author: HOOD, Judge.

text:
    Catherine Ann Young CRAFT et al., Plaintiffs-Appellants, v. Leroy TRAHAN et al., Defendants-Appellees.
    No. 6124.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.

      Neblett & Führer by Leonard Führer, Edward E. Roberts, Alexandria, for plaintiffs-appellants.
    Stockwell, Sievert, Yiccellio, Clements & Shaddock by Fred H. Sievert, Jr., Raggio, Farrar, Cappel & Chozen, Fred L. Cappel, Lake Charles, Arnett & George, Gregory Arnette, Jr., Jennings, Stafford, Randow, O’Neal & Smith, Harry F. Randow, Alexandria, Brame, Bergstedt & Brame by Joe A. Brame, Lake Charles, H. 0. Lestage, III, DeRidder, for defendants-appellees.
    Leroy Trahan, pro se.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   HOOD, Judge.

Mrs. Catherine Ann Young Craft, individually and as natural tutrix of her two minor children, claims damages for the death of her husband, David Lee Craft, who was killed when a truck he was driving collided with a truck being driven by Leroy Trahan. The suit was instituted against Trahan and a number of other defendants, two of them being Empire Indemnity Insurance Company and Empire Fire and Marine Insurance Company, both of which companies are referred to collectively herein as “Empire.” A summary judgment was rendered rejecting plaintiff’s claims against Empire insofar as those claims are based on the allegation that Trahan was an insured of Empire. Plaintiff appealed.

The issues presented are (1) whether Leroy Trahan was an “insured” under a policy of insurance issued by Empire covering the truck Trahan was driving, and (2) whether the rendering of a summary judgment is appropriate or justified in this instance.

The accident occurred on May 10, 1975, on U. S. Highway 190, in Calcasieu Parish, Louisiana. Leroy Trahan was driving an International truck owned by Sears Truck Line, Inc., of Jasper, Texas, east on that highway. Plaintiff’s husband was driving a Chevrolet log truck west on the same thoroughfare. The two vehicles collided and Craft died of the injuries which he received as a result of that collision.

At the time the accident occurred, there were in effect two automobile liability policies issued by Empire to Sears, one of which covered the truck which was being driven by Trahan. The principal issue presented in this case is whether Trahan was an “insured” under that policy.

Sears owns and operates a fleet of trucks. It buys new and used trucks from Atter-bery International, Inc., of Lake Charles, and it frequently engages Atterbery to make repairs on its trucks. Atterbery is a truck sales agency. It maintains a shop where it performs repair work on trucks, but it does not do any paint and body work at its shop. It generally subcontracts that work out to others, primarily to Mac’s Paint and Body Shop, of Lake Charles.

Mac’s Paint and Body Shop is engaged in the business of repairing motor vehicles, and it specializes in paint and body work on automobiles and trucks. Mac’s is owned and operated by Leroy Trahan’s son, Malcolm Trahan. Malcolm had been engaged in that business for about six months before the accident occurred, and he was relatively inexperienced in that kind of work. Leroy, on the other hand, has had many years of experience in repairing automobiles and trucks. Although Leroy is not employed regularly by Mac’s, Malcolm uses his father to make estimates on jobs since Malcolm has had no experience at all in that part of the business. He also engages Leroy to do some types of work in the shop which Malcolm cannot perform, and he pays his father on a commission basis for the work which he does. He also lets Leroy use the shop, without charge, to do automobile and truck repair work which Leroy personally contracts to perform.

Shortly before the accident occurred, Sears informed Atterbery that it had some trucks which needed to be repaired. A representative of Atterbery thereupon told Sears that he would send someone to Jasper, Texas, to look at the trucks and to make an estimate as to the cost of making the repairs.

The representative of Atterbery then contacted Malcolm Trahan and requested that he go to Sears’ place of business in Texas to look at the trucks which needed repairs and make an estimate of the costs which would be incurred in making them. The representative asked Trahan to drive an Atterbery truck to Texas and deliver it to Sears, and to pick up another truck which belonged to Atterbery and return it to Lake Charles. Malcolm agreed to make the trip, as requested, but he informed At-terbery’s representative that he would have to take his father, Leroy, with him, because Leroy was the only person who was qualified to make the cost estimates. The arrangement was that the Trahans were to perform the repair work on the Sears truck or trucks in the event Sears decided to have that work done.

Malcolm and Leroy thereupon drove the Atterbery truck to Texas, as planned. While there, Leroy made estimates of the cost of performing the work which Sears wanted to have done. Sears then asked the Trahans to drive one of its trucks back to Lake Charles for repairs, as well as the Atterbery truck which was to be returned. The Trahans agreed to do that. Malcolm then drove the Atterbery truck, and Leroy drove the truck owned by Sears which was being taken to Lake Charles to be repaired. The accident occurred while the parties were en route to Lake Charles in those vehicles.

In this suit, plaintiff claims that Leroy Trahan was an omnibus insured under the policy issued by Empire to Sears covering the truck which Leroy was driving. The trial judge concluded that Leroy was not an insured under that policy, and he rendered a summary judgment rejecting plaintiff’s demands against Empire. Plaintiff appealed, and it is that appeal which is before us now.

The policy which was issued by Empire to Sears, covering the truck which was being driven by Leroy Trahan, contained the following provision:

“III. Definition of Insured, (a) With respect to the insurance for bodily injury liability . . . the unqualified word ‘insured’ . . . also includes any person while using the automobile . . ., provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. The insurance with respect to any person or organization other than the named insured or such spouse does not apply: (1) to any person or organization, or to any agent or employee thereof, operating an automobile sales agency, repair shop, service station, storage garage or public parking place, with respect to any accident arising out of the operation thereof, . . . ” (Emphasis added).

The trial judge did not assign reasons for judgment. He obviously found, however, that Leroy Trahan either was operating an automobile repair shop or was the agent or employee of a person who was operating such a shop, and that the accident arose out of the operation of that shop. If the evidence supports those findings, then we must agree with the court that the above exclusionary clause applies, and that Leroy is not an insured under the policy.

Plaintiff argues that the receivable evidence in the record does not support those factual findings. She claims, first, that the pick up and delivery of vehicles was not an integral part of the operation of Mac’s Paint and Body Shop, and that the accident thus did not arise out of the operation of that business. Second, she contends that Leroy was not operating a repair shop and that he was not an agent or employee of Mac’s repair shop at the time the accident occurred. She maintains that the above exclusionary clause does not apply, and that Leroy must be held to be an omnibus insured under the policy.

The established rule is that any doubt or ambiguity as to the meaning of a provision in an insurance policy must be construed liberally in favor of the insured and against the insurer. When the ambiguity relates to an exclusionary clause or to a provision which limits liability under the policy, the law requires that the contract be interpreted liberally in favor of providing coverage. Smith v. Ranger Insurance Company, 301 So.2d 673 (La.App. 3 Cir. 1974); Spain v. Travelers Indemnity Company, 321 So.2d 10 (La.App. 3 Cir. 1975).

The evidence presented at the trial of the motion for summary judgment in the instant suit consisted largely of the pertinent insurance policies and four depositions. We have considered the evidence and the issues presented with the above rules in mind.

In Deville v. United States Fidelity and Guaranty Company, 258 So.2d 694 (La.App. 3 Cir. 1972), an accident occurred while an employee of the repair shop was delivering the “owned automobile” to the shop for repairs. The policy excluded from coverage an owned automobile “while used by any person while such person is employed or otherwise engaged in the automobile business.” We held that the exclusionary clause applied, that the driver was using the car while employed and engaged in the automobile business, and that the policy afforded no coverage in that case.

The policy involved in Northern Assurance Company v. State Farm Mutual Automobile Insurance Company, 320 So.2d 343 (La.App. 2 Cir. 1975), contained the same exclusionary clause as does the policy which is before us in the instant suit. An accident occurred while an employee of the repair shop was returning a serviced automobile to the owner. The reviewing court held that the accident arose out of the operation of the repair shop, and that the driver thus was excluded from coverage.

Plaintiff attempts to distinguish the cited cases from the instant suit on the ground that in those cases the pick up and delivery of vehicles was a significant part of the operation of the repair shop. She contends that the pick up and delivery of vehicles for repair by Mac’s Paint and Body Shop was not an “integral part of the overall operation” of that shop, that it was not a “part and parcel” of the business, that it was not a “routine and significant portion” of the operation of the repair shop, and that it was not a “significant portion of the usual work activities” of that shop. She reasons that since the pick up and delivery of vehicles was not a significant part of the operation of Mac’s, and since the accident occurred before the delivery of the truck to the shop had been completed, the accident cannot be said to have arisen out of the operation of the repair shop.

As correctly pointed out by plaintiff, we stated in Deville, supra, that the pick up and delivery of vehicles to be serviced was a “routine and significant portion of the activities” of the repair shop. That was a correct statement of our factual finding. We did not mean to imply by that statement, however, that such a finding was essential for there to be an exclusion of coverage under the provisions of that policy. Certainly, the holding in Deville does not support plaintiffs argument that a factual finding that pick up and delivery was a significant part of the operation of the repair shop is necessary before the much broader exclusionary provisions of the policy involved here should be applied.

