text:
    Paula G. McMILLAN v. The TRAVELERS INSURANCE COMPANY.
    No. 12595.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Johnnie Jones, Baton Rouge, of counsel for plaintiff-appellant Paula G. McMillan.
    John S. Campbell, Baton Rouge, of counsel for defendant-appellee The Travelers Insurance Company.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   BAILES, Judge.

This suit originated as a claim for certain benefits and for statutory penalties and attorney’s fees allegedly due under a policy of group health insurance. The issue as to benefits due has been resolved since its filing and only the claim for penalties and attorney’s fees remains.

During 1977, the plaintiff was employed by Corporate Communications Group, Inc., and worked at Television Channel 33 in Baton Rouge, Louisiana. At that time, her employer had in force a policy of group health insurance for its employees with the defendant herein, the Travelers Insurance Company.

In May, 1977, Ms. McMillan submitted a claim under that policy for the payment of certain medical expenses incurred by her for foot surgery. When payment had not been received by August 10, 1977, this suit was filed. The district judge dismissed the plaintiff’s claim after trial on the merits. We affirm.

The testimony indicates that the plaintiff had submitted a number of claims to the defendant for payment prior to this one and that she had come to know Carolyn Faye Cain, the defendant’s employee who had processed her previous claims. They had met in person and had spoken over the telephone several times.

On May 9, 1977, the information on this claim was received in the defendant’s Baton Rouge office. As indicated by her file, it was thereafter processed by Ms. Cain and on May 16, two checks for the full amount of the claim, payable to the plaintiff, were forwarded to Channel 33. At that time, it seems that the plaintiff was on leave from her duties at the station and that she thereafter resigned without returning to work.

However, within a week of mailing the checks, Ms. Cain did receive a telephone call from the plaintiff who had not yet received the checks. She testified that she told Ms. McMillan that they had been sent to the station and that she should check there, and suggested that if she had not received them in a week to call her and she would issue a stop payment on the checks. She further stated that the plaintiff did not call her again and that the next contact that she had with the matter was when this suit was served on her employer.

In the meantime, the checks were received at Channel 33 by Mrs. Cynthia Wool-ey who regularly handled the insurance claims for the station. In her testimony she stated she specifically remembered the two checks and related that since the plaintiff was not at work, she called her apartment on several occasions to let her knew that she had them, but that she was unable to get an answer. She then inquired of the news director at the station as to her last known mailing address, and mailed the checks to that address, all of which she recalled doing because she did not want the checks left at her desk.

The checks were apparently lost in the mail, as they were never received by appellant and they were never returned to the station or cashed.

The plaintiff testified that she contacted the Travelers’ office on more than one occasion by telephone when the checks did not arrive but that she had no other contact with the defendant. Her attorney, who is plaintiff’s husband, neither called or wrote the defendant prior to filing suit.

The plaintiff claims penalties and attorney’s fees as provided in R.S. 22:657, to-wit:

“A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases.
“B. All claims for accidental death arising under the terms of health and accident contracts where such contracts insure against accidental death shall be settled by the insurer within sixty days of receipt of due proof of death and should the insurer fail to do so without just cause, then the amount due shall bear interest at the rate of six percent per annum from date of receipt of due proof of death by the insurer until paid.”

Under the terms of this statute, no penalty or attorney’s fee will be assessed an insurer if payment is timely made. In its oral reasons for judgment, the trial court reviewed the evidence that had been presented and concluded that payment had been made by the defendant within the time period required by the statute and that the plaintiff had failed in its burden to prove that any error or fault was attributable to the defendant.

The evidence sustains that conclusion. Exhibits J-3 and J-6 affirmatively show that the claim was processed and that the checks in payment of the claim were issued by Travelers on May 16, 1977, one week after being received by the insurer. The testimony of Ms. Cain and Mrs. Wooley concerning the procedure used in this and other cases by their employers stands unre-butted in the record.

The credibility of the witnesses is best judged by the trier of fact and his judgment in that regard will not be disturbed unless clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In Tingle v. Reserve Life Insurance Company, 260 So.2d 333 (La.App. 2 Cir. 1972), the court observed:

“The remaining issue to be resolved is plaintiff’s entitlement to penalties and attorney’s fees for defendant’s alleged arbitrary and capricious refusal to pay the claim. LSA-R.S. 22:657 provides that an insurer shall pay claims arising under health and accident contracts within thirty days after proof of a claim ‘unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist.’
“As to whether or not just and reasonable grounds exist is purely a factual matter and each case must be considered on its own facts and circumstances. The trial judge found the actions of defendants in the instant case not to warrant the imposition of penalties and attorney’s fees, and unless his determination is manifestly erroneous, we will not disturb same.”

The trial judge found the defendant’s witnesses to be credible and the procedure for the payment employed in this case to be adequate. Its decision is not clearly wrong.

Accordingly, the judgment of the trial court is affirmed; all costs of this appeal to be paid by appellant.

AFFIRMED.


source: Caselaw Access Project

author: LEMMON, Judge. BOUTALL, Judge,

license: Public Domain

text:
    Theron P. DUFRENE v. Dr. Thomas L. DUNCAN et al.
    No. 10464.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 1979.

      Adams & Reese, Henry B. Alsobrook, Jr., and Edward D. Markle, New Orleans, for relator.
    Paul L. Billingsley, for plaintiff.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

Defendant doctors applied for supervisory writs under C.C.P. art. 2201, complaining of the trial court’s ruling on their exception of no cause of action. We granted a writ of review to ascertain the correctness of the ruling, because on the undisputed facts the judgment appeared to be erroneous, and because reversal under our supervisory jurisdiction would terminate the litigation and avoid the necessity of a trial on the merits. Mangin v. Auter, 360 So.2d 577 (La.App. 4th Cir. 1978).

On June 14, 1977 plaintiff, in proper person, filed a suit based on medical malpractice in a June 14, 1976 surgical procedure. In August, 1977 plaintiff, through counsel, filed a request for review of his claim by a medical review panel pursuant to R.S. 40:1299.47 A.

Defendants filed an exception of no cause of action, urging the applicability of R.S. 40:1299.47 B, which provides:

“No action against a health care provider covered by this Part, or his insurer, may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel. By agreement of both parties, the use of the medical review panel may be waived.”

The trial court overruled the exception, but stayed the proceedings until the disposition by the medical review panel. This court then granted defendants’ application for supervisory writs.

Under the clear provisions of the quoted statute, a claimant must allege either that the health care provider is not covered by the statute or that the claim has been presented to a medical review panel which has rendered an opinion. A petition without these essential elements does not state a cause of action for medical malpractice.

Moreover, since the grounds of the objection pleaded by the peremptory exception cannot be removed by amendment, C.C.P. art. 934 mandates that “the action shall be dismissed”. Defendants are entitled to the relief sought.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that the exception of no cause of action be maintained and the suit dismissed.

REVERSED AND RENDERED.

BOUTALL, Judge,

concurring.

I concur in the result but am of the opinion that the proper proceeding to attack this petition is the dilatory exception of prematurity. C.C.P. art. 926.

      . The trial court stayed the proceedings, instead of maintaining the exception and dismissing the suit, in order to avert prescription problems. However, filing of a suit interrupted prescription, and the request for review by a medical review panel, filed while the suit was still pending, further suspended the running of prescription under R.S. 40:1299.47 A.

      . Although only the petition may be considered in determining the exception of no cause of action, the record fact that defendants are covered by the statute may be considered in determining whether the grounds for the objection can be removed by amendment.


author: BOUTALL, Judge.

text:
    Earl J. CLARK et al. v. Clyde ROSEMOND et al.
    No. 10305.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1979.
    Hackman & Lewis, Gordon L. Hackman, Boutte, for plaintiffs-appellants, Earl Clark et al.
    Adams & Reese, Gregory J. Laborde, New Orleans, for Select Ins. Co., defendant-appellee.
    Before BOUTALL, SCHOTT and GARRISON, JJ.
   BOUTALL, Judge.

Our examination of this record revealed that the appeal was untimely filed, indicating a lack of jurisdiction of this court, and we issued on our own motion a rule to show cause why the appeal should not be dismissed.

The record shows that one of the defendants, Select Insurance Company, filed a motion for summary judgment which was tried on September 2, 1977 resulting in a judgment of dismissal of the suit against Select Insurance Company on September 27, 1977. On August 22, 1978, some eleven months later, the plaintiff filed a motion for a new trial, which after hearing, was denied on November 2,1978. On November 7, plaintiff filed a motion for a devolutive appeal which was granted on November 10th. The issue before us is simply whether the appeal was timely taken.

It is apparent from the face of the record that the judgment of September 27, 1977, had long since become final before motion was made for a new trial. C.C.P. Article 1974 governs the delay for applying for a new trial. Appellants’ sole defense is that the Clerk of Court was required to provide notice of judgment to all counsel of record, C.C.P. Article 1913, in this case and that the Clerk failed to provide such notice. Accordingly, he contends that the 7 day period for new trial application never began to run. The only evidence to support his contention is his insistence that he did not receive a copy of the notice.

However, the record shows certificates of the Clerk of Court dated September 27, 1977 stating that he mailed the notice of judgment to appellant. The hearing on the motion for a new trial was over this issue of mailing-, and the court in detailed reasons for judgment found that the Clerk had in fact mailed the notices of judgment and that Select Insurance Company’s counsel had received his copy. The court found appellants’ statement of non-receipt unsatisfactory and denied the motion for a new trial.

We agree with the finding of the trial judge that notices of judgment were sent, and accordingly appellants’ time for applying for new trial began on the day after mailing. Appellants’ time to take his devol-utive appeal, C.C.P. Article 2087, began at the expiration of the delay for applying for new trial because no application for new trial had been timely filed. The appellants exceeded that time by almost a year. Accordingly, we dismiss appellants’ appeal at its costs.

