author: GUIDRY, Judge.

text:
    LAKE CHARLES DIESEL, INC., Plaintiff and Appellant, v. Roy GUTHRIDGE, Defendant and Appellee.
    No. 5310.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      Charley, Quienalty, Lake Charles, for plaintiff-appellant.
    Camp, Carmouche, Palmer, Carwile & Barsh by Karl E. Boellert, Lake Charles, for defendant-appellee.
    Before HOOD, GUIDRY and PETERS, JJ.
   GUIDRY, Judge.

Plaintiff, lessee, sues for cancellation of a lease of commercial property and seeks damages for libel and slander allegedly resulting from a letter written by the defendant, lessor, to plaintiff and his subtenants. The defendant, lessor, answered and reconvened seeking acceleration of rental payments, interest on late rental payments, reimbursement for payments made on behalf of lessee for repairs and insurance premiums and attorneys’ fees.

The district court rendered judgment dismissing plaintiff’s demands for lease cancellation and damages and in favor of the defendant on the reconventional demand awarding him judgment for the amount of insurance premiums paid on behalf of lessee and attorneys’ fees. All other demands of defendant, plaintiff in reconvention, were rejected. The plaintiff has appealed. The defendant has neither appealed nor filed answer to plaintiff’s appeal.

The commercial lease, subject of this litigation, is dated June 8, 1966 and provides for a primary term of ten (10) years. Lake Charles Diesel Sales, Inc. was the original lessee, however, its rights and obligations under the lease contract were assumed by plaintiff, Lake Charles Diesel, Inc. as per act of sale and assumption dated June 2, 1969. The original lease agreement was amended on December 12, 1969 to take into account additional improvements which the defendant was to make on the premises at the request of plaintiff. The expenditure for the new improvements amounted to approximately $58,000.00 and were completed during April of 1970. As a result of this amendment the lease term was extended for a period of ten (10) years from April 1, 1970; the lessee obligated itself to maintain insurance coverage on the improvements and additions to be constructed on the premises; and, the rental payments were changed so as to provide for a rental payment of $960.00 per month. The renegotiated monthly rental included the amount due by lessee for insurance premiums, it having been agreed by the parties that lessor would pay the insurance premiums and be reimr bursed therefor each month.

Originally the leased premises were used by Lake Charles Diesel, Inc. as its place of business, but in the course of time plaintiff outgrew the facilities and it became necessary for plaintiff to find other property wherein to locate its operation. Obtaining permission of the lessor Lake Charles Diesel, Inc. sub-leased the premises to Loomis Hydraulic Testing Company, Inc., Astro Clean Products, Inc. and Schlumberger Well Services, Inc., said subleases dated June 1, 1973, July 1, 1973 and February 1, 1974, respectively.

Subsequent to occupancy of the leased premises by the sub-tenants the premium for insurance on the leased premises was increased. This increase in premium presumably resulted by reason of multiple occupancy of the buildings insured and as a result of the storage by one of the subtenants of combustible materials on the premises. Defendant made demand upon plaintiff for the increased insurance premium which amount to $238.00. Plaintiff refused to reimburse defendant for the amount of this increase whereupon defendant wrote plaintiff a letter demanding payment in the amount of $238.00 and also demanding payment for interest on late rental payments and repairs. In this letter, hereafter quoted in full, defendant indicated that in default of his receiving the payments requested he reserved the right to seek legal redress including possible cancellation of the lease. A copy of this letter was sent by defendant to the sub-tenants. Subsequent to receipt by plaintiff of the letter referred to Lake Charles Diesel, Inc. filed this suit for cancellation of the lease and damages for libel and slander.

The letter referred to above serves as the sole basis for plaintiff’s claim for lease cancellation and for damages for libel and slander. This letter dated January 31, 1975 reads as follows:

“Lake Charles Diesel, Inc.
Gentlemen:
In view of your failure to pay the increased insurance costs of $238.00, caused by your change in occupancy in my buildiings, I now call upon you to comply with paragraph 6 of the amended Lease of December 12, 1969. I again call upon you to reimburse me for the additional cost of insurance resulting from your multiple tenants and changes in the contents of the buildings as called for in the last paragraph of the lease of May 1, 1966.
You have charged me with $603.88 to bring the building up to code. The leases say that you can make no changes or additions unless approved by me. I disapprove your changes or additions which you claim were necessary to bring the building to code, and ask you to pay to me $603.88.
I want you to know that I reserve all of my rights to claim these monies in the future or to cancel the lease, and I may take either action whenever it suits me.
You also continue to violate other conditions of the lease, and fail to pay your rental as required.
I am sending a copy of this letter to your tenants in order that they will know their leases from you might be in jeopardy from your failure to comply with the basic leases from me. I feel free to attach your lessees properties under my lessor’s lien, and will not hesitate to do so if I conclude it is necessary.
Yours very truly,
/s/ Roy H. Guthridge
ROY H. GUTHRIDGE
RHG :dl
cc: Loomis Hydraulic Testing Co., Inc. Astro Clean Products, Inc. Schlumberger Well Services”

Plaintiff contends that this letter disturbed it in the peaceable possession of the leased premises and therefore constitutes a constructive eviction warranting lease cancellation. In addition, plaintiff asserts that the above letter is libelous and slanderous and calls for the assessment of damages.

The trial judge did not consider the letter to constitute a constructive eviction of plaintiff from the leased premises nor did he consider it to be libelous or slanderous. We agree.

The record reflects that a disagreement arose between plaintiff and defendant who were .then engaged in a business relationship. Apparently verbal communication had broken down and defendant wrote the letter above quoted setting forth his contentions in regard to the matters in dispute advising that in default of plaintiff’s complying with his demands that legal redress might be sought. The record contains no evidence which would indicate that defendant was in bad faith. Quite to the contrary, it appears that the defendant felt that his demands were reasonable and justified under the provisions of the lease contract. While the letter might be considered somewhat curt it in essence simply advises plaintiff of defendant’s demand and indicates that legal action may be taken if such demands are not complied with. Everyone is entitled to seek and pursue remedies provided by law and an announcement to this effect by a lessor-to a lessee in writing or otherwise cannot and should not be considered as constituting a constructive eviction. This is not to say that persistent and unwarranted demands verbally or in writing by a lessor to his lessee and/or sub-lessees may never constitute the basis for constructive eviction. Rather, we simply hold that under the facts of this case, the record being void of any showing that defendant took any other action which would have disturbed the lessee’s or sub-lessees’ possession or that he otherwise failed in his duty as a lessor, there was no constructive eviction of the lessee or sublessees.

Appellant suggests in brief that as a result of the aforesaid letter the subtenants considered their sub-leases to be in jeopardy and that this constituted a breach of the landlord’s duty to maintain the plaintiff and its sub-tenants in peaceable possession. There is no evidence in the record which would indicate that plaintiff’s sub-lessees ever complained to either plaintiff or defendant or that they felt threatened or inconvenienced as a result of their having received a copy of the letter. Further, none of the sub-lessees who were in possession of the leased premises were called as witnesses. This failure to call the sub-lessees as witnesses creates a presumption that such evidence would have been unfavorable to the plaintiff’s case. Marion v. New Orleans Public Service, 306 So.2d 758 (La.App. 4th Cir. 1974). Wolfe v. Employers Commercial Union Insurance Company, 272 So.2d 714 (La.App. 3d Cir. 1973).

Suffice it to say that there is no evidence whatever to support plaintiff-appellant’s claim of constructive eviction.

Plaintiff-appellant’s claim for damages for libel and slander is equally without merit. As before stated the letter is simply not libelous or slanderous. The elements of proof necessary to make defamatory words actionable are (1) publication, that is communication to some person other than the defamed; (2) falsity; (3) malice, actual or implied; and (4) resulting injury. Rougeau v. Firestone Tire and Rubber Company, 274 So.2d 454 (La.App. 3d Cir. 1973).

The trial judge fóund, and we agree, that at least the last two elements of proof necessary to make defamatory words actionable are missing in this case. The letter was not written in bad faith, and there is no showing that defendant acted with any malice toward plaintiff in writing that letter. At least some of the demands in the letter were warranted. There also is no showing that the letter adversely affected the * relationship between the plaintiff-lessee and its sub-lessees, or that plaintiff suffered any embarrassment or damage as a result of the letter.

Finally, with regard to defendant’s demands in reconvention the trial judge awarded the increase in premiums to the defendant-appellee reasoning that under paragraph 6 of the amended lease the lessee was responsible for such costs. Paragraph 6 of the amended lease provides that:

“Lessee shall maintain .... such insurance coverage on the improvements and additions to be constructed under the terms of this amended contract. The amount of said coverage shall be the full insurable value of the improvements.”

Clearly under this provision of the amended lease Lake Charles Diesel, Inc. was obligated to carry insurance on the building and the improvements to be constructed on the leased premises. There being no evidence that the increase was unjustified the trial judge found Lake Charles Diesel, Inc. libel under the terms of the lease for the additional insurance cost. With this we agree. In addition court awarded to defendant and plaintiff in reconvention attorneys’ fees in the amount of $1,000.00. We find this award to be reasonable and justified in that the lease agreement provides that the lessor will be allowed reasonable attorneys’ fees should he file suit upon any condition of the lease and recover judgment.