In Northern Assurance Company, supra, where the policy provision was identical to the one being applied here, the court did not find that the pick up and delivery service was a significant part of the activities of the repair shop. It simply noted that an employee “did pick up and deliver cars to be serviced or those that had been serviced when the service manager ... so ordered.” It recognized the fact that the exclusionary clause involved there (and in the instant suit) was “broader” than was the clause involved in Deville, and it concluded that the accident arose out of the operation of the repair shop, since it occurred while the serviced automobile was being returned to the owner.

The language used in the exclusionary clause involved here is clear and unambiguous. The evidence shows that the truck had been picked up in Texas and was being delivered to Mac’s Paint and Body Shop, in Louisiana, to be repaired at the time the accident occurred. We think the pick up and delivery of the truck for that purpose constituted a part of the operation of the repair shop. We conclude, therefore, that the accident arose out of the operation of the repair shop.

We turn now to the question of whether Leroy Trahan was operating a repair shop, or whether he was an agent or employee of a person who was operating one, at the time the accident occurred.

Malcolm, the owner of Mac’s Paint and Body Shop, concedes that Leroy was not an employee of that shop at the time the accident occurred. The evidence shows, however, that Malcolm regularly engaged his father to make estimates on work to be undertaken by Mac’s. He frequently had Leroy perform repair work which Mac’s undertook to do but which Malcolm was unable to perform, and when that occurred he paid Leroy for the work which was done. Leroy uses the facilities at the repair shop, without charge, to do repair work which he individually contracts to perform. Leroy devoted a substantial part of his time to that work. He had no other occupation and no other employment.

Shortly before the accident occurred, Malcolm informed a representative of At-terbery that his father would accompany him to Texas to make the cost estimates for repairing the Sears trucks. On the day before that trip was made, Leroy, Malcolm and the representative from Atterbery met and discussed the proposed trip, and it was agreed at that time that Leroy would accompany his son to Texas for the purpose of making those estimates. On that trip, Leroy wore a uniform which bore his name and the name “Mac’s Paint and Body Shop.” He made the estimates in behalf of that business establishment, and he drove the Sears truck from Texas to Louisiana for the express purpose of taking it to Mac’s Paint and Body Shop where the repairs were to be made on it. Sears was to pay Mac’s for the repair work, and Mac’s in turn expected to obtain the parts it needed from Atter-bery.

An “agent” is defined as one who acts for or in the place of another, by authority from the latter. Downs v. Delco-Light Co., 175 La. 242, 143 So. 227 (1932); Patrick v. Patrick, 230 So.2d 759 (La.App. 2 Cir. 1970). An agency relationship may be created by the parties thereto either expressly or by implication. The essential test to be applied in determining whether an implied agency exists, is whether the principal has the right to control the conduct of the agent, and whether the agent has the right and authority to represent or bind the principal. LSA-C.C. arts. 2985, et seq.; Automotive Finance Co. v. Kesk, Inc., 200 So.2d 136 (La.App. 4 Cir. 1967).

In the instant suit, we find that an agency relationship between Mac’s Paint and Body Shop and Leroy was created, either expressly or by implication, shortly before the accident occurred. Leroy unquestionably was authorized to represent Mac’s in making the cost estimates, and we think he was empowered to bind that repair shop by the estimates which he made. We assume that Sears relied on the estimate made by Leroy when it sent its truck to Lake Charles to be repaired by Mac’s and we feel that the repair shop was legally bound by that estimate. We also believe that Leroy acted as agent for Mac’s Paint and Body Shop in driving the Sears truck from Jasper, Texas, to Lake Charles for the purpose of having the vehicle repaired at that shop.

We conclude that Leroy was acting as an agent for Mac’s Paint and Body Shop when the accident occurred. Since we have already determined that the accident arose out of the operation of that repair shop, it necessarily follows that the exclusionary clause in the Empire policy applies, and that Leroy Trahan was not an insured under the policy. In view of that conclusion, it is unnecessary for us to consider the additional argument made by defendant that Leroy was engaged personally in the operation of a repair shop.

Plaintiff contends, finally, that the rendering of a summary judgment in this case is not appropriate or justified because a genuine issue of material fact exists.

Applicable here is the rule that a party who seeks a summary judgment bears the burden of showing that there is no genuine issue of material fact. The burden is such that all reasonable doubt must be resolved in favor of a trial on the merits. George & George, Ltd. v. Bennett, 329 So.2d 793 (La.App. 1 Cir. 1976); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Vallery v. Olin Corporation, 337 So.2d 631 (La.App. 3 Cir. 1976).

In the present suit, plaintiff contends that genuine issues of fact exist as to whether an employer-employee relationship existed between Mac’s Paint and Body Shop and Leroy Trahan, whether an agency relationship existed between those parties, and whether the pick up and delivery of vehicles to the repair shop constituted a significant part of the operation of that business institution.

Plaintiff, as we understand her arguments, does not question the facts which are presented. She argues that the evidence is not convincing or that it is not sufficient to establish all of the facts which she feels are essential to show that the exclusionary clause applies. She also contends that the trial court erred in its interpretation of the exclusionary clause involved here and the law.

Our examination of the pleadings and of the evidence convinces us, as it did the trial judge, that no issue exists as to any material fact. We believe that the uncontradicted facts presented at the hearing are sufficient to support the summary judgment which was rendered.

We conclude that defendant Empire has satisfied the burden of proof which rested on it, and that there is no error in the judgment of the trial court which rejects plaintiff’s demands against that defendant.

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

AFFIRMED.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Annette E. BLUM, Plaintiff and Appellee, v. ALLSTATE INSURANCE COMPANY, and Magnifique Volkswagen, Inc., Defendants and Appellants Third-Party Defendant and Appellee.
    No. 6131.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.
    Writ Refused Jan. 11, 1978.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Douglas W. Truxillo, Lafayette, for defendant and appellant third party defendant and appellee.
    Voorhies & Labbe by John N. Chappuis, Lafayette, for plaintiff and appellee.
    Logan & deLaunay by Gerald C. deLau-nay, Lafayette, for third party defendant and appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   CULPEPPER, Judge.

This is an action for damages resulting from an automobile collision. Plaintiff Blum brought a direct action against Allstate Insurance Company, the insurer of the alleged tort-feasor, for damages for personal injuries and for the cost of leasing a substitute ear, while her own vehicle was being repaired. Allstate filed a third party demand against Magnifique Volkswagen, Inc., the repair shop where plaintiff took her car to be repaired, alleging that Magni-fique failed to repair the car within a reasonable time, and that Magnifique is therefore liable to Allstate for all or part of the cost of leasing the substitute vehicle.

Magnifique filed an exception of no cause of action to Allstate’s third party demand. The trial court sustained the exception. From the judgment dismissing its third party demand, Allstate now appeals. Further proceedings in the trial court were stayed pending the disposition of this appeal.

The substantial issues on appeal are: (1) Is the plaintiff limited in her recovery of damages from Allstate for the loss of use of her vehicle to that period of time in which the repairs could have normally and reasonably been accomplished? (2) If Allstate is liable to plaintiff for the loss of use of her vehicle for the entire time which Magni-fique took to complete the repairs, does Allstate have a claim for indemnity or contribution from Magnifique for extending the repair period beyond that which was necessary and reasonable? Of course, if the first question is decided in the affirmative, there is no need for this court to consider the second.

Plaintiff’s automobile collided with a vehicle driven by Brenda Faye Parker and insured by Allstate. She took her damaged automobile to Magnifique Volkswagen, Inc. for repairs.

During the time her vehicle was in the repair shop, plaintiff leased a substitute automobile. She checked periodically with Magnifique about what progress was being made on the repair job. The repairs took several months, and the result was that it cost plaintiff $2,179 to lease a substitute automobile.

In this suit against Allstate, plaintiff seeks $2,179.80 for the cost of leasing the substitute car. Allstate filed a third party demand against Magnifique, seeking indemnity, or, in the alternative, contribution for the cost of leasing the car. Allstate alleges that while it might be held solidarily liable with Magnifique, the lack of due care and diligence of the third party defendant constituted primary, active, and affirmative fault and negligence, while the fault on the part of the third party plaintiff was only passive and/or constructive with regard to part of the period in which a leased car was necessary.

Magnifique’s exception of no cause of action to the third party demand alleges that the only person to whom it owed a duty in connection with the repair of the subject vehicle was Annette Blum, and that she alone can sue Magnifique.

In sustaining the exception the trial court held: (1) Allstate had no contractual relationship with Magnifique regarding the repairs in question. (2) Annette Blum had a cause of action against Allstate for the recovery of damages for the loss of use of her car only for that period of time in which repairs could have reasonably been completed. (3) Only Annette Blum has the right to make a claim against Magnifique for negligently extending the repair period beyond that which was reasonable.