APPEAL DISMISSED.


author: CULPEPPER, Judge.

text:
    Olivia Dupar DRUMMER, Plaintiff and Appellant, v. CENTRAL PECAN SHELLING COMPANY and Travelers Insurance Company, Defendants and Appellees.
    No. 6363.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    McPherson & Abadie, Jay C. Zainey, New Orleans, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

This is a workmen’s compensation case. When the case was previously before us, we decided in an unpublished opinion rendered on March 7, 1978 that there was no manifest error in the trial judge’s finding of fact that after July 11, 1974 plaintiff had no residual disability resulting from the April 30, 1974 accident. The Supreme Court granted writs, 360 So.2d 874. In a decision rendered on December 13, 1978, 366 So.2d 1333 the Supreme Court reversed the judgments of both the trial court and the intermediate Court of Appeal and remanded the case to the Court of Appeal for rendition of a proper judgment awarding plaintiff compensation benefits and medical expenses through April 20, 1975 and reserving the right to plaintiff to open the proceedings in the district court at once to establish any further duration or extent of disability.

In accordance with the judgment of the Supreme Court, we decree that there be judgment herein in favor of the plaintiff, Olivia Dupar Drummer, and against the defendants, Central Pecan Shelling Company and Travelers Insurance Company, jointly and in solido, ordering the defendants to pay workmen’s compensation benefits to the plaintiff at the rate of $37.05 per week from the date of the accident, April 30, 1974, through April 20, 1975, together with interest at the rate of 7% per annum on each past due installment from its due date until paid, plus all medical expenses incurred during this period, subject to a credit of eleven weeks of compensation paid totaling $407.55 and a credit of $282.88 in medical bills already paid. It is further ordered, adjudged and decreed that the expert witness fees of Drs. Edmond Kalisey, Kenneth Vogel and Ray J. Beurlot, be fixed at the sum of $75 each and taxed as costs. It is further ordered, adjudged and decreed that the plaintiff have the right to reopen these proceedings in the district court at once to establish any further duration or extent of disability resulting from the accident. All costs in the trial and appellate courts are assessed against the defendants.

RENDERED PURSUANT TO REMAND FROM THE SUPREME COURT.


author: FORET, Judge.

text:
    Jack A. ADAMS, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF EMPLOYMENT SECURITY, Defendant-Appellant.
    No. 6861.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    James A. McGraw, Baton Rouge, for defendant-appellant.
    Lloyd F. Love, Ferriday, for plaintiff-ap-pellee.
    Before FORET, CUTRER and SWIFT, JJ.
   FORET, Judge.

This is an appeal from a default judgment entered against defendant, State of Louisiana, Department of Employment Security (Department), in favor of plaintiff reversing an administrative decision denying certain unemployment benefits to the plaintiff.

Jack A. Adams received unemployment insurance benefit checks for weeks ending June 4, 1977, through June 18, 1977. The Department determined that he was not qualified to receive benefits for these weeks (totaling $330), and additionally disqualified him from receiving unemployment insurance benefits for one year (August 14,1977 to August 12,1978). This “Notice of Determination (Fraud and Overpayment)” was dated August 8, 1977. Adams filed an appeal of this “determination” on August 22, 1977, and a hearing was held before Isham R. Hudson, Appeals Referee, Louisiana Office of Employment Security, on September 13, 1977, in Ferriday, Louisiana. Plaintiff, represented by his attorney, appeared and testified; the Department was represented by its investigator. After this hearing, the appeals referee affirmed the determination of the Department that plaintiff had been overpaid in the amount of $330 and that he should be disqualified for one year.

Adams appealed this ruling to the Board of Review for the Office of Employment Security which, in a decision mailed December 2, 1977, affirmed the ruling of the appeals referee.

On December 16, 1977, Adams filed a petition in the Seventh Judicial District Court in Concordia Parish, entitled “Petition for Judicial Review of Administrative Decision” wherein he asked for a reversal of the decisions of the Department, the appeals referee, and the Board of Review. The Department was served with a copy of the petition on December 20,1977, as shown by return of service of the East Baton Rouge Parish Sheriff contained in the record.

No answer was filed by the Department, and on January 17, 1978, a preliminary default was taken by the plaintiff. On January 24, 1978, after hearing testimony of plaintiff, the district court granted a default judgment in his favor reversing the prior administrative decisions. Notice of this judgment was served on the Department on January 27, 1978, per the Sheriff’s return.

On February 28, 1978, the Department appeared and filed a motion for a new trial, which was denied on May 24,1978. On July 18, 1978, the Department took this devolu-tive appeal which is presently before the Court. We reverse and remand.

We note initially that the factual determination of the Board of Review is binding on the Court in the absence of fraud, and if supported by sufficient evidence. Lingo v. State, Dept. of Employment Security, 364 So.2d 1367 (La.App. 3 Cir. 1978); Carswell v. Administrator, Division of Employment Security, 343 So.2d 440 (La.App. 3 Cir. 1977); Smith v. Board of Review Office of Emp. Security, 365 So.2d 906 (La.App. 4 Cir. 1978); Sykes v. Doyal, 265 So.2d 780 (La.App. 2 Cir. 1972); Cameron v. National Airlines, Inc., 264 So.2d 803 (La.App. 4 Cir. 1972); Walsworth v. Heard, 84 So.2d 254 (La.App. 2 Cir. 1955).

We also note that LSA-R.S. 23:1634 limits the court to reviewing the record of the administrative hearings.

“In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board of review . . . .” See also Carswell, supra; Sykes, supra.

As this Court stated in Carswell:

“. . .a reviewing court may not receive additional evidence but must confine itself to a study of a certified copy of the record of the case, to be filed by the administrator, and to questions of law. As a consequence, the reviewing trial court errs if it renders judgment by default. Sykes v. Doyal, 265 So.2d 780 (La. App. 2 Cir. 1972).
LSA-C.C.P. art. 1702 requires that before the entry of a default judgment there must be ‘proof of the demand sufficient to establish a prima facie case’. The proof here does not satisfy that requirement since the reviewing court (the trial court here) did not have before it a certified copy of the record of the case. The default judgment must be set aside. Courville v. Southern Casualty Insurance Co., 304 So.2d 93 (La.App. 3 Cir. 1974); Evangeline Employment Service v. Decuire, 340 So.2d 1113 (La.App. 3 Cir. 1976).” 343 So.2d at 441.

In the instant case, a certified copy of the administrative record has never been filed with the court and without this the district court could not order a default judgment against the Department.

For the reasons assigned, the default judgment is vacated and set aside, and the case is remanded to the district court for further proceedings consistent with this opinion and in accordance with law. Defendant is allowed fifteen (15) days to answer or otherwise plead.

All costs to await final determination of the case.

REVERSED AND REMANDED.


author: SWIFT, Judge.

text:
    Bobby Ray HARRIS et al., Plaintiffs-Appellants, v. STATE of Louisiana, Through HUEY P. LONG HOSPITAL And the State Department of Hospitals, et al., Defendants-Appellees.
    No. 6906.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Writ Granted July 2, 1979.
    Riddle, Bennett & Ryland, John T. Bennett, Marksville, Floyd J. Falcon, Jr., of Dodd, Barker, Avant, Wall & Thomas, Baton Rouge, for plaintiffs-appellants.
    Provosty, Sadler & deLaunay, LeDoux R. Provosty, Jr., Alexandria, Donald E. Puckett, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, SWIFT and DOUCET, Judges.
   SWIFT, Judge.

This medical malpractice action and another La.App., 371 So.2d 1226, brought by the same plaintiffs against other defendants for the death of their mother were consolidated and are on appeal from judgments after trial on the merits dismissing the suits at plaintiffs’ costs. We affirm. Separate decrees will be rendered in each case.

At approximately 4:30 P.M. on June 19, 1975, Mrs. Lula B. Harris was struck by an automobile and injured. Mrs. Harris was taken first to the emergency room at Marksville General Hospital and shortly thereafter she was transferred by ambulance to Huey P. Long Memorial Hospital (Charity) in Pineville, Louisiana. She was admitted there at approximately 6:00 P.M.

Mrs. Harris was examined initially at Charity by a Dr. McFadden, and after x rays and tests she was assigned to the orthopedic ward for treatment. Besides her injuries and a decreased pulse on the right side, Mrs. Harris had a history of varicose veins and suffered from diabetes.

The patient was then seen by Dr. William L. Seidensticker, an orthopedic resident. He diagnosed her injuries as a central fracture dislocation of the right hip, a dislocation of the right shoulder and a laceration of the left knee. Dr. Seidensticker reduced her shoulder and put a tibial pin in her right leg for traction. He also performed a surgical prep and debridement of her left knee. The doctor testified he felt he had done a very thorough job of cleansing and debriding the wound. Ice packs were ordered for her right shoulder and left knee and Demerol and Vistaril were prescribed for pain. Dr. Seidensticker saw Mrs. Harris again at noon on June 20. There was no significant drainage of the wound. Nor was there any swelling, redness or evidence of infection in the area. Therefore, he did not prescribe antibiotics for the patient. Nor did he order a blood culture. She was seen thereafter at Charity by Dr. Anatolio Wasserman, another orthopedic resident, because Dr. Seidensticker was no longer on duty that weekend. Dr. Wasserman testified that her condition remained stable and he did not find anything unusual from a medical standpoint except a rise in her temperature to 101.8°. He said this could have resulted from a number of things and ordered tests, but it was impossible to evaluate the source at that time because of the patient’s transfer.

