author: CULPEPPER, Judge. FORET, Judge,

text:
    TOWN OF BROUSSARD, Plaintiff and Appellant, v. BROUSSARD VOLUNTEER FIRE DEPARTMENT, Defendant and Appellee.
    No. 6365.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.

      Mouton & Roy, by Ralph E. Kraft, Lafayette, for plaintiff and appellant.
    Richard J. Bertrand, Lafayette, for defendant and appellee.
    Before CULPEPPER, FORET and JOHNSON, JJ.
   CULPEPPER, Judge.

Plaintiff, the Town of Broussard, sues the Broussard Volunteer Fire Department for the return of a 1935 Ford fire truck and a pumping unit from a 1955 Dodge fire truck, or, in the alternative, for $11,000 damages. Plaintiff claims ownership of these items which it contends it loaned to the defendant-appellee. Defendant, the Volunteer Fire Department of Broussard, claims to own the truck and the pumping unit by donation from the plaintiff, or, in the alternative, by acquisitive prescription. The trial court found the defendant owns the property by acquisitive prescription. Plaintiff appeals.

The substantial issues on appeal are: (1) Is this property subject to acquisitive prescription? (2) Did the defendant possess as owner?

The parties stipulated the facts. The briefs show these stipulations as follows:

“1. The Town of Broussard purchased and/or acquired the article of fire fighting equipment in question, i. e., a 1935 Ford fire truck and a pumping unit of a 1955 Dodge fire truck, prior to 1955. “2. There is an absence of any ordinance and/or resolution and/or any other entry in the official records of the Town of Broussard whereby the Town sold, donated and/or transferred any of the fire fighting articles in question to any third person, and more particularly, to the defendants in question.
“3. That the Broussard Volunteer Fire Department has maintained possession of the articles in question since 1955, or since the date of their incorporation, in 1956, as a non-profit corporation under the laws of the State of Louisiana.”

LSA-La.Const. of 1974, Art. 12, Sec. 13 provides:

“Prescription shall not run against the state in any civil matter, unless otherwise provided in this constitution or expressly by law.”
La.Const. of 1921, Art. 19, Section 16 contained the same provisions.

LSA-C.C. Article 3521 provides that: “Prescription runs against all persons, unless they are included in some exception established by law.”

The leading case, City of New Orleans v. Salmen Brick & Lumber Company, 135 La. 828, 66 So. 237 (Sup.Ct.1914), followed in Louisiana Highway Commission v. Raxsdale, 12 So.2d 631 (2d Cir. 1943), holds that under C.C. Article 3521 a municipal corporation does not enjoy a constitutional exemption from prescription. They are exempt only if some statute so provides. The court held that under LSA-C.C, Articles 458, 481 and 482, public property to the use of which all inhabitants of a city are entitled in common, such as public streets and walks, are not subject to acquisitive prescription. However, public property which is not used by the people in common, but which is used for their benefit by the administrators of the city, are subject to acquisitive prescription. A helpful discussion of this distinction is found in Landry v. Council of Parish of East Baton Rouge, 220 So.2d 795 (La.App. 1st. Cir. 1969):

“Considering the applicable codal provisions and pertinent jurisprudence, it would appear that public property in the public domain envisions such publicly owned property and facilities as are open to the use of all peoples indiscriminately and without charge and which serve no quasi-commercial or proprietary purpose. Included in this classification are streets, public parks, public walks, libraries, public squares and museums.
On the other hand, publicly owned property or facilities which by their nature are not open to use by the general public but are employed for the common good, such as public offices, police and fire stations, auditoriums and schoolhouses, would appear to fall within the classification of public property in the private domain. In this same order would be included publicly owned property of a quasi-proprietary or quasi-commercial nature such as public markets, airports and port facilities open to that segment of the public having need therefor and for whose use a fee or charge is levied.”

We also find guidance in the discussion “Common, Public & Private Things in Louisiana” by A. N. Yiannapoulos, 21 La. Law Review 697, et seq. We quote from that article:

“Property of the private (or national) domain of the state, on the other hand, is property susceptible of private ownership. This notion corresponds to the res fisci of the Roman law. Such property, though serving public purposes directly or indirectly, is not subject to public use. It is clearly alienable by the state, but, for reasons of policy, not subject to seizure and prescription against the state.85. To the private domain belongs also property of political subdivisions of the state which is not destined to public use. As in the case of similar property held by the state itself, such property is susceptible of private ownership and alienable but not exempt from prescription.86 This notion corresponds to the Roman law conception of res (publicae) in patrimonio universita-tis.”

We conclude that the fire truck and pumping unit are not things “to the use of which all the inhabitants of a city or other place, and even strangers, are entitled in common”. Rather, these are things which are to be employed by the administrators for the advantage of the inhabitants of the municipality. See LSA-C.C. Art. 458. These movables are therefore subject to acquisitive prescription.

Having agreed with the trial judge that the movables in question are not exempt from prescription, we must next consider whether defendant’s possession was sufficient. If the defendant’s possession was precarious, as the plaintiff contends, then LSA-C.C. Article 3510 would prevent acquisitive prescription by the Volunteer Fire Department.

Plaintiff contends the items in question were loaned to the Broussard Volunteer Department with the understanding that the truck and pumping unit were to be returned when plaintiff so requested. If this is the case, then plaintiff must be successful in this appeal.

Defendant first contends this property was manually donated to the Volunteer Fire Department, LSA-C.C. Article 1539, and that it has possessed by just title, as owner, in good faith for three years sufficient for acquisitive prescription under LSA-C.C. Article 3506. We find no merit in this contention, since there is no evidence in the record to support a donation. Moreover, we are not convinced such a disposition by a municipal corporation would be valid under LSA-R.S. 33:4712 pertaining to disposition of municipal property.

Defendant’s second contention is that it has always understood plaintiff donated the truck and pumping unit to it in 1955 in consideration of defendant furnishing the personnel to operate the equipment. Defendant says it has possessed the equipment as owner since 1955 and now owns it by prescription.

It is well established that the burden of proof of establishing the facts of acquisitive prescription rests on the party who makes the plea. Humble v. Dewey, 215 So.2d 378 (La.App. 3rd Cir. 1968). However, the possessor is aided in this burden by a presumption that he possessed as owner. We quote LSA-C.C. Article 3488:

“As to the fact itself of possession, a person is presumed to have possessed as master and owner, unless it appears that the possession began in the name of and for another.”

This article was not cited by either counsel nor by the trial judge. We applied it in Humble v. Dewey, 215 So.2d 378, 382 (La.App. 3rd Cir. 1968). See also the discussion in “Prescription” by Alvin B. Rubin & Harry S. Sachse, 23 La. Law Review 318, 320 (1963) where this article was favorably noted.

It was, therefore, incumbent on the plaintiff-appellant in the present case to rebut this presumption. Having carefully reviewed the record, we find no evidence whatsoever which would rebut the presumption that the Volunteer Fire Department of Broussard possessed the property as anything but owner. There was no evidence to indicate the nature of the agreement at the time the defendant obtained possession of the fire truck and the pumping unit. There is no evidence which indicates defendant’s possession was precarious. We hold that defendant has satisfied the requirements of LSA-C.C. Article 3509 and was correctly decreed the owner of the fire truck and the pumping unit.

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

AFFIRMED.

JOHNSON, J., concurs for the reasons assigned by FORET, J.

Before CULPEPPER, FORET and JOHNSON, JJ.

FORET, Judge,

concurring:

Plaintiff-appellant, Town of Broussard, contends that the defendant was merely a precarious possessor of the equipment involved. Appellant admits possession by the defendant. Having so admitted, a presumption arises under LSA-C.C. Art. 3488 that defendant-appellee possessed as master and owner. It was incumbent upon plaintiff-appellant to show, by a preponderance of the evidence, that defendant was indeed a precarious possessor. If the Town, in fact, paid for repairs, maintenance, tires, batteries, gasoline, oil, etc. for the fire truck, it would seem that proof of same would have been readily available. Certainly, such evidence would have been highly suggestive that defendant was indeed a precarious possessor.

My main reason for filing this concurring opinion is to state that I am not convinced that defendant was not a precarious possessor, but rather that the plaintiff-appellant has failed to prove that defendant was a precarious possessor. Accordingly, I concur in the result reached by the writer of the original opinion.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    Eddie J. LeBLANC v. AUDUBON INSURANCE COMPANY et al.
    No. 6375.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    Donald Soileau, Mamou, and John A. Jeansonne, Jr., Lafayette, for plaintiffs-appellants.
    Glenn W. Soileau, Breaux Bridge, A. Gaynor Soileau, Ville Platte, for defendants-appellees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

The only issues are whether Rixby Manuel or the Evangeline Bank & Trust Company owed any duty to Eddie J. Le-Blanc, plaintiff, to renew his automobile insurance policy and whether the insurance policy issued by the Hartford Accident & Indemnity Company to the Evangeline Bank & Trust Company required Hartford to provide the bank with a defense to plaintiff’s suit.

These issues were resolved by the trial court against plaintiff and against Hartford. The trial court found that Manuel and the bank owed no duty to plaintiff to renew his insurance and further found that Manuel and the bank were not engaged, as “gestors” under the theory of negotiorum gestio, in managing the affairs of another as contemplated by LSA-C.C. art. 2295. Manuel and the bank were found to have renewed the policy previously to protect themselves, as they were entitled to do. It was held that plaintiff knew or should have known his vehicle was not insured and thus was at fault in failing to renew the policy. After reviewing the record, we find no manifest error in these conclusions.

