author: PRICE, Judge.

text:
    Lillie Jones EVANS et vir., Plaintiffs-Appellants, v. GENTRY & HOLDER FLOORS, INC., et al., Defendants-Appellees.
    No. 13305.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.

      Booth, Lockard, Jack, Pleasant & LeSage by Henry A. Politz, James E. Bolin, Jr., Shreveport, for plaintiffs-appellants-Lillie Jones Evans and Allen Croswell Evans.
    Bodenheimer, Jones, Klotz & Simmons by J. W. Jones, Shreveport, for defendants-ap-pellees — Gentry & Holder Floors, Inc. and Great American Ins. Co.
    Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for defendants-appellees — H & L Joint Venture; T & H Inc.; Beal Locke & Associates, Inc.; Pacific Employers Ins. Co.; and Insurance Company of North America.
    Before PRICE, MARVIN and JONES, JJ.

       Bolin and Hall, JJ. took no part in decision.

   PRICE, Judge.

Mrs. Lillie Jones Evans, joined by her husband, brought this action for damages for personal injuries and related expenses sustained by Mrs. Evans in a fall on a stairway of her sister’s newly constructed townhouse in Shreveport. The defendants are: H & L Joint Venture, a partnership of Beal Locke and Associates, Inc. and T & H Inc., the builders of the house; Gentry & Holder Floors, the subcontractor for the stairway; and the liability insurers of these parties.

Plaintiffs’ demands against all defendants were tried by jury; whereas, the third party and reconventional demands of the defendants against each other were submitted by stipulation to the trial court. The jury rejected plaintiffs’ demands, and plaintiffs appeal. We affirm.

The accident happened around 10:00 p.m. on the night of January 1, 1975. Mrs. Evans, age seventy-one, was a guest in the home of her sister, Mrs. Henry E. Linam, at No. 6 Tealwood, a two-story townhouse recently purchased by Mrs. Linam from defendant, H & L. While ascending or attempting to ascend the stairway leading from the front foyer to the upstairs bedroom area, she fell striking the back of her head on a nearby table. A ten-year-old granddaughter of Mrs. Linam, Carmen Gray, who had preceded Mrs. Evans up the stairs heard the noise of the fall and awakened Mrs. Linam. They found Mrs. Evans face down at the foot of the stairs in an unconscious condition. As a result of the fall, Mrs. Evans sustained serious, permanent injuries.

Later in the evening of the accident, Mrs. Evans’ son, Allen Evans, Jr., discovered the nosepiece of the bottom step was cracked or broken and was being held in place by the carpet runner. The nosepiece is that portion of the outer edge of the tread on a step that protrudes beyond the vertical riser between three-fourths to one and one-half inches.

The primary issue on appeal as conceded by all parties is causation. Plaintiffs must prove causation for recovery under either strict liability or negligence. The question, therefore, is whether plaintiffs’ evidence is sufficient to prove Mrs. Evans fell from the bottom step because the nosepiece broke when she started to ascend the stairs. Since causation is dispositive of the case, we pretermit discussion of any other issues.

Plaintiffs postulate that Mrs. Evans’ fall resulted from the nosepiece giving way as she stepped on the bottom step which caused her to lose her balance and fall backward to the floor. Although plaintiffs have presented a substantial amount of direct evidence showing the break in the no-sepiece occurred because of faulty design and construction on the part of one or more of the defendants, their evidence relating to whether the defect caused Mrs. Evans to fall is entirely circumstantial.

When circumstantial evidence is relied on to establish causation in a tort action, the plaintiffs’ proof must exclude other reasonable hypotheses with a fair amount of certainty, so that it is more probable than not that the harm was caused by the tortious acts of the defendant. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).

In this case, Mrs. Evans could not testify whether she fell from the bottom step or a position further up the stairs. She could only remember starting up the stairs and seeing Carmen ahead of her almost to the second floor. Yet Carmen testified that she had already climbed the stairs, entered her bedroom, and crawled into bed when she heard a noise through the open door of her bedroom. She described the sound as beginning with a stumbling or rumbling, followed by a crack, and ending with a loud bump. Carmen testified Mrs. Evans was lying on her stomach at the foot of the stairs with her feet approximately six inches from the bottom step. Defendants contend that if Mrs. Evans was just starting up the stairs when she saw Carmen still on the stairs ahead of her, that by the time Carmen reached her bedroom and got into bed, Mrs. Evans must have ascended well past the bottom step at the time of her fall. Defendants further contend that the noise heard by Carmen, beginning with a rumbling and ending with a loud bump, suggests that Mrs. Evans fell down a number of steps before landing on the floor.

Supportive of defendants’ contention is the testimony of a neurosurgeon, Dr. Fred C. Boykin, who testified that in all probability the basalar skull fracture suffered by Mrs. Evans would not have been caused by a fall from the bottom step of a stairway, but more probably would have resulted from a fall of greater distance. He also testified the fracture to her wrist indicated an attempt to break a longer fall than from the bottom step.

To lend further support to the theory that the fall was not from the bottom step, defendants offered the testimony of a structural testing engineer who testified that a fall brought about by the break of the nosepiece on the bottom step would probably cause an elderly person to fall forward rather than backward.

There is also the testimony elicited under cross examination from an expert witness called by plaintiffs, that the nosepiece could have been slightly cracked on one end prior to this date, and that the weight of Mrs. Evans’ body striking it as she tumbled down the stairs could have caused it to sever completely.