For the reasons assigned the judgment of the district court is affirmed. All costs of this appeal are to be paid by the plaintiff-appellant, Lake Charles Diesel, Inc.

Affirmed.


source: Caselaw Access Project

author: PAVY, Judge..

license: Public Domain

text:
    William J. LEMOINE, Plaintiff-Appellant, v. BUNKIE GENERAL HOSPITAL et al., Defendants-Appellees.
    No. 5337.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearing Denied March 4, 1976.
    Writ Refused April 9, 1976.
    Arthur Cobb and Jennifer Luse, Baton Rouge, for plaintiff-appellant.
    Allen, Gooch & Bourgeois by St. Paul Bourgeois, IV, Lafayette, Adams & Reese by Richard C. Baldwin, New Orleans, John A. Boatner, Jr., Bunkie, for defendants-ap-pellees.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge..

In this malpractice suit, plaintiff appeals from a judgment based on an adverse jury verdict, general in form. Named as defendants were Dr. Philip Giuffre, Bunkie General Hospital and its insurer, Argonaut Insurance Company. Appellant concedes nonliability of the hospital and its insurer. Accordingly, only the claim against Dr. Giuffre is before us for consideration.

In the early morning hours of December S, 1973, plaintiff experienced intense abdominal pains and consulted Dr. Giuffre, a general practitioner at Cottonport, who diagnosed plaintiff’s condition as acute appendicitis and recommended immediate surgery. Later that morning, Dr. Giuffre removed plaintiff’s appendix. Upon recovering from the anesthesia, plaintiff noticed two loose teeth which had to be extracted. A few days later, he discovered a bruise-like condition in his right back. From sometime shortly after the operation he experienced a swelling or bulging effect in his abdomen. The day after his discharge from the hospital, an abscess at the incision site burst and drained a considerable amount of pus. During the postoperative period, Dr. Giuffre and Dr. N. E. Gauthier attended plaintiff. On March 29, 1974, at Mother Cabrini Hospital in Alexandria, Dr. John Boese operated on plaintiff and repaired a direct inguinal hernia and an in-cisional hernia at the site of the appendectomy. Plaintiff claims damages for loss of the two teeth, the bruised condition of his back, the inguinal hernia, torn muscles, intestinal adhesions and the incisional hernia.

The records of both hospitals were admitted in evidence. Dr Boese did not testify because of an emergency situation in his practice. Dr. Gauthier, who assisted in the appendectomy, did not testify. Hi's deposition was taken and is in the record but was not introduced in evidence. Plaintiff’s case in chief consisted of cross-examination of Dr. Giuffre, his own testimony and that of several lay witnesses who related his postoperative experiences. Except for the cross-examination by plaintiff, Dr. Giuffre did not testify and a stipulation was entered on behalf of his case concerning his education, qualifications, locality of practice and expertise in the field of general medicine and surgery. Defendant’s witnesses were the nurse anesthetist, the scrub nurse who assisted the surgeon primarily by handing him surgical instruments, the surgery maid who disinfected the operating room after each operation, Dr. Richard Morris, an anesthesiologist from Alexandria, Dr. John DiLeo, a surgeon from New Orleans, Dr. Joseph Brierre, a pathologist and infection control specialist, from Lafayette and Dr. S. R. Abrahamson, a general practitioner from Marksville with considerable experience in surgery and anesthesiology.

It is well settled that a physician or surgeon is not required to exercise the highest degree of skill and care possible. As a general rule it is his duty to exercise the degree of skill ordinarily employed, under similar circumstances by members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case. See Meyer v. St. Paul Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1954).

Dr. Giuffre testified that he proceeded with a McBurney incision, the recommended and usual one for appendectomy on a male. The appendix was not in its normal location, and he proceeded incising upward to locate the appendix which he finally found near the stomach. In incising upward, it became necessary to cut or split through upper abdominal muscles, sheaths and fatty tissue. The appendix was not ruptured but was suppurative (pusfilled). The expert testimony was without exception that Dr. Giuffre was confronted with an emergency and that the appendix could have ruptured any time and jeopardized plaintiff’s life, that the decision to operate was correct, that the general surgical procedure employed by the doctor was correct in that he had to assume the appendix to be in its normal location and that he had no alternative but to proceed into the upper abdomen to locate and remove the potentially dangerous appendix.

The experts were extremely emphatic that there could be no causal connection between the operation and the inguinal hernia. The inguinal canal (into which the hernia protruded) serves to encase the spermatic cord running from the testicles to the bladder and is so removed in space and so unrelated in anatomy and physiology to the area affected by the incision that there could be no possible relation between the incision and that hernia.

Dr. Gauthier who assisted Dr. Giuffre did not testify. His deposition was taken and is in the record but was not introduced in evidence. Apparently he would have been a witness friendly to Dr. Giuffre, but we cannot say that, under these circumstances, any significant presumption must arise from his failure to testify concerning the details of the operation. Except for Dr. Gauthier, all persons involved in the operation testified that there were no falls, knocks, bumping or other unusual incidents of force which could have caused the alleged bruise to plaintiff’s back. The experts explained that, in an operation such as this, metal retractors are used to position the abdominal walls and the internal structures so as to enable the surgeon to properly observe the area involved and to proceed properly. In positioning these structures by the use of the retractors, some force is necessary to achieve the required exposure. This force causes damage to the tissues with rupture of minor blood vessels. The blood oozing out tends to filter downward (in a supinely positioned patient) and clots or forms a hematoma or bruise-like condition near the patient’s back. This condition is not rare and is considered an expected or inherent risk of the operation.

There was no evidence of intestinal adhesions. The incisional hernia and the torn muscles at the incision site are essentially the same thing or at least both caused by the postoperative infection which beset plaintiff. This was the uncon-tradicted testimony of the experts. Similarly uniform was their opinion that postoperative infection from a suppurative appendix is probable. One of the experts cited a study of over 400 suppurative appendix operations with the additional incision into the upper abdominal area. The incidence of incisional infection in these was approximately 85 percent. It was also established that susceptibility to infection is increased in patients with obesity like the plaintiff herein.

The loosening of plaintiff’s two teeth resulted from an attempted intubation. This is a standard procedure in most surgery. It is usually accomplished while the patient is asleep from a shot or preliminary anesthesia. It consists of the insertion of a plastic (indotracheal) tube into the windpipe. To clear - a passageway for this insertion and for proper observation, a metal device known as a laryngoscope is employed. It is inserted into the mouth and throat and varying degrees of force must be used to achieve the desired result. The suggestion is made that thick-necked people (as was plaintiff) are so difficult to in-tubate that it ought not to have been tried at all. There is testimony that this difficulty is not always the case. Regardless of any anticipated difficulty in intubation, there was ample justification for the attempted intubation because of the benefits therefrom. There are (1) more precise control of the flow of anesthesia into the lungs, (2) control of the patient’s respiration, (3) ability to suction (by means of a catheter inserted within the indotracheal tube) mucous which accumulates in the lungs during operations and could cause serious respiratory problems, and (4) by inflating the indotracheal tube to seal off the windpipe (except for the conduit within that tube), the preventing of entry of regurgitated food into the lungs which could cause suffocation. It is argued that, because plaintiff had not eaten since the night before, the stomach was empty, so that there was no danger of regurgitation and intubation should not have been attempted. The evidence is far from conclusive that plaintiff would not have regurgitated and, even if so, we think the attempted intubation would have been justified because of the other listed benefits.

The experts’ testimony is that damaging of teeth from intubation is uncommon but is considered an inherent risk in surgery. The nurse anesthetist first attempted intu-bation for a considerable time. Then Dr. Giuffre proceeded to attempt it and took over the use of the laryngoscope. They both testified that it was during the doctor’s attempt to intubate that the teeth became loose. Dr. Giuffre testified that he used no more force than the anesthetist and claimed he- used more skill. He did not explicitly explain the exact physical or mechanical techniques employed by him in using the laryngoscope but the evidence does not show there is any one particular safe way of using that instrument or that Dr. Giuffre employed an improper procedure. It could be that the combined force on the teeth from both attempts caused the loosening. It could be that the teeth were abnormally susceptible to loosening. In view of the several and valuable benefits to be achieved from intubation, it could be that force in use of the laryngoscope which could do no more than damage the teeth would have been justified in any event and could not be considered actionable negligence.

Appellant relies to a great extent on the doctrine of res ipsa loquitur. The judge charged the jury as to that doctrine and we think the instruction was substantially correct. Despite the presumption which arises from that rule, we cannot say that the jury erroneously concluded that the defendant-doctor was not negligent. There was ample evidence in the record to explain a nonnegligent cause or origin for each of plaintiff’s complaints. Under the manifest error rule we must let the jury verdict stand. See Canter v. Koehring Co., 283 So.2d 716 (S.Ct., 1973).

For the reasons assigned the judgment of the district court is affirmed.