As to Hartford’s obligation to defend the bank under its liability insurance policy, the only defense suggested is a policy exclusion which states in effect that the insurance does not apply to liability assumed by the bank under any contract or agreement. The applicable rule of law is that the insurer’s duty to defend its insured is determined by the allegations of the plaintiff’s petition, with the insurer being obligated to defend the lawsuit unless the petition unambiguously excludes coverage. Benoit v. Fuselier, 195 So.2d 679 (La.App. 3 Cir. 1967). In paragraph 15 of plaintiff’s petition, it is alleged that the failure to renew was in part caused by the “acts, errors and omissions” (TR. 6) of the bank and this allegation is sufficient to require the insurer to defend. The trial court did not err in so concluding.

The bank’s attorney is entitled to an additional fee for services on appeal. In view of the fact that this matter was not argued orally, a fee of $300 would be appropriate.

Therefore, the judgment of the trial court is affirmed, except that an additional fee of $300 is awarded to counsel for the bank, representing services on appeal.

It is ordered, adjudged and decreed that there be judgment in favor of Evangeline Bank & Trust Company and against Hartford Accident & Indemnity Company for the additional sum of $300 for attorney’s fees, representing services on appeal.

Costs of the appeal are taxed one-half against plaintiff, Eddie J. LeBlanc, and one-half against Hartford Accident & Indemnity Company.

AMENDED AND AFFIRMED.


author: GUIDRY, Judge.

text:
    LOUISIANA PACIFIC CORPORATION, Plaintiff-Appellee, v. Michael J. LAWTON d/b/a Lawton Forest Products, Defendant-Appellant.
    No. 6376.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.

      Daniel J. McGee, Mamou, for defendant-appellant.
    Voorhies & Labbe, by W. Gerald Gaudet, Lafayette, Perrell Fuselier, Oakdale, Edgar Perkins, Jr., DeQuincy, for plaintiff-appel-lee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff, Louisiana Pacific Corporation (Louisiana Pacific), filed the instant suit seeking a mandatory and prohibitory injunction restraining defendant, Michael J. Lawton d/b/a Lawton Forest Products (Lawton), from disposing of certain described timber and compelling him to convey to plaintiff title to said timber via an appropriate timber deed in compliance with a judgment previously rendered by this Court. Lawton prosecutes this appeal from two judgments of the trial court granting Louisiana Pacific the relief sought, contending:

(1) The trial court erred in overruling an Exception of Res Judicata filed by Lawton.

(2) Alternatively, the trial court erred in ordering Lawton to enter into a contract with Louisiana Pacific, which contract is significantly and substantially different from the contract originally contemplated by the parties.

FACTS

This is the second time that the dispute between these parties has been before this Court. The facts giving rise to this suit as well as the previous litigation are not disputed and may be summarized as follows:

On July 29,1974, Lawton accepted a written contract prepared by Louisiana Pacific styled “AGREEMENT TO PURCHASE AND SELL TIMBER”. The pertinent terms of the contract recite that Louisiana Pacific offers and agrees to buy and Law-ton agrees to sell “all merchantable timber eight (8) inches and larger” which is situated upon a certain described tract of land located in Evangeline Parish for the sum of $24,000.00. The contract is made subject to the following terms and conditions:

“This agreement is conditioned upon first, the reasonable merchantability to said timber, Purchaser waiving the formal opening of the Oliver Reed Succession provided record evidence of heirship exist and, secondly, the provision by Vendor of a right-of-way across adjoining lands with a period of exercise of not less than 12 months, provided that the right-of-way is assigned to Purchaser before December 18, 1975 and provided further that the right-of-way can be exercised by Purchaser without unreasonable practical difficulty. Vendor (sic) shall in all events have until December 18, 1976 to remove the timber.”

The contract further provides that the failure of any of the above conditions will render the agreement null and void. Otherwise, the agreement is to be specifically enforceable with the cost of enforcement including attorney’s fees to be charged to the party failing to perform after the above conditions are satisfied. If the title is found to be merchantable and free of encumbrances, then the owner is to execute a timber deed “under these contract 'provisions and pursuant to the form of deed attached thereto.”

On March 20, 1975, Lawton filed suit No. 29538 seeking specific performance of the July 29, 1974 agreement in the Thirteenth Judicial District Court, Parish of Evangeline, alleging that Louisiana Pacific had failed to comply with the terms of said contract.

While this suit was pending in the district court, Lawton, on March 19, 1976, sold the tract of land containing the timber subject to the July 29, 1974 agreement to Mamou Seed Rice Company, Inc. The sale was made subject to the following special stipulation:

“1. Vendor reserves all rights, including rights in the timber estate, necessary to comply with a contract to sell timber of July 1974 with Louisiana Pacific Corporation, of which purchaser takes notice, whether recorded or not, and subject to which purchaser agrees to take title.”

Lawton’s suit for specific performance was tried on the merits on April 6th and July 2nd, 1976. The trial judge concluded in written reasons that the defenses presented by Louisiana Pacific were without merit. Accordingly, on September 8, 1976, judgment was rendered by the district court in suit No. 29538 in favor of Lawton and against Louisiana Pacific “ordering said defendant, to pay to petitioner, the sum of $24,000.00 with legal interest from date of judicial demand, in specific performance of the agreement to purchase and sell timber dated July 29, 1974, between petitioner and defendant.” The sum of $6,000.00 was awarded to Lawton as attorney’s fees and Louisiana Pacific was cast for all costs.

An appeal by Louisiana Pacific to this Court followed. The judgment of the district court was affirmed in an opinion dated April 13, 1977. See Lawton v. Louisiana Pacific Corporation, 344 So.2d 1129 (La.App. 3rd Cir. 1977).

Louisiana Pacific’s attorney, in a letter dated May 2, 1977 advised counsel for Law-ton of his client’s decision not to apply for a rehearing. He requested that' a timber deed be forwarded to him in conformance with the July 29, 1974 contract, “i. e., the conveyance of eight (8) inch and above timber and a cutting time of one year.”

Lawton’s attorney responded by way of a letter dated May 5, 1977 indicating that his review of the trial judge’s written reasons as well as the opinion of this Court disclosed that neither of these granted to Louisiana Pacific any rights to the timber beyond the December 18, 1976 harvesting deadline contained in the July 29, 1974 contract. He concluded that “Based on an evaluation of all circumstances, it appears that Louisiana Pacific Corporation has allowed all of its rights to the timber described in the Agreement of July 29, 1974, to expire.” However, Lawton offered to grant to Louisiana Pacific an additional opportunity to harvest the timber in consideration for the payment of additional sums totalling $3,220.00. This extension, which would expire on June 17, 1977, applied to “all merchantable timber from a twelve inch stump measured twelve inches from ground line” and was further conditioned upon the receipt of the sum of $3,220.00 along with the total amount owed under the judgment by May 11, 1977.

Louisiana Pacific filed the instant suit on May 18, 1977, setting forth its attempted compliance with the previous judgment decreeing specific performance and alleging Lawton’s refusal to convey the timber except upon payment of additional sums not awarded in the judgment. Louisiana Pacific prayed that Lawton be enjoined from disposing of the timber in question and further, “that defendant be ordered to comply with the terms of the judgment and tender an appropriate timber deed with a cutting time of one year in order to comply with the judgment of this Honorable Court in Action No. 29,538 hereinabove referenced.” Lawton filed answer to the suit along with pleas of Res Judicata and alternatively, Judicial Estoppel and the rule of “The Law of the Case”.

After trial on the merits, the trial judge, in written reasons, remarked:

“Simply stated, Lawton insists that Louisiana-Pacific pay him the original amount of the contract, i. e. $24,000.00, plus $6,000.00 attorney fees allowed by the District Court, together with legal interest from date of judicial demand, plus all costs, but that Lawton does not have to perform its part of the contract, that is, deliver the timber deed, and permit the harvesting of the timber in accordance therewith. Plaintiff, in open court, tendered two checks to defendant, one made payable to Perrel Fuselier for $6,000.00, and one made payable to Lawton for $27,672.98.
Extensive research fails to reveal any foundation for so strange and novel an idea. That one should sue to compel another to perform the contract entered into, but that he himself is not obliged to do so is rather unusual to say the least.
The sole reason that Lawton takes this position is that he maintains the time for performance of the contract lapsed on December 16 (sic), 1976. Let it be remembered that at that time the matter was on appeal. Lawton says that Louisiana-Pacific Corporation had three months to harvest the timber, and that Lawton stood ready to perform. However, Louisiana-Pacific Corporation, being disatis-fied (sic) with the judgment of the trial court, appealed from said judgment. Surely it cannot be contended that Louisiana-Pacific Corporation did not have a right to appeal from the judgment of the trial court.
On March 19, 1976, Michael J. Lawton sold the land whereon the timber stood, and still stands, to Mamou Seed Rice Company, Inc., reserving, however, the right to cut and remove the timber thereon for a period of 18 months from April 7, 1976. Therefore, Lawton can still perform his contract until October 7, 1977.
The court finds that Louisiana-Pacific Corporation is entitled (sic) relief demanded in the prayer of its petition, and the court will so order.
Defendant filed exceptions of res judi-cata, estoppel, and “The Law of the Case”. The Court finds these to be without merit, and will overrule them.”

Accordingly, judgment was rendered in the instant suit on June 24, 1977 overruling the exceptions, and in favor of Louisiana Pacific and against Lawton restraining and enjoining him from disposing of the timber and ordering Lawton “to execute and deliver to Louisiana-Pacific Corporation, within seven (7) days of the signing of this judgment an appropriate timber deed conveying to Louisiana-Pacific Corporation until October 7,1977, all merchantable timber twelve (12) inches and larger measured twelve (12) inches above the ground located in (sic) the above described tract of land.” The judgment also ordered Lawton to deliver to Louisiana Pacific all required rights-of-way and other documents to enable it to harvest the timber. Lawton was cast to pay all costs.