In view of the foregoing evidence, the jury could have reasonably inferred that Mrs. Evans had ascended part way up the stairs or fell from other causes unrelated to a defect in the bottom step. Plaintiffs' evidence to the contrary is not strong enough to exclude these other reasonable hypotheses and to demonstrate the degree of manifest error necessary to justify reversal by this court under the standards set forth in Canter v. Koehring Company, 283 So.2d 716 (La.1973). For these reasons, the judgment is affirmed at appellants’ costs.


source: Caselaw Access Project

author: JONES, Judge.

license: Public Domain

text:
    TRADERS & GENERAL INSURANCE COMPANY, Plaintiff-Appellant, v. Raymond R. TILLMAN et al., Defendants-Appellees.
    No. 13,307.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.
    Writ Refused Nov. 4, 1977.
    Bodenheimer, Jones, Klotz & Simmons, by G. M. Bodenheimer, Jr., Shreveport, for plaintiff-appellant, Traders & Gen. Ins. Co.
    James B. Wells & Associates, by A. R. Snell, Bossier City, for defendants-appel-lees, Raymond R. Tillman and Jean Tillman.
    Cook, Clark, Egan, Yancey & King, Shreveport, for defendants-appellees, James D. Lowery, Shirley Nan Tousinau Lowery and Maryland Cas. Co.
    Claudius E. Whitmeyer, Shreveport, for defendant-appellee, Gloria Holdsworth.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Traders and General Insurance Company instituted this declaratory judgment proceeding seeking to have a renewal automobile liability policy interpreted as excluding coverage of an undescribed vehicle acquired during the prior policy period. The trial court found the replacement vehicle covered under the renewal policy and plaintiff appeals. We affirm.

Gloria Holdsworth owned a 1973 Lincoln and a 1968 pickup truck, both insured by Traders. Some time in November or December, 1974, she sold the truck and purchased a 1971 Volkswagen but did not inform her agent of this change.

Mrs. Holdsworth’s automobile liability policy expired April 28, 1975, and, as was his custom, her agent timely renewed the policy without express directions from Mrs. Holdsworth, listing the Lincoln and truck on the renewal policy as the insured vehicles. Mrs. Holdsworth paid the annual premium for renewal of the policy insuring these two vehicles.

On May 12, 1975 a friend of the insured’s daughter, driving the Volkswagen with the daughter’s permission, hit and killed a child. It was not until insured’s agent was notified of the accident that he learned of the change in vehicles.

Traders brought this action seeking a declaration that the accident involving the Volkswagen was not covered under the provisions of the policy issued to Gloria Holds-worth. The portion of the policy at issue reads:

* * * * * *
“ ‘owned automobile’ means (a) a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded,
* * * * * *
(c) a private passenger, farm or utility automobile ownership of which is acquired by the named insured during the policy period, provided
(1) it replaces an owned automobile as defined in (a) above, or
(2) the company insures all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 80 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile, QJ, £ ♦ * »

The evidence established the Volkswagen was covered by the policy expiring April 28, 1975, as a replacement vehicle, without any notice to plaintiff. Trader’s contention is when this policy period expired and a new policy issued, the Volkswagen could no longer be considered insured as a replacement vehicle because it was not “ . acquired by the named insured during the policy period. . . .”

The general rules relative to the interpretation of contracts of insurance are set forth in Sumrall v. Aetna Casualty & Surety Company, 124 So.2d 168 (La.App., 2d Cir. 1960), as follows:

“A policy of insurance is a contract between the parties and, so far as they are concerned, it is the law of the case. The rules for its interpretation are the same as for the interpretation of agreements generally. Where the language is clear and expresses the intention of the parties, the contract is enforced as written. LSA-C.C. Arts. 1901, 1945, 1946; [citations omitted]. However, in construing the provisions of an insurance contract as binding the parties thereto, the words of the agreement will be given their general and popular interpretation and not that which is strained and unusual. LSA-C.C. Art. 14. If the terms are clear and unambiguous, they are to be taken and understood in their plain and ordinary sense. While all uncertainties and ambiguities must be construed in favor of the insured and against the insurer, courts are unauthorized to alter the terms of the policies under the guise of interpretation when they are couched in unambiguous language. . . . ” [Citations omitted] Id. page 180.

In Zurich Insurance Company v. Bouler, 198 So.2d 129 (La.App., 1st Cir. 1967), the court, in discussing the law applicable to the interpretation of an insurance contract stated:

“A contract of insurance should be given a fair, reasonable and sensible construction compatible with the apparent object and plain intention of the parties as expressed in the words of the agreement. The effect attributed to an insurance policy should be such as would be accorded its terms by an ordinary intelligent business man, that is, a practical and reasonable interpretation rather than a literal one. Such a contract should not be given a strained, forced or unreasonable application or one which would enlarge or restrict its provisions beyond what is reasonably contemplated by its terms, or which would lead to an absurd conclusion.
[Citation omitted] Id. pages 131, 132. “In the construction of an automobile insurance policy, the ascertainment and carrying out of the true intent of the parties are the paramount objects. . . ”
Blashfield, Automobile Law & Practice, Vol. 7, Section 292.3, at p. 213.

The provisions- of plaintiff’s liability policy quoted above provides coverage for three different classes of vehicles. Paragraph (2) provides coverage for automobiles described in the policy. Paragraph (c)(1) provides coverage for vehicles which are acquired by the named insured to replace a vehicle described in the policy. Paragraph (c)(2) provides coverage for vehicles which are acquired by the named insured in addition to vehicles described in the policy. Coverage under paragraph (c)(2) is provided only if the insurer insures all other vehicles of the named insured and the named insured notifies the insurer of the additional vehicle during the policy period or within thirty days from the date of acquisition. Coverage under paragraph (c)(1) is provided automatically, and is not subject to the notice provision or the exclusive insurance coverage requirement as is coverage under paragraph (c)(2). The purpose of these differences is obvious. The replacement of a vehicle will result in little or no increase in the risks insured and the premium charged for liability insurance will remain substantially the same. However, if an additional vehicle is purchased, it will proportionately increase the risks to be insured and will increase the premium owed to the insurer.

The trial court found the testimony clearly established an intent on the part of plaintiff to provide coverage for the two vehicles owned by Mrs. Holdsworth. The trial court found coverage under the policy took place upon replacement of the pickup truck with the Volkswagen, without the necessity of notification to the insurer. It found if notification had been given, the substitution of vehicles would have occurred with no increase in premium. The trial court found the reissuance of Mrs. Holdsworth’s insurance policy under the same terms and conditions as the original policy constituted an offer by plaintiff to reinsure the vehicles then owned by Mrs. Holdsworth, and this offer was accepted by Mrs. Holdsworth paying the premiums on the policy.

We agree with the findings of the trial court. The trial court interpreted the renewal insurance contract in accordance with the rules of interpretation set forth in Sumrall v, Aetna Casualty & Surety Company and Zurich Insurance Company v. Bouler, supra. Plaintiff would have us adopt a hypertechhical interpretation of the insurance policy which would lead to a result obviously contrary to the parties’ intent.