Affirmed.


author: PRICE, Judge. DENNIS, Judge MARVIN, Judge.

text:
    Maurice J. SCHAMENS, Plaintiff-Appellant, v. O. P. CROW, Defendant-Appellant.
    No. 12705.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.
    On Rehearing Feb. 9, 1976.

      Booth, Lockard, Jack, Pleasant & Le-Sage by Fred H. Sutherland, Shreveport, for plaintiff-appellant.
    Thomas, Prestridge & Burchett by Dewey E. Burchett, Jr., Bossier City, for appellant, O. P. Crow.
    Wilson & Veatch by Thomas A. Wilson, Shreveport, for appellant, Oliver Brooks, Inc.
    Before PRICE, HALL and DENNIS, JJ.
   PRICE, Judge.

This is an action by the purchaser of a residence seeking a reduction in the purchase price from the vendor-builder because of alleged inadequacies in the design and capacity of the air conditioning system.

O. P. Crow, a builder and developer, contracted to sell to Maurice J. Schamens, a residence which was nearing completion at 1822 Pluto Drive in Bossier City for the sum of $34,925.00. Plans and specifications for the home had been approved by the Veterans Administration and construction was in accord with the regulations of this agency.

During sales negotiations Schamens inquired if a utility room situated behind the kitchen could be connected to the air-conditioning system. Although Crow denies assuring Schamens this space could be properly cooled with the unit designed for the home, the air conditioning subcontractor was authorized to run a duct into this area.

Schamens accepted title to the property and moved into the home in February, 1972. During the following summer when the air conditioning system was needed, complaints were made by Schamens to Crow that the system was not properly cooling the residence. The air conditioning subcontractor who installed the system, Oliver Brooks, Inc., at Crow’s request made several attempts to correct the situation. Again in the summer of 1973 Scha-mens continued to complain and, Brooks continued to work on the system. In the late summer of 1973 Schamens employed a consulting air conditioning engineer, Keith L. Andrepont, who made an evaluation of the system and reported it was inadequate in capacity and design to properly cool the entire residence during periods of high outside temperature. He recommended the compressor and the air handler be replaced and certain modifications be made in the duct system to more properly distribute the flow of air to all parts of the residence.

Schamens thereafter in March, 1974, filed this action against Crow, seeking a reduction in the purchase price of $2,550.-00, the amount alleged to be necessary to make the suggested changes. Plaintiff also seeks expenses, damages and attorney’s fees in the sum of $2,815.00.

In answer to plaintiff’s demands Crow denied liability and joined the subcontractor, Brooks, as a third party defendant, alleging that should he be held liable to plaintiff that he have judgment against Brooks for the same amount as he alleges Brooks contracted to provide an adequate air conditioning and heating system for the residence.

After trial on the merits the district court awarded plaintiff judgment against Crow for the estimated cost of correction, $2,550.00, and the sum of $315.00 paid for engineering services. Plaintiff’s claims for damages and attorney’s fees were denied. The expert witness fee of plaintiff’s expert was fixed at $100.00. The court awarded judgment in favor of Crow on his third party demand against Brooks for these same amounts.

Plaintiff has appealed from the judgment insofar as it denied his claim for damages and attorney’s fees and asks that the expert witness fee of Andrepont be increased.

Crow and Brooks have each appealed the judgment rendered against them, asserting the trial judge was in error in concluding on the basis of the evidence presented that plaintiff had shown the air conditioning system was inadequate.

On appeal third party defendant Brooks filed an exception of prescription of one year under La.C.C.Art. 2534.

We find no merit to the plea of prescription. Although more than one year elapsed from date of the sale and the filing of plaintiff’s suit, there were numerous attempts by the seller, through his subcontractor Brooks, to correct the defects complained of which continued through the late summer of 1973. The jurisprudence provides prescription does not begin to accrue until the seller has abandoned all atempts to repair the defect, de la Houssaye v. Star Chrysler, 284 So.2d 63 (La.App. 4th Cir. 1973), writ refused 286 So.2d 662 (La.1973); Domingue v. Whirlpool Corp., 303 So.2d 813 (La.App. 3rd Cir. 1974).

The exception of prescription is therefore overruled.

The issues raised by the appeals of defendant Crow and third party defendant Brooks are substantially the same and relate to the correctness of the trial judge’s finding that there was a vice in the thing sold to plaintiff which entitled him to a reduction in the purchase price. We shall discuss this issue first as the liability of Brooks on the third party demand and the remaining issues raised by plaintiff’s appeal relating to damages and attorney’s fees hinge on an affirmance of this finding of the trial judge.

Whether or not the air conditioning system was adequate is primarily a question of fact and the trial judge’s finding in this regard should not be disturbed if there is substantial evidence in the record to support his conclusion.

There is no question raised in regard to the mechanical performance of the component parts of the air conditioning system. The issue is whether the air conditioning requirements of the subject residence were properly calculated and the appropriate size unit was selected to satisfactorily cool the residence in accord with the standards set forth by the Veterans Administration.

Plaintiff contends the system performs properly when outside temperatures are below 90° but when the temperature goes beyond 90° the system does not cool the living area of the house to a bearable temperature. This area consists of the kitchen, living room, one bedroom and the utility room.

Crow and Brooks contend the primary cause of plaintiff’s dissatisfaction is the inclusion at his request of the utility room in the air conditioning system of the house. They contend the system as installed was sufficient to take care of the original plans and specifications and that plaintiff was informed that it might not be sufficient to cool the added area. The evidence is somewhat conflicting as to what assurance plaintiff was given in this regard. He testified Crow told him he checked with Brooks and Brooks said it probably would carry the utility area except when the laundry appliances were being used. Crow testified he told plaintiff it would heat the area but could not assure him it would cool it. Brooks testified he told Crow he could not guarantee the cooling of this added area.

We do not find it necessary to resolve this conflict as the evidence otherwise indicates the unit was inadequate for the residence without consideration of the utility room.

In support of his position plaintiff offered the testimony of the expert in air conditioning engineering, Keith L. Andre-pont, who made a detailed analysis of the air conditioning requirements of the residence, using the standards set forth in “Manual J” of the National Environmental System Contractors Association, which is the accepted manual for calculating air conditioning needs for VA approved homes. This manual requires a system which has the capacity to reduce the inside temperature to 75° when outside temperatures are 100°.

Andrepont calculated the heat load of the subject residence to be 37,407 BTUH’s. In his opinion the minimum capacity for a unit to cool the home would be above 37,407 BTUH’s.

Defendants offered the testimony of George Jambor, also a consulting air conditioning engineer, who tested and evaluated the system at the request of Brooks. In calculating the heat load of the house he used another recognized manual referred to in the testimony as “ASHRAE”. He ■concluded the heat load of the residence, not including the utility room, was 33,211 BTUH’s.

Andrepont gave consideration to the utility room in making his calculations but was of the opinion the system was inadequate without inclusion of this area.

In his reasons for judgment the trial judge, in according more weight to the opinion of Andrepont than defendant's expert, Jambor, was influenced by the fact that Jambor made his inspection of plaintiff’s premises on a day when the outside temperature area was only 84° and that Jambor admittedly did not follow the provisions of the “ASHRAE” Manual in all phases of his calculations.

The trial judge further found it significant that Brooks admittedly was in error in two respects when he calculated the air conditioning requirements for this residence — (1) in assuming the house would face East whereas it was constructed facing North, and (2) calculating the floor space as a three bedroom home when the house actually has four bedrooms.

From our review of the record we find there is substantial evidence to support the finding of fact by the trial judge that the system was inadequate in design and capacity.

No issue has been made in regard to the amount awarded to correct the system as estimated by an air conditioning contractor. Furthermore, the trial judge was also correct in allowing Crow to recover over against Brooks as the evidence shows Brooks regularly performed all of the aij conditioning installation for Crow’s construction and that Crow relied entirely on the expertise and knowledge of Brooks in calculating air conditioning requirements.

Plaintiff is asking for damages because of the inconvenience and embarrassment experienced by his family due to excessive temperatures during the summers of 1972, 1973 and 1974, for attorney’s fees and for an increase in the expert witness fees.

Civil Code Article 2531 provides what recovery is allowed a purchaser who successfully brings an action against a good faith seller. Damages for inconvenience and embarrassment and attorney’s fees are not included within the provisions of this article. The plaintiff bases his request for damages and attorney’s fees on Civil Code Article 2545. As amended by Acts 1968, No. 84, Sec. 1, this article now allows these claims against a seller “ . . . who knows the vice of the thing he sells and omits to declare it . ” However, we are of the opinion the defendants in this case were not aware that the system contained any defect and we conclude that where the seller is in good faith, he is not liable for damages in addition to the restitution of the price and repayment of expenses. Domingue v. Whirlpool Corporation, 303 So.2d 813 (La. App. 3rd Cir. 1974). We recognize that there is jurisprudence holding that a manufacturer is presumed to have knowledge of a vice in the thing sold and thus is liable for damage under Article 2545. However we are of the opinion the builder of a residence for sale on the market does not fall within the definition of a “manufacturer” as this term is used in this line of cases, and plaintiff must therefore submit proof of bad faith to hold the seller in damages.