Subsequent to the rendition of the judgment of the district court, the parties’ inability to agree on the form of the “appropriate timber deed” whereby title to the timber was to be conveyed culminated in the filing by Louisiana Pacific on July 18, 1977 of a rule to compel compliance with the judgment dated June 24, 1977. This rule enumerated several alleged deficiencies in the timber deed which had been submitted by Lawton, and prayed that Lawton be cited to show cause why he should not comply with the judgment previously rendered in this matter.

A hearing on the rule was held on July 21, 1977 at which several proposed timber deeds were introduced as exhibits. Judgment was rendered that day by the trial court ordering Lawton to execute and deliver to Louisiana Pacific a timber deed in the form of exhibit “Louisiana Pacific A-2” with the price to be $24,000.00. All costs of this proceeding were divided equally between the parties.

Lawton has appealed from the judgments of the trial court dated June 24, 1977 and July 21, 1977 specifying the errors heretofore mentioned. Louisiana Pacific did not appeal and has not answered the appeal by Lawton.

RES JUDICATA

In his brief before this Court, counsel for Lawton concedes that the alternative pleas of Judicial Estoppel and “The Law of the Case” are inapplicable to the case at bar. Able counsel bases his contention that the trial court erred in its refusal to sustain the exception of Res Judicata on the argument that Louisiana Pacific is, in the instant suit, attempting to relitigate claims which were presented to and rejected by both the district court and this Court in the previous litigation between these same parties. We find no merit in this contention.

Lawton alleges that the sole demand made in the petition filed by Louisiana Pacific in the instant case is that it be granted a “cutting time of one year”. He asserts that this is the identical relief which was requested by Louisiana Pacific in the prior suit, referring to a letter dated August 28, 1976 (a copy of which was sent to the trial judge) in which counsel for Louisiana Pacific objected to the form of a judgment proposed by Lawton’s attorney in suit No. 29538. One of the grounds for objection enumerated therein was the absence of a provision for a cutting time. Lawton argues that the absence of a specific provision in the judgment extending the cutting time as per Louisiana Pacific’s request constitutes a rejection of this claim by the district court in suit No. 29538. He next contends that this claim for additional cutting time was also presented to this Court, referring to the brief submitted on behalf of Louisiana Pacific in which the failure of the trial court to provide for a minimum of twelve months to harvest the timber was listed as a specification of error. Lawton argues that this Court’s affirmance, without modification, of the judgment of the district court constitutes a further rejection of Louisiana Pacific’s claim for additional cutting time.

Lawton’s primary argument, as we understand it, is that Louisiana Pacific’s failure in the prior suit to apply for a rehearing in this court or to apply to the Supreme Court for writs to correct this alleged deficiency (omission of a provision allowing a cutting time of one year) in the district court judgment precludes it from now seeking a modification of said judgment, since the judgment of the district court and the judgment of this Court affirming same, have now become final and executory. Thus, appellant argues any attempt on the part of Louisiana Pacific to “enforce” the July 29, 1974 agreement is barred because of the refusal of both the district court and this Court in the prior litigation to provide for an extension of time for harvesting the timber beyond the December 18, 1976 deadline.

The contention of Louisiana Pacific is that it is not attempting to modify the prior judgment rendered in the previous suit between the parties, but is only seeking to enforce rights granted to it under the terms of said judgment, i. e., the right to cut the timber in exchange for payment of the purchase price. Louisiana Pacific maintains that it is entitled to the timber, with the concomitant right to a reasonable time for the harvesting of said timber, in spite of the fact that the original deadline for harvesting lapsed while the case was on appeal. Louisiana Pacific argues that to hold otherwise would allow Lawton to be unjustly enriched at the expense of Louisiana Pacific.

We reject Lawton’s contention that the absence of a specific provision in the judgment rendered in suit No. 29538 extending the deadline for the harvesting of the timber beyond December 18,1976 amounts to a denial of this relief to Louisiana Pacific by either the district court or this Court. A review of the pertinent provisions of the judgment discloses that the thing awarded by the judgment was “specific performance of the agreement to purchase and sell timber dated July 29, 1974, between petitioner and defendant”.

Although the judgment itself does not recite verbatim the provisions of the contract in question, it necessarily follows that compliance with a decree of specific performance of a contract also requires compliance with the terms of the contract itself. Thus, in the instant case, the parties are bound by the terms of the July 29, 1974 agreement insofar as said terms delineate the particular timber to be conveyed, the price to be paid for said timber and the length of time allowed for the purchaser to remove said timber. The pertinent terms of the contract, supra, call for a minimum period of twelve months in which the purchaser is to be allowed to utilize the right-of-way for harvesting the timber. The contract further provides that the right-of-way was to be assigned to purchaser on or before December 18, 1975 and that the purchaser was to have until December 18, 1976 to remove the timber. We construe these contractual provisions as clearly evidencing an intent that the purchaser was to have a minimum of one year in which to harvest the timber from the Lawton tract. Accordingly, we conclude that the previous judgment rendered in suit No. 29538 necessarily included, though not specifically mentioned, a right of removal of the timber during a period of one year from and after the execution of the timber deed. The termination date of December 18, 1976 cannot be invoked by the seller to defeat the purchaser’s right to the timber or its right of removal during a term of one year while there is some obstacle to the removal of the timber such as a good faith attempt by either party to obtain an adjudication of its rights and obligations under the terms of the contract.

We conclude that the trial court properly overruled the exception of Res Judicata filed by Lawton in the instant case. The “cause” of the first litigation between these parties was to obtain a judicial determination of the rights and obligations of the parties under the terms of the July 29,1974 agreement. The instant suit was brought seeking enforcement of said rights and obligations, and thus was based on a different “cause” than the first suit. LSA-C.C. Article 2286; Mitchell v. Bertolla, 340 So.2d 287 (La.1976).

In the instant suit, the evidence shows that Louisiana Pacific stands ready to perform its obligations under the July 29, 1974 agreement, said obligations having now become judicially fixed by the prior judgments rendered in this matter. It is attempting to assert its rights under the agreement by forcing Lawton to comply with the terms of the very judgment obtained by him. Plaintiff is clearly entitled to the relief it seeks. The rendition of a judgment gives rise to an action to enforce it. Succession of Ducker, 10 La.Ann. 758 (La.1855).

THE FORM OF DEED TO BE EXECUTED PURSUANT TO THE JULY 29, 1974 BUY-SELL AGREEMENT

Following a hearing in the court below, defendant was ordered to execute and deliver to Louisiana Pacific a timber deed pursuant to a form introduced in evidence at the hearing as “Louisiana Pacific A-2”. Lawton argues that this ruling is erroneous because the form of deed was never specifically agreed upon by the parties and “Louisiana Pacific A-2” contains terms and provisions never contemplated by them. We find merit in this contention.

The July 29,1974 buy-sell agreement provides in pertinent part as follows:

“If said title is merchantable and free of encumbrances, then Owner shall execute a Timber Deed under these contract provisions and pursuant to the form of deed attached hereto." (Emphasis ours)

It is undisputed that there was no form of timber deed attached to the buy-sell agreement contrary to the recitation contained therein.

The trial judge, in the instant case, based his decision to order conveyance of the timber in conformance with the deed evidenced by “Louisiana Pacific A-2” on the testimony of counsel for Louisiana Pacific that this was the timber deed used by Louisiana Pacific after July 1,1974. Our careful examination of the record discloses that his testimony was inconclusive on this point. Further, there is no evidence in the record suggesting that the parties ever reached agreement as to the exact form of timber deed which was to be executed pursuant to the buy-sell agreement.

Although the record does contain several timber deeds between these same parties which were executed some months prior to July 29, 1974, we cannot construe these previous contracts as evidencing the parties’ intentions concerning this particular timber on this particular occasion. To so hold would be for this Court to formulate a contract for these parties where none exists. Although a doubtful or ambiguous contractual provision is subject to interpretation by a court in an attempt to ascertain the true intent of the parties, it is' well settled that a court is not empowered to make a contract for the parties. Bown v. Austral Oil Company, Incorporated, 322 So.2d 866 (La.App. 3rd Cir. 1975, writ refused).

The timber deed reflected in exhibit “Louisiana Pacific A-2” contains numerous terms and conditions not embodied in the buy-sell agreement, which we feel may not be imposed upon these parties considering the total absence of evidence that it was their intention at the time of the contracting that their agreement would be subject to and controlled by such conditions. The same reasoning likewise applies to any of the several timber deeds introduced at the hearing held in this matter. Under these circumstances, we conclude that the trial court clearly erred in ordering Lawton to execute a deed in the form of “Louisiana Pacific A-2” in the absence of clear and convincing evidence that this was the exact form of deed contemplated by the parties on July 29, 1974.

We do not consider however, that the failure of the parties to annex the form of deed to be ultimately executed to the buy-sell agreement strikes the latter agreement with invalidity. As stated by our brethren of the First Circuit in Hammond Asphalt Company, Inc. v. Ponder, 303 So.2d 851 (La.App. 1st Cir. 1974, writ refused):

“A written promise to sell an immovable, which instrument specifies the thing, term and price, when accepted, entitles either party to the agreement to demand specific performance upon compliance with his obligations therein. LSA-C.C. art. 2462.”

The buy-sell agreement of July 29, 1974 embodies, in its own terms, the three essential element's necessary for a valid contract i. e., the thing, the price and consent. LSA-C.C. article 2439. When these essential elements are incorporated into a written buy-sell agreement concerning immovable property, and reference is made to another attached document for the form of the ultimate contract to be executed by the parties, the failure of the parties to affix to the buy-sell agreement an appropriate document in accordance with the recitation contained therein does not thereby vitiate the contract.