The nurses who attended Mrs. Harris during her stay at Charity testified that the ice packs were applied and the pain medicine administered as per the orders of Dr. Seidensticker. Their reports indicate some complaints of pain in her left leg and the other injured areas, but nothing unusual or of great significance considering her injuries. None of the nurses noted any signs of an infection or discoloration in the patient’s left leg. Nor did any of them recall any unusual odor in the room at any time.

On Saturday, June 21, 1975, the plaintiffs became dissatisfied with the care given their mother at Charity. So after getting permission from Dr. T. E. Banks, an Alexandria, Louisiana, orthopedic surgeon, and Rapides General Hospital (Rapides General) in Alexandria, they had her transported by ambulance to that hospital and admitted at approximately 5:00 P.M. This was done against the medical advice of the physician at Charity. Both Dr. Banks and his associate, Dr. Paul M. Davis, Jr., also testified Mrs. Harris would have been better off if she had remained at Charity.

According to the nurses’ notes at Rapides General, Mrs. Harris’ temperature rose from 100.5° at 8:00 P.M. to 104° at 9:40 P.M. Dr. Banks was in surgery at this time but he was informed. In addition, the notes indicate that the area below the left knee was red and hot to touch and the left leg above the knee was discolored.

During his initial examination of the patient at approximately 10:30 P.M. on June 21, Dr. Banks looked at Charity’s x rays, palpated the wound to make sure it was open and draining and put on a clean dressing. In medical terms he considered it to be a dirty jagged type laceration. This did not mean, however, that he saw any dirt or foreign substance therein. He specifically said he did not observe any debris or gravel in the laceration. What the doctor thought was a hematoma was observed on the left thigh where the bandage had been. Dr. Banks testified that Mrs. Harris did not complain of pain in the left leg while he examined it. He had previously ordered a number of tests. Demerol and Vistaril were prescribed for pain and antibiotics were started. No culture of the wound was taken.

At 5:35 A.M. on Sunday, June 22, Mrs. Harris’ temperature again rose to 104°. Dr. Banks was notified thereof at 6:05 A.M. and arrived at 6:55 A.M. He was with her only a short time, but being concerned about the “temperature spike” he arranged for Dr. Mervin W. Perdue, an internist, to be called in as a consultant.

Dr. Perdue arrived at Rapides General at approximately 9:00 A.M. and examined Mrs. Harris. He noted that she had a tremendously swollen left leg with hemorrhagic blebs and that her leg was cyanotic and cold. She demonstrated a painful left abdomen on palpation and the physician noted the apparent failure to arterial flow to the left leg. He considered the possibility of a ruptured spleen or other intraabdominal trauma and asked that a surgical consultation be obtained.

Mrs. Harris was also seen by a Dr. Wells that morning, who reported there was no kidney injury.

Dr. Gordon L. Hovnatanian, a surgeon whose practice includes both general and vascular surgery, arrived at Rapides General at approximately 10:30 A.M. Sunday. He testified he saw an elderly woman whose left lower extremity was three to four times larger than her right leg. It was dark, mottled and cold. The laceration over the patella was foul smelling and the edges appeared grossly ischemic and necrotic. There were multiple blisters filled with bloody fluid located on the medial aspect of her upper left thigh. His first impression was hypervolemic shock due to loss of blood and he felt bleeding from the fractured pelvis had increased the size of the thigh.

Dr. Davis, who was on call Sunday for all of Dr. Banks’ patients, arrived at Rapides General at about 12:00 noon. When he entered the room he noticed a terrific odor and upon examination the patient was found to be toxic and “completely out in left field”.

An arteriogram was performed and it indicated that the main blood vessel to the left thigh was completely blocked. The ar-teriogram also showed the presence of gas in the tissues. It was at this point that gas gangrene was first suspected by Drs. Hov-natanian and Davis. The patient was immediately taken to the operating room where a fasciotomy was performed. However, she died during surgery.

The concensus of medical opinion was that the cause in fact of the death of Mrs. Harris was gas gangrene myonecrosis. This resulted from clostridium perfringens bacteria that was introduced into Mrs. Harris’ body through the laceration over the patella of her left knee.

One or more of the plaintiffs were in their mother’s rooms at both hospitals most of the time. Generally, they testified that she complained constantly of pain in her left leg and got them to rub it at frequent intervals. The laceration was dirty and black and the area around the left knee was swollen and discolored. Most of the children said they noticed a very strong and unusual odor from Mrs. Harris (an indication or symptom of gas gangrene) on Friday, June 20, which got worse thereafter. However, her oldest daughter, who said she did not have a keen smell, did not notice any unusual odor until the early morning hours of June 22, at Rapides General.

None of the physicians or nurses who attended Mrs. Harris noticed any strong or unusual odor about her until the morning of June 22, and there is nothing in the hospital records about this prior to that time. All of the medical personnel agreed that the presence of such an odor should and would have been noted therein.

All physicians who were questioned on the subject testified that the gas gangrene is a rare condition that is seldom seen by doctors in the Alexandria or any other area in this country. Although the bacteria, clostridium perfringens, which causes same can be found in most open wounds it will not survive in the presence of oxygen and gas gangrene seldom results. When it does, the infection attacks with suddenness and violence causing fatalities in most cases. Penicillin in massive doses is the only antibiotic that is considered to be effective. This is not generally given until there is good reason to believe this type of infection is present and most often when such a diagnosis is made it is then too late to save the patient with such medication.

Plaintiffs brought this suit (No. 6906) against the State of Louisiana through the Huey P. Long Memorial Hospital and the State Department of Hospitals alleging that the cause of their mother’s death was the negligence of Charity Hospital, its doctors, nurses, agents and/or employees in failing to properly diagnose and treat her condition. Suit No. 6907 was filed by the same parties against St. Paul Fire and Marine Insurance Company and Dr. T. E. Banks alleging that the doctor was negligent in failing to properly diagnose and treat Mrs. Harris.

The only issue before this court is whether the findings of the trial judge adverse to plaintiffs’ contentions are manifestly erroneous or clearly wrong in view of the evidence in the record.

The law generally applicable in this type of case was stated by this court in Green v. State, Southwest Louisiana Charity Hosp., 309 So.2d 706, 709, 710, 712 (La.App. 3 Cir. 1975) as follows:

“The standard of care by which a physician is judged in malpractice cases is that he ‘exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence; along with his best judgment, in the application of his skill to the case’. Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1954); Uter v. Bone and Joint Clinic, 249 La. 851, 192 So.2d 100 (1966).
“The best evidence of the local community standards is found through testimony of other experts in the same field. Helms v. St. Paul Fire and Marine Insurance Co., 289 So.2d 288 (La.App. 3rd Cir. 1974), Lauro v. Travelers Ins. Co., 261 So.2d 261 (La.App. 4th Cir. 1972).”
******
“Even though the expert witnesses’ testimony differed in several respects, it is largely a matter of fact for the trial judge to determine the most credible and realistic evidence and a finding in this regard will not be overturned unless manifest error appears in , the record. Christy v. City of Baton Rouge, 282 So.2d 724 (La.App. 1st Cir. 1973), writ refused, 284 So.2d 776 (La.1973); State Through Dept. of Highways v. Menefee, 266 So.2d 226 (La.App. 2nd Cir. 1972), writ refused 263 La. 109, 267 So.2d 212 (1972). Under the particular facts and circumstances presented herein we find no manifest error in this conclusion of the district judge.”

Nurses and medical technicians who undertake to perform medical services are subject to the same rules relating to the duty of care and liability as are physicians in the performance of professional services. Butler v. Louisiana State Board of Education, 331 So.2d 192 (La.App. 3 Cir. 1976).

The duty owed by a hospital to its patients is to exercise the degree of care, skill and diligence that the particular patient’s condition may require and protect the patient from dangers resulting from his incapacities and external circumstances peculiarly within the hospital’s control. Bryant v. St. Paul Fire & Marine Ins. Co., 365 So.2d 537 (La.App. 3 Cir. 1979).

In determining the standards of care involved and whether such standards were breached in this case, the trial court was presented the expert testimony of the doctors who were principally concerned in the treatment of Mrs. Harris. After a detailed review of their testimony and the lay testimony of the plaintiffs, the judge made the following findings in his written reasons for judgment:

“NEGLIGENCE OF DR. SEIDEN-STICKER
“Plaintiff at trial sought to establish that Dr. Seidensticker breached the standard of care in the community by his failure to adequately debride the laceration over the patella of Mrs. Harris’ left knee, and his failure to diagnose and treat gas gangrene.
“Dr. Seidensticker stated that he performed a surgical prep and debridement of the left knee. Plaintiff presented the testimony of Dr. Banks and Dr. Davis to support their position that the wound was inadequately debrided.
“Dr. Banks stated in his May 7th deposition that he saw no reason to reclean the laceration and that the only thing he saw inadequate concerning the laceration was the bandage which he promptly changed. However, at trial, after having been made a party defendant, Dr. Banks testified that the wound was inadequately debrided at Charity. Dr. Davis, who is a member of the same medical firm as Dr. Banks, stated that he assumed that Dr. Seidensticker adequately debrided the wound. Dr. Davis said that he could not state as a fact that the wound was cleaned adequately. However, in his October 5th deposition Dr. Davis stated as a fact that the wound was inadequately debrided.
“Dr. Wasserman stated that he was of the opinion that after some 48 hours post trauma it would not be possible to go back into a wound and tell at that time whether or not the initial debridement had been performed adequately. Dr. Banks did not examine Mrs. Harris until some 54 hours after the accident. Dr. Davis did not examine Mrs. Harris until some 67 hours after the accident. Dr. Hovnatanian testified that not having seen the wound initially it would be difficult for anybody to pass judgment as to whether or not the laceration was initially debrided adequately or that secondary infection produced the excessive amount of necrotic tissue present in the laceration.
“Mrs. Priscilla Robbins testified that she observed ‘little gravels’ embedded in the wound. Dr. Banks, Dr. Davis and Dr. Hovnatanian examined the laceration after Mrs. Robbins and they made no such finding.
“After an analysis of the testimony of Dr. Seidensticker, Dr. Wasserman, Dr. Banks, Dr. Davis, Dr. Hovnatanian and the lay testimony of the plaintiffs this Court finds that plaintiff has failed to prove by a preponderance of the evidence that the laceration was inadequately de-brided and that such inadequacy was a cause in fact of Mrs. Harris’ death.
“Plaintiffs’ allegation that Dr. Seiden-sticker breached the standard of care in this community by failing to diagnose and treat gas gangrene is not substantiated by a preponderance of the evidence. The record is completely devoid of any evidence to support a finding by this Court that under the circumstances of this case gas gangrene should have been detected at Charity Hospital. Since there is no basis to find that gas gangrene should have been suspected at Charity, there was no reason for Dr. Seidensticker to order a special anerobic culture sample or give massive dosages of penicillin.
“NEGLIGENCE OF DÉ. BANKS
“Plaintiff alleges that Dr. Banks breached the standard of care in this community by failing to diagnose and detect gas gangrene. In support of this view plaintiff cites Green v. State, Southwest Louisiana Charity Hospital, La.App., 309 So.2d 706.
“The Third Circuit states in Green that the failure to diagnose can constitute negligence. It depends upon the particular facts present, comparing the standard of care exercised with that which would have been employed by members of his profession under similar circumstances. The facts of this case readily distinguish it from Green.
“Dr. Banks stated, while admittedly self-serving, that Mrs. Harris did not have any clinical evidence of gas gangrene at the time he saw her Saturday night. Dr. Hovnatanian testified that in his own wildest imagination he did not think he would have suspected gas gangrene. Dr. Davis stated that a review of the physical exam taken by Dr. Banks Saturday night did not indicate or suggest the presence of gas gangrene.
“The evidence adduced at trial does not support a finding that Dr. Banks breached the standard of care in this community by failing to diagnose and detect gas gangrene. There .does not exist in the record any evidence supporting the proposition that Dr. Banks should have diagnosed gas gangrene.”

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, on review the appellate court should not disturb this factual finding in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), Canter v. Koehring Company, 283 So.2d 716 (La.1973).

A careful review of the record in this case reveals a reasonable factual basis for the findings of the trial court and that such findings are not manifestly erroneous. We also find that the plaintiffs failed to establish by a preponderance of the evidence any dereliction of duty on the part of the nurses or other employees of Charity.

For the foregoing reasons, the judgment of the district court herein is affirmed at appellants’ costs.

AFFIRMED.

      . We are aware that the locality factor is no longer involved in determining the standard of care required of specialists in malpractice cases. Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978). However, in the present case neither side contends that the diagnoses and treatment of gas gangrene is related to any particular speciality or, if so, that the standard of care therefor in any other locality differs from that in Alexandria where all of the experts practiced at the time of this unfortunate occurrence.


text:
    Bobby Ray HARRIS et al., Plaintiffs-Appellants, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 6907.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Riddle, Bennett & Ryland, John T. Bennett, Marksville, Floyd J. Falcon, Jr., of Dodd, Barker, Avant, Wall & Thomas, Baton Rouge, for plaintiffs-appellants.
    Provosty, Sadler & deLaunay, LeDoux R. Provost, Jr., Alexandria, Donald E. Puckett, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, SWIFT and DOUCET, Judges.
   SWIFT, Judge.

For the reasons this day assigned in the consolidated case of Harris, et al. v. State of Louisiana through Huey P. Long Hospital and the State Department of Hospitals, et al., 371 So.2d 1221, we affirm the decision of the trial court at appellants’ costs.

AFFIRMED.


author: CUTRER, Judge.

text:
    Ruby THIBODEAUX, wife of/and Vernice Thibodeaux, Plaintiffs-Appellees, v. STATE of Louisiana, Through the LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION (now called Department of Health and Human Resources, etc.) and Dr. Thomas C. Bush, Defendants-Appellants.
    No. 6919.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Robert L. Raborn, Baton Rouge, for defendants-appellants.
    Raymond J. LeJeune, Mamou, for defendant-appellee.
    Cline, Miller, Richard & Miller, Robert Thomas Cline and Steven A. Chandler, Rayne, for plaintiffs-appellees.
    Before FORET, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

This is a malpractice suit by Ruby Thibo-deaux and her husband, Vernice Thibo-deaux, arising out of the death of their six-year-old son. The State of Louisiana was sued in two capacities. First, the plaintiffs sued the State through the Department of Health and Human Resources, alleging that the independent negligence of the Lafayette Charity Hospital caused the death. Secondly, the State was also sued as the employer of Dr. Thomas Bush. The plaintiffs alleged that Dr. Bush was employed by Lafayette Charity Hospital and that his negligence caused the death. Dr. Bush was also sued individually. Dr. Bush also pleads that if he is cast in judgment, such judgment and attorney fees are to be paid by the State under the provisions of LSA-R.S. 40:1299.39.

The essential facts giving rise to this suit are as follows: On Friday morning, January 24, 1975, Mrs. Thibodeaux noticed numerous red spots on the body and legs of her six-year-old son, Robbie. As a result of this condition, she took Robbie to consult with Dr. Charles Atwood, a pediatrician of Crowley, Louisiana. Dr. Atwood examined Robbie. He suspected, after seeing the red spots, that Robbie had a blood disease called “thrombocytopenia.” He felt that this disease could be potentially dangerous and, after discussing the situation with Mrs. Thi-bodeaux, referred the child to Lafayette Charity Hospital for tests and treatment. Mrs. Thibodeaux immediately took the child to Lafayette Charity Hospital, where he was seen by Dr. Thomas Bush, the physician in charge of the emergency room at Charity Hospital.

Dr. Bush was a regular employee of the hospital and assigned to the emergency room. Dr. Bush stated that he observed the “petechiae,” or red spots. He had some tests run, one of which was a “platelet” estimate. This test gives the physician an idea whether the platelet count is below normal. It is not an accurate count, but only gives an indication as to whether the platelets of the bloodstream are less than normal. Upon getting the results of the test, Dr. Bush noticed that the estimate showed the platelets were “decreased” or “diminished.” He then suspected that the diagnosis was “thrombocytopenia.” He then instructed Mrs. Thibodeaux that she should take the child back home and keep him quiet over the weekend and return the following Tuesday for a consultation with a resident pediatrician in the hospital.

Mrs. Thibodeaux followed the orders of Dr. Bush over the weekend. The following Monday morning, January 27, 1975, Robbie suddenly began regurgitating blood, whereupon the plaintiffs immediately took Robbie to the emergency room of the Lafayette Charity Hospital. Upon arriving at the emergency room, the boy suddenly went into a coma. The doctors at the Lafayette Charity Hospital worked with the boy for a while that morning. A platelet count was taken which showed that the count was down to 1,000 (200,000 to 400,000 is considered normal). The boy was then transferred by ambulance to the New Orleans Charity Hospital. Robbie remained in a coma until the following Friday, January 31, 1975, at which time he expired.

A suit was filed and a jury trial was requested. Upon the trial of the case, the jury was asked to decide the liability, if any, of Dr. Thomas Bush. The independent liability of the State of Louisiana, through the Department of Health and Human Resources (Charity Hospital) and also the liability of the State of Louisiana as employer of Dr. Bush was decided by the court. The trial judge exonerated the State of Louisiana, through the Department of Health and Human Resources, or any independent liability, but held that the hospital was an employer of Dr. Bush. Dr. Bush was found to be in the course and scope of his employment at the time of his consultation and treatment of January 24, 1975, and thus the trial court held the State liable through the doctrine of respondeat superior. The jury rendered a verdict in favor of the plaintiffs and against Dr. Bush in the amount of $50,000.00. Dr. Bush was allowed to recover legal fees which he had incurred in the legal defense of this matter under the provisions of LSA-R.S. 40:1299.39, et seq. The State of Louisiana and Dr. Bush appealed from that decision.

The first two assignments of error will be consolidated for discussion, as they both raise the issue of whether the judge and/or the jury erred in their decisions of liability.

Before reviewing the testimony of the physicians who testified herein, and for the purpose of clarity, we feel it necessary to describe the medical terms and the disease referred to herein. There is no dispute as to the type of disease and the cause of death in this case. The death of Robbie was caused by cerebral hemorrhage. This hemorrhage was secondary to a condition known as idiopathic thrombocytopenia pur-pura, commonly referred to as “I.T.P.” I.T.P. is a condition wherein the human body’s own antibodies attack and kill small structures in the blood known as “platelets.” The blood “platelets” play a very important part in the body’s blood clotting process. If the number of platelets in the bloodstream is low, tiny hemorrhages will appear on the body which may be referred to as red spots, which spots are called “pe-teehiae” or “purpura.” The disease can be fatal, as was the ease here. However, a fatal result of the disease is not the usual thing. Normally, platelets have to be in the number of 200,000 to 400,000 per cubic millimeter for normal blood coagulation. When the number drops below 100,000, it then produces potentiality for bleeding.

We now turn to the medical testimony as we examine the issues of liability.

The plaintiff called four physicians, Dr. Charles Atwood, the pediatrician from Crowley, Dr. Richard Frimeaux, a general practitioner, Dr. Jacob Segura, a general practitioner, and Dr. Alfred Harmon, a specialist in family practice.