The trial court awarded plaintiff $100.00 as an expert witness fee for An-drepont. The trial court is given much discretion in setting the expert witness fees, after determining the degree of skill of the witness, the amount of time spent away from his job, along with actual time spent in court. We do not feel that the amount granted in this case was inadequate, or that the trial judge abused his discretion in the determination of the fee.

For the foregoing reasons we affirm the judgment of the trial court.

DENNIS, J., dissents in part and concurs in part with written reasons.

DENNIS, Judge

(concurring in part and dissenting in part):

I respectfully dissent from the portion of the majority opinion holding that a builder of a residence for sale on the market does not fall within the definition of a manufacturer for purposes of redhibitory actions under Civil Code Article 2545. There is no basis in law for granting residence builders immunity not enjoyed by the constructors, makers, fabricators, assemblers and manufacturers of other products.

In all other respects I concur in the majority opinion.

Before PRICE, HALL, MARVIN and SMITH, JJ.

ON REHEARING

MARVIN, Judge.

A rehearing was granted on plaintiff-appellant’s application, particularly as concerns the statement in our original opinion that the builder of a residence for sale on the market does not fall within the definition of “manufacturer . . . and plaintiff must therefore submit proof of bad faith to hold the seller in damages.”

On reconsideration we find that the weight of authority is contrary. The applicable legal principle was stated in Doyle v. Fuerst & Kraemer, Ltd., 129 La. 838, 56 So. 906, 907 (1911) in this language:

The principle which governs this case is that every one ought to know the qualities, good or bad, of the things which he fabricates in the exercise of the art, craft, or business of which he makes public profession, and that lack of such knowledge is imputed to him as a fault, which makes him liable to the purchasers of his fabrications for the damage resulting from the vices or defects thereof which he did not make known to them and which they were ignorant of.

We acknowledged the principle and the authorities in Johnson v. Hunter, 88 So.2d 467 (La.App. 2nd Cir., 1956), holding that a building contractor who constructs for the purpose of sale a residence is presumed to have notice and knowledge of the defects in its construction. See also Daly v. Abramson, 117 So.2d 772 (La.App. 2nd Cir., 1960).

In Cipriano v. Superior Realty & Construction Corp., 228 La. 1065, 84 So.2d 822 (1956) a heating system was held to be as much a part of a residence as the foundation or roof, covered by the vendor-constructor’s warranty, whether express or implied. Here, the defendant as the vendor-constructor of the residence, warranted the sale of the residence as being adequately heated and' cooled by the unit installed. On original hearing, the majority of this court found that the unit’s -capacity was insufficient to cool the residence. This insufficiency, a vice of construction existing prior to sale, renders the house defective. Knowledge of this defect must be imputed to Crow. See also Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952), where knowledge of defects was imputed to a builder-vendor of a residence.

La.C.C. Art. 2545 is therefore applicable notwithstanding the absence of actual knowledge of the defect or the absence of proof of bad faith on the part of the builder-manufacturer.

The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.

Domingue v. Whirlpool Corp., cited in our original opinion, can be factually distinguished, and is not controlling. Attorney fees and damages should have been awarded plaintiff-appellant. As the record contains evidence which would allow a fixing of these items by the court a quo, we shall exercise our discretion and fix the same rather than remand.

In Sokol v. McKinnon Chevrolet, Inc., 307 So.2d 404 (La.App. 4th Cir., 1975), the factors to be considered in fixing attorney' fees in a redhibition or quanti minoris case were said to be the responsibility incurred, the extent and the nature of the work performed, the legal know-how and skill of counsel. Considering the amount of recovery allowed, the time spent by plaintiff-appellant’s counsel below and on appeal, and the other factors mentioned, we award $1,250.00, with legal interest from the date this judgment becomes final. See Sugar Field Oil Co. v. Carter, 214 La. 586, 38 So.2d 249 (1949).

Plaintiff and his family suffered some inconvenience, deprivation, and embarrassment because of inadequate air conditioning. In addition to the amount awarded originally as expenses, we award plaintiff damages of $300.00, with legal interest from judicial demand.

The applicant also complains on rehearing that the expert witness fee, as determined below and affirmed in our original opinion, was not commensurate with the time and services expended, and billed to plaintiff, by the expert. In addition to the award of $100.00 as an expert witness fee, plaintiff was awarded $315.00 for the engineering services charged for by the expert. The fixing of the expert fee under the circumstances does not amount to an abuse of the discretion afforded the lower court in .such matters.

Our original opinion is amended to the extent stated, affirming the award of the lower court, and additionally we grant judgment to the original plaintiff against the original defendant and in favor of original defendant, as third party plaintiff, and against third party defendant for $300.00 damages, with legal interest from judicial demand and for $1,250.00 attorney’s feels, with legal interest from the date this judgment becomes final.

Amended, and as amended, our original opinion is reinstated and the judgment below as herein amended is affirmed.

      . Authorities there cited included Henriques v. Vaccaro, 218 La. 1020, 51 So.2d 611 (1951).


author: PETERS, Judge ad hoc.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Alberie DEGUEYTERRE, Defendant-Appellant.
    No. 5334.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearing Denied March 4, 1976.
    Writ Refused April 23, 1976.

      J. Barry Mouton, Lafayette, for defendant-appellant.
    Johnie E. Branch, Jr., D. Ross Banister, Wm. W. Irwin, Jr., Jerry F. Davis, La. Dept, of Highways, Baton Rouge, for plaintiff-appellee.
    Before HOOD, GUIDRY and PETERS, JJ-
   PETERS, Judge ad hoc.

This is a suit brought by the Department of Highways to expropriate 25.47 acres of defendant’s land in St. Martin Parish. The Department deposited $21,512.00 in the Registry of the ' Court as compensation. Defendant withdrew this sum with reservation of rights and filed an answer and reconventional demand seeking an increase in compensation, both for the land taken and for severance damages sustained by his remaining land.

Prior to the taking defendant’s tract of land was four-sided and regular in shape. It actually consisted of two parcels because it was bisected by La. 328, a blacktop road running in a north-south direction. Before the taking, the parcel on the east side of La. 328 contained 59.724 acres while that on the west side contained 49.496 acres. Each parcel had a frontage of approximately 600 feet on La. 328. All the frontage on La. 328 was taken, with 17.233 acres being taken from the east side and 6.937 acres being taken from the west side. The land was taken to be used for the construction of an interchange on Interstate 10. To make defendant’s remaining land accessible to La. 328, the Department constructed service roads which connect both parcels to La. 328. The remaining parcels now have more frontage on the service roads than the original parcels had on La. 328.

The trial court denied the claim for severance damages but increased the award for the land taken to $22,134.00. Defendant appealed and now asks, first, that the award for the land taken be increased, and, second, that severance damages be awarded in the amount of $10,500.00.

We first consider the defendant’s contention that the award for the property-taken should be increased. Defendant presented the testimony of two appraisers who did a joint appraisal of the property and found the value of the land taken (exclusive of improvements) to be $27,138.00. The improvements were appraised at between $2,440.00 and $2,800.00, so defendant’s evidence indicates that adequate compensation would be nearly $30,000.00. Defendant’s appraisers were both active in the real estate business in St. Martin Parish and were familiar with real estate values in the area where defendant’s land was located. The Department’s appraisers fixed the value of the land taken at between $20,994.00 and $21,512.00. The Department’s appraisers had no experience in the development of property in the area. Defendant argues that, because his appraisers were familiar with the locality and the Department’s appraisers were not, the •trial court erred in accepting the valuation given by the Department’s appraisers rather than that offered by defendant’s appraisers.

We cannot accept this argument. It is certainly true that an appraiser’s familiarity with the locality is a factor to be considered by the trial judge in weighing the testimony of an appraiser. State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972). However, there are many other factors to-be considered as well and the trial judge need not accept the opinion of the appraiser who is familiar with the locality if, on the whole, he finds the testimony of other appraisers to be more credible. His decision will not be overturned unless it is manifestly erroneous. We find no manifest error in the decision of the trial judge regarding the value of the land taken.

We turn now to defendant’s contention that severance damages were improperly denied. Before the taking, defendant was using both parcels of land for farming. At that time, the two parcels were regular in shape and were separated only by La. 328, which made the parcels readily accessible to one another. After the taking, the remaining parcels were more irregular in shape and were accessible to one another only by way of the service road, which made the traveling distance between the two parcels approximately 1500 feet.' All appraisers for both parties agreed that before the taking that part of defendant’s land which fronted on La. 328, to a depth of between 200 and 400 feet, had a highest and best use as property for rural home-sites, while the rear land had a highest and best use as agricultural land. It was the opinion of defendant’s appraisers that defendant’s remaining land ■ maintained a highest and best use as agricultural land even after the takings and after the construction of the I — 10 interchange. As agricultural land they believed its market value had been diminished by $10,500.00.

