author: CULPEPPER, Judge.

text:
    Arlene King BABINEAUX, Plaintiff and Appellant, v. PERNIE BAILEY DRILLING COMPANY et al., Defendants and Appellees.
    No. 5465.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Rehearing Denied Aug. 18, 1976.
    J. Minos Simon, Ltd. by Kenneth De-Jean, Lafayette, for plaintiff-appellant.
    Dubuisson, Brinkhaus, Guglielmo & Dauzat by James T. Guglielmo, Opelousas, for defendants appellees.
    Before HOOD, CULPEPPER and PETERS, JJ.
   CULPEPPER, Judge.

This is a suit for damages for the wrongful death of Cecil Babineaux, who was shot during a labor dispute. Plaintiffs are the minor children of the deceased. Defendants are Willie Castille and Merlin Joseph Hanks, Jr., who were employed to guard a drilling rig owned by defendant, Pernie Bailey Drilling Company. Hanks fired the fatal shot. From a jury verdict absolving defendants of all liability, plaintiffs appealed. ,

The substantial issue is whether the defendant Hanks was justified in shooting Babineaux in self-defense.

The death of Babineaux occurred in the midst of labor strife in St. Landry Parish resulting from an attempt by Oilfield Workers Union Local 1152 to organize certain employees of the oil industry. Mr. Babineaux was Business Agent for the Union. The Union had caused shut downs at eleven oil rigs previous to their attempt to organize at the one involved herein. Another organizer who worked closely with Babineaux was George Dufore.

Beginning in 1966, the Union, through its organizers, Babineaux and Dufore, had begun attempting to secure pledge cards from the employees of the Pernie Bailey Drilling Company. In January of 1967, a telegram was sent by the Union to Mr. Washburn, president of the Pernie Bailey Drilling Company in Texas. The telegram informed Mr. Washburn that approximately 85% of his employees at the Pernie Bailey rig had signed pledge cards and asked him to negotiate and collectively bargain with Oilfield Workers Union Local 1152. After no response was received from the Company, Mr. Washburn was notified that the employees would be pulled off its rig site in St. Landry Parish. Still no reply was received and two or three days later, the Union instructed the men who had signed pledge cards to stop work.

Subsequently, a protest demonstration occurred at the rig site in the very early part of February of 1967. It is the events following this protest that are of particular significance with respect to the eventual shooting of Cecil Babineaux. It was about the time of this first protest that Mr. Washburn became particularly concerned about the labor problems in Louisiana. He contracted with Southern Research Company for protection of his crews and for investigation, data gathering and photography.

In addition, he consulted with Sheriff D. J. “Cat” Doucet about the possibility of having sheriff’s deputies guard the work crews and the rig. Sheriff Doucet then sent two men to the Pernie Bailey rig for purposes of guarding it. The two men were Willie Castille and Merlin Joseph Hanks, Jr.

Castille had been a “special deputy” for Sheriff Doucet for ten to twelve years. Hanks had been hired only for the particular purpose of guarding the Pernie Bailey rig. He was the son of long-time sheriff’s deputy, Joseph Hanks, Sr. Each of the men obtained a badge through the office of Sheriff Doucet and each had a “special deputy” card showing that he was a sheriff’s deputy. However, no bond was posted by the sheriff for their performance, no oath was taken by them, nor were the other formalities followed to make them regular deputies. They were paid by Pernie Bailey, not by the sheriff.

On February 8, 1967, which was the day before the shooting, Mr. Washburn was present in one of two trailers located adjacent to the rig on the Pernie Bailey well site. It was an open area adjacent to a blacktop highway. The area was fenced and the rig sat toward the rear of the plot some 200 yards from the highway. The only access to the rig from the highway was through a cattle gap in the fence paralleling the highway. A “board road” extended from the highway to the rig itself.

On the afternoon of February 8, there were present at the rig site, in addition to Mr. Washburn, guards Castille and Hanks, several employees of Southern Research Company, Joseph Hanks, Sr. and a full rig crew. There is a conflict between the testimony of the witnesses for the plaintiffs and of those for the defendants as to what occurred on that date. Plaintiffs’ witnesses testified that Mr. Washburn had telephoned and invited Babineaux to meet him at the rig to discuss their problems. They say that despite Washburn’s invitation, when Babineaux and Dufore arrived at the rig they were greeted with drawn guns and were ordered to leave. Dufore, although of course he was a plaintiffs’ witness, testified Babineaux put his hand in his coat pocket and pointed his finger at the guard, as if he had a pistol, and said “Suppose I’ve got a gun and you’ve got a gun, if you are going to do anything, use your gun.” The guard then put his pistol back into his holster and Babineaux and Dufore went into the trailer where they talked to Washburn.

Plaintiffs’ witnesses testified further that on leaving the trailer, Babineaux was again accosted by defendant Hanks who had a drawn pistol in his hand and a large German Shepherd dog on a leash. Hanks told Babineaux that he was under arrest for trespassing and he was going to put him in jail. Babineaux responded that Hanks did not have the authority to arrest him. Plaintiffs’ witnesses say that Babi-neaux and Dufore then walked back on the board road to their car. They say that Ba-bineaux made no threats and acted in a generally peaceful manner.

Defendants' witnesses gave an entirely different version of the events of February 8. Mr. Washburn testified he had not invited Babineaux to the rig. The defense witnesses testified that when Babineaux and Dufore entered the board road the guards ordered them off the premises and drew their pistols to force them to leave. Babineaux then put his hand in his coat pocket and pointed his finger at the guard, as if he had a pistol. Witnesses for the defense say that there was a heated exchange of words with Babineaux demanding to see Mr. Washburn. They say Babi-neaux was very excited, that his eyes were dilated and that he made threats of violence in a loud voice. There is testimony that Babineaux said to Mr. Perks, one of the employees of the Southern Research Company, “Get out of my way or I’ll kill you.”; that he said to Mr. Oster, also an employee of Southern Research Company who was taking pictures, “I’m going to stick him like a chicken and make him bleed.”; and that he also threatened to kill others who were there.

Defendants’ witnesses testified that after Babineaux left the trailer following his conference with Mr. Washburn, he stated that he was going to shut the rig down “one way or the other”. These witnesses said Babineaux was cursing and screaming in a loud voice and stated that he was going to blow the rig up. Babineaux reportedly kept pointing with his finger in his pocket as if he had a gun. Mr. Hanks, Sr. tried to grab Babineaux’s hand and pull it out of his pocket to see if he had a pistol. Babineaux spun around and almost knocked Hanks, Sr. to the ground. Babi-neaux told Mr. Hanks, Sr. he was “too old to be here, you ought to be with your old lady.” He said to Hanks, Jr. that he was “too young to die.”

This entire scene that occurred on February 8 was recorded on movie film by one of the members of the Southern Research team. The film was shown to the jury. From the movie, the jury could have reasonably believed that the events of February 8 were substantially as testified to by the witnesses for the defense.

On the night of February 9, a meeting of the Union was held in Lafayette. The membership decided they would go to the entrance to the rig site to try to prevent the men on the new shift from going to work. Estimates of the number of men who went to the rig vary from 30 to 80. There is a conflict between the testimony of the witnesses for the plaintiffs and those of the defendants as to the events which occurred at the rig that night.

Plaintiffs’ witnesses testified the union members agreed they would stay on the road and make a peaceful protest with “no guns whatsoever.” They went to the rig site at about 10:45 p. m., just before the change of working shifts. When the new crew arrived in an automobile, the union members gathered around it and attempted to persuade the occupants not to go to work. Plaintiffs’ witnesses testified that as Babineaux was talking to the driver, Castille, who had been following the new shift in an escort vehicle, rushed up to Ba-bineaux and said: “You’re under arrest, you SOB, I am going to take you in,” and that then he started hitting Babineaux over the head with his pistol. According to these witnesses, Babineaux made no response except to say “You don’t have the authority to arrest me; call Cat Doucet, I’ll go with him.”

Plaintiff’s version of the incident is that Castille continued to scuffle with and push Babineaux and then fired a shot over his head but missed. They say Babineaux then backed off and had his hands out of his pockets when Hanks fired his shotgun, knocking off Babineaux’s hat. According to these witnesses, Babineaux then threw up his hands and said: “Okay, okay, call the sheriff, I’m under arrest.” Plaintiffs’ version of the killing is that while Babi-neaux had his hands up, defendant Hanks deliberately fired his shotgun again from a distance of about 15 feet, striking Babi-neaux in.the head and killing him instantly.