As a general rule, where a vehicle is damaged in an accident the owner is entitled to recover from the tort-feasor the cost of renting a substitute vehicle during the period of time in which his own vehicle is being repaired. Sherwood v. American Ry. Express Co., 158 La. 43, 103 So. 436 (1925); Goode v. Hantz, et al., 209 La. 821, 25 So.2d 604 (1946); Miller v. Travelers Insurance Company, 303 So.2d 924 (La.App. 3rd Cir. 1974); Desselle v. Wilson, et al., 200 So.2d 693 (La.App. 3rd Cir. 1967); Blashfield Automobile Law & Practice, Vol. 15, page 14; 25 C.J.S. Damages § 48, pp. 773-774; 18 American Law Reports 3d 503-505.

Where the plaintiff himself is negligent in having the repairs completed promptly, he cannot recover for loss of use beyond the time which should have been reasonably necessary to accomplish the repairs. Desselle v. Wilson, et al., supra; Miller v. Travelers Insurance Company, supra; Carimi v. Saia, 301 So.2d 895 (La.App. 4th Cir. 1974); Broadview Seafoods, Inc., et al. v. Pierre, et al., 173 So.2d 37 (La.App. 4th Cir. 1965), affirmed 180 So.2d 694; Alderman v. Henderson, et al., 130 So.2d 157 (La.App. 2d Cir. 1961); Voitier v. Farrelly, 320 So.2d 581 (La.App. 4th Cir. 1975); Blashfield Automobile Law & Practice, Vol. 15, page 32.

However, there is some conflict in the jurisprudence in the situation where the plaintiff has acted with due diligence but the repairman has not. Appellant cites Carimi v. Saia, supra, and Nolan v. Liuzza, 301 So.2d 892 (La.App. 4th Cir. 1974) to support its contention that an owner can recover damages for loss of use of a vehicle during the entire repair period, regardless of unreasonable delays caused by the repair shop. We quote from Nolan v. Liuzza, supra: “However, as we interpret Sherwood (Sherwood v. American Ry. Express Co., 158 La. 43, 103 So. 436, 438, (1925), and other cases, the plaintiff’s burden is to show only that he himself exercised proper diligence in securing the repair.” Other cases from the Court of Appeal, Fourth Circuit, and its predecessor court, The Orleans Court of Appeal, applied the same rule: Holleman v. Viola, et al., 330 So.2d 627 (La.App. 4th Cir. 1976); Independent Oil Refining Company v. Lueders, 134 So. 418 (La.App.Orl.1931); and Dixie Highway Express, Inc. v. Galbraith & Son, Inc., 61 So.2d 218 (La.App.Orl.1952).

With all due respect to our brothers of the Fourth Circuit, we do not think this is the settled rule of law on the issue. Sherwood, the Supreme Court case relied on by the Fourth Circuit in Nolan v. Liuzza, supra, dates back over fifty years, and it is not authority for the rule urged by appellant. In Sherwood, the plaintiff took his Packard automobile to the local agency for repairs. Due to a cracked engine and a bent frame the time for repairs was prolonged. Plaintiff claimed the cost of leasing an automobile, at $50 a month, from the date of the accident until his car was returned to him. The time was still running on the date of the trial, since the car had not yet been repaired. The court quoted from 17 Corpus Juris, page 878, Section 184, Note 23 the rule: “Where through an injury to property, plaintiff is temporarily deprived of its use, the measure of his damages is the amount of the injury to the property, together with the value of its use during the time required by the exercise of proper diligence to secure its repair.” The decision concludes by stating:

“But we have searched the record in vain for any evidence as to how long it would have required to repair plaintiff’s automobile, and since we cannot notice judicially the time which would be required for that purpose, we are constrained to refuse plaintiff an increase, and must let the judgment stand.”

We think Sherwood can be construed as holding that both the plaintiff and the repairman must use proper diligence to secure the repairs in a reasonable time. Since the evidence in Sherwood did not show the reasonable time required for repairs, no award was made for loss of use. In any event, the case is clearly not authority for the rule that the plaintiff who uses proper diligence can recover for loss of use caused by lack of diligence on the part of a repairman whom the plaintiff chooses.

Looking to other states, we find a number of cases holding that plaintiffs who acted with the utmost diligence were nevertheless granted recovery of rental costs only for that period of time normally and reasonably required by diligent repairmen to make the repairs and no longer. Magnolia Petroleum Company v. Harrell, 66 F.Supp. 559 (W.D.Okl.1946); Parsons v. Lambert, 48 So.2d 143 (Miss.1950); Brandon v. Capital Transit Company, 71 A.2d 621 (Mun.Ct.App.D.C.1950). This appears to be the majority rule.

As noted in 18 A.L.R.3d 545: “The period for which recovery may be had for loss of use of a motor vehicle is generally held to be that which is reasonably required for the making of repairs, or that within which the vehicle could be repaired with ordinary diligence.”

While we respect the position taken by the Fourth Circuit on this issue, we cannot agree. Our appreciation of the holding in Sherwood, supra, and the majority rule from other states force us to conclude that regardless of the diligence of the plaintiff-owner, he cannot recover the cost of renting a substitute vehicle beyond the time in which repairs could normally and reasonably have been completed by a repairman using due diligence.

Having so concluded, we find that the exception of no cause of action was properly sustained by the trial judge, and the third party demand was properly dismissed. Appellant, Allstate, is liable for rental costs of a substitute car only for that period of time reasonably necessary for repairs to plaintiff Blum’s automobile by a repairman using due diligence. Since Allstate’s liability for this expense cannot be expanded beyond the reasonable time necessary to repair the damaged vehicle, it makes no difference whether Magnifique took an unreasonably long period of time to complete the repairs. Such conduct could give rise to an action by the owner against Magnifique for breach of contract, but would be of no concern to the original tort feasor or his insurer.

For the reasons assigned, we affirm the judgment of the trial court. Costs of this appeal are assessed against defendant-appellant, Allstate Insurance Company.

AFFIRMED.


author: GUIDRY, Judge. CULPEPPER, Judge,

text:
    Phillip M. SLEET d/b/a Phil Sleet Realtor, Plaintiff-Appellee, v. John L. GRAY et al., Defendants-Appellants.
    No. 6133.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.
    Neblett & Führer by Leonard Führer, Alexandria, for defendants-appellants.
    Provosty & Sadler by Albin A. Provosty, Alexandria, for plaintiff-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   GUIDRY, Judge.

Defendants appeal from a summary judgment which condemns them to pay plaintiff the principal sum of $3000.00 together with legal interest from date of judicial demand until paid.

The factual circumstances giving rise to the instant litigation are not in dispute. Appellants do not seriously contend that a genuine issue of material fact exists which would preclude rendition of summary judgment. Rather, appellants contend that, considering the undisputed facts, plaintiff is not entitled to judgment as a matter of law.

The pleadings, affidavits and admissions of the parties reveal the following facts:

Plaintiff owns and operates a real estate agency in Alexandria, Louisiana. Defendants, desiring to sell certain property owned by them in the City of Alexandria, contacted plaintiff and requested his assistance in securing a purchaser. Plaintiff and defendants did not enter into a formal listing contract. Pursuant to the aforesaid verbal arrangement plaintiff procured a purchaser, Charles A. Anderson, and negotiated with him as to the terms and conditions of a proposed sale. Following these negotiations and on May 10,1976 plaintiff prepared a contract to buy and sell on a “standard form” for signature by defendants, as “sellers”, and Charles A. Anderson, as “buyer”. This contract, which provided for a sale of defendants’ property to Charles A. Anderson within 30 days of May 10, 1976 for a cash consideration of $30,000.00, was executed on the aforesaid date by all parties. The “buy-sell” agreement so executed contains the following recital as to the commission to be paid plaintiff by defendants for the services rendered by him, viz.: “We hereby agree to pay Phil Sleet Realtor a 10% sales commission at close of sale”.

The sale was not consummated within 30 days because of Anderson’s refusal to go through with the deal. A sale by defendants to Anderson of the property described in the “buy-sell” agreement for a cash consideration of $30,000.00 was finally confect-ed on July 28, 1976. Defendants allege in their affidavits that Anderson ultimately took title for the consideration agreed upon as a result of their threats to seek specific performance of the “buy-sell” agreement. After passage of the sale plaintiff made demand upon defendants for his 10% commission which demand was without avail. Plaintiff thereafter instituted this suit.

Appellants contend that the trial court erred in rendering summary judgment in favor of plaintiff because the sale was not passed within 30 days as provided in the “buy-sell” agreement. In the alternative, appellants contend that plaintiff is not entitled to judgment because when Anderson stated that he did not intend to buy the property, plaintiff abandoned his efforts to have Anderson comply with his contract and it was only as a result of the action taken by defendants that the sale was finally confected.