Nor is the contract invalidated because of the subsequent inability of the parties to agree on the ultimate form which is to express the final results of their contractual endeavors. So long as the provisions contained in the original buy-sell agreement evidence the consent of the parties and their agreement as to the thing and the price, no special type of form is sacrosanct. All that is required is that the instrument be confected pursuant to the terms and conditions set forth in the buy-sell agreement. For these reasons, we amend the trial court judgment of July 21, 1977 so as to order that the deed to be executed shall be an appropriate recordable conveyance confected pursuant to the terms and conditions set forth in the agreement of July 29, 1974, as interpreted by this Court. We will also amend the trial court judgment to the end that should defendant fail, within the time allowed hereafter, to execute the required timber conveyance, this judgment, upon its finality, shall constitute a conveyance of the timber herein involved pursuant to the terms of the buy-sell agreement of July 29,1974 as herein interpreted. In all other respects the judgments appealed from will be affirmed.

For the above and foregoing reasons the judgments of the trial court dated June 24, 1977 and July 21, 1977 are consolidated, amended and recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that:

(1) The exceptions of res judicata, estop-pel and “The Law of the Case” filed herein by defendant are overruled;

(2) There be judgment herein in favor of petitioner, Louisiana Pacific Corporation, and against defendant, Michael J. Lawton, d/b/a Lawton Forest Products, restraining and enjoining said defendant from selling, cutting or otherwise disposing of all merchantable timber twelve (12) inches and larger measured twelve (12) inches above the ground located on that certain tract or parcel of land situated in Evangeline Parish, Louisiana, and lying in the Southeast Corner of Sec. 12, T — 6-S, R-l — W, and the Southwest Corner of Sec. 7 or Sec. 43, T-6S, R-l-E, containing 127.6 acres, more or less, bounded now or formerly North by Lester Manuel, South by Bayou de Cannes, East by Lester Manuel, and West by Lester Manuel;

(3)MICHAEL J. LAWTON, d/b/a LAWTON FOREST PRODUCTS, be and he is hereby ordered to execute and deliver to LOUISIANA PACIFIC CORPORATION, within fifteen (15) days of the finality of this judgment, an appropriate recordable timber deed confected pursuant to and on the terms and conditions set forth in the buy-sell agreement of July 29,1974 as interpreted by this judgment, conveying to LOUISIANA PACIFIC CORPORATION, all merchantable timber twelve (12) inches and larger measured twelve (12) inches above the ground located on the above described tract of land. The price is to be the monetary sum awarded to Michael J. Law-ton in the judgment heretofore rendered in suit No. 29538, affirmed on appeal, Lawton v. Louisiana Pacific Corporation, 344 So.2d 1129 (La.App. 3rd Cir. 1977). LOUISIANA PACIFIC CORPORATION is to have a period of one year from the date that this timber deed is executed within which to harvest the timber.

Upon the failure of MICHAEL J. LAW-TON d/b/a LAWTON FOREST PRODUCTS to execute and deliver a timber deed in accordance with the provisions of this judgment LOUISIANA PACIFIC CORPORATION shall, within 15 days of such failure by Lawton, 'cause to be recorded in the conveyance records of Evangeline Parish, Louisiana, a certified copy of this judgment along with a certified copy of the July 29, 1974 buy-sell agreement and simultaneously deposit in the registry of the Thirteenth Judicial District Court for the benefit of MICHAEL J. LAWTON, the monetary sum awarded to him in the judgment heretofore rendered in suit number 29538, affirmed on appeal, and such recordation and deposit shall constitute a conveyance of the timber herein involved in accordance with the terms of the July 29, 1974 buy-sell agreement as herein interpreted. In the event this alternative procedure is necessary, LOUISIANA PACIFIC CORPORATION is to have a period of one year from the date of such recordation and deposit within which to harvest the aforesaid timber.

(4) MICHAEL J. LAWTON d/b/a LAW-TON FOREST PRODUCTS be and he is hereby ordered to convey, assign and deliver to LOUISIANA PACIFIC CORPORATION all rights of way and license agreements secured by him from adjoining land owners, pursuant to the provisions of the buy-sell agreement, so as to permit undisturbed ingress and egress by LOUISIANA PACIFIC CORPORATION to the tract of land from which the timber is to be harvested.

(5) Costs at the trial level and on appeal are to be borne equally by the parties.

AMENDED AND AFFIRMED.

      . The record clearly establishes that there was no form of deed attached to the agreement contrary to the recitation contained in the contract.

      . A separate and distinct stipulation also contained in the act of sale provides for a reservation (regardless of the existence of any obligation on the part of Lawton under the July 29, 1974 contract) in favor of Lawton of all timber twelve inches in diameter measured twelve inches from the ground, together with rights of ingress and egress, subject to liability for damages caused to the landowner. However, “all such rights and reservations shall terminate without putting in default or any notice whatsoever eighteen (18) months after April 7, 1976.”
      We construe this stipulation as providing that only the rights reserved by Lawton for himself are subject to the October 7, 1977 termination date. Rights in the timber estate reserved by Lawton in order to comply with his obligations under the July 29, 1974 contract with Louisiana Pacific have not terminated, but instead, remain viable until the final disposition of this matter by the courts. We thus conclude that even though October 7, 1977 has passed, Lawton has retained title to the timber in question, by virtue of the stipulation set forth in the main body of our opinion, so that he may be compelled to convey said title in compliance with a decree of specific performance.

      . We conclude that Lawton can still comply with his obligations under the July 29, 1974 agreement even though October 7, 1977 has passed. See our discussion at footnote # 2.

      . The upward adjustment in the size of the timber from eight inches to twelve inches presumably was made to account for the estimated annual growth of the timber in question. Thus, the timber affected by this judgment is essentially the same timber which existed at the time of the July 29, 1974 agreement. This upward adjustment is supported by the record and will not be disturbed on appeal. In any event, Louisiana Pacific does not contest this adjustment of timber size in the judgment, having neither appealed nor answered the appeal of defendant-appellant.

      . As previously set forth herein we interpret the buy-sell agreement as allowing a one year term for removal of the timber by the vendee to reckon from the date on which the timber sale is executed ■ or this judgment becomes final. Additionally, we determine that the upward adjustment as to the size of timber is required so as to assure that the timber to be harvested is the same as that contemplated to be sold by the agreement of July 29, 1974.

      . Although we reiterate this portion of the trial court decree we observe that it is probably unnecessary or superfluous in that the necessary rights of way and licenses have been previously assigned to Louisiana Pacific Corporation.


author: JOHNSON, Judge.

text:
    Brenda George JENKINS et al., Plaintiffs-Appellants, v. Frank FERGUSON et al., Defendants-Appellees.
    No. 6378.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    Domengeaux & Wright, Terry E. Theriot, Lafayette, for plaintiffs-appellants.
    Voorhies & Labbe by William M. Bass, Lafayette, for defendants-appellees.

      Before CULPEPPER, FORET and JOHNSON, JJ.
   JOHNSON, Judge.

This is. a suit for personal injuries and special damages from injuries received by plaintiff on a carnival ride. Plaintiff, her fiance, and her sister were passengers in a “Scrambler” seat from which she was thrown and was injured. Plaintiff sustained a broken leg and incurred special damages. The trial court awarded her $10,-000.00 in general damages and $3,184.00 in special damages. She appeals. We affirm.

A Scrambler is a seating device which is hoisted above the ground by means of arms in the nature of booms (there being quite a number in any one amusement device). Patrons are seated in these seats which will accommodate three adults or four children suspended by these booms. They swing around in a circular arc around the central stanchion. These Scramblers are geared so that these patrons are being swirled around in a circle. The seats rotate somewhat in a circular motion as they are swung around in an arc. Patrons are secured by means of metal rods which are hinged on one end. They are locked into a locking device on the other end. When secured, this device rests across the patron’s laps. It provides them with something to hold on to in addition to securing them in their seats. This metal rod forms part of the locking mechanism which holds the patrons in the seats. It is released along with the gate device whenever they get in or get out of the ride.

On the date of this accident plaintiff, her fiance, and her sister got into the seat. The fiance fastened the locking device. The evidence shows that when the operator of the device came around, he (in order to be sure that the device was properly locked) unlocked the device and secured it again. He rattled it to make sure that it was secured.

The operator thereupon started the Scrambler in its turning or orbiting. Shortly thereafter the iron rod or locking device securing plaintiff and her companions came loose. The two girls were thrown from the seat onto the ground below. The boy who had his arm on the back of the seat, was able to prevent himself from being thrown from the seat.

The trial court found that the plaintiff was free from any negligence causing her injuries. The trial court further found and I quote:

“The Scrambler involved in this case was twelve years old and the door to the Scrambler was either not closed or if it was closed it was not secure, and at one time during the ride on the Scrambler the door was thrown open and as both Brenda and her sister were holding on to the inside bar the forward motion caused them to be expelled from the Scrambler. Profit Jenkins remained in the Scrambler because one of his arms was holding on to a part of the Scrambler that was not the door. It is a finding of fact that the defendant was negligent in operating the Scrambler without seeing that the door was properly closed or without seeing that the locks were secure.
There is no question that the two occupants were accidentally thrown from the Scrambler. It would be impossible for them to have stood up or been otherwise removed other than by the door coming open.
Finding negligence on the defendant it then becomes necessary to determine the amount of damages that should be awarded to the plaintiff.”

We do not find that the plaintiff-appellant has sustained its burden of proving by a preponderance of the evidence, the negligence of the operator of the Scrambler. There is no evidence whatsoever to show that the door was not properly closed or to show that the lock was not properly secured.

The operator got in the same seat, the same night and secured the lock on the metal restraining rod. He thereupon kicked the rod with his foot with considerable force several times. The lock held securely. (Tr. 291, 292, 293).