The version of the incident given by witnesses for the defense is entirely different. They testified that when the vehicle occupied by the new shift arrived, Babineaux said “don’t let them through, men, they are not going to go over you, they are not going to run over you.” Several of the union members got in front of the car to stop it. Then, when the escort vehicle pulled up and Castille jumped out, the driver of the work crew vehicle spotted a break in the crowd and sped on through down the board road to the rig. The defendant Hanks testified that as Castille jumped from the escort vehicle, Babineaux put both of his hands in his coat pocket and Hanks thought Babineaux had a gun. Babineaux turned toward Hanks with his hands in his pockets. Castille then tried to protect Hanks by hitting Babineaux on the head with his pistol, but was unable to effectively do so. Hanks testified that Babi-neaux turned back toward him with his hand in his pocket as if he had a pistol and at this point Hanks fired his shotgun the first time, intending to fire over Babi-neaux’s head, but the shot knocked Babi-neaux’s hat off. Hanks said that immediately after that, Babineaux reached down and picked up his hat, put it back on his head and kept coming toward Hanks. At this point, both Hanks and Castille fired. Castille missed, but Hanks hit Babineaux in the head.

Hanks testified he fired the fatal shot because he thought Babineaux had a pistol in his pocket and was going to shoot him. Castille also testified that he thought Babi-neaux had a gun and that he was going to kill Hanks.

It was ultimately determined that actually Babineaux had no weapon on his person. However, there is also testimony that Du-fore and some of the other union members had warned Babineaux not to put his hands in his pockets and make threatening gestures as if he had a gun, because that would be dangerous.

On appeal, plaintiffs-appellants contend that the fatal shooting occurred on public property and was an attempted illegal arrest by persons with no legal authority to arrest. In addition, they suggest defendants, Hanks and Castille, were the aggressors and that therefore Babineaux had the legal right to resist by reasonable means. They urge that because Hanks and Castille were the aggressors, they “are not entitled as a matter of law to plead self-defense.”

Conversely, defendants urge that Babi-neaux was the aggressor and that therefore defendants, Hanks and Castille, had the legal right to use such force as was reasonably necessary to repel his attack.

There is no dispute as to the applicable law. In a suit for damages for battery, a plaintiff cannot recover where he was the aggressor who provoked the difficulty in which the injury was received. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969); Squyres v. Phillips, 285 So.2d 337 (La.App. 3rd Cir. 1973).

Furthermore, the rule is established that even where the plaintiff was the aggressor, the person retaliating may use only so much force as is reasonably necessary to repel the attack, and if he goes beyond this he is liable for damages. Tripoli v. Gurry, supra, Oakes v. H. Weil Baking Company et al., 174 La. 770, 141 So. 456 (1932).

In the present case the testimony is in conflict, as stated above, but there is ample evidence which, upon its reasonable evaluation of credibility, the jury could have reasonably found that Babineaux was the aggressor. His actions on February 8 were highly aggressive. Without an invitation, he and Dufore went to the rig and trespassed upon the well site. He threatened to kill people, to blow up the rig and to shut down the drilling by whatever means necessary. Then on the night of February 9, he returned with what was literally a “mob” and lead them in aggressive acts. Babineaux ordered his men to block the entrance to the board road and to prevent the passage of the automobile carrying the new crew. When Hanks and Cas-tille attempted to clear the way, Babineaux put his hands in his coat pockets and pointed as if he had a weapon, his obvious purpose being to frighten Hanks and Castille. According to the testimony of the defense witnesses, whom the jury had a right to believe, there is no question that the aggressive acts of Babineaux caused this entire altercation.

Having concluded that Babineaux was the aggressor, the next question is whether Hanks used reasonable force in repelling this aggression. In determining what force is justified in repelling an attack, or what is reasonably believed to be an attack, we must consider all of the facts and circumstances attendant at the scene of the incident. One of these factors is the character and reputation of the person making the attack. In this case, Hanks knew that on the day before Babineaux had threatened to kill people, to blow up the rig, and to do anything necessary to stop drilling operations. It was certainly reasonable for Hanks to believe that Babi-neaux was a violent man.

Furthermore, the entire scene was one of violence and apprehension for those involved. A “mob” of men were attempting to prevent the entrance of the automobile carrying the new crew. Everyone was excited and tempers were at the breaking point. When Babineaux thrust his hand into his pocket and pointed toward Hanks as-if he held a weapon, Hanks was justified in using his own weapon to repel the attack. It is important to note that Cas-tille also thought Babineaux was about to shoot Hanks, and that Castille also fired a shot at Babineaux, but missed.

The record in this case is voluminous and contains the detailed testimony of witnesses who gave contradictory versions of the occurrences. The jury obviously chose to believe the version of the facts presented by the defendants. Under those facts, Babineaux was the aggressor and Hanks was justified in shooting Babineaux in self-defense. Clearly, the record contains a reasonable evidentiary basis for these conclusions by the trier of fact. Canter v. Koehring, 283 So.2d 716 (La.1973).

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

AFFIRMED.


source: Caselaw Access Project

author: PETERS, Judge ad hoc. HOOD, Judge

license: Public Domain

text:
    CANE RIVER NEEDLE ART et al., Plaintiffs-Appellees, v. REON, INC., et al., Defendants-Appellants.
    No. 5468.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 1976.
    Rehearings Denied Aug. 18, 1976.

      Kelly & Ware by Richard Ware, Natchi-toches, for defendants-appellants.
    G. F. Thomas, Jr., Natchitoches, for plaintiffs-appellees.
    Before CULPEPPER, PETERS and HOOD, JJ.
   PETERS, Judge ad hoc.

This suit arose out of the destruction of a party wall that existed between a building leased by plaintiffs and one owned by defendant Reon, Inc.

Plaintiffs Wilhelmina D. Jolley and Sally P. Griffin, partners in Cane River Needle Art, leased a building from W. D. Carter for operation of a crewel and needlepoint shop. Carter had purchased the property from W. H. Franklin, Jr. in 1969 and the act of sale recited that the “western wall of the Carter Jewelry Store (plaintiffs’ premises) shall be and remain a party wall between the parties hereto.” At the time of the sale to Carter, Franklin retained the adjacent parcel of land along with the building situated thereon; this building was attached to the Carter building at the party wall. In 1974, Franklin sold the remainder of the property to Reon, Inc., and the act of sale from Franklin to Reon, Inc. recited that the wall between Carter’s building and the building being purchased by Reon, Inc. was a party wall.

Reon, Inc. purchased the property for construction of a parking lot to serve an establishment it owned adjacent to the Reon and Carter properties. Reon, Inc. attempted to purchase Carter’s property so it could tear down his building, as well as their own, and make one large parking lot. The location of Carter’s building threatened to hamper the plans of Reon, Inc. so Reon, Inc. wanted Carter’s building removed. Carter declined to sell his property. Reon, Inc. then proceeded to begin demolition of its building in March of 1975. James Rex Fair, president of Reon, Inc. and a defendant in this suit, contracted with Jerry Cook to demolish the building. Several days after demolition began, the workers doing the demolition discovered that the party wall consisted of only a single layer of bricks and the north and south walls of the Reon building were tied in to the party wall. The north and south walls of the Carter building were not connected to the party wall. The roof of the Carter building was attached to the Reon building in only two places. As one witness put it, the Carter building was just “tacked on” to the Reon building. The workers informed Mr. Fair they believed the roof of the Carter building would collapse if demolition of the Reon building continued.

Subsequently, Mr. Fair, Mr. Carter’s attorney, and several other people inspected the buildings. Mr. Fair told Carter’s attorney he felt the roof of the Carter building might fall. Carter’s attorney then advised Carter he should ask his tenants to vacate the premises due to the dangerous condition of the building. Plaintiffs moved out and ceased operating their business. This occurred about the middle of March, 1975, and Fair stopped the demolition.

Nothing further was done until April, when Carter hired a carpenter to build a temporary wooden wall inside his building, about four inches east of the party wall, and plaintiffs moved back into their shop on April 22. At the end of June, demolition of the Reon building was resumed with a bulldozer and truck. At some point during the renewed demolition the party wall was struck by the bulldozer and knocked to the ground. In the course of the renewed demolition it was difficult for plaintiffs to operate their business due to frequent disturbances. The walls of their shop were shaken several times; their electrical outlets were disconnected; large beams from the Reon building were thrown into the parking area in front of plaintiff’s shop; after the brick party wall collapsed, the shop became very hot because only the temporary wall remained and water flowed into the shop when it rained. Plaintiffs eventually moved their business to another location.

Plaintiffs filed suit for damages on April 15, 1975. A supplemental petition setting forth additional grounds for damages was filed on July 14, 1975. After trial, the lower court rendered judgment in favor of the partnership for $1500.00. In addition, judgment was rendered in favor of Wilhelmina D. Jolley for $2,000.00 and in favor of Sally P. Griffin for $2,000.00. The court found that James Rex Fair and Reon, Inc. were solidarily liable to all plaintiffs for these damages. Defendants have appealed.

Defendants present three contentions:

(1) That Reon, Inc. did nothing in demolishing its building that it had no legal right to do.

(2) That James Rex Fair at all times acted as an agent for Reon, Inc. and therefore assumed no personal liability, and

(3) That, in any event, the lower court’s award of damages is excessive.