At the outset we observe that if plaintiff is entitled to judgment as a matter of law the trial court properly rendered summary judgment in his favor for there is no genuine issue of material fact. LSA-C.C.P. Article 966.

We determine that plaintiff is entitled to a judgment as a matter of law and affirm.

We find no merit in appellants’ contention that plaintiff should be deprived of his commission because the sale was not passed within 30 days as provided in the “buy-sell” agreement.

According to the plain and explicit terms of the agreement in question plaintiff was entitled to his commission “at close of sale”. This payment was not made contingent upon the sale being passed within 30 days but rather upon the buyer, Anderson, ultimately taking title under the agreement. As aforesaid, Anderson took title on July 28, 1976, albeit, not within 30 days. It is clear from appellants own admissions that the sale was passed as a direct result of the agreement which plaintiff negotiated on behalf of defendants.

Agreements legally entered into have the effect of law on those who have formed them (LSA-C.C. Article 1901) and the courts are bound to give legal effect to such contracts according to the true intent of the parties. LSA-C.C. Articles 1945 and 1963. The intent of the parties is to be determined by the words of the contract and when these are clear and explicit, the terms of the contract must prevail.

In addition, it is well settled that a realtor is entitled to a commission, even though the sale is consummated after termination of the agency contract, if the realtor was the procuring cause of the sale. Carter v. Hayes, 337 So.2d 295 (La.App. 2nd Cir. 1976, writ refused La., 339 So.2d 854); Cramer v. Guercio, 331 So.2d 550 (La.App. 1st Cir. 1976) and cases therein cited.

Appellants rely on Adams v. Adams, 283 So.2d 503 (La.App. 1st Cir. 1973) as standing for the legal proposition that a landowner cannot be held liable to the real estate broker for his commission where the prospective purchaser fails to purchase within the period of time stipulated in the “buy-sell” agreement. We concede that the cited case appears to so hold. However, a materially distinguishing fact between Adams and the instant case is that in the former, upon default by the prospective buyer, the sale was never consummated. Additionally, the reported opinion in Adams, supra, does not indicate whether or not, under the agreement there in question, payment of the broker’s commission was contingent upon the sale being passed within the time stipulated for in the agreement. As aforestated, under the explicit terms of the agreement between plaintiff and defendants the payment of plaintiff’s commission was not dependent upon the purchaser taking title within a stipulated time, rather defendants agreed to pay plaintiff his commission “at close of sale”. To decide otherwise, under the facts of this case, would lead to the absurd consequence that a broker could be deprived of his commission by the parties to a “buy-sell” agreement simply agreeing that passage of sale should be delayed beyond the time stipulated for in the contract.

Appellants’ alternative contention is equally without merit. There is nothing in the contract which required plaintiff to see to it that the prospective vendee specifically comply with his contract to buy. Clearly, plaintiff could not judicially or extra-judicially force the prospective vendee to specifically perform. This right belonged to the prospective vendors, whose threatened enforcement of this right resulted in Anderson’s ultimate purchase of the property for the consideration stipulated for in the contract. Under these circumstances, considering the terms of the “buy-sell” agreement, plaintiff is entitled to his commission.

For the reasons assigned the judgment of the trial court is affirmed. Appellants are cast for all costs of this appeal.

AFFIRMED.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge,

dissenting.

I think the handwritten statement on the buy-sell agreement that “We hereby agree to pay Phil Sleet Realtor a 10% sales commission at close of sale” should be construed only as meaning that the commission would be paid if the prospective purchaser bought the property within the thirty days provided in the printed portion of the agreement. The handwritten words “at close of sale” can refer only to the sale which was to be consummated within thirty days. No sale at any other time is mentioned, and I don’t think the court has the right to change the contract to mean that the sale could be at a later time.

The majority states that under the plain terms of the agreement, plaintiff was entitled to his commission “at close of sale”, and that this payment was not made contingent upon the sale being passed within thirty days. I agree the agreement is clear and explicit, but I think it is clear the words “at close of sale” mean the sale referred to in the printed portion of the agreement, i. e., within thirty days. If the court is to say that the parties agreed to some other time within which the sale could be completed, then what is that time? Is it three months or six months or one year or ten years or what? I think it is unreasonable to construe this agreement as being that the real-, tor was going to receive his commission if any sale was ever accomplished between these two parties, regardless of how many months or years elapsed.

However, at the very least the buy-sell agreement is ambiguous. The handwritten words “at close of sale” could mean the sale which was to be consummated within thirty days, or it could mean a sale at a later time. This ambiguity raises a fact issue on which parol evidence is admissible, and summary judgment is not appropriate.

The majority states it is well settled that a realtor is entitled to his commission, even though the sale is consummated after the termination of the agency contract, if the realtor was the “procuring cause” of the sale. The two cases cited by the majority for this proposition involve listing agreements which contained express provisions that if a sale was consummated after the listing period, the realtor was entitled to his commission if he was the procuring cause of the sale. This is a customary provision in listing agreements. However, in the present case, there was no listing agreement. How can the court supply such a contract between these parties? I think one of the fundamental errors on the part of the majority is that they are deciding this case as if a listing agreement containing a “procuring cause” provision exists, when, actually, there was no listing agreement.

The majority distinguishes Adams v. Adams, 283 So.2d 503 (La.App. 1st Cir. 1973) and the cases cited therein, on the basis that in those cases no sale was ever consummated between the landowner and the prospective buyer, whereas, in the present case, a sale was finally consummated. I think Adams v. Adams and the other cited cases are applicable here. The rationale of these cases is that the realtor must procure a buyer who is ready, willing and able to purchase the property in compliance with the buy-sell agreement. In the present case, the prospective purchaser was not willing to comply "with the buy-sell agreement. He refused to buy within the thirty days stipulated. The landowners sought the assistance of the realtor to secure compliance by the purchaser, but the realtor refused to assist. The landowners then formally discharged the realtor and they actually filed a suit for specific performance against the purchaser. As a result of these actions by the landowners, the buyer finally purchased the property 79 days after the date of the buy-sell agreement. But, of course, this sale was not consummated in compliance with the buy-sell agreement. Since there was no sale in compliance with the buy-sell agreement, the legal result is the same as if there was never a sale.

The majority disposes of the alternative contention of the landowners by simply stating that there is nothing in the contract which required the realtor to see to it that the prospective purchaser complied with his agreement to buy the land. Of course, in the present case, there was no written listing agreement between the realtor and the landowners. Obviously, there was some agreement pursuant to which the realtor procured Anderson as a prospective purchaser. But, the record does not show the provisions of this agreement, except that the affidavit filed by the defendants in opposition to the motion for summary judgment states that the realtor “failed to fulfill his agreement to bring about the completion of the sale.” Under the rule applicable to summary judgments, this raises a question of fact as to whether there was an agreement by the realtor to bring about the completion of the sale. Certainly there is nothing unusual or illogical about such an agreement being made by a realtor. In my view, the primary obligation of every realtor is to procure a purchaser who is ready, willing and able to buy the property. In the present case, the realtor failed to meet this obligation. The prospective purchaser refused to buy the property within the 30-day period expressly stipulated in the buy-sell agreement.

It is most disturbing to me that the majority has chosen to ignore the provision of the buy-sell agreement that the sale would be consummated within 30 days. Under the majority decision, “procuring cause” provisions in listing agreements will no longer be necessary to limit the time within which the sale must be completed for the realtor to receive his commission. All a realtor will have to do in the future is insert in the buy-sell agreement a vague provision that his commission will be paid “at close of sale”, and he will receive his commission even though the prospective purchaser does not buy within the time specified in the agreement. This will mean that the realtor will receive his commission if the prospective buyer ever buys the property, regardless of whether it is three months, three years, or ten years later. In my view, this is illogical. When a vendor signs a buy-sell agreement which provides for a sale within a certain time, he probably has reasons for wanting the sale to be completed within that time. He may need the money within that time to pay off other obligations, or to purchase other property, or he may want to sell the property within that time because of changing market conditions, etc. I think the time limitations in these agreements should be enforced as written. Otherwise, the court is in effect writing contracts for the parties, which it has no right to do.

For the reasons assigned, I respectfully dissent.


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    Donald L. MOSS et al., Plaintiffs and Appellants, v. TRAVELERS INDEMNITY COMPANY, Defendant and Appellee.
    No. 6135.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.
    Writ Refused Jan. 11, 1978.

      E. C. Hamilton, Henry R. Liles, Lake Charles, for plaintiffs and appellants.
    Woodley & Fenet by Edmund E. Wood-ley, Lake Charles, for defendant and appel-lee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   CULPEPPER, Judge.

This is a suit for damages arising from an intersectional collision between two automobiles in the City of Lake Charles. The plaintiff, Donald L. Moss, was driving one vehicle with the plaintiff, Glenda A. Dal-mage, as a passenger. The other vehicle was being driven by Joanie Tamney and was insured by the defendant, Travelers Indemnity Company. The plaintiff, Emery P. Higginbotham was the owner of the vehicle driven by Moss. After a trial on the merits, judgment was rendered in favor of the defendant insurer dismissing the plaintiffs’ suit at their costs. From this decision, plaintiffs now appeal.

