony is not in the public interest, to order another to pay it is unconstitutional. Parties contemplating marriage may view alimony in one light at the time of contracting. However, after marriage, the passage of time, change in the experience, health, obligations and other conditions of the party who would claim alimony, may disclose equities unanticipated at the time of marriage. Strong equities are urged to be present in this case which may serve as an example. Aside from protecting'the individual from lightly waiving future rights which may seem to be of remote value at the time, the public has an interest is not having a spouse left in necessitous circumstances, often destitute circumstances, which requires society to bear the cost of care either directly, or indirectly, through the results of forcing an individual to live at a bare survival level.

Despite the considerations reviewed above, I feel this court is bound by the pronouncement relied upon in the majority opinion contained in Nelson v. Walker, supra. Although it may be dictum only, it is the only statement of authority on the subject. Therefore, I concur.

      . Article 11 of the Louisiana Civil Code provides as follows:
      Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals.
      But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good. (Emphasis supplied.)

      . Professor Robert A. Pascal, in Symposium, 28 Louisiana Law Review 314, (1968).


author: GUIDRY, Judge.

text:
    Dillard JOHNSON, Plaintiff-Appellee, v. Bob MARCANTEL, Defendant-Appellant.
    No. 5950.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Tate & Tate by Donald J. Tate, Mamou, for defendant-appellant.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellee. ■
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

Plaintiff brings this action seeking to recover money allegedly due him under an employment contract he had with defendant. Defendant answered plaintiff’s petition admitting the existence of the contract, denying however that he owed the plaintiff any money. Defendant reconvened against plaintiff seeking damages in the amount of $2,200.00. The trial court rendered judgment in favor of the plaintiff in the sum of $932.99 and dismissed defendant’s reconven-tional demand. Defendant, Marcantel appeals.

The undisputed facts show that plaintiff, who had been a carpenter for nearly 17 years was hired by defendant to help build his residence. At the time plaintiff was hired it was agreed by the parties that plaintiff would receive $6.00 per hour plus, upon satisfactory completion of the house, a commission of 3% of the cost of the material used on the house.

According to the contract plaintiff in addition to performing carpentry work, was to supervise the construction of the house. He was to work along with three other carpenters. The other carpenters were also to be paid hourly wages by the defendant. Likewise defendant was to pay the electrical and plumbing workers. Other workers hired by defendant were to install kitchen cabinets and floor covering. Defendant purchased all materials used by the carpenters, plumbers and electricians.

At the request of defendant, an architectural draftsman, Gary Reed, prepared a set of blue prints for defendant’s new residence. Thereafter, plaintiff, who was not involved in the drafting of these plans, was furnished a copy of the blueprints and commenced work according to the specifications set forth therein. Defendant admitted that he merely turned the plans over to plaintiff and spent very little time going over them with him.

Plaintiff testified that he commenced work by putting up batter boards which designated the area in which to lay the residence’s concrete slab foundation. Plaintiff in so doing used the plan figures which represented the total outer dimensions of the house. The figures showed the house to have a length, both front and back of 95 feet 3 inches. Subsequently, the foundation was laid and plaintiff began framing the rooms according to the more specific room dimensions set out in the plans. It soon became apparent that there was a problem. As plaintiff framed the rooms from east to west it was eventually noticed that the back room on the west side was about two feet short of its prescribed dimensions. Plaintiff testified that before he started framing the rooms he had no idea that something might be wrong. Plaintiff stated that as a carpenter he usually does not scale the plans to check the correctness of the dimensions.

Following discovery of the problem defendant was called in to examine the situation. Defendant unequivocally testified that there was a mistake in the plans. Defendant, after his review of the situation decided to extend the slab another two feet.

Plaintiff testified that it would have been possible to use the room as is but that defendant’s wife did not want this since it would have made the room too small. In accordance with defendant’s decision the slab was extended another two feet. The extension required that a portion of the existing foundation be broken, as well as, requiring dismantling some of the framework. It was stipulated at trial that the cost of repair of this problem was $1,000.00. Plaintiff in reconvention seeks recovery of this sum.