I. LIABILITY OF REON, INC.

As the basis for its argument that it acted within its rights, Reon, Inc. relies on Heine v. Merrick, 41 La.Ann. 194, 5 So. 760 (1894). Reon points to language in the Heine opinion indicating that a co-proprietor, if he wishes to raise the height of a common wall, may disturb the enjoyment of the wall by the other co-proprietor and may enter upon the co-proprietor’s premises as is necessary for raising the height of the wall. Defendant argues that a co-proprietor who wishes to demolish his building which is attached to a party wall has a right to cause such disturbance to his neighbor as is necessary to achieve the demolition of his building. We have no quarrel with this argument, but find that Reon, Inc. went beyond what was allowed by law. After finding that a co-proprietor could with impunity cause inconvenience to his neighbor in rebuilding a party wall, the court in Heine went on to say this:

“But, on the other hand, plaintiffs are responsible for every exaggeration of these necessary damages, which, by any diligence, they could have prevented. They were bound, by every means in their power, to reduce to a minimum the injury and inconvenience occasioned to their neighbor; to occupy his property to the least extent and for the shortest time consistent with the exercise of their right; and to hasten, by all practical means, the completion of the wall and the restoration of the neighbor to the full enjoyment of his property.
“They were, moreover, bound, at their peril, to replace the neighbor, at the end of the work, in a position equal in every respect to that which he occupied in the ■beginning, and to furnish him a wall fit and adequate to support his building without injury.”

We note initially that plaintiffs, although not the owners of the premises damaged, are entitled to damages for unlawful disturbance of their possession of the leased premises. LSA-C.C. 2703; Gettwerth v. Heddon, 30 La.Ann. 30 (1878); Esmile v. Violet Trapping Co., 187 La. 728, 175 So. 471 (1937). The present case is distinguished from the recent case of Desormeaux v. Central Industries, Inc., 333 So.2d 431 (3rd Cir. 1976) in which we applied the general rule that a person who suffers damage only because of his contractual relationship with the victim of a tort has no cause of action against the tort feasor. The present case is distinguished from Desormeaux in that LSA-C.C. 2703 expressly provides that a lessee has a cause of action against a third person tort feasor who disturbs the possession of the lessee.

We find Reon, Inc. failed to take any steps to minimize the damage and disturbance caused by its actions. After it was discovered that demolition work had rendered the Carter building unsafe for use, defendant did nothing whatsoever to make the building safe and habitable. Plaintiffs were forced to stay out of the building for a period of about five weeks and were only able to return because their lessor eventually hired a carpenter to build a temporary wall inside the Carter building. In July, after demolition had been renewed, defendant’s contractor completely knocked down the party wall and defendant made no attempt to rebuild it. Furthermore, as already pointed out, the demolition work was done in such a way that it caused repeated disturbances to plaintiffs while they were occupying the Carter building. We feel these disturbances were excessive and unnecessary.

We therefore conclude the lower court was correct in granting judgment against Reon, Inc.

II. LIABILITY OF JAMES REX FAIR.

James Rex Fair argues he did nothing in regard to the demolition work which would subject him to personal liability. He contends that in his capacity as President of Reon, Inc. he hired Jerry Cook to do the demolition work and Jerry Cook was therefore working for Reon, Inc. and any tortious conduct of Jerry Cook would render Reon, Inc., not James Rex Fair, liable.

This argument has no merit. The record reflects far more involvement by Mr. Fair than he admits. We find at the outset of the demolition, Mr. Fair took no steps to minimize the damages and inconvenience to plaintiffs. Certainly it was apparent that demolition of the Reon building, if not done properly, would cause a great deal of disturbance to the tenants of the Carter building. Yet, Mr. Fair testifed he told the contractor to tear down the Reon building up to the party wall but he gave the contractor no instructions on how this task should be accomplished. When it was discovered the party wall consisted of only one layer of bricks, Mr. Fair was advised of the dangerous situation which had been created by the demolition. He, in fact, personally inspected the premises. He knew that plaintiffs would have to vacate their building due to the danger and yet he did nothing to alleviate the hazard so that plaintiffs might be able to carry on their business. Later, when demolition was resumed, Mr. Fair, knowing the delicate condition of the party wall, allowed demolition to be resumed with a bulldozer which proceeded to completely destroy the party wall. In fact, Fair admitted he knew the party wall would collapse when the remainder of the Reon building was torn down because there would be nothing left to support it. Still, he ordered the remainder torn down in total disregard of plaintiffs’ rights.

Reon, Inc. was described by Fair as an “investment type corporation for commercial and rental type properties.” Fair and another individual were the sole shareholders in Reon, Inc. As already stated, Fair was president of Reon, Inc. and it appears from the record that Fair was responsible for conducting most of the business of the corporation.

Reon, Inc., as co-proprietor of the party wall, owed certain duties to plaintiffs regarding the party wall (see discussion of liability of Reon, Inc., above). It is clear from the record that Reon, Inc. delegated these duties to its president, James Rex Fair. It is equally clear that Fair, by his actions discussed in this section, breached those duties. He is therefore liable to plaintiffs for damages. Canter v. Koehring, La., 283 So.2d 716 (1973).

We conclude the lower court was correct in finding James Rex Fair liable in solido with Reon, Inc. for all damages occasioned by the reckless demolition of the Reon building.

III. AMOUNT OF DAMAGES.

Defendants contend that, even if damages are due, the disturbances caused by defendant are not such as to warrant an award of $1500 to the partnership and $2000 to each of the individual plaintiffs. We have reviewed the record and find the trial judge was within his discretion in his award of $1500 to the partnership. However, we feel the award of $2000 to each of the individual plaintiffs for their mental anguish is excessive. We therefore will reduce that award to $500 to each of the individual plaintiffs.

For the reasons assigned, the judgment of the lower court is hereby amended to award judgment against Reon, Inc. and James Rex Fair, in solido, for $500 to Wilhelmina D. Jolley and $500 to Sally P. Griffin. In all other respects, the judgment of the lower court is affirmed. Costs in this court are assessed against defendants-appellants.

Amended and affirmed.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

I agree with my colleagues that defendant Reon, Inc. is liable for the damages sustained by plaintiffs, and that the awards for mental anguish made by the trial court are excessive and should be reduced. I do not agree, however, that defendant James Rex Fair was negligent or that he is liable to plaintiffs for any amount whatsoever.

The evidence which tends to show fault on the part of Reon is weak, and my original impression was that defendant, as well as Fair, was not liable. I am yielding to the views of the majority as to Reon, however, primarily because the law places a heavy responsibility on the co-owner of a common wall who undertakes to demolish and rebuild that wall “to reduce to a minimum the injury and inconvenience occasioned to their neighbor.” See the quotation in the majority opinion from Heine v. Merrick, 41 La.Ann. 194, 5 So. 760 (1889). See also Gettwerth v. Hedden, 30 La.Ann. 30 (1878); Bergeron v. Con-Plex, Inc., 255 So.2d 397 (La.App. 1 Cir. 1971); McKinnon v. Caddo Parish Police Jury, 262 So.2d 834 (La.App. 2 Cir. 1972); Reynolds v. Egan, 123 La. 294, 48 So. 940 (1908); Esmele v. Violet Trapping Co., 187 La. 728, 175 So. 471 (1937); Yiannopoulos, “Common Walls, Fences and Ditches: Louisiana and Comparative Law,” 35 La. L.Rev. 1249, 1286.

In the instant suit I agree that Reon may have been able to hasten the completion of the demolition work a little more, and by doing so it may have reduced the “inconvenience” occasioned to plaintiffs by that work.

Defendant Fair, however, did not own the building which was being demolished, and he was not a co-owner of the common wall. He thus was not subject to the heavy responsibility which the law placed on the owner, and I do not believe that he is liable to plaintiffs for damages, either individually or as an executive officer of Reon, unless he was guilty of at least some negligence which caused or contributed to that damage. I find nothing in the record to show that Fair was negligent in any respect.

Reon had the absolute right to demolish its building. It engaged an independent contractor, Jerry Cook, to do the job, and I find nothing in the record to show that Fair ever undertook to direct Cook as to the manner in which the demolition work was to be conducted.

Cook began demolishing the building on March 10, 1975. Within three or four days thereafter, he discovered that the common wall between the two buildings was only one brick thick, and that its original construction was such that the wall could not stand alone, that it would not safely support the roof of the Carter building, and that it eventually would fall of its own accord. When that information was conveyed to Fair, he immediately ordered that the demolition work be stopped and he notified Carter of that discovery. Fair then arranged a meeting with Carter, the latter’s attorney and a contractor, to inspect the building, and following that inspection, all agreed that the original construction of the wall was so defective that it constituted a danger to the occupants of the Carter building. Carter thereupon asked plaintiffs to vacate the building until a new west wall could be constructed, and he undertook to have that wall built. Plaintiffs vacated the Carter building on March 14, just four days after the demolition of the Reon building was commenced. Fair instructed Cook to discontinue demolishing the Reon structure, and no further work was done by Cook in tearing down that building until June 30, 1975, long after Carter had completed the construction of a new west wall and after plaintiffs had reoccupied the building. I thing Fair did everything he could to prevent damage to plaintiffs during that period.