The substantial issues on appeal are: (1) Was Donald Moss negligent, and was this negligence a legal cause of the accident? (2) Was Joanie Tamney’s negligence in driving at an excessive speed a legal cause of the accident?

The accident occurred on April 25,1976 at approximately 1:30 a. m. It had been raining earlier that night and was misting at the time of the accident. The streets were wet. The collision took place at the intersection of Enterprise Boulevard, a four-lane street running north and south with a median down the middle, and Eighteenth Street, a two-lane street crossing Enterprise Boulevard at right angles. Enterprise Boulevard has the right of way. Stop signs required traffic on Eighteenth Street to stop and yield to traffic on Enterprise. Both streets were straight and level at this point and there were no obstructions to the vision of persons approaching the intersection.

Moss was driving east on Eighteenth Street, with both his headlights and windshield wipers in operation. He stopped at the stop sign on Enterprise and looked north (to his left) for any approaching traffic. He observed none. He asked his sister, Glenda Dalmage, to look to her right for traffic heading north on Enterprise. Mr. Moss then proceeded to cross the intersection. The front of his vehicle had reached the median, and the rear was in the inside southbound land of Enterprise Boulevard when the Tamney car, which was going south on Enterprise, struck the left rear of the Moss vehicle. After the impact, the Moss vehicle crossed the boulevard and came to rest at the southeast corner of the intersection about 84 feet from the point of impact. The Tamney vehicle continued southward 150 feet from point of impact and came to rest headed west in the southbound lanes of Enterprise.

Miss Tamney and her passenger, Judith Bourgeois, testified that they were proceeding south on Enterprise 45 to 50 miles per hour, when suddenly the Moss vehicle appeared in front of them. Miss Bourgeois said they were within 25 to 30 feet, and Miss Tamney said only 15 feet, of the Moss vehicle when it moved into the intersection. Miss Tamney could not remember swerving her car to avoid a collision, nor could she remember applying the brakes. She testified that there was no time to take evasive action. She did not remember seeing the lights of the other car nor the car itself until it moved into the intersection. She testified that prior to the collision she had been driving in the right or outside lane of Enterprise Boulevard.

Testimony was also given by several police officers. Officer Hancel Hedrick, a patrolman for the Lake Charles City Police, testified that as he was leaving work the evening of this accident he was partially run off the road by a speeding yellow automobile (the one driven by Miss Tamney) which approached from the rear going down the center of the two lanes of Enterprise Boulevard. He immediately gave pursuit. His testimony was that in spite of reaching speeds between 70 and 75 miles per hour in his pickup, he was not able to catch the car which had speeded past him. At several points, Enterprise Boulevard has dips in it and the officer claimed he saw the car bounce and sparks fly from underneath it. He was forced to stop and then run a red light at one intersection, but reached the accident scene (about six blocks farther south) only moments after impact. The posted speed limit for Enterprise Boulevard was 35 miles per hour.

As a result of the collision, the automobile Mr. Moss was driving was declared a total loss. Heavy damage was also done to the car driven by Joanie Tamney. The four persons involved in the accident were taken to a hospital emergency room where they were treated and released. No one received serious injuries. Investigating officers issued Miss Tamney a traffic ticket for going 70 in a 35 mile per hour zone. She subsequently pleaded guilty to going 50 in a 35 mile per hour zone. No explanation was given for the reduction of the charge.

Plaintiffs contend the Moss vehicle had pre-empted the intersection, and that the accident was caused solely by the excessive speed of Joanie Tamney. Defendant, Travelers Indemnity Company, denied any liability on the part of its insured and alleged the negligence of Donald Moss in failing to yield the right of way was the sole legal cause of the accident.

The trial court found that Joanie Tamney was going 50 miles per hour, and that she was thus negligent in exceeding the speed limit by 15 miles per hour. However, the trial court concluded her speed was not a cause in fact of the accident.

The court found that Moss was negligent in failing to yield the right of way, and that this was the sole cause of the accident. The trial judge relied on Funderburk, et al. v. Temple, et al., 268 So.2d 289 (La.App. 1st Cir. 1972) and Shepherd v. Checker Cab Company, 230 So.2d 343 (La.App. 4th Cir. 1970) for the rule that “the driver on the inferior street is charged with the duty of maintaining a proper lookout, and is held to have seen that which he should have seen by the exercise of reasonable care.” He also concluded Moss is not exonerated by the rule of pre-emption, since he did not enter the intersection at a time when it was reasonably safe to do so.

On appeal, counsel for appellants relies principally on the rule that a statutory right of way given to a motorist when entering an intersection is forfeited if that motorist is traveling at a highly excessive speed under prevailing circumstances. Gauthier v. Fogleman, 50 So.2d 321 (La.App. 1st Cir. 1951); Grouchy v. Globe Furniture Company, Ltd., 16 La.App. 311, 134 So. 347 (1st Cir. 1931); Neal v. Davenport, 270 So.2d 617 (La.App. 2d Cir. 1972); State Farm Mutual Automobile Insurance Company v. United States Fidelity & Guaranty Company, 111 So.2d 175 (La.App. 2d Cir. 1959); Sewerage and Water Board of New Orleans v. Phoenix Insurance Company, 230 So.2d 293 (La.App. 4th Cir. 1970).

The facts in Gauthier v. Fogleman, supra, are very similar to the case at bar. It was a two-car collision at the intersection of two city streets in a drizzling rain. Defendant was driving on the favored street. Plaintiff had stopped as required, observed defendant’s car about one-half block away, ascertained she could cross safely and then attempted to do so. Plaintiffs car cleared the center of the intersection before it was hit. Defendant’s testimony was that he was driving between 20-25 miles per hour when he began braking 40 feet from the intersection. This the trial court chose not to believe.

The trial court found that the defendant was negligent in driving at an excessive rate of speed under the circumstances, had failed to keep a proper lookout, and had failed to respect the right of way to which plaintiffs automobile was entitled as a result of having pre-empted the intersection.

The appellate court agreed with the trial court decision and quoted from the “well written reasons for the judgment.” We agree that the reasoning is sound and quote the following paragraphs which are applicable to the case at bar:

“It is also well settled that the driver of a vehicle approaching an intersection is entitled to assume that another automobile approaching on the other street will do so at a moderate rate of speed, and will observe the regulations and ordinances with reference to speed. White v. Neff, La.App., 11 So.2d 289, Fulmer v. United States Fidelity & Guaranty Company, La.App., 5 So.2d 923.
“While it is true that a motorist should stop before entering a right of way street and carefully observe the traffic conditions on the right of way street and make no entry thereon unless conditions warrant it, the Court believes that under the facts in this case Mrs. Gauthier was justified in entering the right of way street because she would have had plenty of time to have negotiated the intersection had the Ford automobile been traveling at a reasonable rate of speed. A right of way is not a right of pre-emption and vehicles traveling on a favored street may not disregard the rights of other vehicles by undue insistence upon that right. Bethancourt v. Bayhi, La.App., 141 So. 111.

As to pre-emption of the intersection by Moss, we quote from Fidelity & Casualty Company of New York v. McCasland, 203 So.2d 756 (La.App. 3rd Cir. 1967) at page 760:

“The doctrine of pre-emption of intersections has a double barrel effect, which is that when it applies in favor of one party, it not only frees that party from negligence proximately causing the injury, but furthermore, establishes the negligence of the other party.”

We think the facts of this case support the application of the doctrine of pre-emption in favor of Donald Moss. The record reveals nothing to contradict the testimony of Mr. Moss and his sister that he stopped at the stop sign, looked to his left, in the direction from which Miss Tamney was approaching, and he saw no vehicle approaching. Moss testified that within three or four seconds after looking to the left, he began to cross the intersection. His vehicle had crossed the outside lane and was entirely in the inside lane before the impact. The left front of the Tamney car struck behind the left rear wheel of the Moss automobile. If Moss had been able to drive another four or five feet, the Tamney car would have passed to his rear. Clearly, if Miss Tamney had been going 35 miles per hour instead of 50, Moss would have crossed safely and the accident would not have occurred. Even if we were to assume that Moss should have seen the Tamney vehicle when he looked to his left, he would have been justified in entering the intersection, because he would have had ample time to cross safely had Miss Tamney not been driving at a highly excessive speed.

We conclude that Moss did pre-empt the intersection, and that he was not guilty of any negligence which constituted a legal cause of this accident. Joanie Tamney’s grossly excessive speed was the sole, legal cause of the collision.