The Department’s appraisers were of the opinion that defendant’s remaining land suffered no severance damage. One appraiser, Mr. Tiger, felt that no severance damage was caused by the taking because the remaining property actually had more frontage after the taking than before. The other appraiser, Mr. Fleming, felt that the parts of the remaining parcels which were given frontages on the service roads actually changed their highest and best use from agricultural use to use for rural homesites or small businesses. It was his opinion this front land actually increased in value due to the taking.

The trial judge accepted the opinion of Mr. Fleming. In his reasons for judgment, the trial judge said the remainder land that now fronted on the service roads was most suitable for small rural estates, second homes, or shopping centers. This was due to the fact that it was now front land rather than rear land and would be located near a highway interchange and also would be readily accessible to the City of Lafayette when I — 10 was completed. The trial judge pointed out that Mr. Fleming valued the remainder at over $1,000.00 per acre based on what the construction of other I-10 interchanges had done to the values of land around those interchanges.

Defendant argues that the Department’s evidence of enhancement in value was' purely speculative and therefore such enhancement could not be considered in mitigation of severance damages. State, Department of Highways v. McPherson, supra. In McPherson, the Supreme Court held that the value of the remainder must be considered as of date of trial and an increase in value that might occur in the future could not be used to mitigate severance damages. The McPherson case is distinguishable factually from the instant case. In McPherson, the evidence showed the remainder had not increased in value as of the time of trial; the increase would come when the highway construction was completed and traffic began to flow. In the instant case, Mr. Fleming testified that the market value of the remaining land had increased at the time of trial due to the completion of the service roads and the on-going construction of the interchange. Even though the highway and the interchange had not been completed at the time of trial, the probability that they would eventually be completed had raised the market value of defendant’s remaining land. This enhancement was not speculative because it had already occurred by the time of trial. While it was possible at the time of trial that I — 10 or the interchange would not be completed, speculators were willing to pay a premium price with the expectation that the land would be near an I — 10 interchange. The expectation that the remainder would be located conveniently near the interchange had increased its market value by the time of trial.

Defendant next contends that, even assuming the enhancement in value was not speculative, such enhancement was the result of general benefits and could not be considered in computing severance damages. He argues that such enhancement in value is a benefit to accrue to all land in close proximity to the proposed interchange and not this remaining land in particular. The flaw in this argument is that defendant’s remaining land would not have gained in value had the Department not built the service roads on which the remaining parcels now front. These remainders have been benefited by the construction of these service roads. Before the taking, the land which now remains was rear use land with no front on any road or highway. Its highest and best use would have continued to be agricultural, with no increase in value, had the service roads not been built. It was the construction of the service roads, combined with the effects of the proposed interchange, which gave the remaining land its increased value. The benefit caused by the construction of the service road was a special benefit.

In Louisiana Highway Commission v. Gray, 197 La. 942, 2 So.2d 654 (1941), our Supreme Court said:

“If, as a result of constructing new work, the remaining land or part of it is left fronting on a road or street, and the land fronting the road or street is more desirable and more valuable because of the frontage, the advantage thus gained is a special or peculiar benefit, and damages to the remaining property may be offset by such benefits.”

This court in later cases applied this rule in holding that the benefit in such a situation is special even if the property of all other property owners with frontage along the route is similarly increased in value. State, Department of Highways v. William T. Burton Industries, Inc., (La.App. 3rd Cir., 1969), 219 So.2d 837; State, Department of Highways v. Miller (La.App. 3rd Cir., 1966), 182 So.2d 155. Thus, defendant’s remaining land was specially benefited by the construction of the service roads and these benefits were properly considered by the trial court in computing sever-anee damages. We find that the trial court correctly denied severance damages.

For the reasons assigned, the judgment of the lower court is affirmed. All costs of this appeal are assessed against defendant-appellant.

Affirmed.


author: CUTRER, Judge.

text:
    MILLERS MUTUAL FIRE INSURANCE CO., Plaintiff-Appellee-Appellant, v. LOUISIANA & ARKANSAS RAILWAY CO. et al. (American Compress Warehouse), Defendants-Appellants-Appellees.
    No. 5328.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearings Denied March 4, 1976.
    Writ Refused April 30, 1976.
    Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendant-appellant-appellee.
    ' McLure & McLure, by T. C. McLure, Jr., Alexandria, for plaintiff-appellee-ap-pellant.
    Provosty & Sadler, by Wm. H. de-Launay, Jr., Alexandria, Wilkinson, Car-mody & Peatross, by Samuel W. Caverlee, Shreveport, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

This is a suit involving the loss of some thirty-two bales of cotton by fire. Plaintiff, Millers Mutual Fire Insurance Company of Texas, was subrogated to the rights of its insured E. V. Hudspeth, the owner of the cotton, by payment for the loss under the terms of a fire policy provided by the plaintiff. Plaintiff sued the following defendants: Louisiana & Arkansas Railway Company, American Compress Warehouse, Kansas City Southern Railway Company and Texas & Pacific Railway Company. After a trial on the merits, judgment was rendered in favor of plaintiff against American Compress Warehouse; the claims against the remaining defendants were dismissed. American Compress Warehouse has appealed from that judgment. An appeal has also been taken by plaintiff to protect its rights against the other defendants who were dismissed by the judgment of the lower court. We reverse, finding liability on the part of Louisiana & Arkansas Railway Company.

Plaintiff’s insured delivered cotton to Texas & Pacific Railway (hereinafter sometimes referred to as “T & P”) at Rosa, Louisiana, consigned to American Compress Warehouse (hereinafter sometimes referred to as “Compress”) in Alexandria. Some thirty-two bales of cotton were loaded into a single T & P boxcar, shipped on T & P bills of lading. The doors on the car could not be sealed and had to be held in by slats nailed across the doors. The car was taken by T & P from Rosa to Alexandria where it was delivered to Louisiana & Arkansas Railway (hereinafter sometimes referred to as “L&A”), about 9:00 A.M., October 27, 1971. The L&A spotted the car on a spur track owned by L&A, but which ran into the Compress and which was used principally by the Compress. The Compress was notified about 11:00 A.M. of the arrival of the cotton and the spotting of the car on their spur track.

About 3 :00 P.M. that day three employees of the Compress took a coffee break. As they walked by the car in question, they smelled a “hot bale”. These employees were Mr. Kenneth E. DeWeese, the foreman, and two other employees of the Compress, a Mr. Brewster and a Mr. Murphy. Inspection of the car indicated that it contained a “hot bale”, which was detected by feeling of the bales. There was no visible fire or smoke. The “hot bale" was reported to Mr. J. B. McCaa, the superintendent of the Compress. He went to the car and confirmed the findings of Mr. DeWeese. At this point Mr. DeWeese went to the yard office to inform the yardmaster for L & A of the “hot bale” and request the removal of the car. Later Mr. McCaa called the yardmaster and repeated the request. A third request for the removal of the car from its location next to a warehouse full of cotton was made about 8:30 P.M. Quinton Ganey, a clerk for L&A, wrote the request on the Switch List for October 27, 1971: “Pull out acct. Hot Bales Possible Fire.” This notation was discovered and acted upon by Mr. C. E. Progue, Jr., the night yardmaster for L&A. Between 8:30 P.M. and 8:45 P.M., the car was moved by L & A from its position on the Compress spur to a caboose track, where it was isolated and watched by employees of L&A. About 9:30 A.M. the following morning the Alexandria Fire Department received a call from L&A employees who discovered ■ that the car was on fire. Before the fire was extinguished extensive damage was done to the cotton and boxcar. The stipulated loss incurred by plaintiff’s insured was $3,542.63.

After hearing the evidence which has been briefly summarized above, the trial judge rendered judgment for the stipulated amount in favor of plaintiff against the Compress, and dismissed plaintiff’s claims against the remaining defendants. We reverse and find liability on the part of L & A.

Determination of liability in this case rests on whether the cotton was delivered to the Compress by L & A. Since the trial judge did not give written reasons for judgment we do not know if he found as a matter of fact that there had been a delivery of the cotton. However, we find that under the facts as presented in the record a finding of delivery is manifestly erroneous.

The shipment of cotton was made by T & P' from Rosa to Alexandria, where the cotton was transferred by T & P to L & A. L&A accepted the shipment and spotted the boxcar containing the cotton shipment on the Compress spur track. A tender of delivery occurred at this point. The tender of delivery took place about 11:00 A.M., October 27, 1972. The Compress had a reasonable time thereafter in which to accept or reject the tender. At 3:00 P.M. that afternoon, employees of the Compress, including a foreman and the Compress superintendent, rejected the tender of delivery when they discovered that the cotton shipment contained a “hot bale” and requested that the car be removed from their spur track. Later in the night the car was moved by L & A and placed on one of L & A’s caboose tracks. Since the Compress rejected the tender of delivery by the L & A, L & A retained its status of carrier of the shipment of cotton, and is liable for the loss.