The contractor engaged by Carter to rebuild the west wall of his building completed his work by April 22, and plaintiffs moved back into the Carter building on that date. They continued to occupy it from that date until some time in July, 1975. The evidence convinces me that they vacated the building at that time, not because of the demolition work done by Reon, but because the air conditioning unit provided by Carter did not adequately cool the building during the summer months.

The independent contractor engaged to demolish the Reon building resumed his demolition work on June 30, 1975, and he completed that work within two or three days thereafter. A part of the original brick west wall of the Carter building fell while the last part of the demolition work was being done, and the contractor removed the rest of that wall. He did not strike or damage the new frame wall which Carter had constructed on the west side of his building. I do not find that plaintiffs were disturbed or inconvenienced during that two or three day period, except that they found some debris in their parking area on the morning of June 30. Cook’s employees removed that debris immediately after plaintiffs asked them to do so. Even if plaintiffs did suffer some inconvenience, however, the evidence does not show that Fair did anything to cause or contribute to it.

In my opinion, the trial judge erred in finding defendant Fair liable, individually, for the damages sustained by plaintiffs.

For these reasons, I respectfully dissent.


author: PETERS, Judge ad hoc.

text:
    URANIA ENTERPRISES, INC., Plaintiff-Appellee, v. The TRAVELERS INDEMNITY COMPANY, Defendant-Appellant.
    No. 5485.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Rehearing Denied Aug. 18, 1976.

      John L. Pitts, Alexandria, for defendant-appellant.
    Don C. Burns, Burns & Lewellyan, John J. McKeithen, Columbia, for plaintiff-appellee.
    Before HOOD, WATSON and PETERS, JJ.
   PETERS, Judge ad hoc.

This is a suit for the proceeds of a fire insurance policy. Defendant issued a policy covering plaintiff’s store building and contents, affording coverage of $20,000.00 on the building and $40,000.00 on its contents.

The building and contents were completely destroyed by fire on September 22, 1974. It was stipulated by defendant that plaintiff’s loss exceeded the policy limits. Defendant refused to pay under the policy, contending plaintiff breached the insurance contract by failing to put the building’s sprinkler system in working order. The lower court rendered judgment for plaintiff in the amount of $60,000.00, with penalties of twenty-five percent of the judgment and attorney’s fees of $7500.00. The principal issue presented in the court below and on appeal is whether plaintiff breached any condition of the policy which would increase the physical hazard under the policy.

The policy described the building as a “sprinklered building.” Defendant charged plaintiff a lower premium than it would have charged had there been no sprinkler system. The policy contained the following clause:

“K. Fire Protection Clause (applies only when credit in rate is allowed): In consideration of the rate at which this policy is written, it is a condition of this policy that the insured shall:
“1. Exercise due diligence in maintaining in complete working order all equipment and services, which are under the control of the insured, for the detection, prevention, or extinguishment of fire.
“2. Give immediate notice of any impairment in or suspension in any sprinkler system, its water or chemical supplies, or any watchman service, (within the knowledge of the insured) to this company or the Louisiana Rating and Fire Prevention Bureau.
“Failure to comply with the above provision shall suspend the fire insurance as respects the location affected during the time the sprinkler system, its water or chemical supplies, or any watchman service is inoperative.”

Defendant contends the sprinkler system was inoperative at the time of the fire. Plaintiff purchased the insured building from the Georgia-Pacific Corporation in 1969. The building, located in the Town of Urania, had been operated by Georgia-Pacific as a commissary in connection with a Georgia-Pacific sawmill located just outside of town. The sprinkler system in the commissary operated with water from the fire protection system at the sawmill. The fire protection system consisted of a large tank at the mill, into which water was pumped from a pond, with water lines going out in several directions. One line went from the tank into the town of Urania, and the sprinkler system was connected to this line. The sawmill was totally destroyed by fire at least one year before plaintiff’s building burned. After the sawmill fire, the pumps which supplied water to the big tank were abandoned. Subsequent to the sawmill fire, several fire hydrants connected to the abandoned water system were bulldozed over. It is defendant’s position the sprinkler system could not possibly have worked on the night of the fire. Defendant further contends plaintiff knew the sprinkler system was inoperative and did nothing to put it in working order. The Mayor of the Town of Urania testified that Mr. P. A. Paul, a major shareholder in Urania Enterprises, asked him on several occasions before the fire about having the sprinkler system hooked up to the town water supply. He further testified that after the fire, Paul attended a meeting of the town council and threatened to sue the town; Paul blamed the town for not supplying him with a water connection to activate his sprinkler system.

P. A. Paul conceded he had spoken to the Mayor several times about a connection with the town water system but contends the old sawmill system was still supplying water at the time of the fire. Paul had an icemaking machine located in the commissary building and the ice machine’s condenser was connected to the sprinkler system’s water supply line. Paul testified he operated the icemaker on several occasions after the sawmill fire and on all but one occasion the machine’s condenser worked without any problems. He stated on one occasion when the condenser failed to work, he discovered a closed valve near the sawmill on the supply line was responsible. He opened the valve and the water supply returned to the condenser. This was corroborated by another witness. He testified the dirty sprinkler system water was clogging up the condenser and his only reason for wanting to connect the sprinkler system to the town water was to get a supply of clean water. Paul conceded he went to the town council meeting after the fire and threatened to sue the town for his fire loss, but denies the sprinkler system was inoperative at the time of the fire.

We find no manifest error in the lower court award of $60,000 and therefore affirm that award. Although it appears the sprinkler system was not functioning at the time of the fire, the evidence concerning plaintiff’s knowledge of the condition of the sprinkler system was in conflict, and the trial judge could reasonably conclude plaintiff did not know there was insufficient water in the sawmill fire protection system to operate the sprinkler system. Canter v. Koehring, La., 283 So.2d 716 (1973).

However, we must reverse the award of penalties and attorney’s fees. Penalties and attorney’s fees may only be awarded when the insurer’s failure to pay the claim is arbitrary, capricious, or without probable cause. LSA-R.S. 22:658. In the instant case, it appears the insurer reasonably believed plaintiff had breached a condition of the policy and therefore was not entitled to recover. The insurer was entitled to present such a breach as a defense to liability and cannot be ordered to pay penalties and attorney’s fees for its failure to pay.

For the reasons assigned, the judgment of the lower court is hereby reduced to $60,000. All costs of this appeal are assessed against defendant-appellant.

Amended and affirmed.


text:
    Roy Lynn CARNEY and Betty Jo Carney, Plaintiffs and Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants and Appellants.
    No. 5488.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Rehearing Denied Aug. 18, 1976.

      Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendants and appellants.
    Kelly, Seaman & Ware by Richard N. Ware, Natchitoches, for plaintiffs and ap-pellees.
    Before CULPEPPER, GUIDRY and BERTRAND, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries received in an automobile accident. The plaintiff, Mrs. Betty Jo Carney, was driving her automobile. It collided with a pickup truck driven by defendant’s insured, Alton Holman. The district judge held Holman was negligent. He absolved Mrs. Carney of contributory negligence on the basis of the sudden emergency doctrine. Defendant appealed.

The issues are: (1) Was Holman negligent? (2) Was Mrs. Carney contributorily negligent ?

' The accident occurred in a rural area in Natchitoches Parish at the “T” intersection where Davis Springs Road, which runs east and west, is intersected from the north by Davis Springs Loop Road. Both are narrow parish roads of blacktop construction without center line markings. The intersection is uncontrolled. It has no stop or yield signs or other control devices.

The accident occurred during hours of daylight. Plaintiff, Betty Jo Carney, was proceeding in a westerly direction on the Davis Springs Road at a speed of 35 to 40 miles per hour. The posted speed limit on the road was 55 miles per hour. At the same time, Mr. Holman was traveling in a southerly direction on Davis Springs Loop Road, approaching the intersection. Plaintiff says she could not see the Holman vehicle because of trees and bushes. She thought she had the right of way, so she did not even slow down. She first saw Holman’s truck in the intersection. She applied her brakes, but the vehicles collided in about the center of Davis Springs Road a few feet east of the intersection.

Holman testified he slowed at the intersection and looked in both directions. Seeing none, he proceeded into the intersection and turned toward the east. He contends he was in the east bound lane about 48 feet from the intersection when the left front of his pickup truck was struck by the left front of the Carney automobile.

The Louisiana Highway Regulatory Act provides the right of way of vehicles at intersections in this state. LSA-R.S. 32:121 states:

“Vehicles approaching or entering intersection.
“A. When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left, shall yield the right of way 'to the vehicle on the right.
“B. The right of way rule declared in Subsection A is modified at through highways and otherwise as hereinafter stated in this part.”