We have the testimony that the male patron first locked the device and subsequently the operator came back unlocked it and locked it properly, rattling it to be sure that it was properly locked. There is no evidence to contradict these statements of the operator.

We do know that the law places a very high degree of care on the operator of an amusement device such as this. See: Archote v. Travelers Insurance Agency, 179 So.2d 658 (La.App. 4 Cir. 1965).

We find that this is a proper case for the application of the doctrine of res ipsa loquitur. No one knows what happened in this case. We do know that the locking device did not work properly. Everything connected with this ride was under the complete dominion and control of the operator. This is by his own admission and there is no contradictory evidence. Admittedly, and obviously, something went wrong. No one knows what or why. The trial court finds from the evidence, and we agree, that plaintiff was completely free of negligence.

Our Supreme Court in Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972) has set forth the criteria for the application of this principle.

“[2,3] In this respect, the principle of ‘res ipsa loquitur’ (the thing speaks for itself) sometimes comes into play as a rule of circumstantial evidence, whereby negligence is inferred on the part of a defendant because the facts indicate this to be the more probable cause of injury in the absence of other as-plausible explanation by witnesses found credible. Pilie v. National Food Stores of Louisiana, 245 La. 276, 158 So.2d 162 (1963); Larkin v. State Farm Mutual Auto. Ins. Co., 233 La. 544, 97 So.2d 389 (1957); Malone, Res Ipsa Loquitur and Proof by Inference, 4 La.L.Rev. 70 (1941); Comment, 25 La.L. Rev. 748 (1965). Thus, by this principle where properly applied, the circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant, without necessarily proving just what negligent act caused the injury.
We note in Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389, 391 (1957): “ * * * the maxim [res ipsa loquitur] means only that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference . . . The application of the rule does not, therefore, dispense with the necessity that the plaintiff prove negligence, but is simply a step in the process of such proof, permitting the plaintiff, in a proper case, to place in the scales, along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence. . . . When all the evidence is in, the question is still whether the preponderance is with the plaintiff.” (Emphasis ours)

Plaintiff-appellant complains of the award herein. We find that the amount awarded is within the broad discretion granted to the trial court in accordance with the jurisprudence and particularly in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

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

AFFIRMED.


author: SCHOTT, Judge. STOULIG, Judge,

text:
    Curt O. LECHLER et al. v. CITY CIVIL SERVICE COMMISSION FOR the PARISH OF ORLEANS and their Agents and Superintendent of Police, Clarence B. Giarrusso and his Agents (two cases).
    Nos. 8580 and 8710.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Writ Refused June 2, 1978.

      Many, LoCoco & Dwyer, Ralph D. Dwyer, Jr., New Orleans, for defendant-ap-pellee (Civil Service Commission).
    James Burnett Aime, New Orleans, for plaintiffs-appellants.
    Before REDMANN, GULOTTA, STOUL-IG, SCHOTT and DUPLANTIER, JJ.
   SCHOTT, Judge.

Plaintiffs, 16 patrolmen with the New Orleans Police Department, filed two suits, one for a writ of mandamus and the other for declaratory relief seeking redress against an alleged illegal failure of the Police Superintendent to promote them to the rank of sergeant. They have appealed judgments dismissing both suits and these matters have been consolidated in this court.

Police officers may qualify for promotion to a higher rank by civil service examination. From the results, promotional lists are compiled ranking eligibles according to their examination scores. Prior to January 1,1975, veterans were granted a three-point preference in the compilation of their promotion examination scores. (La.Const.1921, Art. 14 § 15(A)(1).) La.Const. 1974, Art. 10, § 10(2) omits the veteran preference points for civil service promotions.

The promotions of which plaintiffs complain were made December 24, 1975; however, the list of eligibles from which the candidates were selected was compiled on January 26, 1973, based on an examination given in October, 1972. The three-point veteran preference was added in the scores on this list. Were it not for the bonus points, plaintiffs would have scored higher and been ranked for promotion ahead of many who were advanced.

In the ease of Rodriguez v. City Civil Service Commission, 337 So.2d 308 (La.App. 4th Cir. 1976), we held that the constitutional change effected in 1974 took away the veterans’ preference points afforded for promotion purposes under the previous Constitution in a case involving promotion from Lieutenant to Captain. Thus, to the extent that men with lower test scores than plaintiffs’ were promoted in December, 1975, such action was contrary to the new Constitution, as we interpreted it in the Rodriguez decision in August, 1976.

Furthermore, the Civil Service Commission revised its rules in 1975 before the promotions in question were made so as to discard from the pertinent section the provisions for veterans’ preference points. From this plaintiffs argue that the list for the 1975 promotions should have been revised with the veterans’ preference points subtracted and the eligibles should have been reranked.

In the Rodriguez case we were able to provide an adequate remedy to the plaintiffs because the promotion list involved was still alive when the case was considered. But in the instant case the promotion list originally dated January 26, 1973, was scheduled to expire on January 26, 1976, with no possibility of extension thereafter. Although our plaintiffs brought their first suit on January 21,1976, the case was not tried until February, 1977, long after the list expired. After the expiration of that list, other lists were compiled from which additional promotions were made. A maximum life span for a promotional list is an integral part of the merit system since it makes room for aspirants who are more qualified than those on an outdated list. We know of no authority which enables a court to breathe life back into such a dead list.

Furthermore, while this court certainly has authority to annul invalid appointments made contrary to civil service rules, a court cannot order a promoting authority to make appointments from an eligible list. The decision as to whether and when to make promotions is solely for the appointing authority. Blake v. Giarrusso, La.App., 263 So.2d 392 (1972). It is of course arguable that the principle which prohibits courts from ordering promotions is inapplicable in a case such as this, that where the appointing authority has decided to make the promotions but has unlawfully selected the appointees, a court could order the promotions which the appointing authority already decided to make, but from a properly-ranked list of applicants. However, the answer may be that, given the duty to promote from the revised list without the veterans’ preference points, the Superintendent of Police may have decided not to make promotions until a new list was compiled one month after the appointments at issue.

Plaintiffs have also sought to have the promotions of those who benefitted illegally from the veterans’ preference points declared null and void, but these individuals were not made parties to these proceedings. To adversely affect their rights under the circumstances would be an injustice and an infringement on their constitutional right to due process. We deem them to be indispensable parties and, pursuant to C.C.P. Art. 646, take notice of plaintiffs’ failure to join them. While the case could be remanded to permit plaintiffs to join them and to afford them an opportunity to defend their positions, we have concluded that a simple dismissal of plaintiffs’ suit without prejudice to bring a new suit against them will be a more orderly procedure. This is especially so since those indispensable parties may likewise wish to join as additional parties officers who were promoted from new lists provided after the subject list expired.

We are cognizant of the fact that our opinion seems harsh in that it does not afford plaintiffs an adequate remedy, but we are constrained to reach this result because, 1) we are powerless to revive the promotion list which expired over two years ago; 2) we do not have the authority to compel the Superintendent of Police to make appointments when this decision is within his discretion; 3) the Civil Service Commission in good faith advocated a position that the new Constitution could not interfere with rights which were vested in those on the list promulgated in accordance with the old Constitution, and their position was not judicially repudiated until some eight months after the list in question had expired; and 4) from the time of the effectiveness of the new Constitution on December 31, 1974, plaintiffs had ample time in which to take action to prevent the defendants from making the promotions they complain about on December 24,1975. While it is true that the Superintendent was operating under an agreement until December, 1975, which he had made with others who had filed a suit against him in federal court to prevent him from making further promotions, this other suit involved issues which are not involved in the instant case, and plaintiffs were not parties to that federal case or the agreement with the Superintendent and had no right to rely on that arrangement in governing their own conduct.

The judgments appealed from are affirmed.

AFFIRMED.

STOULIG, Judge, dissents.

GULOTTA, Judge, dissents for reasons assigned by STOULIG, J.

STOULIG, Judge,

dissenting.

I respectfully dissent.

The virtue of the majority result is that it does not create difficult administrative problems within the police department. However, convenience should yield when an appointing authority has acted illegally and in so doing has abrogated constitutional rights of the individual police officers concerned. Further the plaintiffs’ petition for declaratory relief remains unanswered.

To the extent that men with lower test scores than those of plaintiffs were promoted in December 1975 the promotions were contrary to law. When the 1974 Constitution became effective, the list should have been revised to rank all those seeking advancement by actual score and to eliminate the veterans bonus. Those with the three-point advantage authorized by the 1921 Constitution had a vested right to retain their position on the list only for a period of six months after it was originally compiled. Stated another way, the rankings of all men on the sergeant’s promotion list of January 26, 1973 remained vested through July 26, 1973. See Rodriguez v. City Civil Serv. Com’n for Par. of N. O., 337 So.2d 308 (La.App. 4th Cir. 1976), for an excellent history of the veteran preference legislation and the effect of the recent amendment on the constitutional guarantees of individuals whose names appeared on these lists when the law was changed.

The Civil Service Commission argues that even if the promotions based on preference points were invalid, the Civil Service Commission cannot order the 1975 promotions countermanded. It is urged this case is moot because the list expired January 26, 1976 and with it plaintiffs’ claims as eligi-bles for promotion.

This result would permit the hiring authority to circumvent legal criteria established by statute in making promotions. It was within the discretion of the superintendent to let the January 1973 list expire as a matter of law without advancing any man to the rank of sergeant. Blake v. Giarrusso, 263 So.2d 392 (La.App. 4th Cir. 1972). However, when he elected to promote, he was required to act in accordance with law. The fact that the list expired approximately one month after the promotion should not deprive plaintiffs of their right under the law.