Plaintiff offered the testimony of Jerome Buller, who qualified as an expert in the field of residential construction. Jerome Buller’s examination of the blueprints confirmed the fact that they were in error. As aforestated the plans showed a squared residence which had an outer dimension of 95 feet 3 inches in length. However, particular room dimensions across the back of the house totaled out to 96 feet 8V2 inches and total room dimensions across the front summed up to 96 feet V2 inches.

Plaintiff testified that the two foot extension ordered by the defendant took care of the problem.

Completion of the house took 12 weeks, and plaintiff stated that no other major problems were experienced. He did, however, testify that he had had a misunderstanding with defendant’s wife concerning some rollers on a closet drawer and the installation of some unpainted crown molding. Defendant’s wife did not testify at the trial of this matter.

Plaintiff admitted that the house was not completely finished when he left the site but that he only had to install the floor molding and in order to do that was waiting for other workers hired by defendant to lay the carpet. He stated that he informed plaintiff to call him when the carpets were laid and he would return to install the molding. This testimony was corroborated by Yves Soileau, one of the other carpenters, who testified that the defendant’s residence was substantially complete when plaintiff left the job site. Plaintiff testified that he never received a call from the defendant to return.

Defendant, who visited the house site everyday, admitted that there was only one day of work left when plaintiff left. Defendant testified that he hired his father to complete this work. The testimony shows that defendant’s father was also at the job site everyday.

In rendering judgment for plaintiff on the main demand and rejecting defendant’s reconventional demand the trial court found that the only error in construction occurred as a result of the dimensional error contained in the plans for which plaintiff was not responsible. On appeal appellant contends that the trial court erred in failing to find that the error in construction complained of was unrelated to the architectural plans.

The only error in construction was the pouring of the slab initially two feet too short. There is no doubt but that this occurred when the slab was laid out by plaintiff in accordance with the architectural plans furnished by defendant. The trial court found, and we agree, that plaintiff, as head carpenter, was under no obligation prior to laying out of the slab to check all of the interior dimensions of each room to satisfy himself that the internal dimensions of each room when added together would coincide with the overall dimension set forth on the plans. Mr. Buller, who was accepted by the trial court as an expert in the field of residential construction, testified with positivity that a head carpenter is not' expected to check out details of blueprints to assure that an error has not been made by the draftsman.

We agree with the trial court that the only error in construction occurred, not by reason of plaintiff’s unworkmanlike performance but rather because of the drafting error contained in the plans furnished to plaintiff. Further, we agree with the trial court that plaintiff supervised the construction of defendant’s residence until it was satisfactorily complete and accordingly he is entitled to recover his 3% commission.

For the above and foregoing reasons the judgment appealed from is affirmed. All costs to be borne by the defendant-appellant.

AFFIRMED.

      . It was stipulated at the time of trial that this amount was $932.99.


author: WATSON, Judge.

text:
    Gary MALCOMB et al., Plaintiffs-Appellants, v. HUMPHRIES MOTORS et al., Defendants-Appellees.
    No. 5952.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Wilson M. Montero, Jr., New Orleans, William Henry Sanders, Jena, and Edward A. Kaplan, Alexandria, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Monroe, Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, Gravel, Roy & Burnes by J. Michael Small, Alexandria, Long & Peters by Jimmie C. Peters, Jena for defendant-appellee.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for intervenor-appellant.
    Before WATSON, FORET and HEARD, JJ.
   WATSON, Judge.

This lawsuit, claiming damages for personal injuries to the passengers in an automobile which struck a tree, alleged negligent repair by defendants as the cause of the accident. The trial court dismissed the suits, concluding that plaintiffs had failed to prove the accident resulted from a defect in the steering mechanism of the car. Plaintiffs and a compensation insurer appeal. Plaintiffs are Gary Lynn Malcomb, Robert Lee Stephens, Bernard Wayne Stephens and Paul Dexter McClure. Defendants are Humphries Motors, a partnership, and its two partners, Jimmy Humphries and Marbury F. Humphries. Their insurer, American Employers Insurance Company, incorrectly named originally as “Employers Insurance Company”, was made defendant in a companion case consolidated for trial and appeal and assigned our docket number 5953, 347 So.2d 4. A separation opinion is being rendered in that case.

The occupants of the car had a car pool between Jena and Justiss-Mears Oil Company rig 12, where they worked. The owner-driver of the 1969 Plymouth was Gerald Breithaupt, who had no liability insurance. Malcomb was in the right front seat while the Stephens brothers and McClure were in the back.