Red River Cotton Oil Co. v. Texas & Pacific Ry. Co., 216 La. 519, 44 So.2d 101 (1949), which has been cited by the parties in brief, is not applicable to the facts before us. In Red River the tender of delivery was not rejected by the consignee, as is the present situation, and the court was required to determine whether, under the terms of the bill of lading, the railway company was liable as a carrier or warehouseman. In the present case there was a rejection of the tender of delivery, so the provisions of the bill of lading discussed in Red River are not pertinent for a determination of liability here. Other cases which have been brought before the courts of this state dealing with similar issues of liability for goods transported by common carriers were studied by this court, but none involved a situation where there was a specific rejection of delivery by the consignee. V. Rivera S. En C. v. Texas & New Orleans R. Co., 211 La. 969, 31 So.2d 180 (1947); Wood v. Louisiana & Arkansas Ry. Co., supra.; Segura v. Reed, 3 La.Ann. 695 (1848); Robertson v. Louisiana Fruit Growers Assn., 80 So.2d 190 (La,App.2nd Cir. 1955); Swift & Co. v. Texas & Pacific R. R. Co., 6 La.App. 7 (Orl.1926). Here there was no delivery, because the consignee rejected the tender of delivery; so L & A’s liability as a carrier never terminated.

For the reasons assigned, the judgment of the trial court is reversed. It is hereby ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Millers Mutual Fire Insurance Company of Texas, and against defendant, Louisiana & Arkansas Railway Company, for the full sum of Three Thousand Five Hundred Forty-Two & 63/100 ($3,542.63) Dollars, with legal interest thereon from date of judicial demand until paid, and for all costs of these proceedings. Plaintiff’s claims against the remaining defendants are rejected.

Reversed and rendered.

      . Wood v. Louisiana & Arkansas Ry. Co., 158 La. 504, 104 So. 306 (1925).


author: CULPEPPER, Judge. MILLER, Judge

text:
    L. M. BAGGETT, Plaintiff and Appellant, v. MID-STATE SAND & GRAVEL COMPANY, INC., Defendant and Appellee.
    No. 5325.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearing Denied March 4, 1976.

      Miller, J., filed a dissenting opinion and voted for rehearing.
    Scofield, Bergstedt & Gerard by Richard E. Gerard, Jr., Lake Charles, for plaintiff and appellant.
    Provosty & Sadler by Richard B. Sadler, Jr., and Michael T. Pulaski, Alexandria, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and MILLER, JJ.
   CULPEPPER, Judge.

The plaintiff, L. M. Baggett, alleging himself to be the owner of certain land, filed a rule to evict therefrom the defendant, Mid-State Sand & Gravel Company, Inc. He contends defendant’s sand and gravel lease has terminated. Defendant answered, contending the lease is still in effect. From a judgment dismissing his suit, plaintiff appealed.

The issue is the interpretation of provisions in the lease that the primary term is five years “or as long thereafter as merchantable sand or gravel or either of them is produced therefrom.” Plaintiff contends that under the holding of Sharpe v. Jenkins, 150 So.2d 353 (1st Cir. 1963), the primary term of the lease has expired, that all rights under the original lease have terminated, and any rights to occupancy which defendant has are by reconduction on a month to month basis, which rights have likewise terminated by plaintiff’s timely notice to vacate.

The facts are that on October 9, 1964 Mr. and Mrs. Baggett leased the land to Southern Silica of Louisiana, Inc., for the prospecting for and removal of sand, gravel and soil. Paragraph No. 2 of the lease provides:

“Subject to the other provisions herein contained, this lease shall be for a term of five (5) years from this date, hereinafter referred to as primary term, or as long thereafter as merchantable sand or gravel or either of them is produced therefrom.”

On August 2, 1971, Mr. and Mrs. Bag-gett entered into an amendment of the lease with the defendant, Mid-State Sand & Gravel Company, Inc., the successor corporation to Southern Silica of Louisiana, Inc., the original lessee. The amendment added 2.87 acres to the land leased and changed certain provisions for payment of royalties. Additionally, paragraph 4 of the amendment states that Mr. and Mrs. Bag-gett acknowledge that the original lease of October 8, 1964 is in full force and effect and that all royalties due them as of August 1, 1971 had been paid.

On October 24, 1974, plaintiff mailed to defendant a “Notice To Vacate” his property within five days. These eviction proceedings followed.

The district judge states in his written reasons that at the trial it was stipulated' by the parties that sand and gravel have been and continue to be produced in paying quantities and that all royalty payments due have been paid. The defendant contends that under the provisions of paragraph 2, quoted above, of the lease the primary term continues in effect as long as sand or gravel is produced.

The plaintiff relies on Sharpe v. Jenkins, 150 So.2d 353 (1st Cir. 1963) in which a sand and gravel lease contained this provision :

‘The term of this lease shall be for a period of one year, and Lessee shall have the option of annually renewing said lease for a period of four years, provided that Lessee notifies Lessor in writing 30 days prior to the expiration of said lease each year that he renews this lease that he is exercising his option to renew it, and further provided that if at any time Lessee is removing sand, gravel or clay gravel in paying quantities that this lease shall automatically continue as long as the production is had in paying quantities * * ”

The court in Sharpe held that this provision of the lease is ambiguous and must be construed against the lessee who drew it. The decision states that since the provision, that the lease “shall automatically continue as long as the production is had in paying quantities”, is in the same paragraph as the provision relating to the exercise of the option to renew the lease in each of the four years succeeding the first, these provisions could be construed as merely providing a way by which the lessee could renew the lease each year without the necessity and formality of sending a written notice to the lessor. The court stated it saw no reason why these provisions should be held to extend the maximum term of the lease which is limited in the contract to five years.

Plaintiff argues that in the present lease, paragraph 2, quoted above, begins with the statement “Subject to the other provisions herein contained”, and then states that the primary term is five years or as long thereafter as production continues. The contention of plaintiff is that “the other provisions” which bring this lease within the rule of the Sharpe case, are contained in paragraph 5, which reads in pertinent part as follows:

“If mining and production operations are not commenced on said land on or before one hundred eighty (180) days from the date hereof, then this lease shall terminate as to both parties, unless the lessee shall on or before the expiration of said one hundred eighty (180) days deposit to the account of the owner of the above described property carried in the Calca-sieu-Marine National Bank, Kinder, Louisiana, under the name of lessor, an advance payment of royalty accruing hereunder of $1.00 per acre every 180 days until there is production on land, which shall operate as rental and cover the privilege of deferring the commencement of mining and production operations for a period of one hundred eighty (180) days. In like manner and upon like payment or tender, the commencement of mining and producing operations may be further deferred to like periods successively during a period of five (5) years. Said lease may be renewed for an additional five-year period for the same conditions and consideration.”

A mere reading of the portion of paragraph 5 quoted above shows that it deals with the period of time within which mining and production must be commenced, or, if no mining or production is had, then certain rentals must be paid. Although, of course, paragraph 5 provides that the lease terminates if mining and production operations are not commenced and no rentals are paid within the times specified, these provisions in paragraph 5 are of no effect where, as here, mining and production operations were admittedly commenced timely and continued to the date of trial.

Furthermore, unlike the lease provisions in the Sharpe case, the provisions in the present lease for continuation of the primary term as long as sand or gravel are produced, are found in an entirely separate paragraph. Here, the provisions for the primary term are in paragraph 2, which states clearly and without ambiguity that the primary term of the lease is for five years “or as long thereafter as merchantable sand or gravel or either of them is produced therefrom.” The provisions of paragraph 5 on which plaintiff relies are in a separate paragraph dealing with commencement of production or payment of delay rentals in lieu thereof.

We conclude the Sharpe case is distinguished from the present matter since the lease provisions are different. Here, the primary term of the original lease is still in effect.

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

Affirmed.

MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(dissenting).

I respectfully dissent.

The parties concede the leases here interpreted were drawn by counsel for lessee (Mid-State and its ancestors in title). Vagueness in the terms of the lease are to be construed against Mid-State. Sharpe v. Jenkins, 250 So.2d 353 (La.App. 1 Cir. 1963).

The lease provides for a primary term of five years, “or as long thereafter as merchantable sand or gravel or either of them is produced therefrom.” Emphasis added. Had Mid-State substituted “and” for the italicized “or”, I could agree to the affirmation of the trial court’s decision.

Other sand and gravel leases as well as hydrocarbon leases specifically provide for an indefinite term when production commences. Mid-State’s provision appears in the lease as an alternative, and I see no reason to construe this vagueness against landowner who was unrepresented when the lease was negotiated.

The lease expired five years after it was executed. Since October 8, 1969, the lease has been reconducted on a month to month basis. Mid-State has failed to timely vacate landowner’s premises and landowner is entitled to the relief sought.


author: PETERS, Judge ad hoc. GUIDRY, Judge

text:
    Glenn FRUGE, d/b/a Glenn Fruge Contractor, Plaintiff-Appellant, v. Wilman C. GASPARD, Defendant-Appellee.
    No. 5319.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1976.
    Rehearing Denied March 4, 1976.

      Pucheu & Pucheu by Jacque B. Pucheu, Sr., Eunice, for plaintiff-appellant.
    Deshotels & Deshotels by O. H. Desho-tels, III, Kaplan, for defendant-appellee.
    Before HOOD, GUIDRY and PETERS, JJ-
   PETERS, Judge ad hoc.