R.S. 33:2416 establishes a system for promotion through examination and Civil Service Rules Section 5.1 effective since October 1975 provides “ * * * eligibles shall be ranked in the order of their ratings earned in the examination given for the purpose of establishing this list.” Under this statute the appointing authority may not pass over more than two eligibles on the list submitted by the director.

Accordingly I think the list used for the 1975 promotions should be revised with the veterans preference points subtracted and the eligibles should be ranked as required by Rule Section 5.1. The plaintiffs who fall within the top 27 eligibles should be promoted to the rank of sergeant, replacing those who scored lower and only achieved promotion by virtue of the three-point veterans preference. My suggested ruling would place at issue rights of some appointees to retain their promotion to the grade of sergeant, none of whom have been made defendants in this proceeding but who are nonetheless indispensable parties within the contemplation of C.C.P. art. 641. Therefore I think the matter should have been remanded to permit plaintiffs to present evidence in support of their claims for promotion and to simultaneously join the indispensable parties as defendants and by so doing afford them the opportunity to urge whatever defenses are available to them.

I think we should have declared that those promotions of December 24, 1975 achieved only by virtue of including the three-point veterans preference factor illegal and then remanded this case to join all indispensable parties adjudicating which particular appointments are tainted with nullity.

      . Plaintiffs were unsuccessful in obtaining in-junctive relief before the list expired on January 26, 1976. They alleged in their petition that the Superintendent of Police was required to notify plaintiffs before making promotions under a compromise agreement entered into on December 12, 1973 in a federal proceeding arising out of complaints about the sergeant’s promotion list involved in this case. The trial judge refused to issue a temporary restraining order or injunction that would extend the life of the list and we know of no authority that would have permitted such action.

      . The testimony of John Belson, Director of Personnel, Civil Service Department, indicates that the Commission changed its rules to delete the three veterans preference points prior to the appointments made by the Superintendent of Police on December 24, 1975.


author: BOUTALL, Judge. LEMMON, Judge,

text:
    Lola H. Lanusse, wife of/and Fernand J. LANUSSE v. Laura C. Gerrets, wife of/and Ludovic J. GERRETS and William L. Andry.
    No. 8693.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.

      W. Monroe Stephenson, New Orleans, for Laura C. Gerrets, w/o and Ludovic J. Ger-rets, defendants-appellants.
    Charles L. Chassaignac, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for Lola H. Lanusse, w/o and Fernand J. La-nusse, plaintiffs-appellees.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   BOUTALL, Judge.

Plaintiffs sued to recover their deposit made under an agreement to purchase real estate, plus attorneys’ fees. Judgment was rendered in their favor and defendants appeal.

Mr. and Mrs. Fernand J. Lanusse entered into an agreement to purchase two lots of ground from Mr. and Mrs. Ludovic J. Ger-rets on July 22, 1975, for $20,000. The sale was conditioned upon the ability of the purchaser to borrow upon this property as security the sum of $17,000, and the agreement stipulated that if the loan was unobtainable by purchaser, seller or agent within 30 days from date of acceptance, the contract became null and void and the agent was authorized to return purchaser’s deposit in full. A deposit of $2,000 was made coincident with the agreement and placed with William L. Andry, an attorney for The Fidelity Homestead Assn., from which Andry was authorized to make 6 payments to that Homestead on the outstanding loan owed to Fidelity on the lots. The contemplated sale was never made and the Gerrets refused to permit Andry to return the deposit. This suit followed.

Appellant contends that the Lanusse’s did not make a good faith attempt to procure the loan upon which the sale was conditioned, hence are in violation of the agreement, and have forfeited the deposit. The trial court rejected this contention and so do we.

Mrs. Lanusse testified that she shopped three homesteads in order to obtain the loan immediately after signing, and within a week had decided that she would place a loan with the First Homestead & Savings Assn. The loan was not forthcoming because the Central Appraisal Bureau, upon whom the homestead relied, appraised the property at $15,000, obviously too low a base upon which to lend $17,000. She informed Mr. Gerrets of this fact and asked him to speak to the existing lender, Fidelity Homestead, about the possibility of a loan with it. At the same time she attempted to get a reappraisal, and in her efforts secured certain comparable sales which she submitted to First Homestead and succeeded in getting the appraisals raised to $16,000, still short of the necessary amount. She notified the Gerrets of this fact and was told that the agreement would be called off and a release between the parties would follow. Instead, she has been unable to recover the amount held on deposit by Mr. Andry, and Gerrets has refused to pay the balance. Opposed to this, Mr. Gerrets testified that Mrs. Lanusse did not contact him for the purpose of helping her get the loan, that he found a way that he could finance part of the loan himself and offered this possibility to Mrs. Lanusse, and that he did not request Mrs. Lanusse to execute a release from the agreement.

There is a patent conflict in the testimony of Mrs. Lanusse and Mr. Gerrets which the trial judge obviously resolved in favor of Mrs. Lanusse. We agree. The good faith of Mrs. Lanusse is evident from the agreement to use a portion of the deposit for the payment of the amount that Gerrets was in arrears on his existing loan as well as keeping that loan current during the term of the agreement. Her testimony as to her activities in attempting to obtain the loan is substantiated both by a loan officer of The First Homestead as well as the testimony of a representative of Latter & Blum who assisted her in seeking information to increase the appraisal amount. Despite the fact that the agreement by its terms expired thirty days from July 22nd, Mrs. Lanusse continued her efforts, and was still trying to obtain the loan as late as September 19th when she received the final insufficient commitment from First Homestead.

It is apparent that Gerrets’ offer to finance a portion of the loan himself did not take place until he caused his attorney to communicate the offer by letter postmarked September 30 and received October 1 by Mrs. Lanusse, after the agreement had been cancelled. The purchasers have fully complied with the agreement and are entitled to the return of their deposit. Katz v. Chatelain, 321 So.2d 802, (La.App. 4th Cir. 1975), Woods v. Austin, 347 So.2d 897 (La.App. 3rd Cir. 1977), Kansas v. Schaeffer, 299 So.2d 474 (La.App. 4th Cir. 1974).

Defendants also appeal from the award of $400.00 attorney’s fees for the services of an attorney to recover the deposit. We annul that award.

The parties point out to us that on the question of attorney’s fees, there seems to be a difference, in approach in the cases of Katz v. Chatelain, supra, and Kansas v. Schaeffer, supra. Neither case is pertinent to the issue in this case, because the agreements in those cases were different than the agreement before us. There the agreements had definite provisions for attorney’s fees to be due the parties. Here the agreement has not so provided and contains only the following provision: “Either party hereto who fails to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent’s commission and all fees and costs incurred in enforcing collection and damages.”

In the case of Scurria v. Russo, 134 So.2d 679 (La.App. 4th Cir. 1961) we held that this provision applied only to the agent and had no reference to the right of the buyer or seller to seek attorney’s fees. This decision followed our prior decision in the case of Matthews v. Gaubler, 49 So.2d 774 (La.App. 4th Cir. 1951) and was in turn followed in the cases of Stack v. Irwin, 158 So.2d 853 (La.App. 4th Cir. 1964), reversed on other grounds, 246 La. 777, 167 So.2d 363 (1964); Centanni v. A. K. Roy, Inc., 258 So.2d 219 (La.App. 4th Cir. 1972); and Aubert v. Bourg, 259 So.2d 103 (La.App. 4th Cir. 1972). The right of a party other than an agent was not at issue in the appeal of Wendell v. Dixon Real Estate Company, 232 So.2d 791 (La.App. 4th Cir. 1970) but that case did hold that the “fees” referred to are attorney’s fees.

Only in the case of Kempff v. Morgan, 291 So.2d 520 (La.App. 4th Cir. 1974) have we held that such a provision entitles a buyer to attorney’s fees. In that case we were of the opinion that the case of Ducuy v. Falgoust, 228 La. 533, 83 So.2d 118 (1955) along with Poche v. Ruiz, 239 La. 573, 119 So.2d 469 (1960) required us to award attorney’s fees under similar contractual language. We have re-examined this proposition and we are now of the opinion that our original analysis of the effect of these cases in Scurria v. Russo, supra, is correct. In both Ducuy and Poche the court stated that both parties by their pleadings had construed the agreement to cover parties’ attorney’s fees and both parties sought recovery. Neither case purported to analyze or rule upon our question because each recites, in effect, that the parties stipulated to the construction followed. Accordingly, we now follow the ruling in Scurria v. Russo and hold that this agreement does not provide for recovery of attorney’s fees by parties other than the agent, and we reverse the award of attorney’s fees to plaintiff.

Accordingly, we affirm the judgment appealed from with the exception of the award of attorney’s fees, which we set aside and reverse in favor of appellant. Costs of this appeal are cast upon the appellant.

AFFIRMED IN PART, REVERSED IN PART.

SAMUEL, J., takes no part.

LEMMON, J., dissents.

LEMMON, Judge,

dissents from the overruling and assigns reasons.

I disagree with overruling Kempff v. Morgan, supra, and holding that the buyer cannot collect attorney’s fees and costs incurred in enforcing collection pursuant to the quoted contract language.

The majority interprets the provision as obliging either party who fails to comply “to pay the agent’s commission and all fees and costs incurred in enforcing collection and damages” to the agent only. Yet it is difficult to perceive what damages an agent could sustain. The more reasonable interpretation is that the provision obliges the party who fails to comply to pay the agent’s commission and to pay all costs and attorney’s fees incurred by the agent and the prevailing party, plus damages otherwise due under the contract.

Finally, the Supreme Court in the Poche and Caplan v. Airport Properties, Inc., 231 La. 1071, 93 So.2d 661 (1957) cases affirmed awards of attorney’s fees to the buyer under identical provisions, and while there was no specific discussion of whether such contractual language entitles a contracting party (and not just the agent) to such recovery, the holding itself obviously implies such an interpretation.