The policy contained the specific designation “renewal policy” and referred to the number of the previous policy. Under such circumstances the only reasonable interpretation is this “new” policy was intended to renew the coverage afforded by the earlier policy and insure the two vehicles belonging to Mrs. Holdsworth. Plaintiff billed Mrs. Holdsworth for two vehicles and she paid this amount.

Appellant urges the holding of the trial court is contrary to the jurisprudence, citing Barrett v. State Farm Mutual Automobile Insurance Company, 236 So.2d 900 (La. App., 3d Cir. 1970) and Mahaffey v. State Farm Mutual Automobile Insurance Company, 175 So.2d 905 (La.App., 3d Cir. 1965).

The rationale of Barrett is consistent with the result reached by the trial court because it specifically recognizes the word renew, as found in the insurance policy at issue, means to re-establish, revive, or “make new again”, the coverage existing in the prior policy. The court in Barrett denied coverage because it found the automobile in that case was a newly acquired automobile (see paragraph (c)(2) of this policy) and the insured failed to notify the insurer of the acquisition within the period allowed by the policy. If the automobile had been a replacement automobile such as here involved, the reasoning of the Barrett court would have led to the conclusion of coverage because coverage would have existed under the prior policy without notice to the insurer, and the renewal policy would have re-established the identical coverage.

The Mahaffey case is distinguishable from the instant case because the vehicle involved in the accident was owned by the named insured at the time he purchased the insurance and was not acquired to replace the vehicle described in the policy.

For the foregoing reasons, we affirm the judgment of the trial court, appellant to pay all costs.

Affirmed.


author: STOKER, Judge.

text:
    Anthony J. ROY, Jr., Plaintiff and Appellee, v. Donald L. HAZELTON, Defendant and Appellant.
    No. 6013.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 20, 1977.

      Ronald L. Myers, Houma, for defendant and appellant.
    Harold J. Brouillette, Marksville, for plaintiff and appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   STOKER, Judge.

This is an appeal from a judgment ordering a partition of land by licitation. Defendant-appellant, Donald L. Hazelton, is the owner of an undivided one-third interest in 17.44 acres of land located in Avo-yelles Parish, Louisiana.

Plaintiff-appellee, Anthony J. Roy, Jr., is the owner of the other two-thirds undivided interest in the tract. The issue in this appeal is whether the land in question is susceptible of division in kind. Plaintiff alleged that the property was not susceptible of division in kind without loss and diminution in value to the parts which would be created by a division in kind. The trial court found as follows: “The evidence is overwhelming that a partition in kind is not feasible; that such would cause a loss and diminution of value in the total of the parts as compared to the value of the tract of land as a whole or one tract.” The judgment ordered a partition by licitation and directed the Sheriff of Avoyelles Parish to sell the property at public auction as prescribed by law. We find that the trial court’s findings of fact are correct. No detailed recitation of facts is necessary to demonstrate the correctness of the trial court’s findings and judgment.

The property is rectangular in shape and is long and quite narrow. It measures some 287 feet by 2,640 feet (one-half mile). The tract is traversed diagonally through its mid-section by a public road. The evidence establishes that the only feasible way the property can be divided in kind would be to divide it lengthwise so as to give equal frontage on the road. This would result in three parcels, each of which would measure 95 to 96 feet by a length of 2,640 feet. No other feasible means of dividing the property in kind was shown. All of the evidence as to the character of the land establishes that to divide the property in such a manner would result in diminishing the value of any one lot in relation to the whole tract. Its best use is either as farm land or for cattle grazing. At the time of trial, it was not being used for any purpose at all. (Tr. 35).

Two expert appraisers testified on behalf of plaintiff-appellee. Defendant-appellant produced none. Both of the appraisers had examined the property. They found it not to be of one character throughout but was susceptible of being divided equally with respect to space and road frontage. However, the determinant finding from the evidence is the fact that, if the property were divided into the three parcels, their combined value would be less than the value of the whole property left as one single tract. Under Article 1340 of the Louisiana Civil Code and the jurisprudence, property cannot be divided in kind if the consequence of such division would be a diminution of the value of the entire property. Hughes v. Heirs of Cain, 268 So.2d 149 (La.App., 1st Cir., 1972), writ refused 271 So.2d 259 (La.1978).

To divide the property into three tracts would result in three tracts of less than six acres each. Each would be one-half mile in length by less than 96 feet. It is almost self-evident that the value of the property would be diminished by such a division. A partition by licitation is the only fair means of partitioning the property-

The foregoing has disposed of most of appellant’s specifications of error. However, several others remain to be addressed. Appellant complains because plaintiff-appellant was allowed to testify as an expert witness. The testimony of an owner-expert is not to be rejected merely because he is a party. State, Department of Highways v. Willett, 322 So.2d 383 (La.App., 3rd Cir., 1975). See Dakin and Klein, Eminent Domain In Louisiana, page 382.

In one of appellant’s specifications of error, he charges that the trial court erred: “By allowing and considering speculative and conjectural testimony by the expert witnesses as to the present value of the subject property.” He cites as authority National American Bank of New Orleans v. Cleveland, 273 So.2d 848 (La.App., 4th Cir., 1973), writ refused 276 So.2d 701 (La.1973) for the following proposition: In determining of whether property can be divided into parcels of equal value without adversely affecting the value of the whole, only present value is considered. At the time of the trial of this case the property was not being utilized for any purpose. The expert testimony regarding use as grazing land, farm land, possible camp sites, home sites or commercial lots, or simply as three equal lots (none of which were deemed feasible or economical) did not constitute testimony as to potential use; it constituted opinions as to present value based upon possible uses at the present time. Tr. 40 + 67 - 71

A further error appellant charges is the failure of the trial judge to consider that plaintiff-appellee owns the property to the north and south of the property which is the subject of this law suit. The north and south lines are along the long sides. Appellant reasons that in any manner of a division in kind, Mr. Roy will draw property which will be joined to property already owned by him. Hence, it is argued that Mr. Roy could not possibly suffer a diminution of value of the property he would receive in a partition in kind. Assuming that this argument is valid, we do not consider that adjacent ownership by Mr. Roy is a relevant consideration which we may take into account. We are concerned only with 17.44 acres specifically involved in this action.