The trial court, in a prior compensation suit, found the members of the car pool not in the course of their employment at the time of the accident. Summary judgment was rendered in favor of Justiss-Mears and its workmen’s compensation insurer, Hartford Accident and Indemnity Company, which was affirmed by this court, Stephens v. Justiss-Mears Oil Company, 302 So.2d 717 (La.App. 3 Cir. 1974), and reversed by the Supreme Court as to the only appellant, Malcomb, 312 So.2d 293 (La., 1975). Hartford then compromised Malcomb’s compensation claim for $19,718.17. It was stipulated that Hartford, as intervenor, is entitled to recover this amount from any sum awarded Malcomb, and Hartford has also appealed from the trial court’s dismissal. Traders and General Insurance Company, the collision insurer of the car, whose intervention was dismissed, has not appealed.

The accident occurred on January 26, 1973 at approximately 1:45 p. m. The scene was in LaSalle Parish on Louisiana Highway 127, five or six miles north of the Jena city limits. The speed limit was then 60 miles per hour and that was the estimated speed of the car, according to Trooper Wayne McGuffee of the Louisiana State Police, who investigated the accident. The Plymouth was proceeding north when it ran off the right side of the road, traveled some 150 feet and struck a large pine tree. The highway was straight and level; the weather was clear.

The occupants of the vehicle testified that the driver ran off the road when he became unable to steer the car because the steering wheel was “freewheeling” and that he spun it several times trying to correct the direction of the vehicle. The Plymouth was badly damaged when it struck the tree at a point between the front center and the right fender of the vehicle. All of the plaintiffs sustained serious injuries and particularly Malcomb, who was unconscious for a period of 12 days.

It is undisputed that the 1969 Plymouth automobile had been repaired at the shop of defendant Humphries Motors on January 4, 1973, some 22 days before the accident. Breithaupt testified that he took the car to Humphries because he was having trouble shifting from low to second gear. The vehicle had a manual shift; the steering column was removed and the gear shift tube, which is attached to it, was replaced by Robert Hart, a long-time employee of Hum-phries.

Plaintiffs’ theory is that Hart failed to properly remove and re-install the steering column and that it worked loose, causing the steering to fail and the car to run off the road.

Hart testified that he had removed and replaced about 50 to 75 steering columns in his experience as a mechanic. He said he removed the steering column of the Brei-thaupt car, replaced the gear shift tube and installed the steering column back in the automobile in a proper manner.

Ernest McClendon, a former employee of Humphries, testified at variance to Hart and specified certain deficiencies that he recalled in the removal and replacement of the steering column.

Additionally, several expert witnesses testified as to their theories concerning the steering column.

The trial court, after hearing the lay testimony, the experts and after viewing the various parts of the automobile introduced into evidence, made the following factual conclusions:

“Various experts testified. The Court was most impressed by the testimony of Dr. Gary Paulsen, Dr. O. A. Allbritton and Mr. Don Adams. Paulsen and All-britton agreed the thick gear rod in the steering sector unit was broken by a shearing force. Based on microscopic examination of the heavy rod, Paulsen, plaintiff’s metallurgist said it was a heavy steel cylinder that was harder on the outer surface than in the center. He said this was not a fatigue type fracture but was caused by impact. Additionally, the original steering shaft has an obvious bend in the lower portion. These facts and others lead the Court to conclude the steering shaft and steering sector unit shaft were connected when the car struck the tree. The Court is of the opinion the steering sector unit shaft would not have been snapped if its end were free to move when the steering sector unit was pulled to the side by the impact.
“If the two shafts were still connected on impact which the Court concludes is a very certain fact, it does not make much difference if Hart, the mechanic disassembled the coupler box one way or the other. His operation did not cause the crash. The Court believes it has been established he did disassemble the unit properly because of the condition of the box cover clamps and the retaining pin in the cover after the accident. The small pin in the top section of the coupler box was in place, its weld intact and the pin was sheared off. Since both shafts connected by the box were bent or fractured, it appears more probable than not the cover was ripped off the coupler box in the crash.
“The testimony of Mr. Adams covered all aspects of the dispute and his testimony best explains the overall workings of the steering system. His theoretical comments and factual findings are completely compatible with the metallurgist’s testimony and their observation that the steering section unit shaft was broken and did not fail from fatigue. His observations on the movement of the left front sector toward the center of the car on impact with the tree unquestionably explains the broken and bent shafts and supports the conclusion the two shafts were still connected by the coupler box on impact.” (TR. 123-124)

In summary, the trial court concluded as a fact that the steering column was connected at the time the vehicle struck the tree. Therefore, he found that the plaintiffs failed to prove that improper repairs caused the accident.