Thus, where two cars enter an intersection at about the same time, the vehicle on the right has the right of way, unless the other vehicle is on a “through highway.” A “through highway” is defined by LSA-R.S. 32:1(57) as “every highway or portion thereof on which vehicular traffic is given preferential right of way, and at the entrances to which vehicular traffic from intersecting highways is required by law to yield the right of way to vehicles on such through highway in obedience to either a stop sign or a yield sign, when such signs are erected as provided in this chapter.”

This provision has been construed to mean that a highway does not become a “through highway” unless so designated by stop or yield signs erected in accordance with a statute or ordinance adopted by the appropriate authority. Neal v. Davenport, 270 So.2d 617 (La.App. 2d Cir. 1972).

In the instant case, there was no designation by any authority that either Davis Springs Road or Davis Springs Loop Road was a preferred or “through highway”. Neither, as aforementioned, were any stop or yield signs erected at the intersection.

Counsel for plaintiff-appellee urges however that Davis Springs Road should be considered a “through highway” at this intersection because of a local “custom” by residents of the area. He cites the case of Hoover v. Wagner, 189 So.2d 20 (La.App. 1st Cir. 1966) as recognizing “that superiority could be accorded one street over another by local custom notwithstanding the fact that neither has been formally decreed the favored thoroughfare.”

In Hoover, the First Circuit held that a roadway might be a superior one notwithstanding that it had not been formally declared to be such. The court held this was true because (1) plaintiff was approaching from the right of defendant and thus had a statutory right of way and, (2) the street on which defendant traveled was a “short residential street running one or two blocks in length.” The court also noted that defendant “was fully aware of the superiority accorded ... by local custom.”

To the extent Hoover holds that by custom one street may be accorded preferred status over another, we choose not to follow that decision. Although LSA-C. C. Article 3 provides that “Customs result from a long series of actions constantly repeated, which have by such repetition, and by uninterrupted acquiescence, acquired the force of a tacit and common consent.”, a statutory rule of law cannot be changed, nor its applicability affected, by local custom. Harrington v. Upchurch, 331 So.2d 506 (3rd Cir. 1976) and cases cited therein. The definition of “through highway” is clearly provided by the above quoted LSA-R.S. 32:1(57). Custom may not be utilized to change this statutory definition. See State Farm Mutual Automobile Insurance Company v. Niagara Fire Insurance Company, 183 So.2d 145 (La. App. 1st Cir. 1966), writ refused.

Although LSA-R.S. 32:121 uses the term “intersection”, that term is defined by the statute very broadly, LSA 32:1(19), and has been held to include both “T” and “Y” intersections. Excel Insurance Company v. Hunt, 221 So.2d 65 (La. App. 3rd Cir. 1959); Smith v. Trinity Universal Insurance Company, 270 So.2d 637 (La.App. 2d Cir. 1972).

However, the statute does not grant an unqualified right of way to the vehicle on the right. In Excel Insurance Company v. Hunt, supra, we stated the rule as follows:

“Where the intersecting streets are of equal dignity, a motorist who has the right of way under LSA-R.S. 32:121(B) because the other vehicle is approaching from his left, is nevertheless required to exercise reasonable care as he approaches the intersection, including the obligation of maintaining a proper lookout. The degree of care which is required of the operator of a motor vehicle approaching an intersection from the right, when streets are of equal dignity, is much greater than that imposed on the driver approaching an intersection on a favored or right of way street which is controlled by signs or traffic signals. James v. Employers Liability Assurance Corporation, 202 So.2d 424 (La.App. 4th Cir. 1967); Smith v. Borchers, 243 La. 746, 146 So.2d 793 (1962); Veith v. Travelers Insurance Company, 204 So. 2d 671 (La.App. 4th Cir. 1967).”

In the instant case, defendant Holman testified that as he approached the intersection he slowed down and looked for traffic in both directions. He stated it was necessary for him to pull “almost out” into the intersection in order to see. Seeing no approaching vehicle, he then proceeded into the intersection where he immediately observed the Carney vehicle about to collide with his truck. Several witnesses testified that at the time of the accident the view of both Holman and Mrs. Carney was obscured by brush, trees and bushes at the intersection. However, Trooper I. T. Chambers, who investigated the accident, testified that with his vehicle “standing” on Davis Springs Loop Road at the intersection he could have seen a car approaching on Davis Springs Road from the east at a distance of 150 to 175 feet.

Under the above stated rules of law applicable to this case, Mr. Holman had a duty not only to slow down for the intersection, but, if necessary for a complete observation of the intersection and to safely proceed therein, to come to a complete stop. This is especially true since his view was obstructed by brush and other vegetation. As we noted above, the mere fact that Mr. Holman was on the right did not grant him an absolute right of way. He did not have the right to assume that no vehicle was approaching from his left. Nor did he have the right to assume that if a vehicle was approaching from his left, it would yield the right of way.

We agree with the finding of fact of the trial judge that Mr. Holman was negligent.

However, we cannot agree with the trial judge that Mrs. Carney was free of contributory negligence. As stated above, this was an uncontrolled intersection of highways of about the same size. Mrs. Carney was approaching from the left. Under the clear provisions of LSA-R.S. 32:121, A, she was required to yield the right of way to the vehicle on her right. Of course, Mrs. Carney had a greater duty of care than Holman. Before entering this intersection, she had the duty to slow down, and even to stop, if necessary, to ascertain whether any vehicles were approaching the intersection from her right. Of course, she had the duty to yield the right of way to any such vehicles approaching from her right. Clearly, she violated these duties. She testified she thought she had the right of way. She did not even slow down, she did not observe the Holman vehicle until after it had entered the intersection, and she failed to yield the right of way. We conclude that Mrs. Carney was guilty of contributory negligence barring plaintiffs’ recovery.

In his written reasons, the trial judge did not address the question of the directional right of way at this unmarked “T” intersection nor the respective duties of the two motorists. He stated that defendant Holman “in driving his vehicle out into the ‘T’ intersection created an emergency, and Mrs. Carney was confronted with taking such steps as were possible for her to stop her vehicle.”

We cannot agree that the sudden emergency doctrine applies here. Under this doctrine, a person who is confronted by a sudden emergency, not of his own making, and who does not have sufficient time to consider all of the possible ways to avoid an accident, is not guilty of negligence if he fails to adopt the best solution. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972). However, a person can seek no relief under this doctrine where his own negligence caused or contributed to the creation of the emergency. Coward v. United States Fidelity & Guaranty Company, 289 So.2d 506 (La.App. 3rd Cir. 1974). Mrs. Carney’s negligence was a cause of this emergency.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the defendants-appellants and against the plaintiffs-appellees, dismissing plaintiffs’ suit at their costs. All costs in the trial and appellate courts are assessed against the plaintiffs-appellees.

REVERSED AND RENDERED.


author: GUIDRY, Judge.

text:
    Chester F. DUPONT d/b/a B & D Electric Company, Plaintiff-Appellee, v. Marvin POOLE et al. (Little Lodge of Opelousas Inc., Garnishee), Defendant-Appellant.
    No. 5491.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Rehearing Denied Aug. 18, 1976.

      John Levy, Metairie, for defendant-appellant.
    Charles N. Wooten, Ltd. by Robert P. Brenham, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and BERTRAND, JJ.
   GUIDRY, Judge.

On February 24, 1975, Plaintiff, Chester F. Dupont d/b/a B & D Electric Company, secured a judgment against Marbane Investments Inc. and Marvin Poole, jointly and in solido, in the principal sum of $43,439.61. Thereafter, on September 3, 1975, plaintiff filed this proceeding alleging that Little Lodge of Opelousas Inc. had funds belonging to the judgment debtors, Marbane and Poole, in an amount sufficient to pay said judgment and accordingly it should be made garnishee and ordered to answer categorically, in writing and under oath, certain interrogatories which were attached to plaintiffs petition. Service of citation and a copy of the garnishment petition with interrogatories annexed was made upon the garnishee, through the Secretary of State, on September 10, 1975. The Secretary of State thereafter forwarded same to the garnishee. The garnishee failed to answer the interrogatories within 15 days, as required by LSA-C.C.P. Article 2412. Plaintiff then filed a contradictory motion, LSA-C.C.P. Article 2413, against the garnishee for the amount of the unpaid judgment. Citation and a copy of this contradictory motion was served on the garnishee. This contradictory motion was originally fixed for hearing on November 21, 1975; however, the hearing was continued until November 25, 1975, apparently at the request of defendant’s counsel. (Tr. pg. 2) The defendant filed no exceptions, answer or other pleadings in response to the plaintiff’s motion for a judgment pro confesso. On November 25, 1975 the motion was heard and evidence adduced, the defendant being represented at this hearing by its counsel of record. The only evidence introduced at the hearing of November 25th concerned the procedure which was followed by the Sheriff and Clerk of Court of St. Landry Parish in attempting service of the original proceedings on the garnishee-defendant and the ultimate service thereof on the Secretary of State. No evidence whatever was introduced by the de.fendant to show that it had no property of or was not indebted to the judgment debtors. The trial court took the matter under advisement and subsequently rendered judgment against the garnishee for the amount of the unpaid judgment. On December 5, 1975, defendant filed a motion for a new trial which motion was heard and denied on December 9, 1975. The defendant has appealed and urges that the judgment of the trial court is void by reason of insufficient service and citation. Specifically, defendant urges that the garnishee’s registered agent was not served as required by law (LSA-C.C.P. Article 1261); that service on the Secretary of State was improper without a prior showing, by certificate of the Sheriff, of diligent effort to locate the registered agent (LSA-C.C.P. Article 1262); and, the certificate of the Secretary of State proving the sending by registered mail of notice of suit, copy of process and return re.ceipt sighed by the Corporation official showing that all was received by the Corporation was never offered into evidence.