For the reasons above stated the judgment appealed from is affirmed. All costs of this appeal are assessed to' appellant.

AFFIRMED.

      . The specific description of the property is as follows:
      A certain piece, parcel or tract of land, together with all buildings and improvements thereon and all rights, ways and privileges thereunto appertaining or in any way belonging, located in Section 12, Township 1 North, Range 4 East, Avoyelles Parish, Louisiana, containing 17.44 acres, located in the North portion of the Northwest Quarter of Township 1 North, Range 4 East, as shown on plat of survey of Claude McMath, dated November 17, 1953, copy of which appears of record in the Clerk of Court’s office Avoyelles Parish, Louisiana, and which tract of land is shown within lines marked in red ink on said Plat. The above tract is described as contained within the following boundaries: North by lands of Guy W. Mosely, East by lands of Avoyelles Parish School Board, South by lands of Viola Forterie and on the West by lands of William Roy. See Judgment of Possession recorded in Book A-211, page 561 and Sale recorded in Book A-220, page 891, records of Avoyelles Parish, Louisiana.


text:
    Mary Lou Hebert GEORGE, Plaintiff and Appellee, v. Huey P. LONG, Defendant and Appellant.
    No. 6020.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 20, 1977.
    J. Minos Simon and Edward J. Milligan, Jr., O. C. S., Lafayette, for defendant-appellant.
    Thomas Brumbaugh, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   STOKER, Judge.

The parties to this litigation attempted unsuccessfully to engage in a joint venture in business or operate as a partnership. This action in the trial court and this appeal is concerned with the claims of the parties, one against the other, arising out of their business relationship.

Plaintiff prevailed in the trial court on some, but not all, of her claims. The recon-ventional demands of defendant, Huey P. Long, were rejected. The trial court’s judgment was appealed by defendant and reeonvenor. Plaintiff, Mary Lou Hebert George, answered the appeal with respect to a portion of her demand which was denied.

The issues in this case are largely factual. However, a substantial issue raised by defendant-appellant is whether the trial judge properly admitted parol evidence insofar as it bore upon and explained written contracts entered into between the parties. Counsel for defendant-appellant consistently and timely objected to admission of the parol evidence. We think, however, that the trial court properly admitted the parol evidence.

Plaintiff, Mrs. Mary Lou Hebert George, who knew nothing of the truck hauling business, entered into an arrangement with defendant, Huey P. Long, who was engaged in that line of work. This arrangement was concluded on or about May 24, 1974. On May 18, 1974 defendant gave plaintiff a note of $5,000.00. Under the agreement plaintiff and defendant became associated in the truck hauling business. The agreement provided that plaintiff put up $5,000.00 in cash which she did. It was also agreed that if, within six months, plaintiff was not satisfied with the business she could require the return of her $5,000.00, and it was understood that the $5,000.00 note defendant gave plaintiff was security for this aspect of the agreement. A truck (or tractor) and a trailer were purchased. Both were acquired in the name of defendant, Huey P. Long (hereinafter referred to at times simply as “Long”). The truck was a 1974 White Western Star Truck. The trailer was later traded in on a 1974 Dorsey Float 40-Foot Trailer.

In late November or early December 1974 the business had not produced a profit and the parties began negotiating for the purpose of changing or terminating their business venture together. Negotiations culminated in two written contracts. These were entered into on January 10, 1975 and February 20, 1975. Without attempting to detail the complicated nature of the contracts or the events which led up to them, the net effect of the two contracts was the withdrawal of Long from the venture. Plaintiff, Mrs. George, acquired the ownership of the truck and trailer by the terms of the contracts. In turn she paid Long $1,750.00 in cash and gave Long a note for $1,750.00 and agreed to pay “rent” on the trailer at the rate of $180.00 per month until the note was paid. Although termed rent, the $180.00 payments were actually to cover the installment payments owed on the trailer which was still titled in the name of Long. A construction of the contracts indicates, without doubt, that Mrs. George assumed the payment of installment obligations owed on both the truck and the trailer.

The $1,750.00 note was due and payable within ninety days. Before maturity, Long sold the note at a discount to one Bobby D. Johnson. In the meanwhile Mrs. George had possession of the truck and trailer but Long retained the titles. After maturity of the note, both Johnson and Long began to make demands upon Mrs. George for payment of the note for $1,750.00. On June 3, 1975 Mrs. George was sued by Johnson on the note. On the same day Long took the Dorsey float trailer and turned it over to the holder of the note, which was secured by chattel mortgage. The taking of the trailer by Long was without the consent of Mrs. George.

Mrs. George as plaintiff filed her petition seeking certain relief, and, if not accorded that relief, she prayed for alternative relief. The petition sought a recognition that the contract of February 20, 1975 was null and a decree ordering that her note of $1,750.00 be returned to her. She pleaded in the alternative, if the note had been negotiated for a valuable consideration, that she have judgment against defendant for $1,750.00 plus the cost of the suit for collection by the present owner. Plaintiff also demanded $3,000 for embarrassment, mental anguish and aggravation of a pre-existing heart condition. In the further alternative, Mrs. George prayed that if the note had been negotiated and the court did not grant her judgment against defendant for $1,750.00, that she be declared sole owner of the Dorsey float trailer. Plaintiff also sought to recover the cost of leasing a trailer to replace the Dorsey float trailer from June 3, 1975 until it was returned.

After answering defendant reconvened. In the reconvention Long sought to have the sale of the Dorsey float trailer rescinded for non-payment of the purchase price and he also sought a money judgment for $1,280.00 representing tires which he alleged were taken from the Dorsey float trailer and placed on the truck.

Plaintiff answered the reconventional demand and amended and supplemented her petition. In the supplemental petition Mrs. George sought to require Long to pay the $5,000.00 note which she gave Long when they initially went into business together. The basis of this demand was that Long had not managed the business profitably and she was entitled to reclaim the $5,000.00 because she had a right to do so if she became dissatisfied with the partnership arrangement.

Plaintiffs supplemental pleading was answered by defendant and he then supplemented and amended his reconventional demand. In this pleading Long alleged that in the initial agreement between himself and Mrs. George it had been agreed that he was to receive $200.00 per week for his services in supervising the operation of the truck and trailer in the hauling business. Long alleged that he was entitled to $8,000.00 for these services. He further claimed $4,165.00 for advances by him to the business in equipment, materials, supplies and cash, subject to a credit of $2,565.00, for a balance he claimed to be owing of $1,600.00.