This is a suit for $4250 allegedly due under a verbal contract between plaintiff and defendant. Plaintiff is a bulldozer operator. In November and December of 1974, he spent fifty hours repiling cut timber on defendant’s property with a bulldozer. The issue presented in the trial court and on appeal is whether this work was done pursuant to any contract between plaintiff and defendant.

Plaintiff alleges that before he started to work defendant agreed to pay him at the rate of $85 per hour for all work done. He also alleges that he did the entire fifty hours of work with a single Caterpillar D8-H bulldozer.

Defendant contends that he does not owe $85 per hour for the entire fifty hours. He claims that when he first talked with plaintiff about the job he told plaintiff he wanted the job done at a fixed contract price. Plaintiff replied that his father owned the bulldozer and was the only person who could offer a contract price. Plaintiff agreed to have his father come soon to offer a contract; he and defendant agreed that in the meantime plaintiff would start the job and would charge $85 per hour for whatever work was done. Plaintiff worked seventeen hours the first two days and defendant claims plaintiff completed about 50% of the job in those seventeen hours. Plaintiff’s father never came to discuss a contract price and plaintiff continued to work on the job from time to time without any further discussion of price. Defendant claims, however, that after the first seventeen hours of work plaintiff substituted a smaller bulldozer—a Caterpillar D8-H. With the smaller bulldozer, plaintiff was unable to make as much progress as with the larger one and therefore accomplished in the last thirty-three hours only half as much as he accomplished in the first seventeen hours. Plaintiff denied all of defendant’s allegations.

The trial court awarded plaintiff $85.00 per hour for the first seventeen hours and $55.00 per hour for the last thrity-three hours, or a total of $3260. Plaintiff has appealed, asking that the award be increased to $4250. Defendant has answered the appeal, asking that the award be reduced to $2765. The trial judge obviously believed defendant’s version of what happened. His conclusion is supported by the evidence and therefore will not be disturbed.

Defendant concedes he owes plaintiff $85 per hour for the first seventeen hours. In addition, he signed a time slip dated November 15, 1974 acknowledging that plaintiff had done five hours of work on that day at an hourly rate of $85. Thus the evidence shows that defendant agreed to pay $85 per hour for 22 hours of work—seventeen hours on the first two days and five hours on November 15—mak-ing a total indebtedness of $1,870.00 for the first 22 hours of work. The remaining twenty-eight hours of work was not performed pursuant to any contract between plaintiff and defendant; first, because defendant agreed to pay $85 per hour only to have the job started; and, second, because plaintiff switched from the larger bulldozer agreed upon to a smaller one. Plaintiff is, however,, entitled to recover for the last twenty-eight hours of work under the doctrine of quantum meruit. LSA-C.C. 1965; 2292-2294; Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3 Cir. 1974).

David Paul Hebert, a contractor who does bulldozer work, testified at trial that he charges $40 to $45 per hour for work done with Caterpillar D8-H bulldozer. He also stated that other contractors in the area charged between $40 and $50 per hour for that work. We think plaintiffs are entitled to recover between $40 and $50 per hour for the last 28 hours of work performed by them.

As already noted, plaintiffs are entitled to be paid $1,870.00 for the first 22 hours of work done by them. After deducting that amount from the total award of $3,260.00 made by the trial court, the remaining $1,390.00 of the award constitutes an allowance of $49.64 per hour for the last 28 hours of work performed by plaintiffs. We think the amount awarded by the trial court reasonably and adequately compensates plaintiffs for all of the work which they performed, including the 22 hours of work with the larger machine and 28 hours of work with the smaller one. For that reason, the determination made by the trial court will not be disturbed.

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

Affirmed.

GUIDRY, J., dissents and assigns written reasons.

GUIDRY, Judge

(dissenting).

The evidence in this case clearly shows that defendant contracted with plaintiff to repile and wind-row cut timber on his property and agreed to pay plaintiff for this work, which was to be performed with a D8H Bull-dozer, at the rate of $85.00 per hour. Plaintiff having admittedly performed 50 hours of work on defendant’s farm, he is entitled to be paid the total sum contracted for, i. e., $4250.00. The only justification for holding otherwise would be to find that some other price, per hour or lump sum, was agreed upon or to find that plaintiff modified the original contract by substituting a smaller machine for that initially used. There is not a scintilla of evidence that any other price was agreed upon. My brethren of the majority affirm the decision of the trial court finding that there is sufficient evidence to support the conclusion of the trial judge that a smaller machine was substituted to finish the job.

I cannot agree that the evidence supports a finding that after the initial seventeen hours of work plaintiff substituted a smaller machine for that originally used. I would find manifest error in this conclusion of the trial court and would award plaintiff-appellant judgment in the amount of $4250.00. Although we are under a duty to accord great weight to the findings of the trial judge, particularly when based upon the credibility of witnesses, we nevertheless are permitted, and in fact, have the duty to determine if the trial judge was justified in his conclusions.

I respectfully dissent.


author: PAVY, Judge.

text:
    FRONTIER, INC., Plaintiff-Appellant, v. Clayton CURTIS, Defendant-Appellee.
    No. 5307.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1976.
    Rehearing Denied March 4, 1976.
    Writ Refused April 27, 1976.

      G. F. Thomas, Jr., Natchitoches, for plaintiff-appellant.
    Sonny M. Stephens, Winnsboro, Watson, Murchison, Crews & Arthur by R. Raymond Arthur, Natchitoches, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

On January 28, 1974, Howard Hale, Ralph Sharpe and Clayton Curtis, the defendant in the main demand herein, incorporated Frontier, Inc., the plaintiff in the main demand, under the laws of the State of Mississippi. This was for the general purpose of engaging in aerial spraying of herbicides, pesticides etc. The three incor-porators constituted the board of directors and officers with Curtis being president and general manager with full authority to operate the corporate enterprise. Sometime the previous fall, these three had started in business as a partnership under a loosely arranged and seriously disputed agreement. Generally, under that arrangement, Curtis was to furnish four aircraft and Hale and Sharpe were to furnish $54,000 cash to be used to pay off encumbrances on the aircraft, put them in running condition and convert them (they were originally large commercial planes) for aerial spraying on a massive scale. Originally, Curtis was to own a one-half interest in the business because of his contribution of the aircraft and the other two were to own the other half. Hale had advanced most of the funds by incorporation time. The incorporation transaction vested all the assets in the corporation, gave each of the three incorporators one-third of the stock and one-third of the corporate debts representing the difference between the supposed value ($104,000) of the assets put into the corporation and the stock issued. By creation of separate debts between the individual incorporators, the differences in contribution to the corporate assets were equalized.

Hale was a farmer with cash but unfamiliar with aviation or the technical aspects of aerial spraying. Sharpe had experience in aerial spraying but only as to smaller type aircraft. Curtis was to have the know-how in converting these large cargo planes for aerial spraying and to actually supervise the spraying. According to him there were only six Martin commercial planes converted to aerial spraying in the United States and he had done the engineering or supervised the conversion of all of these.

In the early spring of 1974, the corporation obtained a U.S.D.A. contract for spraying 200,000 acres of land with Mirex, a fire ant insecticide. At the time specified in the contract for commencement of this spraying, only one of the four aircraft was operable and converted for aerial spraying of Mirex. Hale and Sharpe claim that, under the agreement prior to incorporation, Curtis was to have all four aircraft available at this time and blame him for their unavailability. Curtis denies that he guaranteed having all of these aircraft available at any particular time and claims that delays in funding the operation by the other two caused the delay in conversion and readying of the other three aircraft. He also claims the other three planes were to be converted to spray liquid and not Mirex.

With the one converted aircraft and a rented smaller one, the spraying of Mirex proceeded. Difficulties were encountered in the dispersal system of the converted aircraft. Hale and Sharpe blame this on Curtis. He in turn contends that due to late funding he was unable to obtain the proper type metal for augers used in the dispersal system to bring the spray substance from the tank in the trunk of the plane to the wings for ejection. By the end of May, out of eighteen flying days (the government contract and E.P.A. permitted spraying only under certain favorable weather conditions) the converted aircraft was operable for only seven days and the contract was about 75-8S percent complete. At this time the engine in the converted plane failed completely and the government contract was cancelled by mutual consent of the parties in the early days of June.

On May 29, and shortly thereafter Hale and Sharpe attempted to shut down operation of the corporation and prevent the incurring of further indebtedness. This was supposedly done by face to face and telephonic meetings of the board of directors whereby Curtis’ authority to manage was revoked. On June 12 to 14, a formal meeting of the board of directors was held and after much discussion Curtis disassociated himself from the corporation by exchanging his stock in the corporation for one aircraft and a truck. Curtis executed a written release of plaintiff, Hale and Sharpe, as part of the overall transaction but he was not released in that document.