A judgment is absolutely null without citation and service, LSA-C.C.P. Article 1201, however, a party may waive his right to object to the insufficiency or lack of citation and service if he submits to the jurisdiction of the court by making a general appearance in the proceeding pending against him.

LSA-G.C.P. Article 2593 provides as follows :

“A summary proceeding may be commenced by the filing of a contradictory motion or by a rule to show cause, except as otherwise provided by law.
Exceptions to a contradictory motion, rule to show cause, opposition, or petition in a summary proceeding shall be filed prior to the time assigned for, and shall be disposed of on, the trial. An answer is not required, except as otherwise provided by law.
No responsive pleadings to an exception are permitted.”

LSA-C.C.P. Article 925 provides in pertinent part as follows:

“The objections which may be raised through the declinatory exception include, but are not limited to, the following:
(1) Insufficiency of citation;
(2) Insufficiency of service of process;
When a defendant makes an appearance, all objections which may be raised through the declinatory exception, except the court’s lack of jurisdiction over the subject matter of the action, are waived unless pleaded therein.”

LSA-C.C.P. Article 7 provides in pertinent part as follows:

“Except as otherwise provided in this article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:
(1) Entry or removal of the name of an attorney as counsel of record;
(2) Extension of time within which to plead;
(3) Security for costs;
(4) Dissolution of an attachment issued on the grounds of the non-residence of the defendant; or
(5) Dismissal of the action on the ground that the court has no jurisdiction over the defendant.”

In the instant case defendant, through its counsel, in appearing and participating in the summary proceeding conducted on November 25, 1975 made a general appearance and has therefore waived any right which it might have had to object to the insufficiency or lack of citation and service. There is nothing in the record which would indicate that defendant’s appearance at and participation in the hearing on the contradictory motion, through counsel, was anything but a “general appearance”. It is true that the only evidence adduced at this hearing concerned the procedural aspects of the service made on the defendant through the Secretary of State, however, defendant did not limit its appearance at this hearing to the issue of insufficiency of or lack of service and citation by the filing of a declinatory exception pursuant to LSA-C.C.P. Article 925. Defendant filed no pleadings whatever and simply appeared at this hearing, without objection, pursuant to the contradictory motion previously filed by plaintiff. Defendant made a second general appearance in the instant proceeding when it affirmatively invoked the jurisdiction of the trial court by filing an application for a new trial. In the rather recent case of Cook v. Deshautreaux & Klein Pediatric Clinic et al., 294 So.2d 591 (La.App. 4th Cir., 1974), application denied 296 So.2d 834 (La.), the court stated:

“Under the above quoted provisions of LSA-C.C.P. Art. 7, a defendant makes a general appearance, and waives the right to object to the sufficiency or lack of citation and service, when he affirmatively invokes the jurisdiction of the court for the purpose of seeking any relief other than those enumerated in the article. (See McMahon 23 La.L.Rev. 378) Here, the appellants sought, not a trial, but a new trial solely on the grounds of newly discovered evidence and that the judgment was contrary to the law and the evidence. In doing so they affirmatively invoked the jurisdiction of the court and thereby waived all objections thereto. . . . ”

Accordingly, we hold that the judgment of the trial court is not invalid by reason of insufficiency or lack of citation and service as contended by appellant. Further, we determine that the record amply supports a finding that the plaintiff-appel-lee, having otherwise complied with the provisions of LSA-C.C.P. Articles 2411, 2412 and 2413, is entitled to judgment against defendant-appellant, Little Lodge of Opelousas, Inc., for the amount of the unpaid judgment.

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

AFFIRMED.


author: PETERS, Judge ad hoc. WATSON, Judge

text:
    Paul Allen MILLER and Darlene S. Miller, Plaintiffs-Appellants, v. Floyd J. MILLER, Defendant-Appellee.
    No. 5499.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Rehearing Denied Aug. 18, 1976.

      Edwards, Stefanski & Barousse, by Homer E. Barousse, Jr., Crowley, for plaintiffs-appellants.
    Aaron, Aaron & Chambers by J. Donald Aaron, Crowley, for defendant-appellee.
    Before HOOD, WATSON and PETERS, JJ.
   PETERS, Judge ad hoc.

This suit concerns a promise to sell a parcel of land. The promise was made by plaintiffs, who are husband and wife, in favor of defendant. Plaintiff prays in this suit that the promise to sell be declared null and void and that it be stricken from the records of Acadia Parish.

The disputed agreement was executed on September 6, 1968. Plaintiff Paul Miller and defendant Floyd Miller are brothers. In the act plaintiffs promised that when they, or the survivor of them, no- longer resided upon the parcel of land they would sell the property to defendant for $100.00. Plaintiffs recited in the act that the promise to sell was being made for a cash consideration of $10.00, receipt of which was acknowledged.

The evidence presented at trial of this matter showed defendant and his father had previously owned the subject property in indivisión. There was a small house owned by Texas Eastern Oil Company situated on the property. Paul Allen Miller and his wife wished to purchase the house and wanted to leave it on Floyd Miller’s property and to live in it. Floyd offered to let his brother and his wife reside on this property without charge. However, Paul needed to borrow $1800.00 in order to purchase the house from Texas Eastern and he needed to mortgage the land to secure the $1800.00 loan. Floyd and his father therefore sold the property to Paul for $100.00. However, it was agreed orally the land would be sold back to Floyd in the event Paul and his wife ever moved off the property. This agreement was not reduced to writing until 1968, when plaintiffs, at defendant’s insistance, signed the promise to sell. The promise to sell was drawn up by, and executed before, defendant’s attorney, who had also witnessed the 1964 sale. However, defendant was not present when the promise to sell was executed and he never signed it or otherwise gave any indication in writing of his acceptance of this contract. The act is merely a unilateral promise to- sell. It was conceded by Floyd he never paid the $10.00 consideration recited in the agreement.

The lower court held the agreement valid and dismissed plaintiffs’ suit. Plaintiffs have appealed. We find the promise to sell to be valid and enforceable and therefore affirm.

Plaintiffs argue the promise to sell is invalid because the $10 consideration recited in the document was never paid. This argument is without merit. The evidence adduced at trial clearly established the promise to sell was executed in accordance with an oral agreement reached at the time the tract was sold to plaintiffs in 1964. Defendant at that time did not intend to permanently divest himself of the land; the inducement for the 1964 sale was the promise by plaintiffs that they would return the land to defendant when they ceased to reside on it. Thus the true cause for the promise to sell was the 1964 sale and the contract therefore was not invalid for lack of cause. L.S.A.-C.C. 1900.

Plaintiffs also contend the promise to sell is invalid because it was never signed by the defendant. We cannot agree with this contention. L.S.A.-C.C. 2462 requires that a promise to sell must be in writing in order to entitle either party to specific performance. There is no requirement that the writing be signed by both parties. In Joseph v. Moreno, 2 La. 460 (1831), the court considered the validity of a promise to sell which was in writing but was not signed by the vendee. The court held the acceptance by the vendee could be established by evidence extraneous to the written instrument. To the same effect are the holdings in Crocker v. Nuley, 3 Mart. (N.S.) 583 (1825) and Saunders v. Bolden, 155 La. 136, 98 So. 867 (1923). Similarly, it has been held a written receipt for the purchase price is sufficient evidence of a sale, Bordelon v. Crabtree, 216 La. 345, 43 So.2d 682 (1949); Guice v. Mason, 156 La. 201, 100 So. 397 (1924), as is a letter by which the vendor acknowledged that a sale had been consummated, Bair v. Abrams, 12 La.Ann. 753 (1857). In none of these cases was the writing signed by the vendee, but the writings nonetheless were held to be admissible to establish the sales. The requirement of written evidence being the same for a promise to sell as for a sale, these decisions are applicable to the case now before us. The evidence presented at trial leaves no doubt that the defendant-vendee did give his assent to the contract. In fact, the instrument was drafted by defendant’s attorney at defendant’s request.

Plaintiffs also contend the contract is invalid because they misunderstood its provisions. This argument does not merit considerable discussion herein. We feel it sufficient to note the wording of the instrument is clear and unambiguous and defendant’s attorney explained the provisions of the instrument to plaintiffs.