Dr. Atwood was called upon to give his opinion as to whether or not Dr. Bush was negligent in his examination and treatment. Dr. Atwood stated that when the estimate count of platelets showed a decrease, further tests were necessary in order to determine the actual count. He unequivocally stated that under the circumstances the child should have been hospitalized for further tests and kept under close observation, as this condition is deemed dangerous if the platelet count is unusually low. He felt it was below the standard of good practice to return the child to his home under these circumstances. He concluded that if the child had been kept in the hospital for a more accurate count and the count reflected that a low count actually existed, there was treatment which would have probably warded off the onset of the cerebral hemorrhage. He stated that Robbie could have been treated with continuous infusion of platelets into the bloodstream and the administration of steroids. This physician unequivocally felt that Dr. Bush was negligent in the way that the case was handled.

Dr. Richard Frimeaux was also called by the plaintiffs. He testified that he had examined the records in this case and said that the practice used in this particular case by Dr. Bush was negligent and consisted of a malpractice situation. He said that the judgment exercised by Dr. Bush was not good by any standards. He further said in another part of his testimony that Dr. Bush was blatantly negligent.

Dr. Segura, a general practitioner, examined the records in this case and commented that Dr. Bush should have asked for an accurate count after getting a decreased estimate. He also agreed with Dr. Atwood that continuous hospital tests and proper observation and treatment would have rendered Robbie’s chances of being alive more probable than not.

Dr. Alfred Harmon, who specialized in family practice and who examined the records herein, also felt that Robbie’s life could probably have been saved by hospitalization, tests and treatment as outlined by Dr. Atwood. He testified that Robbie was not given the treatment that was consistent with ordinary medical treatment given to a child with this condition in that locality.

The defendant called Dr. Charles Fonten-ot, a general practitioner. He disagreed with the plaintiffs’ doctors and said that he did not feel that Dr. Bush acted negligently. He stated that if the child had been admitted to the hospital, he felt that the outcome would have been the same.

Dr. Newell MeCallum, a pediatrician, was called by the defendant and he stated that he personally would have probably admitted the child to the hospital for the purpose of running tests and to get a more accurate platelet count. If the platelet count turned out to be low, he would also have asked for a bone marrow test. This would have given a more positive indication that I.T.P. was present. He did say, however, that if I.T.P. had been present and the child was not bleeding, he would probably have sent him home. He felt that, under the circumstances presented in this case, the outcome would have been the same even if the boy had been admitted to the hospital for tests and treatment.

The jury was faced with a difference of opinion among the doctors. It is the jury’s duty to weigh, ascertain the credibility of the expert witnesses and to render a verdict. It cannot be said that the jury committed manifest error or was clearly wrong in its decision that Dr. Bush was negligent in the manner in which he handled the treatment and examination of Robbie Thibodeaux. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Under these circumstances, the liability of Dr. Bush was correctly established.

The trial court correctly held that Dr. Bush was an employee of the Lafayette Charity Hospital and thus of the State of Louisiana. Dr. Bush testified that he worked on a salary basis for Charity. This evidence is not disputed. The trial judge correctly held that the State, through the charity hospital, was free of independent negligence as Dr. Bush had full charge of the treatment rendered to the child. The trial court properly awarded attorney’s fees to Dr. Bush under the provisions of LSA-R.S. 40:1299.39 B, supra.

The appellant urged several other assignments of error, none of which were argued in the brief, but were considered by this court, along with the review of the record, and this court finds that those remaining assignments of error are without merit.

For the reasons set forth herein, the judgment of the trial court is affirmed. Appellants to pay costs of this appeal.

AFFIRMED.

      . LSA-R.S. 40:1299.39(B) provides in part as follows:
      “Notwithstanding any other provisions of the law to the contrary, any health care provided (‘person’ as defined herein) acting within the course and scope of his employment, health care facility staff appointment or assignment for or on behalf of the state to any health care institution whether or not he receives compensation for such services, shall not be held liable for any amount of damages in excess of five hundred thousand dollars plus interests and costs for any injury or death of the patient due to any alleged act of malpractice within the course and scope of such employment, staff appointment, or assignment. The state shall pay any costs of legal defense and damages awarded by judgment of a court or by a compromise after institution of a suit for a medical malpractice claim or claims against such health care provider (‘person'as defined herein) not to exceed five hundred thousand dollars plus interests and costs." [Emphasis added]
      (This provision was amended by Act 611 of 1978, which amendment became effective July 12, 1978. This new provision makes no substantial change.)


author: STOKER, Judge.

text:
    Louella DEVILLIER, wife of Forrest Joseph Langlinais, Plaintiff-Appellant, v. Joseph Ravis DEVILLIER et al., Defendants-Appellees.
    No. 6930.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Writ Refused July 3, 1979.

      Champagne, Colomb & Brumbaugh, Vincent J. Saitta, Lafayette, for plaintiff-appellant.
    Nathan A. Levy, Jr., and Levy & Bur-leigh, Morgan City, Bernard F. Levy, Monroe, for defendant-appellee.
    Before WATSON, STOKER and DOU-CET, JJ.
   STOKER, Judge.

In this suit plaintiff seeks to have a tract of land partitioned by licitation. The trial court sustained an exception of no cause of action and dismissed the suit. The trial court’s reasons for judgment were grounded on an interpretation of Article 543 of the Louisiana Civil Code as enacted by Act Number 103 of the 1976 session of the Louisiana Legislature. LSA-C.C. art. 543. Plaintiff appealed. The appeal brings up for consideration the right to partition property not subject to division in kind which is burdened by a conventional usu-fruct granted by less than all the original owners of the perfect ownership. The question appears to be res nova.

FACTS

The plaintiff is Louella Devillier Langli-nais who is married to Forrest Joseph Lan-glinais. Plaintiff’s mother, Bertha Latio-lais, died leaving 20.47 arpents of land in St. Martin Parish, Louisiana, as her separate property. The deceased was married to plaintiff’s father, Wade Devillier, who survived her. During the regime of the community of acquets and gains which existed between them the Devilliers apparently built a house on the 20.47 arpents. There are three other children of the marriage, siblings of plaintiff, namely Joseph Ravis Devillier, Ida Mae Devillier Johnson, and Jasper John Devillier. In this action, plaintiff sues her father and her sister and two brothers.

Upon the death of their mother, Louella Devillier Langlinais and her brothers and sister became the sole heirs in full ownership of the 20.47 arpent tract of land by inheritance from the separate estate of their mother. After the mother’s death, plaintiff’s sister and two brothers, in an apparent attempt to insure that their father be enabled to continue to live in the family home located on the property, granted a conventional usufruct of their undivided interests in the property to their father, defendant, Wade Devillier.

The situation thus created left plaintiff with her one-quarter undivided interest in her mother’s separate property in perfect ownership. Her father, Wade Devillier, owns the usufruct of an undivided three-quarter interest in the property. The other three children own the naked ownership of the three-quarter undivided interest over which they have given their father the usu-fruct. The usufruct is for the duration of the father’s natural life.

The brief of plaintiff-appellant asserts that it was stipulated at the trial level that the property in question is not susceptible of division in kind. While we find no evidence of such a stipulation in the record, it is of no moment because plaintiff alleges in her petition, paragraph 4, that the property is not divisible in kind without diminution of value and she prays for a partition by licitation. Since an exception of no cause of action is before us, the pleaded facts are accepted as true for the purpose of deciding the exception.

ACTION OF THE TRIAL COURT

The trial court’s brief reasons for judgment simply cite LSA-C.C. art. 543 and three cases mentioned in the official Comments under the article and concludes that the article and cases “establish that defendants’ exception of no cause of action is good and must be sustained.” The three cases cited are Smith v. Nelson, 121 La. 170, 46 So. 200 (1908); Succession of Glancey, 112 La. 430, 36 So. 483 (1904) and Fricke v. Stafford, 159 So.2d 52 (La.App. 1st Cir. 1963).

These appear to be the only Louisiana authorities on the question. However, the excellent briefs setting forth the arguments of counsel indicate that a very serious question of interpretation is presented by the codal article and the meager jurisprudence.

STATEMENT OF THE ISSUES

The basic issue presented to this court is whether a co-owner can burden his interest with a conventional usufruct in favor of a third person and thereby extinguish the rights of another co-owner to obtain a partition by licitation. In resolving this issue, two basic rights come into conflict. The first is the right “to dispose of one’s property in the most unlimited manner.” LSA-C.C. art. 491. The second is a principle stated in Article 1289 of the Civil Code that “[n]o one can be compelled to hold property with another . .”.

The pertinent Civil Code provisions effective January 1, 1977, under the revision pertaining to personal servitudes effected by Act Number 103 of 1976 of the Louisiana Legislature are as follows:

Art. 541. Divisibility of usufruct
Usufruct is susceptible to division, because its purpose is the enjoyment of advantages that are themselves divisible. It may be conferred on several persons in divided or undivided shares, and it may be partitioned among the usufructuaries.
Art. 542. Divisibility of naked ownership
The naked ownership may be partitioned subject to the rights of the usu-fructuary.
Art. 543. Divisibility of the property in kind
A coowner whether or not he is also a usufructuary of an undivided part of a thing may demand its partition in kind to the extent necessary to enable him to obtain the perfect ownership of a determined part. Partition by licitation is not allowed even though there is a person who is both a usufructuary and an owner.

Paragraphs (b) and (c) under the official Comments under 543 read as follows:

(b) The second sentence of this article excludes partition of the entire property by licitation even though there is a person who is both a usufructuary and a naked owner. It restates a rule established by Louisiana jurisprudence and does not change the law. Smith v. Nelson, 121 La. 170, 46 So. 200 (1908); Succession of Glancey, 112 La. 430, 36 So. 483 (1904); Fricke v. Stafford, 159 So.2d 52 (La.App. 1st Cir. 1963).
(c) In the absence of elements held in common, partition in kind or by licitation among naked owners and usufructuaries is excluded. Smith v. Nelson, 121 La. 170, 46 So. 200 (1908); 2 Aubry et Rau, Droit civil frangais 639 (7th ed. Esmein 1961). These persons do not hold the same type of interest by undivided shares, i. e., they do not possess rights of the same nature over the same object. Partition upon demand of the usufructu-ary would constitute, in effect, denial of ultimate perfect ownership; partition upon demand of the naked owner would result in termination of the usufruct or in its transfer to the proceeds of the sale of the property.