Turning now to the issue of damages, we must consider the personal injuries to both Donald Moss and Glenda Dalmage and the property damage suffered by Emery Hig-ginbotham, owner of the vehicle being driven by Moss. Since the trial judge made no awards, we are not restricted by the rules in Coco v. Winston Industrial, Inc., 341 So.2d 332 (La.1977) and Schexnayder v. Carpenter, 346 So.2d 196 (La.1977) as to increasing or reducing awards. We must use our own discretion as to the amounts awarded.

As a result of this collision, Mr. Moss sustained a laceration over the left eye, a cut on the little finger of the right hand and contusions to the chest. There were also slight abrasions and lacerations on the ring and middle fingers.

By the time of trial, one doctor, who had last treated Mr. Moss two months after the accident, felt Mr. Moss would suffer about a 15% permanent disability of the right hand. A second doctor testifying by way of a deposition stated that while there was a disfiguring two-inch scar around the little finger and up the back of the hand, the patient had full range of motion of all joints and no residual disability in the tendons or the joints as a result of the scar. This doctor found that the scarred finger would be uncomfortable when it was hit, but he did not believe Mr. Moss would have any significant permanent partial functional disability.

Mr. Moss testified that he suffered discomfort in the chest area for two months after the accident. He also admitted that his hand continued to improve and the stiffness the doctor had warned about never developed. In fact, he only noticed the injured finger during weather changes. He did say he couldn’t pick up as much weight as he used to. Mr. Moss was not employed at the time of the accident but was employed at the time of trial. He makes no claim for loss of wages and has no problem performing his current work. His total medical bills to date are $683.75.

In Distefano v. Lumbermen’s Mutual Casualty Company, 340 So.2d 1110 (La.App. 3rd Cir. 1976) we affirmed a general damage award of $3,000 for a 5% over-all impairment of the right hand where plaintiff returned to manual labor as a deckhand on a boat.

A motorcycle policeman found to have a comminuted fracture of the radius of the left wrist and dislocation of the ulna and who was hospitalized for three days in addition to undergoing surgery was awarded $3,750. He had a 10% permanent disability of the wrist. We affirmed that award as being neither inadequate nor excessive. Aucoin v. Fidelity General Insurance Company, 219 So.2d 532 (La.App. 3rd Cir. 1969).

We find an award of $4,000 to Donald Moss is appropriate for his general damages.

Immediately after the accident, Mrs. Dalmage did not think she was injured. Dr. Melvin Gold testified that when he examined Mrs. Dalmage two days after the accident he found a moderate cervical strain or whiplash, and a very mild lumbar back strain. Mrs. Dalmage makes no claim for lost wages and there appears to be no permanent injury which would interfere with her job as a switchboard operator and receptionist. Her medical expenses were $493.43.

An award of $500 general damages was upheld as adequate for a woman who suffered with headaches and a stiff neck for about two weeks after an automobile collision. Overturf v. Bernard, 331 So.2d 94 (La.App. 1st Cir. 1976).

The appellate court found neither excessive nor inadequate an award of $2,000 to a man who suffered contusion of the skull and severe, acute cervical strain, which resulted in pain in his neck area, and weakness in his arms and hands, as well as severe headaches and some periodic pain and discomfort for two or three months. Augello v. Call, 210 So.2d 129 (La.App. 4th Cir. 1968).

We award Glenda Dalmage $2,000. We think this is in the range dictated by the facts of this case.

The parties here stipulated that the value of Mr. Higginbotham’s Oldsmobile was $350. We therefore award him that amount as damages.

DECREE

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 plaintiffs and against the defendant, Travelers Indemnity Company, as follows: (1) in favor of Donald L. Moss for the sum of $4,693.75, together with legal interest thereon from date of judicial demand until paid; (2) in favor of Glenda Dalmage for the sum of $2,493.43, together with legal interest thereon from date of judicial demand until paid; (3) in favor of Emery P. Higginbotham for the sum of $350, together with legal interest thereon from date of judicial demand until paid. It is further ordered, adjudged and decreed that plaintiffs have judgment against defendant for all costs in the district court, as well as the costs of this appeal.

REVERSED AND RENDERED.


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    Howard N. CRAWFORD, Jr. Plaintiff and Appellee, v. O. H. DESHOTELS et al., Defendants and Appellants.
    No. 6137.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.
    Writ Granted Jan. 11, 1978.

      Deshotels & Deshotels by O. H. Deshotels, II, Kaplan, for defendants and appellants.
    Cooper & Sonnier by Silas B. Cooper, Abbeville, for plaintiff and appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   CULPEPPER, Judge.

The plaintiff, Howard N. Crawford, Jr., filed this suit to annul a sale by the defendant, Mrs. Frankie Boutte McDaniel, to the defendant, O. H. Deshotels, Jr., conveying all of vendor’s interest in 35 acres of land. Plaintiff contends that in a prior sale by Mrs. McDaniel to plaintiff of an undivided VÍ2th interest in the land, Mrs. McDaniel granted plaintiff an option to purchase her remaining Vi2th interest at the bona fide price offered by any third party. It is plaintiff’s contention that the later sale by Mrs. McDaniel to Deshotels was in violation of the option agreement. Plaintiff prayed for the annulment of the sale from Mrs. McDaniel to Deshotels and for specific performance of the option by ordering Mrs. McDaniel to sell to plaintiff. From a judgment granting plaintiff the relief prayed for, the defendants have appealed.

The issues are: (1) Was the sale from Mrs. McDaniel to plaintiff and the option contained therein void on the basis that the consideration from Crawford, a non-lawyer, was an agreement to practice law and furnish legal services in violation of state statutes? (2) Was the option agreement between Mrs. McDaniel and Crawford invalid for want of a limited time within which to exercise the option? (3) Did Mrs. McDaniel actually offer to sell her interest to plaintiff in compliance with the option?

The general facts are that in about 1961 the plaintiff, an independent land man, was researching the title to the 35-acre tract of land formerly owned by Whitney Boutte in Vermilion Parish. Crawford discovered that the defendant, Mrs. Frankie Boutte McDaniel, was an adopted daughter of Whitney Boutte, who died leaving a will bequeathing his entire estate to other persons, thus, in effect, disinheriting his adopted daughter. Under these facts, Mrs. McDaniel was entitled to a legitime of one-third of Whitney Boutte’s one-half interest in the property, or a total of a one-sixth interest in the 35 acres.

Mr. Crawford located Mrs. McDaniel in California. He began to correspond with her regarding an agreement to undertake to correct her title to an interest in the property. On May 31, 1966, Mrs. McDaniel executed a contract whereby she agreed to convey to Crawford one-half of her interest in the 35 acres in consideration of certain services to be performed by him and described in the instrument as follows:

“That grantor enters into this agreement to grant unto grantee the said interest as a consideration in return for the services of and expense to grantee in undertaking the necessary work and expense in perfecting the title, of whatever undivided interest grantor may have legal claim to, into grantor and causing the said title to grantors interest to be properly reflected in the Conveyance Records of the Clerk of Court of the Parish of Vermilion.”

Thereafter, in June of 1967, Crawford obtained quitclaim deeds from several parties conveying an undivided one-sixth interest in the property to Mrs. McDaniel. It was not necessary for Mr. Crawford to employ an attorney or to file any proceedings in court to perfect Mrs. McDaniel’s title.

On July 16, 1967, in compliance with the contract of employment of Mr. Crawford, Mrs. McDaniel conveyed to Crawford one-half of her undivided one-sixth interest in the property. This conveyance contained the option agreement in question, which reads as follows:

“IT IS FURTHER UNDERSTOOD, that if ever a bona fide offer is made and should either Frankie Boutte McDaniel or H. N. Crawford, Jr., desire to sell in whole, part or portion the herein described interest owned by each, the party desiring to sell shall be and is herein obligated to offer to the other party the first chance to buy same at the bona fide offer, such notice to be given to the here-inabove address of either by Registered Mail, and an answer be given the same within thirty days from date notice is received, or it shall be deemed that the option to purchase at the bona fide offer is rejected.”

Beginning in 1968, Mr. Crawford contacted Mrs. McDaniel several times suggesting that he might buy her interest in the property. Mrs. McDaniel was interested in selling and they corresponded during 1972 and 1973 regarding a price. On January 10, 1974, Mrs. McDaniel wrote Crawford a letter which states in pertinent part:

“Yes I am interested in selling the land in Vermilion parish, however, we do not plan on giving it away. I wrote you sometime ago asking you about a fair sales price so when you said you did not know I made a trip down and had some one check it out. I have been informed that the land is ideally located on the Highway and should not be sold for less than $1200 per acre. I informed Mr. Deshotels that I would not except less than $1000 per acre.”

Mrs. McDaniel gave no written notice by Registered Mail to Crawford of any bona fide offer by Mr. Deshotels or any other party. Nevertheless, on April 26,1974, Mrs. McDaniel conveyed all of her right, title or interest in the 35 acres to O. H. Deshotels, Jr. for a stated consideration of $3500 cash.

On February 25,1976, Crawford filed the present suit to annul the sale from McDaniel to Deshotels and to seek performance of the option. Plaintiff later deposited the sum of $3500 in the Registry of the Court to reimburse Deshotels for the price he paid to Mrs. McDaniel.