Plaintiffs further argue the promise to sell is invalid because there is no time limit established for the execution of the contract. This argument would have some merit were we dealing with an option, but L.S.A.-C.C. 2462 does not require that any time limit be stipulated in a promise to sell. The parties herein agreed title would be transferred when plaintiffs, or the survivor of them, ceased to reside on the property. Although this event may not occur until many years after the promise to sell was made, the promise to sell meets the requirements of L.S.A.-C.C. 2462 and is therefore valid.

For the reasons assigned, the judgment of the lower court is affirmed at plaintiffs-appellants’ costs.

Affirmed.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge

(dissenting):

The instrument in question gives a right of redemption. If valid initially, it is no longer valid under codal articles 2567-2588, which provide for a rigorously enforced maximum period of ten years for reservation of such a right, even as to minors. The deed from Floyd Miller and his father, Meus J. Miller, to Paul Allen and Darlene S. Miller was recorded January 15, 1964-; the instrument purporting to be a right of redemption was executed and recorded December 21, 1973, almost ten years later. Even if Floyd Miller reserved a right of redemntion, he could not reserve it as to the half sold by his father. LSA-C. C. arts. 2580, 2581. In the succession judgment rendered in the succession of their father, Meus J. Miller, Floyd Miller received his share, less and except a 100' x 150' tract of land previously transferred to Paul Allen Miller, the tract in dispute. There was no consideration paid for the right of redemption. It was executed and recorded long after the sale itself. It could only affect one-half of the property at most, and the right of redemption could only be good for ten years. The issues are legal rather than factual and I believe the trial court is wrong as a matter of law in dismissing plaintiffs’ suit for nullification of the instrument. I respectfully dissent.


author: PETERS, Judge ad hoc. WATSON, J.,

text:
    Wyman J. GAGNARD, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5502.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Rehearing Denied Aug. 18, 1976.

      Ralph W. Kennedy, Alexandria, for plaintiff-appellant.
    Gold, Hall, Hammill & Little by James D. Davis and Edward E. Rundell, John L. Pitts, Alexandria, Logan & deLaunay by William E. Logan, Jr., Lafayette, for defendants-appellees.
    Before HOOD, WATSON and PETERS, JJ.
   PETERS, Judge ad hoc.

This is a personal injury action resulting from the collapse of one wall of an excavation in which plaintiff was working. At the time of the accident, plaintiff was employed as a laborer by the M. P. Dumesnil Construction Co., Inc. As part of a construction job, it was necessary for the Du-mesnil Co. to make an excavation about 10 feet square and about 8 feet deep. Louis Melancon, a construction supervisor and a defendant herein, was put in charge of the excavation. Melancon contacted a backhoe operator named Terrell, apparently an independent contractor, and asked him to dig the hole. Terrell was unable to work the day he was called but contacted another backhoe operator, Joseph Price, also a defendant herein. Price agreed to do the job.

Price went to the job site with his backhoe and proceeded to make the excavation. Following Melancon’s instructions, he cut the top two or three feet of the walls of the excavation at an angle and cut the remaining five or six feet vertically. The soil in which the excavation was made consisted of clay with small pockets of river sand and was somewhat damp. There was a large pipe near the bottom of the excavation and Price was unable to remove the dirt which was under the pipe. When Price had done all he could with the backhoe, Melancon sent three laborers — plaintiff, Patrick Landry and Jeffrey Touchet— into the hole to remove the dirt which was under the pipe. While the laborers were in the hole, Price remained on the backhoe, situated about three feet away from the north wall of the hole. Price several times lowered the bucket of the backhoe into' the hole to remove loose dirt which the laborers had removed from the area under the pipe. At the time of the accident, the backhoe was parked in place, with its outriggers down to stabilize it. Its engine was idling. The three laborers were still working in the hole when Melancon noticed the west wall of the hole was starting to collapse. He shouted a warning to the men in the hole, who attempted to get away from the falling wall. Plaintiff was hit by the falling mass of earth and pinned against the large pipe, suffering a fracture of the left pelvis.

The lower court concluded plaintiff had failed to prove by a preponderance of the evidence either causation or negligence on the part of defendants Melancon and Price. The lower court therefore dismissed the suit at plaintiff’s costs. We affirm.

Plaintiff argues the circumstantial evidence clearly shows it is more probable than not the cave-in was caused by the movement of the backhoe too near the walls of the excavation. Like the district judge, we believe such a conclusion to be pure speculation. The preponderance of the evidence shows the backhoe was stationary at the time of the cave-in and had been stationary for at least several minutes. The backhoe was located behind the north wall of the hole and it was the west wall that collapsed. There is simply no evidence to support a conclusion that the location or movement of the backhoe was the cause of the accident. It is just as likely the cave-in was caused by something other than the backhoe.

Furthermore, the evidence does not show any negligence by either Melancon or Price.

Melancon ordered the excavation done in a manner which was customary in the industry. There was evidence indicating that the type of soil found at the job site — clay with small pockets of sand — was very stable, even when damp. Considering the usual stability of this type of soil, Me-lancon was not negligent in failing to have the walls of the hole shored up. Likewise, he was not negligent in failing to have the walls cut at an angle all the way to the bottom; in stable soil, it was reasonable to cut only the top two or three feet at an angle.

The preponderance of the evidence indicates Price at all times operated the backhoe in a reasonable manner. There is no proof he did anything that created an unreasonable risk of harm to the men working in the excavation.

Plaintiff has proved an unfortunate accident occurred but he has not proved the accident was caused by the fault of either Melancon or Price.

For the reasons assigned, the judgment of the lower court is affirmed at plaintiff-appellant’s costs.

Affirmed.

WATSON, J.,

concurs in the result, but only on the basis that there is no manifest error in the factual conclusions by the trial court.


author: BERTRAND, Judge.

text:
    Allie Ray DOUGHARTY, Plaintiff-Appellant, v. CALKRAFT PAPER COMPANY, Defendant-Appellee.
    No. 5509.
    Court of Appeal of Louisiana, Third Circuit.
    July 8, 1976.
    Rehearing Denied Aug. 18, 1976.

      William Henry Sanders, Jena, and Kap-lan & Rivers, by Edward A. Kaplan, Alexandria, for plaintiff-appellant.
    Gold, Hall, Hammill & Little, by John F. Simon, Alexandria, for defendant-appellee.
    Before CULPEPPER, GUIDRY and BERTRAND, JJ.
   BERTRAND, Judge.

This is a suit for workmen’s compensation. The trial court sustained defendant’s motion for summary judgment, and plaintiff has appealed.

ISSUE: Is there a genuine issue as to a material fact?

On May 30, 1975, plaintiff, Allie Ray Dougharty, filed suit against his alleged employer, Calkraft Paper Company, seeking recovery under the Workmen’s Compensation Act for total and permanent disability. Plaintiff alleged that on October 1, 1973, while acting in the course and scope of his employment as a woodworker for defendant, he stooped over causing injury to his back which resulted in his disability. He alleges that the injury did not manifest itself until 1975. A peremptory exception of prescription of one and two years was incorporated in the general denial filed by the defendant. The defendant also filed a motion for summary judgment grounded on prescription and non-occurrence of a work related accident.

At the hearing on the motion, defendant offered the deposition of the plaintiff, together with an affidavit of Dr. Archie B. Osborn. The plaintiff offered his own affidavit.

The trial court rendered judgment in favor of the defendant dismissing plaintiff’s suit. The trial judge did not state the authority upon which he based his judgment; however, it is obvious that he either relied upon the provision of LSA-R.S. 23:1209 and found that the suit had prescribed, or decided that the plaintiff failed to prove an accident.

The plaintiff began working for Cal-casieu Paper Company, the predecessor of Calkraft Paper Company, in September of 1971. He was employed in the Wood & Land Department as a laborer and equipment operator. He operated bulldozers and tractors. He built fire lanes, roads and bridges and deadened timber (which he referred to as “T.S.I.” work). To deaden the timber he would use an injector filled with poison which he injected into the tree-trunk.

In his deposition the plaintiff testified that he first felt the back pain in March of 1973 while doing T.S.I. work. He was away from work for two (2) days. In May of 1973, he again experienced the back pain and remained away from work for a period of three (3) or four (4) weeks. In October of 1973 (at the suggestion of the company doctor) he remained away from work for two (2) months. Plaintiff returned to work and did not experience any trouble until May of 1975. On this occasion, while again doing T.S.I. work, he experienced severe back pain. He consulted a Doctor Banks who performed back surgery on June 11, 1975. Plaintiff testified that he has been unable to work since May of 1975, when he left his employment.

In his affidavit, Dr. Osborn stated that he examined the plaintiff on May 14, 1973, for an acute lumbar back condition which the plaintiff said first appeared on May 12, 1973. He treated the plaintiff from May 14, to June 8, 1973, and released him to return to work on June 11, 1973. He had treated the plaintiff for the same condition from March 27 to March 29, 1973. His diagnosis was an acute and chronic back condition.