      . In accordance with our internal rules, we have submitted the issue of the conflict between our prior decisions in Scurria v. Russo, 134 So.2d 679 (La.App. 4th Cir. 1961) and Kempff v. Morgan, 291 So.2d 520 (La.App. 4th Cir. 1974) to the court en banc for determination of which principle we should follow.
      It is the opinion of the court that the quoted contractual provision does not entitle a party other than an agent to recover attorney’s fees. Accordingly, we follow the principle laid down by us in Scurria v. Russo, supra, and overrule the opposite principle in Kempff v. Morgan, supra. We also overrule the case of Williams v. Terese, 120 So.2d 80 (La.App. 4th Cir. 1960) to the extent that it suggests (by the apparent omission of part of perhaps the same clause) that such a provision supports attorney’s fees for the buyer.


author: GULOTTA, Judge.

text:
    Willie P. CRANE v. PATTERSON AND YEARY STEEL COMPANY, INC., et al.
    No. 8783.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Writ Refused June 2, 1978.
    Orlando G. Bendana, New Orleans, for plaintiff-appellant.
    Bruce J. Borrello, Metairie, for defendants-appellees.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal of his workmen’s compensation suit for disability from injuries sustained in a fight with a company superintendent which occurred on the work grounds during working hours. According to the claimant, he was punched by his employer and sustained face, neck and elbow injuries and suffered disfigurement because of the loss of dentures broken in the fight.

In written reasons for judgment, the trial judge stated:

“Plaintiff was not working on the day of the accident. Further, he had no intention of working that day, as he reported without his hard hat and work shoes.
“The accident did not happen within the course and scope of the Plaintiff’s employment.
“There will be judgment accordingly.”

On the morning of the fight, shortly after 6:00 a. m., the commencement time of his work day, plaintiff, a steel tier on a construction job, complained to a company foreman of the discrepancy in his paycheck between the number of work hours and the amount of the check. A factual dispute exists whether plaintiff had begun work on the day of the incident. According to plaintiff, he had reported for work on the morning of the fight and had commenced work before discussing the pay discrepancy and thereafter becoming involved in a fight with the superintendent over the matter. Defendants’ version is that plaintiff had not begun the work day but that he had come to the work premises specifically to make a complaint about the pay discrepancy, with no intention of working on that particular day. According to the employer, the fact that plaintiff was not wearing the required hard hat and work shoes is supportive of this contention. Based on this reasoning, the trial judge concluded the accident did not arise out of and occur in the course of plaintiff’s employment. See LSA-R.S. 23:1031. We are not in agreement with the legal reasoning advanced by defendants and invoked by the able trial judge.

The meanings of the phrases “arising out of” and “in the course of” employment, as used in LSA-R.S. 23:1031, are discussed in Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La.1973). The court stated:

“An accident occurs during the course of the employment when it occurs during the time of the employment and at a place contemplated by the employment. $ $ *
U * *
“To ‘arise out of’ the employment, the accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. * * * ”

Significantly, the court further observed that “[t]he two requirements cannot, however, be considered in isolation from each other” and that the question whether an injury falls within the statute “cannot be decided by phrases” but only from the facts of each case.

Applying these guidelines to our case, it is clear that the dispute and ensuing fight arose out of plaintiff’s employment. The altercation between the employee and the superintendent was in reference to the employee’s paycheck. The more serious problem is whether or not the injuries were sustained “in the course of” that employment.

In Carter v. Lanzetta, 249 La. 1098, 193 So.2d 259 (1966), the Louisiana Supreme Court allowed coverage where an employee was injured on leaving the place of employment approximately 20 or 30 minutes after working hours when she lost her footing on the cement step adjoining the front door of the work premises. In Singleton v. Younger Brothers, Inc., 247 So.2d 273 (La.App. 4th Cir. 1971), writ denied, 259 La. 59, 249 So.2d 202 (1971), we concluded that the employee was in the course of his employment although injured on the work premises while engaged in horseplay on his day off, but while waiting for his paycheck. This court, likewise, in Serean v. Kaiser Aluminum & Chemical Corporation, 277 So.2d 732 (La. App. 4th Cir. 1973), permitted recovery to an am employee who was injured while alighting from his automobile in the employer’s parking lot approximately 45 minutes before the commencement of the 7:00 a. m. work shift. In a comparatively recent case of Huett v. Insurance Company of North America, 329 So.2d 222 (La.App. 4th Cir. 1976), writ denied, 332 So.2d 863 (La.1976), we again allowed recovery to an employee who was injured on the work premises but while leaving to enjoy a lunch hour.

Plaintiff testified that he had started working on the morning of the incident before complaining about the paycheck and was advised by the foreman to stop working until the matter could be resolved. Though the foreman stated that plaintiff was not wearing a safety hat or work shoes, there is no indication in the record that these articles were not on the job site or unavailable to plaintiff. Because the argument and following fight occurred on the work premises, during working hours, and arose out of a dispute concerning the employee’s pay, we conclude that the injuries sustained by plaintiff occurred “in the course of” his employment.

Defendants contend, however, the employee is excluded from coverage under LSA-R.S. 23:1081 which, in pertinent part, provides:

§ 1081. Deliberate or wilful injuries, etc.; defenses; burden of proof
“No compensation shall be allowed for an injury caused (1) by the injured employee’s wilful intention to injure himself or to injure another, or . . . ”

According to defendants, because plaintiff was the aggressor and precipitated the fight and injury, he is not entitled to recover under this exclusionary provision. We do not agree.

In determining whether or not an employer will be exempt from paying compensation under this section, the “burden of proof shall be upon the employer”. LSA-R.S. 23:1081. Furthermore, the Louisiana Supreme Court in the landmark case of Velotta v. Liberty Mutual Insurance Company, 241 La. 814, 132 So.2d 51 (1961), set forth the evidentiary requirements for invoking the LSA-R.S. 23:1081 exclusion from coverage. The court stated at page 54:

“ * * * Impulsive conduct, such as a push, shove, or a fist-blow, does not render the conduct of the employee sufficiently serious or grave, and there is no wilful intention to injure one’s self or another under such circumstances. The mere fact that the employee seeking recovery may have been to blame for the fray is not adequate to meet the test— there must be more. Johnson v. Safreed, 224 Ark. 397, 273 S.W.2d 545. The test should involve an inquiry into the existence of some premeditation and malice on the part of the claimant, coupled with a reasonable expectation of bringing about a real injury to himself or another. * * ” (footnote deleted)

When we apply the Velotta test to the facts of our case, we conclude the employer failed to carry successfully the burden of showing that there existed on the part of the employee “some premeditation and malice . . coupled with a reasonable expectation of bringing about a real injury to himself or another”. In our case, both parties involved in the fight testified that the discussion relating to the pay discrepancy had led to louder talk, followed by argument resulting in the fight. However, there is a conflict in the testimony of the combatants regarding who was the aggressor. Plaintiff claims that the superintendent punched him and that they wrestled on the ground for a few minutes. The employer, on the other hand, claims that he had turned away from plaintiff intending to withdraw from the discussion whereupon the employee came toward him at which time he put up his arms to defend himself and the pushing, shoving and wrestling resulted. According to the employer, no punches connected in the scuffle.

Whether or not we accept plaintiff’s or defendants’ version of the occurrence, it is clear that the employee’s conduct, at work, was “impulsive” but did not constitute “premeditation and malice”. Under these circumstances, an employee cannot be excluded from coverage under LSA-R.S. 23:1081.

The cases relied on by the employer, where the LSA-R.S. 23:1081 exclusion was evoked, are all factually distinguishable. Accordingly, we hold plaintiff is not excluded from coverage under the statute.

Because, however, the record is devoid of any evidence of plaintiff’s disability or loss of work due to any disability, plaintiff is not entitled to recover any weekly workmen’s compensation benefits. No showing was made by plaintiff, as claimed, of disfigurement or impairment of the use of a physical function. Accordingly, plaintiff is not entitled to weekly benefits sought under LSA-R.S. 23:1221(4)(p). There does exist evidence in the record, however, that as a result of the fight plaintiff sustained the loss of an upper denture and damage to a lower denture requiring replacement at a cost of $650.00 and an additional $70.00 expense for dental consultation, x-rays and reports. This medical evidence was undisputed. Plaintiff is entitled to recovery of this amount under LSA-R.S. 23:1203.

Accordingly, the judgment dismissing plaintiff’s suit is reversed. Judgment is now rendered in favor of plaintiff and against defendants for medical costs amounting to the sum of $720.00. Costs to be paid by defendants.

REVERSED AND RENDERED.

      . Garner v. Avondale Marine Ways, Inc., 134 So.2d 703 (La.App. 4th Cir. 1961); St. Pierre v. Baifield Industries, Inc., 225 So.2d 96 (La.App. 2d Cir. 1969); Relish v. Hobbs, 188 So.2d 479 (La.App. 3d Cir. 1966), writ refused, 249 La. 737, 190 So.2d 242 (1966); Armstrong v. Jefferson Disposal Company, 258 So.2d 213 (La.App. 4th Cir. 1972), writ refused, 261 La. 532, 260 So.2d 318 (1972).


author: STOULIG, Judge.

text:
    Noelie M. HOTARD v. Richard R. HOTARD.
    No. 8830.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Writ Refused May 19, 1978.
    Don Almerico, Norco, for plaintiff-appel-lee.
    Victor E. Bradley, Jr., Norco, for defendant-appellant.
    Before STOULIG, BEER and GAUDIN, JJ.
   STOULIG, Judge.

Defendant, Richard R. Hotard, has appealed a judgment granting his wife Noelie a separation a mensa et thoro. Before considering appellant’s assignment of errors, it is relevant to first summarize the procedural development of this litigation, which, to say the least, is unique.