On June 20, Frontier, Inc. filed the present suit and obtained a nonresident at1 tachment on the airplane that had been assigned to Curtis in exchange for his stock. This suit seeks (1) $1,125 for wages paid corporate employees after May 31 when Curtis was supposedly stripped of authority to operate the corporation any longer, (2) $1268 for bonuses paid to pilots prior to May 31 without authority, and (3) $600 allegedly transferred by Curtis from a corporation bank account to another bank account outside corporate control. On July 1, Frontier filed a supplemental petition claiming $20,000 for loss of anticipated profits ($12,000 to $13,000) and actual loss on the government contract ($7,500) and praying that defendant be ordered to account for funds and property of the corporation coming into his hands and, upon accounting, it- have judgment for funds improperly expended and the property so had by defendant or its value.

Curtis reconvened for loss of profits arising out of nonuse of his aircraft while subject to attachment and for attorney fees involved in the dissolution. A preliminary motion to dissolve the attachment was denied.

Shortly after filing suit, plaintiff proceeded by a discovery rule to compel defendant to produce corporate records and disclose corporate assets. A judgment on the rule included an order that defendant “ . . . deliver forthwith and as soon as delivery thereof can be made to Frontier, Inc., through its proper officers, all property of said corporation remaining in his possession or under his control no matter where located ...” This order was on an agreed stipulation between the parties which is reflected in the minutes to show that defendant was to “. . . turn over to the corporation all the corporate property that he has in his possession and to account for the money and other properties that he has received during his administration of the corporate affairs. That would be that he immediately deliver to Frontier Corporation all property belonging to the plaintiff in his possession or under his control and will make full disclosure where all property of the corporation is located, and that would cover such property as he has received from the time these parties entered into the preincorporation plan on approximately November 15, 1973, up, through and including today ...”

After a lengthy and interrupted trial, the district judge rendered judgment rejecting both the main and the reconventional demands, dissolving the writ of attachment and awarding Curtis $500 attorney fees for said dissolution. Frontier, Inc. has appealed.

In Reasons for Judgment, the trial judge held that the settlement of June 14 had the effect of releasing Curtis because if he (Curtis) had been considered still indebted to the corporation, it would not have turned over to him the aircraft and plane. Counsel for Curtis argues that the settlement must be construed to release Curtis because, if not, there was no consideration for the release by Curtis of Frontier, Inc. and Hale and Sharpe. A close reading of the minutes reveals that the exchange of corporate stock for the plane and truck and the release by Curtis of the corporation, Hale and Sharpe were all part of one transaction. We cannot say that Curtis was released because he obtained something in exchange for his stock. It was desired to get him out of the corporation and, apparently, it could not then be determined to what extent, if anything, he was still liable to the corporation. This was an expeditious partial settlement of their various controversies and a method of getting Curtis out of the corporation. Curtis himself did not testify that the agreement was to contain a release in his favor. We therefore hold that Curtis was not released by the settlement of June 14. It is noted that the document signed by Curtis contained a release in favor of Hale and Sharpe. Whether the release given by Curtis is ineffective as to Hale and Sharpe because not supported by consideration is not now before us. We do not pass on that question.

The court’s reasons also included a finding that Curtis was not responsible for the failure to complete the U.S.D.A. contract. There was conflicting evidence as to whether Curtis actually agreed to have all the planes in operation at any particular time and whether the failure of the operable aircraft to properly function in dispersing Mirex more than it did was due to Curtis’ neglect, the inherent risks in these conversions or the late funding by Hale and Sharpe necessitating use of inferior metal. Further, there is substantial evidence from which to conclude that if the operable plane had not had engine failure (not attributable to Curtis) the contract would have been timely completed. We cannot say that the trial judge committed manifest error on this issue.

As to the payment of bonuses to pilots prior to May 31, the evidence justifies rejection of this claim. There was evidence that it is customary to pay pilots a bonus in addition to straight salary. Curtis stated that he had contracted to pay a bonus. He had full authority to do so. There is a document in evidence referred to by the parties as a prospectus. It is an analysis by Curtis made in the negotiation stages between him and the other two in-corporators to show his proposed contribution to the business assets, the amount necessary to free the planes of encumbrances and to ready them for operation. There is also included a projection of the profit-making capability of these planes after conversion. One of the expenses shown on this profit projection is a bonus to the pilots. Further, in its brief plaintiff does not urge this claim nor list it in its summary of amounts which should be allowed. Apparently that claim as well as the $600 item (similarly not urged for in brief or listed in the summary) has been abandoned.

We do not think Curtis can be held responsible for wages of the employees between May 29 and June 14. Plaintiff claims Curtis was without power to continue operation of the business because his authority to operate was revoked by board of directors meetings on May 29th and June 1st. No actual meetings of the board of directors were held on those dates. They were merely conversations between the three directors. No notices of these meetings were given as was done to effectuate a valid meeting of the board of directors on June 12th to 14th. Although the other two stockholders and directors decided to shut down the business immediately, Curtis thought it should continue and during that time tried to keep the corporation going. We cannot say he acted in bad faith or without authority. The trial judge so held and we think he was on solid ground in making that conclusion.

The above determinations dispose of all claims actually sued for in the two petitions except that for an accounting. In his brief, plaintiff lists seven other items for which he seeks recovery. Some of these concern Curtis’ failure to live up to what is termed the pre-incorporation agreement. Defendant argues that these pre-incorporation items cannot be considered under the pleadings and his objections during the trial. We think the case has been substantially tried, all evidence is in and the ends of justice would be served by our proceeding to dispose of these various claims which we will now consider.

One of these items is a $1,500 claim supposedly representing a fictitious increase in the price of an engine Curtis bought for the corporation. This would apparently come under the accounting but the evidence fails to preponderately show that the engine was actually bought for $4,000 instead of the $5,000. A $500 deposit check is in evidence and a corporate check to purchase a cashier’s check for $5,000 is also in evidence. The cashier’s check was not available and there is on one of the other checks an interlining of a $3,500 amount and a change to a $5,000 amount as representing the purchase price. All in all we cannot conclude that plaintiff has made out his case on this item.

Another accounting item is $1,975.12 for travel and living expense of Curtis and his wife. Curtis claims such fringe benefits were agreed to but Hale and Sharpe deny such. We do not think Curtis’ general managerial authority would authorize him to pay such expenses to himself. Under the straight salary admittedly agreed to he was to receive $1,000 per month. We are inclined to doubt the fringe benefit agreement in view of the denial by Hale and Sharpe. However, $400 of this item is for gas and oil for Curtis’ car used on the job and we think it is allowable to Curtis as naturally expected under the circumstances. Accordingly, plaintiff will be awarded $1,575.12 on this claim.

Another item is $1,500 consisting of a $1,000 ramp fee paid to release one of the planes and $500 interest paid by Curtis. These were amounts necessary to unen-cumber the aircraft shown in the prospectus and should be allowed.

Another of the items sought is $15,000 for two propellers which were adtnittedly included in corporate assets but at trial time not received by plaintiff. Shortly after the stipulation to deliver the corporate assets, an arrangement was made between Curtis and a representative of plaintiff to go to Florida to pick up the propellers. ' This appointment was cancelled at the instance of plaintiff’s representative. Apparently lack of communication then ensued. Under the order emanating from the rule and also the stipulation it was Curtis’ obligation to deliver these to the corporation and we think he should be held liable for their value. Curtis claimed these propellers were worth $2,500 to $3,000 each. Sharpe claimed they were supposed to have been overhauled and would be worth $7,500 each. We will allow a total of $9,000 for the value of the two propellers.

There are three other items claimed which total $15,000 and are for failure to furnish an engine, equipment and dispersal unit. These are assertable under the terms of the partnership or pre-incorporation agreement. We have previously referred to this. Although the items shown on the prospectus as amounts necessary to obtain the aircraft free of liens have been treated by us as a guarantee by Curtis, we do not necessarily conclude the same as to the figures pertaining to readying the aircraft for use. The testimony is contradictory on this point. We do not think the evidence preponderates that an absolute guarantee was intended by the parties as to these figures. The testimony is contradictory on this point. Later action by Hale and Sharpe in advancing additional funds to ready the aircraft and the financial arrangements made during incorporation tend to confirm the nonguaranty nature of that part of the prospectus. There was a substantial delay by Sharpe in advancing his share of the funds and Curtis attributes failure of the estimate to such delays as necessitating loss labor and incurring price increases. Under all the circumstances of the case, we do not think those items should be allowed.

Accordingly, for reasons assigned, the judgment of the district court on the main demand is reversed and it is ordered that there be judgment in favor of plaintiff, Frontier, Inc., and against defendant, Clayton Curtis, in the full sum of $12,075.12 plus legal interest from date of judicial demand and all costs and that plaintiff’s attachment be maintained and the lien and privilege arising therefrom be recognized on one Martin 404 aircraft, Registration No. 9234C, Serial No. 14143, located at Natchitoches Municipal Airport in Natchi-toches Parish, Louisiana. The judgment of the district court on the reconventional demand is reversed insofar as it dissolved the attachment and awarded damages of attorney fees and it is otherwise affirmed. All costs of this appeal are to be borne equally by the parties.

Reversed in part and rendered and affirmed in part.