The plaintiff filed an affidavit in opposition to the motion for summary judgment wherein he states:

“. . . prior to October 1, 1973, and for a period of several months prior thereto he was engaged in gainful employment for Calkraft Paper Company and able to perform the duties required by Calkraft Paper Company. Deponent further states that on or about'October 1, 1973, he became disabled while employed by Calkraft Paper Company which injury eventually became manifest and for which he eventually underwent an operation on 11, June, 1975, for a bilateral decompression of the SI nerve root and deponent is presently totally disabled to do heavy manual labor on this date.”

The plaintiff argues that the injury which manifested itself in May of 1975 was precipitated by the job related incident of October 1, 1973. He contends that his suit, filed in May of 1975, was timely, having been filed within a year from the development of the injury and within two years of the accident of October 1, 1975.

LSA-R.S. 23:1209 reads as follows:

“In case of personal injury ... all claims for payment shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. . . . Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

The questions upon which a decision of the issue in this case depends are 1) at what point did the plaintiff’s injury, if any, “develop;” 2) did the plaintiff suffer an accident within the intendment of the Workmen’s^ Compensation Act. These are questions of fact which must be determined from the testimony in evidence.

The employer contends that there is no evidence of an event or incident which occurred that could be considered an “accident,” and that if we do conclude that an accident occurred in October, 1973, then, the one year prescription would serve to bar the claim of plaintiff. It contends that the fact that the plaintiff was unable to pursue his duties of employment from October, 1973, until the end of December, 1973, clearly demonstrates that his disability had developed and was manifest then, and that thus, more than one year elapsed from the date of the accident until May 30, 1975, the date the suit was filed. These arguments are without merit.

The Workmen’s Compensation Act provides that the prescription or peremption should not commence until the injury has developed. An employee who receives an injury flowing from an accident that later develops into disability is excepted from the general rule, and his right of action is not perempted until one year after the injury has developed.

The jurisprudence supports the rule that workmen’s compensation benefits are payable when an occupational accident aggravates a pre-existing condition and produces injury. LSA-R.S. 23:1031, Johnson v. Travelers Insurance Company, 284 So.2d 888 (La.1975). When the ligaments, cartilages, or organs of the body give way because of exertion on the job, the injury is compensable. Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969).

Even though the evidence does not establish which of several occupational incidents finally causes the disability of a worker, he may recover if the evidence establishes that one or more of the incidents aggravates the condition to the extent of causing disability. Chism v. Kaiser Aluminum & Chemical Corporation, La., 332 So.2d 784, 1976.

In a case factually similar to the case now before us the court stated:

“The plaintiff suffered asthmatic attacks attended by wheezing and shortness of breath long before the termination of his employment. There were many times over a period of more than a year preceding termination of work that medical attention, and in some instances hospitalization, was necessary to enable him to return to work. He was fully aware of his condition and particularly the effect of inhalation of dust more than a year before he quit work. Awareness or knowledge of a chronic illness is not enough per se to meet the requirement of the statute in reference to manifestation of disease or development of injury. Our jurisprudence is clear that in cases such as this, where there is no accident or specific occurrence to which a cause can be attributed, but rather where there is a progression and recurrent manifestation of illness or (sic) disability from latent causes, which may be attributable in whole or part to work related incidents, the time of development of the injury for the purpose of determining a prescriptive date, is the date of termination of employment, more specifically, the date when the employee finally has to give in to his disability and quit work.” (Citations omitted.) Burns v. W. H. Patterson Construction Company, 310 So. 2d 675 (La.App. 1st Cir. 1975).

We are of the opinion that the af-ridavits offered in support of the motion for summary judgment and the testimony of the plaintiff, by deposition, establish that there is a substantial issue as to several material facts, namely: 1) did the plaintiff become disabled as a result of one or. more occupational incidents; 2) when did the injury develop for the purpose of determining a prescriptive date; 3) was suit filed more than two years from the date of the accident, and within one year of the development of disability.

The plaintiff, in his deposition, testified as follows:

“Q Well then in other words after a couple of days of doing T.S.I. work you would have this pain as long as you did the T.S.I. work — is that correct?
A Yes, sir, and I had to be off of that for two or three days before the pain subsided.
Q And then the pain would subside and you could do any of the other kind of work after that — is that right ?
A Yes, sir.
Q Was there any particular incident that happened in April or May of this year that while you were doing the T.S.I. work that particularly caused this to occur, or did it just come on as you were working?
A It came on as I was working according to my doctor, the position of my body.
Q Because of the position that your body had to be in while you were doing the work?
A Yes, sir.
Q Do you know what position that was?
A Yes, sir, I was bending over and jabbing the timber to my left, and it caused a pressure to the back.
Q What doctor is it that told you that ?
A Dr. Banks.
Q And he said that your having to constantly bend over and jab the thing into the tree was causing a pressure ?
A It was causing a — I don’t know how to explain this, but a continual bumping on my backbone.
Q So that after a while enough of that would make it hurt. Is that right?
A Right, yes, sir.
(Tr. p. 45-46)
Q When you went back to work then in December did you have the same problem again, or did you not?
A No, sir, not until this past May, somewhere along in there — I believe I went a year and five months without any problem.
Q Mr. Dougharty, you say that from the day you went back in December, 1973 until May of 1975 you didn’t have any trouble with your back at all.
A Right.
Q Well did you do T.S.I. work during that time?
A Yes, sir, periodically.
Q And then in May of ’75 now was there anything — I think you’ve already told me there was no specific thing that happened, it just flared up again — is that right ?
A Yes, sir.
Q Do you know for sure that this was while you were doing T.S.I. work in May ?
A I know for sure while I was doing T.S.I. work that it started hurting, yes, sir.
Q Did you continue to do the work for a period of time after that until you finally gave up?
A Yes, sir.
Q When you first started with the Wood & Land Department, Mr. Dougharty, way back in ’72 — I think you said March of ’72, and through that year of ’72 were you doing T.S.I. work during that year ?
A Very little, very little.
Q When your back trouble started up again in May ’75 did you ever go back to a chiropractor?
A No, sir.
Q Did you go then to Dr. Osborn when it started up in ’75 ?
A Yes, sir.
Q And did Dr. Osborn then refer you to Dr. Banks?
A He referred me first to — well he didn’t refer me, he gave me a list of specialists, and I went to see Dr. Kingsley — I made one trip there.
Q What happened there?
A He x-rayed me and examined me.
Q Do you remember when this was?
A It was somewhere in the latter part of April, or the first of May, somewhere along about that time — probably the first of May would be closer.
Q And this was after you had first seen Dr. Osborn?
A Yes, sir.
Q How many times had you seen Dr. Osborn before you went to Dr. Kingsley ?
A I don’t remember, one or maybe two times.
Q What did Dr. Kingsley tell you?
A Dr. Kingsley didn’t want to decide— he wanted for me to go back to work and watch me over a period of probably eight months before he made up his mind.
Q Were you working at the time you saw Dr. Kingsley?
A No, sir, I had just took off.
Q And why did you decide not to follow Dr. Kingsley’s advice?
A Because I knew better than try to go back to work. I had to have something done for me, and I couldn’t go back and work under those circumstances until something was done about it. My supervisor wanted me to do something, and get the best help, get the best doctor and do something about it, regardless of what it took. So instead of going back to work I was searching for somebody that could help me. I didn’t feel that Dr. Kingsley would help me because I had already been watching this thing — I didn’t need him to watch me for eight months.”
(Tr. p. 58-61)

The defendant contends that the plaintiff cannot dispute the facts which he testified to in his deposition because his testimony was under oath and is presumed to be truthful. This is incorrect. In considering a motion for summary judgment the court does not concern itself with the weighing of conflicting evidence. Dixie Buick, Inc. v. Lockett, 263 So.2d 56 (La. App. 4th Cir. 1972); Mecom v. Mobil Oil Corporation, 299 So.2d 380 (La.App. 3d Cir. 1974). The court cannot determine the credibility of witnesses when considering such a motion. Lachney v. Employers Casualty Co., 281 So.2d 761 (La.App. 3d Cir. 1973); Mecom v. Mobil Oil Corporation, supra.

Even if we conclude that the evidence preponderates in favor of the defendant, still, the plaintiff is entitled to his day in court. In deciding a motion for summary judgment we do not inquire into the merits of the suit. Our consideration must be limited to. a determination of whether a genuine issue of material fact does exist. Fontenot v. Aetna Insurance Company, 225 So.2d 648 (La.App. 3d Cir. 1969); Mecon v. Mobil Oil Corporation, supra.

For the above reasons, the judgment of the District Court is reversed and the case is remanded for further proceedings. Costs of these proceedings, at trial and on appeal, are to be paid by defendant-appellee. All other costs to await final determination.

REVERSED AND REMANDED.