ILLEGAL CONSIDERATION FOR SALE FROM MRS. McDANIEL TO CRAWFORD

In a reconventional demand, Mrs. McDaniel seeks the annulment of the July 16,1967 sale from her to Crawford on the basis that the consideration for the sale was the performance by Crawford of services which constitute the practice of law, in violation of LSA-R.S. 37:213. This statute provides that no person who is not regularly licensed to practice law in Louisiana shall: “(1) Practice law; (2) Furnish attorneys or counsel or an attorney and counsel to render legal services; ... (4) Render or furnish legal services or advice;”

As shown by the above quotation from the May 31, 1966 employment contract, Mr. Crawford agreed to undertake “the necessary work and expense in perfecting the title, of whatever undivided interest grant- or may have legal title to, into grantor and causing the said title to grantor’s interest to be properly reflected in the Conveyance Records of the Parish of Vermilion.” The evidence shows that pursuant to this agreement Crawford obtained quitclaim deeds, which he personally prepared, conveying to Mrs. McDaniel an undivided one-sixth interest in the property. It was not necessary for Mr. Crawford to employ an attorney or to file any proceedings in court.

A very similar issue was presented in the recent case of Placid Oil Company v. Taylor, 306 So.2d 664 (La.S.Ct.1975) where a land man, a non-lawyer, agreed to furnish services to remove clouds from the titles of landowners in consideration of an interest in the property. The court found that regardless of whether the services to be performed by the land man under the contract constituted the practice of law, the evidence did not show that the services actually performed were prohibited legal services. The court stated:

“Nor can we say, for instance, that services performed by removing clouds from 'titles, such as locating heirs or having adverse claimants sign quitclaims prepared by lawyers, amount by themselves to the practice of law, so as to exclude non-lawyers from the useful functions historically performed by landmen.”

In its decision in Placid, the Supreme Court cited with approval the case of Strange v. Robinson, La.App., 189 So. 338 (1939) which involved facts very similar to the present case. The court in Robinson held that the services performed by the land man did not constitute the prohibited practice of law.

Under these authorities, the services performed by Crawford in the present case clearly did not constitute the prohibited practice of law.

UNLIMITED OPTION TIME

Defendants argue next that under LSA-C.C. Article 2462 an option without a time limit is invalid since it takes the property out of commerce. They contend that the option in the present case is for an unlimited time since its termination date is conditioned on either Mrs. McDaniel or Mr. Crawford or their heirs desiring to sell.

This argument has been answered by our Supreme Court in Price v. Town of Ruston, 171 La. 985, 132 So. 653 (1931), where the owner allowed the Elks Lodge to build a third story on top of a building which she owned. The agreement contained a provision that in the event the Elks Lodge ever desired to sell the third story, the owner, Mrs. Price, would be given the option and preference of purchasing from the Lodge at the price offered to it. The court held:

“There is no merit in the appellant’s argument that the option was null for want of a stipulation limiting the time within which it might be exercised. The stipulation limiting the time was that the option would be available whenever the Elks’ Lodge might desire to sell the property, meaning whenever it might become necessary for Mrs. Price or her heirs or assigns to prevent the title to the third story of the Price building from passing to some one else.”

NONCOMPLIANCE WITH THE OPTION CONTRACT

Defendants argue next that the above quoted portion of the April 26, 1974 letter from Mrs. McDaniel to Crawford constituted an offer to sell for $1200 an acre, which offer was not accepted by Crawford within the 30 days provided.

The trial court found as a fact, from the letter itself and from parole testimony introduced to explain it, that this was not a bona fide offer by Mrs. McDaniel to sell to Crawford for a certain price. The option agreement provides for a bona fide offer conveyed in writing by Registered Mail. The letter in question was only a part of the continuing negotiations between the parties in which Mrs. McDaniel stated that she would like to sell for not less than $1200 an acre and that she had informed Mr. Deshotels that she would not accept less than $1,000 per acre. We agree with the trial judge that this was not a bona fide offer to sell for a certain price under the option agreement.

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

AFFIRMED.


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    Larry RYDER, Plaintiff and Appellant, v. PINEVILLE CIVIL SERVICE BOARD, et al., Defendant and Appellee.
    No. 6145.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.
    Daniel E. Broussard, Jr., Alexandria, for plaintiff and appellant.
    Gravel, Roy & Burnes by Dan E. Meli-char, Alexandria, for defendant and appel-lee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   CULPEPPER, Judge.

The plaintiff, Larry Ryder, appeals from a decision by the Ninth Judicial District Court affirming a ruling by the Fire and Police Civil Service Board of the City of Pineville. The board abolished the classification of deputy fire chief, which position was formerly held by Ryder.

The issue is whether the action of the Board was taken “in good faith for cause”, within the meaning of LSA-R.S. 33:2561.

The City of Pineville has a population of about 9,000. Its Fire Department is subject to the provisions of LSA-R.S. 33:2531-2568, relating to fire and police Civil Service Laws for small municipalities. The Pine-ville Fire Department has about 17 employees. Before the classification of deputy fire chief was abolished, the department consisted of a fire chief, a deputy chief, three assistant chiefs, and the rest were fire captains, fire fighters and chauffeurs.

In September of 1976, the Pineville City Council, which is the appointing authority, voted to abolish the classification of deputy chief. Ryder was retained as an assistant chief, with a reduction in salary of $478.08 per year.

Ryder requested a hearing before the Fire and Police Civil Service Board to determine the reasonableness of the action. The Board granted a public hearing which was held on December 9, 1976. Present at the hearing were Ryder and his attorney, the Board and its attorney, the Mayor of the City of Pineville, the fire chief and several other witnesses. After hearing the testimony, the Board voted to abolish the classification of deputy fire chief and to assign Ryder to the classification of assistant chief.

Ryder appealed the Board’s decision to the district court. In affirming the Board’s decision, the district judge gave the following written reasons:

“It is the appellant’s position that the action of the Appointing Authority and the Fire and Police Civil Service Board was not made in good faith and for just cause. It is the City of Pineville and the Fire and Police Civil Service Board’s position that the $204,000.00 deficit, reflected by a 1976 audit of the city, compelled the institution of an austerity program and the subject of this suit was a part of that program. As a consequence of the austerity program, payments of the auxiliary police were discontinued, personnel at the community center were reduced, expenses on maintenance facilities were reduced, expenses on the oxidation pond were reduced and the superintendent at the City barn was demoted.
“The court has examined the entire transcript and attachments thereto and the applicable law. This review is limited to a determination of whether the Civil Service Board acted in good faith and for just cause. A complete review reflects that there was no bad faith on the part of the Pineville Civil Service Board in abolishing the position of Deputy Fire Chief and reclassifying the appellant as Assistant Chief, nor was the action arbitrary nor discriminatory toward the appellant. The court finds that the financial condition of the Appointing Authority necessitated the initiation of corrective measures because of the deficit, and further, that the abolition of the class of Deputy Fire Chief and reclassification of the appellant as Assistant Chief was part of the larger austerity program.”

In addition to the reasons stated by the district judge, we note that the Mayor of the City of Pineville, in his testimony before the Board, emphasized the fact that Pineville was the only city of its size in the State of Louisiana which had the classification of deputy fire chief. He also noted that Pineville has 17 employees in the Fire Department, whereas other cities of comparable size have only 8 or 9. The Mayor was of the opinion the Fire Department did not need a deputy chief and perhaps did not need as many employees. In this situation, it was the opinion of the Mayor and the Council that the Fire Department was a logical place to try to cut some of the expenses of the City.

Plaintiffs principal argument on appeal is that the savings to be realized by the city from the abolition of the classification of deputy fire chief are not sufficient to justify this action. As stated above, the savings realized by reducing Ryder from deputy chief to assistant chief will be $478, or about $40 a month. The district judge’s answer to this argument, as stated above, is that this is only part of a larger austerity program. Furthermore, as indicated by the above discussed portion of the Mayor’s testimony, economy alone was not the reason for abolishing the classification of deputy fire chief.

We have carefully reviewed the record and find that the evidence amply supports the trial judge’s decision.

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

AFFIRMED.


author: WATSON, Judge.

text:
    Calvin DEROUEN et al., Plaintiffs-Appellees, v. SOUTHERN PACIFIC TRANSPORTATION CO. et al., Defendants-Appellants.
    No. 6146.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.

      Davidson, Meaux, Sonnier & Roy by L. Lane Roy, Lafayette, Caffery, Duhe & Davis by J. Louis Gibbens, New Iberia, for defendants-appellees.
    L. Hallman Woods, New Iberia, for plaintiffs-appellees.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   WATSON, Judge.