The foregoing recitation of facts is an abbreviated statement of the facts found in the record encompassing a trial of several days. The trial court made certain findings, all of which were in favor of the plaintiff. She was granted some of the relief she had demanded but not all. Huey P. Long was denied any recovery on his reconventional demand. Long has appealed from the trial court’s ruling and judgment, and the plaintiff answered the appeal to ask, in addition to the relief granted her by the trial court, that she have judgment against defendant on the $5,000.00 note together with the interest and attorney fees provided in the note.

The trial court gave written reasons for judgment. We quote as follows from these written reasons the findings and conclusions of the trial coiut:

FINDINGS OF COURT
(1) Full ownership of the White Western Star Truck was transferred to plaintiff by defendant.
(2) Full ownership of the Dorsey Trailer was likewise transferred to plaintiff by defendant.
(3) Defendant wrongfully seized the Dorsey Trailer from the ownership and possession of plaintiff on June 3, 1975.
(4) Plaintiff was and has been deprived of the use of the Dorsey Trailer from June 3, 1975, to the date of trial.
(5) Defendant has failed to prove the ownership of the tires allegedly taken by plaintiff and has likewise failed to prove the claims in his reconventional demands.
CONCLUSION OF COURT
It is concluded that plaintiff, Mary Lou Hebert George, has proved by a preponderance of the evidence the following:
(1) That she acquired full ownership of the White Western Star Truck on December 18, 1974, and that she has been in possession of same.
(2) That she acquired full ownership of the Dorsey Trailer on February 20, 1975, but she has been denied possession of same since June 3, 1975, when it was wrongfully taken from her without permission or cause by the defendant, Huey P. Long.
(3) That the value of the Dorsey Truck of which plaintiff was unlawfully deprived on June 3,1975, had a value at the time of trial of $4,500.00, and for which amount plaintiff should be reimbursed by defendant.
(4) That plaintiff has been deprived of the use of the Dorsey Trailer from June 3,1975, to the date of trial or a total of 50 weeks, and consequently had to rent a substitute trailer for a rent valued at $2,500.00, and damages in the amount of $1,000.00, for the embarrassment and mental anguish suffered as a result of defendant’s tortuous conversion of plaintiff’s Dorsey Trailer.

After a careful consideration of the voluminous record in this case, we find ourselves in agreement with the trial court with respect to the findings and conclusions set forth by it. While the reasons for judgment do not make reference to the claim of Mrs. George for payment of the $5,000.00 note, the evidence would sustain a denial of her claim for this portion of her demand. Mrs. George testified that she was not satisfied with the business arrangement and so informed Mr. Long within (but near the end) of the six month period. She also testified that she asked for return of her $5,000.00 as agreed. Nevertheless, the evidence is clear that she did not pursue this claim and did not assert it in her pleadings,, except as what appears to be somewhat of an afterthought, in her supplemental and amending pleading. Moreover, the $5,000.00 in question was not made the subject of the negotiations concerning the two written contracts confected on January 10, 1975 and February 20, 1975. Consequently, we conclude, as the trial court no doubt did, that Mrs. George did not timely manifest her demand for return of the $5,000.00. This demand on her part should be denied.

The essence of the defense of Huey P. Long with reference to the taking possession of the Dorsey float trailer on June 3, 1975 is as follows: Long claims that Mrs. George had not paid the $1,750.00 note; therefore, there was a failure of consideration, an unfilled resolutory condition, which dissolved the contract and he was still a part owner of the trailer. As such he was fully authorized to take possession and turn it over to the holder of the chattel mortgage note holder to whom he was still personally obligated. The fault in this reasoning is that Long had actually sold the note for valuable consideration. The holder of the note at the time Long took possession of the trailer was Bobby D. Johnson who was suing Mrs. George on the note. Insofar as Long was concerned, he had received the balance of his consideration for the trailer through sale of the note. Receipt of the proceeds of the sale of the note to Bobby D. Johnson by Long put an end to any rights under the contracts he had with Mrs. George. If he had any rights by virtue of being bound to the chattel mortgage note holder, such rights did not authorize him to take possession of the trailer.

The numerous other factual issues in the case were passed on by the trial judge. While each of these issues may not have been discussed in his reasons for judgment, his ultimate findings and conclusions, are necessarily based upon making findings as the trial court would necessarily have made, we affirm the judgment of the trial court. The costs of this appeal are assessed to defendant and reconvenor-appellant.

AFFIRMED.


text:
    Raoul BILLEAUD, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellee, Northern Insurance Company, Intervenor-Appellee, Maryland Casualty Company, Defendant in Reconvention-Appellee.
    No. 6041.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 20, 1977.

      J. Minos Simon, O. C. S., Lafayette, for plaintiff-appellant.
    McBride & Brewster by Robert McBride, Lafayette, Welton P. Mouton, Jr., Lafayette, for defendant-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   STOKER, Judge.

This is an appeal by plaintiff, Raoul Bil-leaud, a 73 year old school crossing guard who was injured when struck by a vehicle driven by defendant, William H. Perry. The appeal is from a jury award of $17,-081.12 and a decision of the trial court with respect to apportionment of the award between plaintiff and the workmen’s compensation carrier of plaintiff’s employer.

The issues posed by this appeal are as "follows:

(1) Was the jury award inadequate, and if so, did the jury abuse the “much discretion” allowed it in fixing damage awards under the tests laid down in various cases including Bitoun v. Landry, 302 So.2d 278 (La.1974) and Coco v. Winston Industries, 341 So.2d 332 (La.1977).

(2) Was the judgment of the trial court correct in its apportionment of the award of $17,081.12 under LSA-R.S. 23:1103 between Raoul Billeaud, plaintiff, and Northern Insurance Company, intervenor, with respect to the recovery of workmen’s compensation already paid and for that which the interve-nor was obligated to pay in the future.

The question of liability is not at issue in this appeal.