On appeal, there are two issues:

(1) whether there is manifest error in the trial court’s conclusion that plaintiffs failed to prove that improper repairs caused the accident; and
(2) whether the trial court erred in allowing expert testimony from a witness who was not a licensed engineer in his home state or in Louisiana.

As to the first issue, our review of the record reveals a reasonable evidentiary basis for the trial court’s conclusions, which are essentially factual. The trial court accepted the testimony of Robert Hart, the mechanic who performed the work, as opposed to that of Ernest McClendon, the former employee of Humphries Motors. The trial court rejected the testimony of plaintiffs not because they “. . . fabricated their testimony for ulterior motives” but because they were mistaken as the result of terror and panic. (TR. 126). Our review indicates that these are reasonable evaluations of credibility and reasonable inferences of fact. Pierre v. Landry, 341 So.2d 891 (La., 1977); Reed v. Henry, 343 So.2d 457 (La.App. 3 Cir. 1977).

As to the experts, the trial court chose basically between the testimony of Professor Lawrence R. Daniels, Jr. of LSU and Don Adams, who is a senior engineer of Chrysler Corporation. The trial court, as indicated by the quotation from the written reasons above, was most impressed with the testimony of Adams who had spent several years working with and testing steering columns. Professor Daniels, who like Adams had inspected the parts from the 1969 Plymouth, admitted that his testimony was based entirely on theory and that he had conducted no tests to determine that his hypothesis was in fact correct. The trial court is entitled to evaluate the testimony of expert witnesses and give their opinions the appropriate weight. Wiley v. Travelers, 300 So.2d 555 (La.App. 3 Cir. 1974) writ denied 303 So.2d 187 (La.).

The final issue is whether the trial court erred in allowing Adams to testify as an expert.

Code of Civil Procedure article 192 defines experts as:

“. . . persons learned or skilled in a science, art, profession or calling . .”

The emphasis is on learning and skill rather than on possession of a license as the plaintiffs contend. The witness, Adams, is a graduate of Iowa State University and has a degree in science and engineering. He possesses an impressive history of work for a number of years in military and civilian capacities with guided missiles and since 1968, has been employed in the Chrysler central engineering offices. His work has been devoted almost entirely to the steering apparatus of automobiles and he occupied the position of Senior Engineer, possessing a patent relating to steering mechanisms. He is a member of several engineering societies. Therefore, the trial judge was correct in recognizing Adams as an expert and allowing him to testify as such.

For the foregoing reasons, the judgment of the trial court is affirmed and all costs are taxed against the plaintiffs.

AFFIRMED.


text:
    Gary MALCOMB et al., Plaintiffs-Appellants, v. EMPLOYERS INSURANCE COMPANY, Defendant-Appellee.
    No. 5953.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Wilson M. Montero, Jr., New Orleans, William Henry Sanders, Jena, and Edward A. Kaplan, Alexandria, for plaintiffs-appellants.
    Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, Gravel, Roy & Burnes by J. Michael Small, Alexandria, Long & Peters by Jimmie C. Peters, Jena, for defendant-appellee.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for intervenor-appellant.
    Before WATSON, FORET and HEARD, JJ.
   WATSON, Judge.

This matter was consolidated for trial and appeal with our docket number 5952, Malcomb et al. v. Humphries Motors et al., 347 So.2d 1 in which a separate opinion has been rendered this date. The facts, issues and parties are identical except that American Employers Insurance Company, erroneously styled as Employers Insurance Company, the insurer of Humphries Motors is named defendant herein and not in docket number 5952. For the reasons assigned in the companion case, the judgment of the trial court is affirmed and costs are taxed against plaintiffs-appellants.

AFFIRMED.