Plaintiff filed a petition for separation alleging cruelty and the defendant reconvened on the grounds of cruelty and abandonment. By consent judgment dated October 31,1975, the litigants agreed to alimony pendente lite and child support at the rate of $140 per week. During the next 11 months, the husband made several abortive judicial efforts to decrease the alimony and child support, while his wife countered with various contempt rules to enforce the collection of delinquent support. For our purposes we need not detail the ancillary financial pleadings except to note that the alimony judgment of October 31, 1975 remained intact.

On September 1, 1976, defendant, now represented by new counsel, filed a petition to annul the alimony consent judgment alleging “fraud and ill practice.”

The record indicates trial on the merits of the separation suit as well as the nullity action was set for January 4, 1977. Noting his participation in the presettlement discussion that culminated in the consent support judgment, the trial judge recused himself from the nullity hearing and heard the merits of the claims by the husband and wife, respectively, for a judgment of separation.

At first blush, plaintiff’s approach to proving the cruelty alleged in her petition seemed novel because she and a witness testified — without objection being made— that she and her husband married, had children, separated voluntarily in August 1975, and had acquired community property. Then she rested. Counsel for plaintiff’s motion to amend her pleadings instanter to conform to the evidence, without objection by opposing counsel, clarified the purpose of plaintiff’s presentation. The trial judge ordered the pleadings amended to add voluntary separation for more than one year as a ground for relief. (C.C.P. art. 1154.)

Then defendant went forward with evidence to prove his charges of abandonment and/or cruel treatment. He testified his wife left without cause and that prior to leaving she frequently threw things at him. In rebuttal, Mrs. Hotard admitted to beating him once after he came home drunk, poured gasoline on the kitchen floor and attempted to light it while her seven children were asleep in the house.

The trial court concluded plaintiff “carried the burden of proof required” and rendered judgment in her favor. Defendant disputes whether the record supports this conclusion. Additionally he complains the court did not state on what ground it rendered judgment.

From the colloquy between the court and defense counsel, it is apparent the judgment is based on the voluntary separation allegation supplied by instanter amendment which plaintiff established by a preponderance of the evidence.

In reviewing the testimony as to fault, we conclude both plaintiff and defendant have failed to sustain the allegations that would serve as the basis for a fault determination. Should Mrs. Hotard ever seek permanent alimony under C.C. art. 160, the issue of fault must then be decided because the present judgment is not determinative of that aspect of the allegations in her petition.

We cannot consider appellant’s complaint as to the amount of alimony. This appeal is limited to the judgment of separation in which proceeding the trial judge severed the petition of nullity by recusing himself. Because there was no trial on this aspect of the litigation, there is nothing to review on appeal. All other judgments on rules relating to the amount of the award are final because they have not been appealed and the delays for perfecting appeals have lapsed. . (C.C.P. arts. 3942 and 3943.)

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


author: BEER, Judge.

text:
    Mary Anne Bradford PENNEY v. Wayne Frank PENNEY.
    No. 8851.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Writ Refused June 2, 1978.

      Reed, Reed & D’Antonio, Floyd J. Reed, Metairie, for plaintiff-appellant.
    Daniel A. McGovern, IV, New Orleans, for defendant-appellee.
    Before STOULIG, BEER and GAUDIN, JJ.
   BEER, Judge.

Mary Anne Bradford Penney appeals a district court award to her for alimony pen-dente lite and child support in the amount of $365.00 per month, plus 40% of the net amount, after deductions, of defendant-ap-pellee’s overtime pay as a police officer. She questions the correctness of awarding a set sum plus a percentage of overtime, rather than a specific monthly figure, contending that such an award encourages defendant to avoid overtime work and enables him to have ultimate control over the amount paid to her. Further, she points out that the resulting indefiniteness makes it exceedingly difficult for her to manage her financial affairs in an orderly manner. Appellant argues that the award should be computed upon a projection of her former husband’s previous history of earnings (including overtime pay).

In our view, such a sweeping amendment to the trial court’s painstaking effort to fairly resolve this matter would be nothing more than a substitution of our view for that of the judge who heard the case. We find the record supports the trial court’s implicit conclusion that appellee’s overtime earnings might be diminished and are, at best, unpredictable.

The principal cases relied upon by appellant are distinguishable. Zacearia v. Beoubay, 213 La. 782, 35 So.2d 659 (1948), and Rakosky v. Rakosky, 275 So.2d 421 (La.App. 4th Cir. 1973), writ ref., 278 So.2d 508, deal with situations where the former husband sought to avoid payment by totally refraining from gainful employment. More similar is Mosley v. Mosley, 348 So.2d 225 (La.App. 3rd Cir. 1977), writ denied, 350 So.2d 1213. In this case, as in Mosley, supra, the award does not deprive the children of reasonable financial support.

Appellant’s final contention is that alimony should be based on the husband’s gross income since federal income tax provisions permit him to deduct the amount of alimony payments. This is correct. See, Roberts v. Roberts, 145 So.2d 669 (La.App. 4th Cir. 1962). Although the trial judge questioned the defendant concerning the difference between his gross and net pay, there is no indication that the court’s award of $365.00 per month was based on net income. In fact, at one point in her brief, appellant acknowledges that the $365.00 award was based on $982.00 per month— the gross city and state pay (not counting overtime). Therefore, the award of $365.00 per month will not be disturbed. However, the award of 40% of overtime after deductions is inconsistent with Roberts v. Roberts, supra.

Accordingly, the judgment in favor of Mary Anne Bradford Penney and against Wayne Prank Penney, awarding alimony pendente lite in the amount of $365.00 per month plus 40% of net amount, after deductions, of the overtime pay of Wayne Frank Penney, commencing March 15, 1977, and payable bi-monthly, is amended so as to award Mary Anne Bradford Penney alimony pendente lite in the amount of $365.00 per month plus 40% of the overtime pay of defendant, Wayne Frank ' Penney, commencing March 15, 1977, and payable bimonthly. In all other respects, the judgment is correct and is affirmed, at appellant’s costs.

AMENDED AND AFFIRMED.

      . We would prefer affirming a judgment for a gross specified amount rather than a specified amount plus a percentage of overtime but recognize the problem existent in this case and in similar situations where income may markedly fluctuate because of heavy dependency upon overtime, commissions, etc. We deem it important that the trial judge be given considerable latitude in confecting the method of payment so as to provide the greatest possibility for substantial justice between the parties. With this position in mind, we hesitate to suggest guidelines for the method of calculation. However, we do recognize the apparent soundness of opposing counsel’s contention that past performance as to gross income might be an effective basis for the tentative fixing of monthly or semi-monthly payments where the defendant’s job remains essentially unchanged even though there is fluctuation with respect to overtime, commissions, etc.


text:
    Stephen C. HARTEL v. CONTINENTAL INSURANCE COMPANY et al.
    No. 8853.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.

      Hartel, Kenny & Dimitry, Richard K. Dimitry, New Orleans, for plaintiff-appel-lee.
    Christovich & Kearney, John T. Holmes, New Orleans, for Continental Ins. Co., defendant-appellant.
    Before STOULIG, BEER and GAUDIN, JJ.
   STOULIG, Judge.

Defendant, Continental Insurance Company, has appealed a judgment awarding plaintiff, Stephen C. Hartel, $961.94 plus statutory penalties and attorney fees on a theft claim he made under his homeowner’s policy.

Appellant does not question the occurrence of the theft of property valued at $1,061.94 from plaintiff’s residence at 204 Beach Boulevard in Waveland, Mississippi, on January 22, 1975. Defendant rejected the claim because it relied on an exclusion it contends required the insured to actually be in residence at the home burglarized when the loss occurred. Plaintiff has a home in New Orleans where he generally spends Tuesday through Thursday and the Wave-land home where he stays Friday through Monday. Appellant’s defense rests on this clause:

“c. Theft Exclusions applicable to property away from the described premises: This policy does not apply to loss away from the described premises of:
(1) property while in any dwelling or premises thereof, owned, rented or occupied by an insured, except while an Insured is temporarily residing therein * * * n

The trial court properly held this exclusion does not apply because the policy stipulates that both the New Orleans residence and the Waveland home are covered under the policy. The exclusion relates to losses away from premises that are not described in the policy; it does not relate to premises specifically listed as covered in the contract of insurance.

Defendant cites Bryan v. Granite State Insurance Company, 185 So.2d 310 (La.App.4th Cir. 1966), to support its position. In that case the court was concerned with a theft from a temporary residence where the insureds were not “in residence” at the time of the loss; however, the exclusion applied because the burglarized premises were not described in the policy. If the Waveland home had not been described in the policy, we would agree with defendant’s position.

Appellant seeks a reversal of that part of the judgment awarding attorney fees. There is nothing in the record to support its position; however, we think the trial court improperly imposed the penalty and the fee on the $100 deductible amount as well as the loss for which the insurer was liable. ($1,061.94 rather than $961.94.)

For the reasons assigned the judgment appealed from is affirmed and we recast it to reflect the amendment on penalties and attorney fees as follows:

It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Stephen C. Hartel, and against the defendant, Continental Insurance Company, in the full sum of Nine Hundred Sixty-one and 94/100 Dollars ($961.94), together with 12% penalty on said amount plus 25% attorney fees. All costs of these proceedings are to be borne by defendant-appellant.

AMENDED AND AFFIRMED.

      . Plaintiff’s suit against Leon Irwin and Company, Inc., his insurance agent who procured the policy, was dismissed and no appeal has been taken from this aspect of the judgment.

      . R.S. 22:658.

      . The residence 204 Beach Boulevard, Wave-land, Mississippi, is listed in the policy under Section II “additional residence premises, if any, located: (No., Street, Town or City, County, State, Zip Code).”