Although the trial court founded its reasons for judgment on LSA-C.C. art. 543 as enacted in 1976, the defendants’ peremptory exception of no cause of action is stated to be based on LSA-C.C. art. 1289. This article was unaffected by the 1976 revision and is contained in the Louisiana Civil Code of 1870. It reads as follows:

Art. 1289. Basis of right to demand partition
Art. 1289. No one can be compelled to hold property with another, unless the contrary has been agreed upon; any one has a right to demand the division of a thing held in common, by the action of partition.

At the outset we observe that the question of retroactivity of the code articles in 1976 quoted above is not a problem issue in this suit. This is for the reason that the critical second sentence of Article 543 is stated by paragraph (b) of the Comment not to change the law but represents a restatement of a rule established by Louisiana jurisprudence. For this proposition paragraph (b) of the Comment cites the same three cases relied upon by the trial court, namely: Smith v. Nelson, supra; Succession of Glancey, supra; and Fricke v. Stafford, supra. Hence, for interpretation of the second sentence LSA-C.C. art. 543, relied upon by the trial court we are thrown back upon the cited cases which the trial court itself referred to.

Despite these observations we feel that we must approach a resolution of the problem by giving primary consideration to applicable codal expressions rather than jurisprudential rules. See Ardoin v. Hartford Accident and Indemnity Company, 360 So.2d 1331 (La.1978) and especially the authorities listed in footnotes 5 and 6 on page 1334.

EXCEPTORS’ POSITION

In articulating their peremptory exception the defendants-appellees set forth their position as follows:

I.

Plaintiff’s petition does not disclose a cause of action under Louisiana Civil Code, Article 1289, against the above named defendants in that the plaintiff’s petition does not disclose that she holds an interest in common with the above named defendants in that she owns a fee simple interest whereas the interest of the other owners is burdened with a usu-fruct.

II.

Under such circumstances the plaintiff is not entitled to a partition by licitation.

Appellees therefore pitch their case on the contention that they and plaintiff-appellant have no interest in common in anything held in indivisión.

If appellees and the trial court are correct the following result flows from any facts such as are before us: Any owner of a fractional interest, however small, in the full and perfect ownership of a thing may unilaterally deprive his co-owners of the enjoyment of their undivided interest, including the right to partition by licitation, by the simple device of transferring to a' third person the usufruct of his fractional interest in the perfect ownership.

It should be borne in mind that in the case before us, the four children Bertha Latiolais Devillier came into the perfect ownership of their mother’s separate property unburdened with any usufruct. The usufruct in favor of the father came after-wards and was granted by plaintiff’s siblings. The usufruct, therefore, came into being after the children became vested with perfect ownership unlike the more common mode through which usufructs come into being. In the usual situation a usufruct originates as a legal usufruct by operation of law, for example as provided through LSA-C.C. art. 916, or conventionally through testamentary disposition. In such situations the property comes to the heirs already burdened with the usufruct and they receive initially as mere naked owners. Such was the situation in the Smith, Glan-cey, and Fricke cases.

Our foregoing statements indicate that the question we must determine is whether plaintiff holds an interest in common with the defendants.

The contention that in the situation before us there is nothing held in common is based upon expressions in Smith v. Nelson, supra, which appear to have been conceded to be obiter dicta. The Glancey case dealt with a usufruct resulting from the operation of LSA-C.C. art. 916 which granted the widow a legal usufruct over her deceased husband’s share of the community. The court refused to grant partition there on the ground of public policy. That policy was the upholding and supporting of the Article 916 usufruct as a community property feature and to promote family unity and harmony and discourage family dissension.

In order to better understand the proposition for which these cases stand, it is necessary to review their precise facts and holding of each. Smith v. Nelson, supra, decided in 1908, was decided on an exception of no cause of action. In Smith the deceased was married twice. She was first married to Michael Smith by whom she had three children. Two of these children were plaintiffs in the lawsuit. Upon her first husband’s death the decedent married the defendant Nelson. Upon the death of plaintiff’s mother, the community property of the second marriage (with Nelson) became the subject of the suit. The decedent left a will leaving her children the property of the first community in full ownership; she left her half of the second community to her children subject to a usufruct in favor of Nelson, her second and surviving husband. Therefore, Nelson held his community one-half of the property in perfect ownership and the usufruct of the other one-half of which plaintiffs held the naked ownership. Nelson remarried. Plaintiffs brought suit for a partition by licitation alleging that because of his remarriage Nelson had lost his usufruct by operation of law. Nelson filed an exception of no cause of action and the Supreme Court upheld his position.

In Smith, the Supreme Court noted that the usufruct held by Nelson was granted to him by the will of his deceased wife. It also held that, unlike the legal usufruct granted in LSA-C.C. art. 916, a usufruct granted by will to a surviving spouse does not cease upon remarriage by the surviving spouse. Technically, therefore, the plaintiffs were proceeding upon an improper premise. The court also held that plaintiffs had provoked the judgment of possession recognizing defendant Nelson as usufructu-ary and putting him in possession; and by this action they entered into an agreement and contract which they could not challenge.

After disposing of the case on the above grounds, the Supreme Court in dictum proceeded to consider the plaintiffs’ right to a partition by licitation either of the whole property or the naked ownership. A portion of its statement of dictum is as follows:

The law which confers the right to the partition of a “thing held in common” has no application to those who hold, respectively, the fragments of a dismembered title to the same immovable property, for the reason that in such case, the title being dismembered, each part is a distinct thing, held by a different owner, and there is no “thing held in common.” It is clear, therefore, that as between plaintiffs, as owners of an undivided interest in the naked title to the property in question, and defendant, as usufructuary (of such interest), there is no basis for this action. If it be said that plaintiffs and defendants are owners in common, of the naked title, and that, the property being indivisible in kind, plaintiffs have a right to compel the sale of such naked title in order to effect a partition, the answer is that a sale of that kind would have the effect, as to the undivided half interest in the property of which defendant has the perfect ownership, of permanently dismembering his title, so that the naked ownership would become vested in the purchaser whilst the usufruct would remain in the defendant, his heirs and assigns, forever, or else the usufruct would expire with the defendant, and he would thereby be deprived of the right to transmit to his heirs the most valuable part of his estate. There is no doubt that, as between those in whom the naked ownership alone is vested, a partition may be enforced in kind, where the property can be so divided or by licitation, where it is not susceptible of division in kind, and this, notwithstanding that it may be burdened with a usufruct. And so (Civ.Code, art. 605):
“The owner may mortgage, sell, or alienate the thing subject to the usufruct, without the consent of the usufructuary, but” (observe) “he is prohibited from doing it in such circumstances and in such conditions as may be injurious to the enjoyment of the usufructuary.”

The essence of the above statement of dictum has been distilled in the second sentence of LSA-C.C. art. 543 to the simple statement: “Partition by licitation is not allowed even though there is a person who is both a usufructuary and an owner.”

In Smith the person who was “both a usufructuary and an owner” was Nelson the surviving husband who held his one-half of the community in perfect ownership and his deceased wife’s one-half interest in usu-fruct. The court concluded that in that situation there was no “thing held in common” entitling plaintiff, the naked owners, to a partition by licitation. The parts held were characterized as “distinct things” and being held by different parties, there was no thing held in common. As to the usu-fruct and the other elements of ownership this is clearly so. As to the naked ownership, however, the court seems to have based its position on the dire consequences it foresaw if a licitation sale were allowed rather than a clear lack of commonality. In fact the opposite would appear to be so, and the opinion hastened to add that there was no doubt that a partition in kind or by licitation of a naked ownership is authorized notwithstanding the fact that property may be burdened with a usufruct.

It would appear, therefore, that the rationale of Smith v. Nelson, supra, does not actually rest upon lack of commonality, but rather upon the policy statement now embodied in new Civil Code article 543 to the effect that there can be no partition by licitation if “there is a person who is both a usufructuary and owner.” (Parenthetically it may be noted that there is no such person in the case before this court. Plaintiff Louella Devillier Langlinais holds in perfect ownership; her siblings hold only a naked ownership and the father holds only a life usufruct.)

The Succession of Glancey, supra, was decided by the Louisiana Supreme Court in 1904. The factual situation there was as follows. Following the husband and father’s death, two children who were heirs brought suit against their mother, the surviving spouse, and the other children seeking a partition by licitation. The defendants opposed the suit on the ground the legal usufruct provided in favor of the surviving spouse in community over the community one-half which belonged to the deceased would not entitle a naked owner to such a partition during the life of the usu-fructuary. The Supreme Court adopted the defendants’ position. It held that it was true that Civil Code article 1289 was sweeping in its scope in providing that no one can be compelled to hold property with another. However, it noted that there were exceptions to this rule and several examples were given. The court then concluded that the legal usufruct in favor of surviving spouses (provided by LSA-C.C. art 916) was such an exception.

The court in Glancey stated its conclusion as follows:

Evidently the law is mandatory; the usufruct shall have the full enjoyment of the right.
If the property were sole to effect a partition by licitation, the widow’s share in the community would have to be sold, and she would remain with the empty right of usufruct on the remaining half. The purpose of the statute would be frustrated.