THE JURY’S AWARD OF DAMAGES

Plaintiff was injured on March 5, 1975. He was 78 years old and was employed by the City of Lafayette as a school crossing guard. In the course of his duties on East Simcoe Street in Lafayette he was struck by a 1969 Ford van. He was propelled into the air and thrown to the pavement. Plaintiff was hospitalized from March 5, 1975, (date of the accident) until March 17, 1975, at which time he was discharged to the care of his daughter. Plaintiff’s physician, Dr. Arthur Vidrine, described plaintiffs injuries and condition at this point as follows:

The patient is a 78 year old male who on March 5, 1975, was hit by a car. The patient suffered an abrasion of his left knee, severe contusion on his left thigh, multiple lacerations of his forehead and avulsion of his portion of his right lower lip. The lacerations were sutured in the ER. X-rays of his chest, cervical spine, skull, base and lumbar spine were essentially normal. However, the patient did have a fractured nose for which he was seen by Dr. Charles LeBlanc.
In addition, because of high blood pressure and large heart, he was seen by Dr. Sullivan and since the patient had hema-turia, IVP was done which was essentially normal. The patient has done exceptionally well. His sutures are out of his facial laceration. He now has a lumbo-sacral support for his back which did cause his greatest trouble while in the hospital and he is being discharged to his daughter on March 17. He is to return to my office in one week. The only medication he is being sent home on is Darvon Compound 65, one every four hours as needed for pain. (Tr. p. 427, 1.25 — Tr. p. 428, 1.14)

Subsequently, further injuries were revealed consisting of two fractured ribs (discovered through x-ray on March 25,1975), a large bruise on the left thigh and a bruised kidney. Plaintiff underwent a second period of hospitalization from May 11 to May 22, 1975. After this period of hospitalization, plaintiff apparently suffered no further distress as a result of the bruised kidney. Dr. Vidrine described the course of medical treatment followed in Mr. Bil-leaud’s case as conservative treatment consisting of bed rest, medication, hot baths, compacts and back brace. This medication consisted of Darvon, a non-narcotic analgesic stronger than aspirin but not as strong as Codeine.

Plaintiff had a pre-existing arthritic condition which was not symptomatic prior to the accident. Subsequent to the accident, the arthritic condition became symptomatic. Mr. Billeaud also claims the accident aggravated an existing arteriosclerotic condition which has reduced him to a state of senility. He complains of memory lapses and episodes of dizziness.

Plaintiff’s counsel makes a most persuasive argument to the effect that, over and above plaintiff’s pain and suffering, past and future, Mr. Billeaud has suffered an extraordinary mental and emotional reversal in his life-style. Counsel urges as follows: “At the time before the collisional impact this seventy-eight year old gentlemen was agile, physically active, totally self-sustaining and had a great joie de vivre.” It is urged that at the time of the injuries Mr. Billeaud possessed the physical vigor, mental and emotional outlook and self-sufficiency of a person half his age. As a result of the injuries it is urged that he was suddenly reduced to an infirm condition physically, mentally, emotionally and that, in place of being self-sufficient and able to completely care for himself, he is now a brooding dependent. Counsel’s brief sets forth his claims in this regard as follows:

Notwithstanding his age, he was a physically vigorous and mentally alert person. In fact he was gainfully employed as a school crossing guard for eight years previous to the occurrence of the accident in question. He was a totally self-sufficient person before this accident. He did everything for himself. He lived in his own home, and he maintained his home. He had a four bedroom home at the time. In addition to that he had a living room, dining room, kitchen and a bathroom. He cooked for himself, washed his own clothes. In this connection he didn’t have any dryer so he hung out his clothes to dry. He would get down on his hands and knees and wax the wooden floors of his house. He wet mopped his house daily. He picked figs from his fig tree and canned them. He canned figs for himself and for his children. He also had a garden. He owned an automobile and he drove it. Rather than mail his check in payment for bills, he drove his car and made personal appearance to pay his bills. He was a handyman as well and fixed his television antenna when it needed repair.
He had an active social life. He was an usher at his church. He played cards with his friends and once in a while went dancing with his female friends. He was an avid talker, kept abreast with world events and talked life and events occurring about him. He loved life and he loved to visit and talk to his friends. His memory was excellent and his speech was clear.
Then the accident occurred. And everything about his life changed overnight. He was racked with pain. His previously nondisabling condition of arte-rio sclerosis was aggravated. This aggravation brought about senility. His previously nondisabling and nonsymptomatic arthritis was aggravated. Now he can no longer walk or move without excruciating pain. He can no longer drive his car. He can no longer maintain his home. He can no longer live alone. He can no longer cook, wax the floors, wash his clothes or even attend to himself. He has had to move out of his home and move in with his daughter so that someone could take care of him. Now his speech is not the same, his interest is down to zero. He communicates very little. Now he is an old senile person, robbed of his joie de vivre, robbed of a clear intellect, robbed of physical agility, robbed of a pain free body. Now he is depressed. Now he cries softly in desperation over his great loss, “saying that he just as soon be dead as not to be able to do for himself and having to be dependent” on others. He lives and broods now in the vacuum and solitude of melancholy, spawned by the oppression of a pain-racked body and a dull-witted mind. At the moment in his life when time is precious, he can no longer reach out and enjoy the aesthetic beauty of nature, the exhilaration of sure-footed physical motion, the inestimable human dignity of independence and self-sufficiency and the warmth and glow of meaningful companionship and communication with his fellow man and for such consummate damage the jury awarded to him the paltry sum of SEVENTEEN THOUSAND EIGHTY-ONE AND 12/100 ($17,081.12) DOLLARS. Such a verdict instances either a gross insensitivity to the consummate nature of his injuries or an abysmal incomprehension of what the law requires as just compensation. In either ease, the award instances a clear abuse of discretion

Despite the moving appeal made on plaintiff’s behalf, this court must be mindful of the fact that the jury in this case heard the case first hand. It saw Mr. Billeaud and his witnesses. The same arguments quoted above were made to the jury and plaintiff’s counsel is most articulate and quite persuasive. In view of counsel’s exceptional skill it is hardly possible that the merits of plaintiff’s ease escaped the jury’s attention. Our review of the record fails to disclose that the jury award of $17,081.12 was not within the “much discretion” accorded to trier of fact in assessment of damages. Article 1934, Louisiana Civil Code. Gaspard v. LeMaire, 245 La. 239,158 So.2d 149 (1963); Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974); Revon v. American Guarantee & Liability Ins. Co., 296 So.2d 257 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La. 1974); Boutte v. Hargrove, 290 So.2d 319 (La.1974); Fox v. State Farm Mutual Automobile Ins. Co., 288 So.2d 42 (La.1973); Walker v. Champion, 288 So.2d 44 (La. 1973); and Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971).