This is an appeal from a trial court judgment in favor of an automobile passenger and her husband and against the defendant railroad, which owned a crossing. The trial court held that a defect in the crossing maintained by the railroad caused the accident and handed down excellent written reasons. We quote and adopt them, as follows:

“This is a suit for damages filed by Calvin Derouen and his wife, Lilian. Calvin is suing in his capacity as head and master of the community to recover medical expenses and his wife’s lost wages incurred as the result of an alleged automobile accident. Lilian is suing for the injuries and damages she incurred as a result of said accident.
“Southern Pacific Transportation Company (Southern Pacific) is being sued as the owner of the railroad crossing that was the cause of the alleged accident. Travelers Indemnity Company (Travelers) is being sued as the insurer of the driver of the automobile involved in the accident.
“Reviewing the history of the case, Lilian was riding as a passenger in the Derouen family car driven by her daughter, Susan, who is Travelers’ insured. Other passengers in the car were Mrs. Derouen's father, Mr. Broussard; her sister, Mrs. Chaisson, and Mrs. Chaisson’s two minor children. The alleged accident occurred in the City of New Iberia as the Derouen vehicle was traveling north on Hopkins Street. As the vehicle approached a railroad crossing owned by defendant Southern Pacific, Susan slowed down and began traversing the tracks when, suddenly, the passengers heard a loud noise and the car came to an abrupt halt. This action caused the occupants to lurch forward and upward, resulting in Mrs. Derouen’s hitting her head on the roof of the car. This incident allegedly resulted in the injuries of which Mrs. Der-ouen now complains. Mrs. Derouen is the only occupant of the car who was injured.
“After the vehicle came to rest on the crossing, Susan drove it off the tracks onto the shoulder of the street to prevent blockage of other traffic. An unidentified male stopped to assist the Derouens. He jacked up the car and observed that the tailpipe and muffler were bent and hanging down. The man attempted to pull off the damaged material but was unable to do so. The occupants then walked back to the crossing in order to ascertain the cause of the accident. Mrs. Derouen testified that she observed a railroad spike about five or six inches in height protruding from the cross-tie. (T. p. 20) Susan testified that the spike was approximately six inches tall. (T. p. 94) Mr. Broussard testified that he observed a spike but was unable to make an estimate. (T. p. 110) Patrolman Dehart investigated the scene several hours after the accident because the Derouens neglected to report it immediately. Patrolman Dehart testified that he observed two spikes about two or three inches above the wood. (T. p. 122)
“The issue presented to this Court is to determine if the railroad spike protruding from the crosstie was in fact the cause of plaintiffs’ damages.
“The evidence adduced on behalf of the plaintiffs is uncontradicted.
“The Derouen vehicle was in excellent condition as was evidenced by the fact that it was inspected and given a safety inspection certificate by the Auto Mart a few weeks prior to the accident.
“All the witnesses testified that the vehicle was operated at a reasonable rate of speed, no more than twenty-five miles per hour, and every precaution was taken before traversing the crossing. Susan slowed down, almost coming to a complete stop, while crossing the intersection.
“All the plaintiffs’ witnesses testified that they observed spikes protruding from the crossing immediately after the accident. Greater weight should be given to Patrolman Dehart’s testimony, as he was the only independent witness. Although it was dark when he inspected the scene, Patrolman Dehart testified that he observed several spikes protruding two or three inches above the wood.
“The defendant’s expert witness, Dwayne Evans, testified that a new car of the same model as the Derouen vehicle had a clearance of five to six inches. He further testified that the age of the car would vary the clearance. Mr. Evans conducted a reconstruction test of the accident but his experimentation was with spikes protruding no more than four inches. He expressed some reluctance to experiment with a spike protruding higher than four inches. He also testified that a spike protruding four inches would constitute a road hazard.
“Although the evidence presented is only circumstantial, negligence may be proved by either direct or circumstantial evidence. LaBlanc v. Travelers, 291 So.2d 817 (La. App., 4th Cir., 1974). Further citing La-Blanc, supra:
‘Circumstantial evidence is particularly appropriate where, as is the case here, direct evidence is unavailable to a plaintiff. In order for circumstantial evidence to be sufficient, it must exclude, with a fair amount of certainty, every reasonable hypothesis other than that the damages claimed resulted from negligence of the defendant. In order to constitute a preponderance, the evidence must show it was more probable than not that the harm was caused by the tortious conduct of the defendant.’
“The evidence presented excludes all other reasonable hypotheses. Dwayne Evans testified that the only way to explain the accident would be a spike protruding higher than four inches, the car driven at a high rate of speed, or the muffler and tailpipe hanging lower than usual. (T. 194, 195, 196). The uncontradicted evidence presented was that the undercarriage was normal and the car was driven at a slow rate of speed. Witnesses also testified that they observed spikes protruding five or six inches. The only conclusion that can be reached is that the spike was in fact the cause of plaintiffs’ harm.
“Having concluded that the spike caused the accident, the Court must consider if Southern Pacific was negligent. In the recent case of Loescher v. Parr, 324 So.2d 411 (La.1975, rehearing denied 1976), the Supreme Court held that the owner of a ‘thing’ is liable for the damages it causes as mandated by Civil Code Article 2317. Once the injured party proves a vice in the thing and the vice was the cause of his injury, the owner or guardian responsible for the thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Loescher, supra, at p. 447.
“Clearly, Mrs. Derouen’s injuries were not caused by her own fault as she was a guest passenger in the automobile. The evidence is uncontradicted that her injuries were not caused by a third party, i. e., Susan Derouen, the driver of the car, operated the same in a careful and prudent manner. Also, there is no evidence, nor is it alleged, that the accident was caused by an irresistible force.
“Southern Pacific, as owner and guardian of the railroad crossing, is liable for the injuries caused by the railroad spike protruding from the crossing.
“As a result of the negligence of Southern Pacific in failing to keep its crossing in a safe condition, Mrs. Derouen suffered a ruptured cervical disc at the C4r-C5 level. The disc was fused and Mrs. Derouen has had a normal recuperation with minor pain and partial disability.
******
“The Court finds that an award of $17,-500.00 for Mrs. Derouen’s past and future physical pain and suffering is adequate and in line with awards for similar injuries. Armstead v. Central Louisiana Electric Company, 308 So.2d 870 (La.App., 3rd Cir., 1975). Kennedy v. Travelers, 277 So.2d 692 (La.App., 2nd Cir., 1973).
* * * * #
“As a result of the accident, Mrs. Der-ouen was unable to work at her job as a sales clerk for a period of almost two years.
“The Court assesses Mrs. Derouen’s damages as follows:
Medical Expenses $ 6,761.63
Lost Wages for Two Years 6,720.00
Deductible on Automobile 100.00
Past and Future Pain and Suffering 17.500.00
Total Damages $81,071.68
“The Court further finds that Susan Der-ouen was not negligent in the operation of the vehicle as evidenced by the testimony of the witnesses. Therefore, Southern Pacific’s third party claim against her must fall, and Travelers third party claim against Southern Pacific for recovery of the $41.00 it paid Calvin Derouen for the damages to the Derouen vehicle must stand.
“In accordance with the above, the Court finds that Southern Pacific Transportation Company is liable to Calvin Derouen, as head and master of the community existing between [him] and Lillian Derouen in the amount of Thirteen Thousand Five Hundred Seventy-One and 63/100 ($13,571.63) Dollars; to Lillian Derouen in the amount of Seventeen Thousand Five Hundred and No/100 ($17,500.00) Dollars; to Travelers Indemnity Company in the amount of Forty-One and No/100 ($41.00) Dollars; together with legal interest from the date of judicial demand.
“The Derouens’ demand against Travelers Indemnity Company is dismissed; the third party demand by Southern Pacific against Susan Derouen and Travelers is also dismissed. All costs of these proceedings are to be borne by defendant, Southern Pacific. * * * ” (TR. 178-182)

For the reasons assigned, the judgment of the trial court is affirmed. Costs of the appeal are taxed against appellant, Southern Pacific Transportation Company.

AFFIRMED.

FORET, J., concurs in the result.

DOMENGEAUX, J., concurs in the result reached.

      . No objection was made to Calvin Derouen suing for his wife’s lost wages. LSA-C.C.P. art. 686 provides that the wife is the proper party to sue for her lost wages. However, the husband has an interest in the recovery and lacks only procedural capacity. The dilatory exception raising lack of procedural capacity is waived if not filed prior to answer. Gebbla v. City of New Orleans, 249 La. 409, 187 So.2d 423 (1966); LSA-C.C.P. arts. 681 and 926; Polk v. New York Fire and Marine Underwriters, Inc., 192 So.2d 667 (La.App. 3 Cir. 1966); 28 La.L.R. 397; Vicknair v. Home Indemnity, 273 So.2d 542 (La.App. 1 Cir. 1973). Compare Nicosia v. Guillory, 322 So.2d 129 (La., 1975).

      . The Derouens also sued Travelers for the negligence of the driver, Susan Derouen; Southern Pacific asserted a third party claim against Susan and Travelers; and Travelers claimed their subrogation rights for automobile damage against Southern Pacific.