While the court appears to have based its holding primarily on its finding that the legal usufruct was a mandatory exception to the principle stated in LSA-C.C. art. 1289, it placed exceptional reliance on policy grounds. The first was economic — that the sale value of the property would be lessened, and the second was that forcing the surviving spouse to sell his or her share held in perfect ownership could be a source of family friction and discord. Considering three things, frustration of the community property scheme, the economic implications and family harmony, the court held its views were “conservative, and in the interest of the family.”

We may note here that in the ease before us we are not dealing with a legal usufruct, but rather, with a usufruct granted conventionally by three children of the usufructu-ary. These three children acted on their own subsequent to their mother’s death. They voluntarily granted their father the three-quarter interest in usufruct, thus “dismembering” their own perfect ownership held in indivisión with plaintiff. The deceased wife and mother had not seen fit to leave her surviving husband a usufruct by testamentary disposition.

The final ease in the three cases given as authority for the second sentence of LSA-C.C. art. 543, as newly enacted, is Fricke v. Stafford, supra, decided in 1963 by the Court of Appeal for the First Circuit. In this case after the death of both husband and wife the property passed to the heirs burdened with a usufruct granted by will in favor of one of the heirs over the father’s share of the property. The other heirs held an undivided naked interest in the father’s share. All the heirs held an undivided one-half interest in perfect ownership, that is of the other one-half of the property. The heir who held the usufruct also owned in perfect ownership her undivided share of the property which was burdened with the usufruct. The Court of Appeal in the Fricke case set forth no analysis to explain its holding other than to cite Smith v. Nelson, supra, and to point out that the defense was predicated on Civil Code article 605 (now LSA-C.C. art. 603 under the 1976 revision). Also the Court of Appeal quoted with apparent approval the trial court’s reasons for judgment which contained the following statement:

It is the Court’s appreciation of the law that so long as this property or any undivided portion thereof is burdened with a valid usufruct, no suit for partition by lieitation of the property will lie.

If this statement is given the broadest possible construction, it probably goes far beyond Smith v. Nelson, supra, on which the statement is based; however, in the narrow sense it is consistent with the narrow pronouncements made in the Smith case. See the Comment in 24 La.L.Rev. 885 (1964). Perhaps the holding of Fricke was intended to go no further than the holding of Smith v. Nelson, supra.

JURISPRUDENCE DISTINGUISHED

From the analysis of the Smith, Glancey, and Fricke cases we note that each has a common feature which the case before us does not. In each of these three cases the usufruct in question was imposed upon the property at the time the various naked owners acquired their interest, contrary to the situation which inheres in the case before us.

Here, unlike the usufructuaries in Smith and Glancey, the usufructuary (Wade Devil-lier) is not also an owner in common of the naked ownership. He is a mere usufructu-ary and has never had any ownership in the property. Also in the case before us, unlike Smith and Glancey, the naked owners, siblings of plaintiff, hold nothing in usufruct or perfect ownership. Plaintiff here has perfect ownership of his one-quarter undivided interests — he has no usufruct and no naked ownership. We need have no fear here, as the court in Smith v. Nelson did, that by deeming plaintiff and his sibling defendants as owners in common of the naked ownership, a partition sale would result in dismembering the title of anyone. However, there must be considered what the effect of such a sale will be on the usufructuary rights of Wade Devillier.

By way of recapitulation we reiterate that our Civil Code provides that anyone may demand partition of a thing held in common. LSA-C.C. art. 1289. Any exercise of the right to partition rests upon a determination of whether parties hold interests in common. Holding in common clearly means more than owning rights in the same property. The matter is summarized as follows in 24 La.L.Rev. 885 at page 886 as follows:

Ownership may be characterized by its elements: the right to use (usus), the right to enjoyment (fructus), and the right to alienate (abusus ).5 Ownership is also categorized by its forms: perfect ownership, with the elements of usus, fructus, and a busus,6 usufruct, with usus and fructus;7 and naked ownership, with a busus.8 Under the Louisiana Civil Code and jurisprudence, holding in common means at least holding the same form of ownership in the same property. Thus perfect owners may force partition among perfect owners; 9 usufructuaries, among usufructuaries;10 and naked owners, among naked owners.11 It seems equally clear that whether holding in common refers to form or elements of ownership, naked owners and usufructu-aries cannot force a partition between themselves since the forms are different and there are no common elements. This is well established in Louisiana by the landmark Smith v. Nelson12 case which refused to allow the naked owner of an undivided one-half interest to force a partition against one who held the usufruct over his interest and perfect ownership of the remainder. To enable usufructuaries and naked owners to partition against perfect owners, holding in common must be defined as holding the same elements of ownership in the property. In essence, this would be recognition that perfect ownership (usus, fructus, and a busus) is made up of several components of usu-fruct (usus and fructus) and naked ownership (a busus).

As previously pointed out there is no party in the instant case who is both a usufructuary and an owner. Therefore, insofar as form of ownership is concerned we do not run afoul of interpretation placed upon the new Article 543 of the Civil Code. LSA-C.C. art. 543, as enacted in 1976. If we deem that holding in common refers to elements of ownership as discussed in the law review article above, plaintiff, Louella Devillier Langlinais, should be entitled to a partition by licitation of the entire property since her interest in perfect ownership gives her elements in common with all co-owners including the usufructuary. This is our view of law of this case and we so hold. This holding does not conflict with Smith v. Nelson, or Succession of Glancey or with new Civil Code article 543. It perhaps does not accord with Fricke v. Stafford, supra, which did not recognize that holding in common could refer to elements of ownership. Insofar as our holding here may not be in accord with Fricke v. Stafford, supra, we respectfully decline to follow our Brothers of the First Circuit in their holding therein.

We deem it pertinent to observe that the policy considerations which support the decision of our Supreme Court in the Smith and Glancey cases are absent here as has been demonstrated. On the other hand, since the usufructuary rights were not created by operation of law or by testamentary disposition of a former owner, but by the action of plaintiff’s sibling defendants after their mother’s death, other important policy considerations arise. While the defendant siblings in this case are no doubt motivated by the highest of motives — that of allowing their father to continue to reside in the family home — the precedent which would be set by affirming the trial court’s judgment would be quite far reaching. As observed early in this opinion, such an affirmance would permit the holder of only a very minor fractional interest in perfect ownership to tie up the entire ownership and enjoyment of the property by the simple expedient of granting a usufruct to a third party. The possibilities for collusion and abuse are evident.

In the brief submitted on behalf of appellees it is stated that “appellee asserts that the plaintiff who seeks a partition by licitation must have the exact same elements of ownership as those of the defendant against whom he asserts that right. (Emphasis supplied.) It is further asserted: “That this exact identity of the elements of ownership is required, is made clear by the provisions of LSA-C.C. art. 543 and by the jurisprudence which it is based upon.” We have found no support for this assertion either in the language of the second sentence of LSA-C.C. art. 543 or the jurisprudence in question. What the code article states and what the jurisprudence stands for is that partition “is not allowed even though there is a person who is both a usufructuary and an owner.” The language does not require that the parties owning an interest in property must own the exact same elements in order to require a partition by licitation. It is a prohibitory provision. The prohibition applies if there is united in one person a usufruct and ownership. As noted above we do not have that situation here. Each party holds only one kind of element. Wade Devillier holds an usufruct only; plaintiff’s siblings hold in naked ownership only; and plaintiff holds in perfect ownership.

That the prohibition of LSA-C.C. art. 543 requires a holding of the two types of elements by one person is illustrated by the summarizing comment on that statement by Professor Yiannopoulous in his Louisiana Civil Law Treatise, Volume 3, Section 8 at page 38 in which he states: “The provision [Article 543] thus extends the narrow holding of that case [Smith v. Nelson, supra] so as to exclude partition by licitation of the entire property in all cases in which a person has an individual interest in usufruct and also an undivided interest in naked ownership, perfect ownership or both.” (Emphasis added.)

If it is argued that plaintiff Louella Devillier Langlinais disqualifies herself because she holds all three elements of ownership, our answer is this. The proposition stems from the dicta in Smith v. Nelson. As illustrated by the facts and dicta statements in that case, the party protected held different elements with respect to different parts of the estate, i. e., usufruct of the portion belonging to the children and perfect ownership of the one-half held in his own right. Here Louella Devillier Langli-nais has perfect ownership of the whole of her undivided one-fourth interest in the estate. No dismemberment of her title will result from sale free of the usufruct.

USUFRUCTUARY’S RIGHTS

Granting plaintiff in this case the relief prayed for, a partition by licitation, will defeat the right of the defendant father to continue to reside on the property as usufructuary and to enjoy the benefits of the elements thereof, the usus and fructus. Nevertheless, such a partition will protect his rights and merely recast the form of the estate over which he holds the usufruct, LSA-C.C. art. 615 as revised and enacted in 1976 provides as follows:

Art. 615. Change of the form of property

When property subject to usufruct changes form without any act of the usu-fructuary, the usufruct does not terminate even though the property can no longer serve the use for which it was originally destined.
When property subject to usufruct is converted into money or other property without an act of the usufructuary, as in a case of expropriation of an immovable or liquidation of a corporation, the usu-fruct does not terminate but attaches to the money or other property.

Under the provisions of Article 615, the partition sale of the property involved in this suit should be ordered subject to the rights of the usufructuary, the sale of the whole property to be ordered free and clear of the usufruct, but with the proceeds of the sale of which plaintiff’s siblings hold the naked ownership (three-fourths of the proceeds) to pass to, and be remitted to, Wade Devillier. Thereafter he shall hold such proceeds as usufructuary until the termination of his usufruct.

For the foregoing reasons the judgment of the trial court maintaining defendants’ peremptory exception of no right of action and dismissing plaintiff’s action is hereby reversed. This case is remanded to the trial court for proceedings not inconsistent herewith. The costs of this appeal are to be paid by defendants-appellees.