In any event, we do not find such facts as would permit us to reconsider and disturb the award under the principles and guide lines laid down in Coco v. Winston Industries, 341 So.2d 332 (La.1977). Under this case the record must clearly reveal that the trier of fact abused its discretion. Thereafter, the permissible limits within which appellate courts may make adjustments are quite limited.

Accordingly, we will affirm the jury award.

APPORTIONMENT OF AWARD BETWEEN PLAINTIFF AND THE WORKMEN’S COMPENSATION CARRIER

Plaintiff-appellant contends that the judgment of the trial court results in granting the entire recovery in this case to the workmen’s compensation carrier, Northern Insurance Company. Such would appear to be the effect of the judgment. In conformity with instructions submitted to the jury by the trial judge in the form of interrogatories, the jury found and rendered a verdict in favor of Northern Insurance Company for $5,981.12. Northern, compensation carrier for the City of Lafayette, intervened in this suit. The award of $5,981.12 represented workmen’s compensation benefits and medical payments paid to or on behalf of plaintiff as of the date of trial. The judgment on the jury verdict, entered and signed on May 20, 1976, awarded Northern Insurance Company the sum of $5,981.12 plus legal interest from date of judicial demand until paid. This award was ordered paid by preference and priority to Northern out of the $17,081.12 awarded to plaintiff.

Northern Insurance Company applied for a new trial. Alternatively, it sought an amendment of the judgment on the issue of whether the intervenor was limited in its recovery to what it had expended up to the date of trial or whether it should be granted judgment for sums expended subsequent to the trial. As a result of the hearing on the application for new trial or an amendment of the judgment, the trial court amended its judgment on November 17, 1976. The pertinent amendment read as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that there be judgment rendered in favor of Raoul Bil-leaud and against United States Fidelity & Guaranty Company and William H. Perry, jointly, severally and in solido in the full sum of ELEVEN THOUSAND AND ONE HUNDRED NO/100 ($11,-100.00) DOLLARS, together with legal interest from date of judicial demand until paid and for all costs of these proceedings.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment rendered herein in favor of Northern Insurance Company and against William H. Perry and United States Fidelity & Guaranty Company, jointly, severly and in solido in the full sum of FIVE THOUSAND NINE HUNDRED EIGHTY-ONE AND 12/100 ($5,981.12) DOLLARS (representing compensation and medical expenses paid through the date of the trial) together with legal interest thereon from date of judicial demand until paid on those compensation benefits and medical expenses that were owing at the time suit was filed and with legal interest thereon from each subsequent payment made by Northern Insurance Company as compensation benefits and medical expenses became due after suit was filed with all costs to be paid for by William H. Perry and United States Fidelity & Guaranty Company.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment rendered herein in favor of Northern Insurance Company and against plaintiff Raoul Billeaud and defendants United States Fidelity & Guaranty Company and William H. Perry, jointly, severly and in solido for such additional amounts Northern Insurance Company may be required to pay as workmen’s compensation benefits to or for and on behalf of Raoul Billeaud together with legal interest thereon as each payment becomes due, until paid, not to exceed the sum of $11,100.00, the same to be paid out of the judgment in favor of Raoul Billeaud as a first preference and priority and with all costs to be paid for by United States Fidelity & Guaranty Company and William H. Perry.

We are not certain how the judgment of November 17, 1976, was intended to be implemented. If the judgment is allowed to stand, a sum certain will have been expended by the compensation carrier at such time as the judgment shall become final. More than likely the workmen’s compensation carrier will then still owe compensation benefits to plaintiff and possibly additional medical benefits which could accrue after the date the judgment becomes final. The carrier, Northern Insurance Company, argues that its rights under the judgment should be “open-ended”. It contends that it is entitled, not only to reimbursement up to the total amount actually paid at the time the judgment becomes final, but “also for any additional sums they might have to pay and that the judgment against all parties should have been ‘open ended’.”

It is unclear as to what should happen to that portion of the tort recovery in an amount represented by workmen’s compensation at the open end, that is, that which may accrue after judgment becomes final. The liability carrier, United States Fidelity and Guaranty Company, could arguably retain this amount and remit it piece-meal to Northern Insurance Company as it makes payments of compensation to Mr. Billeaud. Without speculation on further possibilities, we hold that the judgment leaves the situation ambiguous. It will require amendment.

The briefs of counsel appear to be in agreement as to the applicable law. The applicable statutory provision of the Louisiana Workmen’s Compensation Law is LSA— R.S. 23:1103. Plaintiff relies on the following cases from the jurisprudence. Barrios v. Service Drayage Co., 250 So.2d 135 (La. App. 4th Cir., 1971); Hall v. Hartford Accident & Indemnity Co., 278 So.2d 795 (La. App. 4th Cir., 1973), writ refused 281 So.2d 753 (La.) and Burley v. Louisiana Power and Light Co., 327 So.2d 585 (La.App. 4th Cir., 1976), writs refused 332 So.2d 278 (La.). The intervenor relied on the Hall and Barrios cases in its application for new trial or amendment of the judgment. Defendants, William H. Perry and USF&G rely on the Hall case. The Hall case states the following:

The trial court judgment awarded Hall’s workmen’s compensation insurer the amount of all benefits paid through the date of trial, to be deducted from the amount of plaintiff’s judgment. The insurer appealed, asserting that it should have been allowed a continuing credit, since it continued to pay benefits after completion of the trial and during the course of this appeal.
A compensation insurer intervening in an action by the employee against a third party is entitled to reimbursement of all benefits paid to the employee, including those paid subsequent to the date of trial. R.S. 23:1103; Barrois v. Service Drayage Co., 250 So.2d 135 (La.App. 4th Cir. 1971). We accordingly amend the judgment to grant the intervening insurer the reimbursement for all amounts paid as workmen’s compensation benefits, including those paid subsequent to the date of the judgment of the trial court.