REVERSED AND REMANDED.

      . See LSA-C.C. art. 544 as enacted in 1976 and Articles 540 and 541 of the Louisiana Civil Code of 1870. (The latter two articles are now reproduced in the 1976 revision of LSA-C.C. art. 544.)

      . LSA-C.C. art. 916 provides as follows:
      Art. 916. In all cases, when the predeceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed by last will and testament, of his or her share in the community property, the survivor shall hold a [in] usufruct, during his or her natural life, so much of the share of the deceased in such community property as may be inherited by such issue.
      This usufruct shall cease, however, whenever the survivor shall enter into a second marriage.
      It should be noted that the redactors of the 1976 version of LSA-C.C. art. 543 included Comment paragraph (d) which specifically provides that this new article “is applicable to the usufruct of the surviving spouse under Article 916 of the Louisiana Civil Code of 1870.”

      . LSA-C.C. art. 605 in its former version read as follows:
      Art. 605. The owner may mortgage, sell or alienate the thing subject to the usufruct, without the consent of the usufructuary, but he is prohibited from doing it in such circumstances, and under such conditions as may be injurious to the enjoyment of the usufructu-ary.
      Its successor article (LSA-C.C. art. 603), under the revision of 1976, reads as follows:
      Art. 603. Disposition of the naked ownership; alienation or encumbrance of the property.
      The naked owner may dispose of the naked ownership. He may also alienate or encumber the property subject to the usufruct, but he cannot thereby affect the usufruct.

      . The author of the cited comment has criticized the holding in Fricke v. Stafford in 24 La.L.Rev. 885, at pages 887 and 888. The author states that the plaintiff in Fricke v. Stafford “held the same form of ownership in common with others owning interest in perfect and naked ownership; and, therefore, he should at least be able to force partition of those interests.” The author states:
      Had the court recognized that holding in common referred to elements of ownership, the plaintiff would have been able to partition the entire property since his interest in perfect ownership gave him elements in common with all co-owners including the usu-fructuary.

      . Act. No. 103 of 1976 of the Louisiana Legislature.


text:
    Buster C. SAUCIER, d/b/a MacArthur Village Beauty Shop, Plaintiff-Appellant, v. JOHN-CLAI COMPANY et al., Defendants-Appellees.
    No. 6946.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellant.
    Provosty, Sadler & deLaunay, LeDoux R. Provosty, Jr. and Frederick B. Alexius, Alexandria, for defendants-appellees.
    Before FORET, CUTRER and SWIFT, JJ.
   FORET, Judge.

Buster C. Saucier brought this action on June 21, 1978, seeking an injunction or, in the alternative, damages against John-Clai Company (John-Clai). On July 24,1978, the trial court held sua sponte that the plaintiff had failed to state a cause of action but allowed him time to amend. After the filing of amendments by Saucier, the trial judge, on September 25, 1978, granted a summary judgment in favor of the defendants, dismissing two major claims of the plaintiff. From this partial dismissal, plaintiff has perfected this appeal; defendants have answered the appeal urging affirmation of the partial dismissal and seeking to bring the remaining portions of plaintiff’s action before this Court.

John-Clai owns and i operates the .MacArthur Village Shopping Center in Alexandria, Louisiana. On October 7,1966, Gus Kaplan, Inc. entered into a lease agreement with John-Clai under which Gus Kaplan was granted store space in the shopping center from August 1, 1967 to July 31, 1979. As stated therein, the lease was granted for the following purposes:

“10. USE OF PREMISES: Lessee shall use the leased premises for the purpose of conducting a women’s specialty shop and store and such business as is usually conducted in conjunction with such a shop or store, including, but not limited to all forms of women’s wearing apparel, shoes, hats, notions, costume jewelry, cosmetics and accessories normally sold in such stores, also children’s and infant’s wear, clothing and accessories and men’s sports wear, novelties and accessories, customarily sold in connection and conjunction with a women’s specialty shop. It is agreed that a minimum of seventy-five (75%) percent of total sales area in the leased premises shall be devoted to the sale of women’s wear and accessories, including, but not limited to, all forms of women’s wearing apparel, shoes, hats, costume jewelry, cosmetics, notions and accessories. It is further agreed that not more than 2,500 square feet of floor space will be utilized in the sale of men’s sportswear, novelties and accessories, and that the sale of young men’s clothing will be restricted to college age and up.” (Emphasis added) (Defendant’s Exhibit # 1)

On February 15, 1977, this lease was amended and extended so as to include more space for Gus Kaplan and certain other economic factors which are irrelevant to the present case. The above quoted scope of business paragraph remained intact from the 1966 lease. In its amended answer to plaintiff’s amended petition, defendant admits that its 1966 lease with Gus Kaplan was not recorded in the conveyance records of Rapides Parish prior to plaintiff’s lease of 1972.

On June 1, 1972, John-Clai entered into a ten-year lease agreement with Saucier for the purpose of Saucier operating a beauty salon in the shopping center. This lease contained the following restrictive covenant:

“COMPETING BUSINESSES: Lessor shall not lease during the primary term of this lease or any renewals or any extensions thereof any space in MacArthur Village Shopping Center to any person, firm, or corporation for the purpose of carrying on the business of a Beauty Shop, and sales and services generally carried on in conjunction with such business.”

In March, 1978, Saucier learned that another lessee, Gus Kaplan, was preparing to open a beauty salon in its MacArthur Village store. After failing to secure enforcement of this non-competition clause from his lessor, Saucier brought this action against John-Clai seeking:

(1) A mandatory injunction restraining and enjoining John-Clai from allowing Gus Kaplan to operate a beauty shop in MacArthur Village and,
(2) In the alternative, for damages resulting from (a) the failure of John-Clai to take affirmative action to prevent Gus Kaplan from operating a beauty shop within the shopping center and (b) a breach of the non-competition clause in the Saucier/John-Clai lease.

As noted above, on September 25, 1978, the trial court dismissed claims 1 and 2(a) of the above on defendant’s motion for summary judgment. In doing so, the trial court found that John Clai “would have no right to enjoin Kaplan from so operating”. (Oral Reasons for Judgment, pg. 3) We do not agree with this statement.

Summary judgments (La.Code of Civil Procedure, Article 966) should be granted only when there are no material facts in dispute and by law, one of the parties is entitled to judgment in his favor. The lease contract between plaintiff and defendant clearly sets out a duty on the defendant not to “lease . . any space in MacArthur Village Shopping Center to any person, firm or corporation for the purpose of carrying on the business of a beauty shop . .

This lease is dated June 1, 1972, and is recorded in the conveyance records of Rap-ides Parish. This contract created an affirmative duty on defendant not to lease to a competitor of plaintiff. Nevertheless, despite this language, another lessee of John-Clai in MacArthur Village, Gus Kaplan, did in fact open a beauty salon in his (existing) store in the shopping center. Plaintiff thereupon brought this suit for injunction seeking to force his lessor to abide by the terms of his 1972 lease contract.

Lessor John-Clai denies plaintiff’s right to an injunction, claiming that they did not violate the lease provision of plaintiff’s contract in that their lease with Gus Kaplan did not specifically include or exclude the operation of a beauty shop by Gus Kaplan and thus they are not responsible for his actions. While we agree that the language (above quoted) in the Gus Kaplan/John-Clai lease is indeed vague as to whether or not Gus Kaplan is allowed to operate a beauty salon within his store, this should not be allowed to obscure the legal issues in dispute between Buster Saucier and John-Clai.

Gus Kaplan’s original lease with defendant dates from 1966. In 1977, this lease was amended and extended so as to include more space for Gus Kaplan and certain other economic factors which are irrelevant to the present case. The above noted “scope of business” paragraph remained intact from the 1966 lease. If, as defendant admits in his answer, neither Gus Kaplan lease was recorded, then third parties (such as the plaintiff) would not be bound by the provisions of this lease, and the recordation of the 1972 lease between Saucier and John-Clai would prime the rights (if any) of Gus Kaplan to operate a beauty salon in the shopping center.

As to the propriety of a mandatory injunction forcing John-Clai to restrain any of its other lessees from interfering with the rights of plaintiff, we note with approval the case of Belvin v. Sikes, 2 So.2d 65 (La.App. 2 Cir. 1941). The restrictive covenant there in dispute stated:

“Parties of the first part [lessors] agree and bind themselves to protect the party of the second part [lessee] against any competition in mercantile, cafe, of service station business, fishing camps, and rental cabins, on any lands now owned by them during the life of this lease.”

When lessors breached this provision, the Court granted a mandatory injunction prayed for by plain tiff-lessee stating:

“The lessors not only obligated themselves to abstain from such competition, but, in legal effect, also bound themselves not to allow others to do so on any land they owned on the lake. Relying upon the binding effect of said stipulation, Bel-vin expended considerable money to equip the land with improvements suitable to accommodate the character of patronage he hoped to and did receive thereafter. In these circumstances the equitable injunctive relief was available to him. He could not adequately protect his rights save by resort to this character of relief. To allow the competition to continue meant the destruction of his own business.” (Emphasis added)

In accordance with the above, we are compelled to reverse the trial court’s granting of a summary judgment denying the mandatory injunction prayed for by plaintiff, Buster Saucier, and remand the matter to the trial court for further proceedings. In remanding, we do not intend that the trial court construe our decision to mean that a mandatory injunction is the only remedy that may be fair to the parties. On the contrary, we remand this case to the trial court for a full hearing on the merits.

Costs of this appeal are assessed against defendants, John-Clai Company, et al. Assessment of costs in the trial court for prior and future proceedings shall be set by the trial court upon its disposition of the matter.

REVERSED AND REMANDED.

CUTRER, J., concurs.

      . LSA R.S. 9:2722.