From the cases of Hall and Barrios, it is clear that a compensation carrier is entitled to be reimbursed all it has actually paid out to the injured party as of the date the judgment becomes final. We are of the opinion that any excess of the award should be paid to the injured party. Thereafter, the compensation carrier should be given a credit on all sums it may come to owe in the future to, or on behalf of, the injured party up to the extent of payment of the tort recovery to the injured party. Until this excess is exhausted, the carrier should be obligated to make no further compensation payments or medical benefits. After exhaustion of the excess, if further compensation payments or benefits should become due, the carrier should then become obligated to resume payments.

In view of the foregoing, we will affirm the lower court’s judgment of November 17, 1976, except as it apportions the judgment. The judgment will be amended to delete the three paragraphs of the judgment quoted above. In place thereof we amend the judgment to substitute the following:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Raoul Billeaud, and against defendants, William H. Perry and United States Fidelity and Guaranty Company, severally and in solido, in the full sum of $17,081.12 together with legal interest from date of judicial demand until paid and for all costs of these proceedings, less the amount awarded in the following paragraph to intervenor, Northern Insurance Company.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that there be judgment herein in favor of Northern Insurance Company, intervenor herein, and against William H. Perry and United States Fidelity and Guaranty Company, in solido, in the full sum of the amount Northern Insurance Company has actually paid, or will actually pay prior to the date of the satisfaction of this judgment, to or on behalf of Raoul Billeaud as weekly workmen’s compensation benefits and medical expenses (which sum, as of April 22,1976, was $5,981.12), plus interest at the rate of 1% per annum on the amount of each payment of benefit which was or will be made by defendants, William H. Perry and United States Fidelity and Guaranty Company from the date of each payment until payment of the amounts awarded in this judgment, the sum to be paid to Northern Insurance Company to be paid by preference and priority out of the award made herein to plaintiff, Raoul Billeaud.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that such portion of the amount of the judgment herein in favor of Raoul Billeaud which exceeds the amount which National Insurance Company is entitled to be paid shall be credited against any obligation which Northern Insurance Company may owe to Raoul Bil-leaud for future workmen’s compensation benefits, medical expenses, or otherwise accruing after the date of the satisfaction of this judgment.

AMENDED AND AFFIRMED AS AMENDED.


text:
    Newton THIBODEAUX, Plaintiff-Appellant, v. R. Douglas McGEE et al., Defendants-Appellees.
    No. 6069.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 20, 1977.

      Pucheu & Pucheu by Jacque B. Pucheu, Sr., Eunice, for plaintiff-appellant.
    Charles N. Wooten, Lafayette, for defendants-appellees.
    Before CULPEPPER, WATSON and STOKER, JJ.
   STOKER, Judge.

This is a suit by a licensed real estate broker, Newton Thibodeaux, to recover a real estate commission claimed in the amount of $5,000.00. The defendants are the widow and three of the four children of R. D. McGee, Sr., deceased. The trial court found for the defendants and rejected the demand of the plaintiff for his real estate commission and attorney’s fees.

The issues in this case are as follows: (1) Did plaintiff earn a commission under his listing contract through obtaining a verbal agreement from a group to purchase the property (apparently for cash) within the four-month listing period and communicating the agreement to the sellers although no buy-sell agreement, sale or written acceptance was obtained from the purchasers? Alternatively, (2) Did plaintiff earn a commission after expiration of the listing contract by obtaining the signatures of three of the original proposed purchasing group to a buy-sell agreement, which, moreover was for terms as to payments rather than cash?

The property in question consisted of real estate and more particularly the Pelican Motel complex located in Eunice, Louisiana. On August 21, 1975, defendants signed a listing contract with Newton Thibodeaux to sell the property in question which was described as “located 1500 block of W. Laurel (Hwy. 190) Eunice, La. known as the Pelican Motel and Restaurant — ground measurements about IV2 City block.” The precise terms of the listing agreement contract are as follows:

I/we employ you or your successors, exclusively, with the sole and exclusive right, to sell the same for $125,000.00 Cash, or for the following terms:- or for any other price or terms as may hereafter be agreed upon, and I/we agree to pay you or your successors, a commission of six (6V2%) per cent on the gross amount of any deal — agreement to sell or exchange — bearing on said property,— minimum commission of $100.00 — that may be negotiated during the existence of this contract, or on the gross amount of such agreement made within ninety (90) days after the expiration or termination of this contract, with anyone to whom said property has been quoted, during the term of this contract. You are given exclusive authority to post signs on the property, to accept a non-interest bearing deposit, when satisfactory offer to purchase the property is obtained, and to place this deposit in any bank you may select, out of which you may deduct your commission. In case of employment of Counsel to enforce this contract, I/we will pay all cost and Attorney’s fees. I/we agree to refer all applicants to you, and not to interfere in the sale of the property, during the term of this contract.
As you are to act upon the faith of this employment and contract, it is to remain in full force and effect for a period four (4) months from date.
Commission not to exceed — $5,000.00.

The above contract was signed on behalf of the estate of Ralph McGee by R. Douglas McGee, Jr., Dorothy McGee Eleazar, Joan McGee Hansen and Mrs. Laurie Barry McGee.

Inasmuch as this was a four-month contract it would expire by its terms at the end of the day on December 21, 1975. Prior to that time Mr. Newton Thibodeaux informed R. Douglas McGee, Jr., who appears to have been the spokesman for the McGee family, that he had obtained a purchaser consisting of a group of five persons including Newton Thibodeaux himself, Ira Richard, Kearney Tate, Leonce Thibodeaux and Paul Rozas. No written contract to buy and sale was confected at this time. In response to this verbal information given by Newton Thibo-deaux to R. Douglas McGee, Jr., the latter informed Newton Thibodeaux to go ahead and have the papers prepared to effect the sale.

As Mr. Kearney Tate was an attorney, he undertook to act to examine the title for the purchasing group. He soon determined that there were title problems and related this information to Mr. Newton Thibo-deaux. The title problems appeared to have presented bona fide questions, and among other matters, there was a question of a possible encroachment of one of the buildings of the complex, or the building itself, on adjacent property or possibly a city owned servitude. Mr. R. Douglas McGee, Jr., being a certified engineer, was requested to prepare and furnish a survey which he agreed to do.

Mr. McGee’s survey was not completed and delivered until January 2, 1976. On that date he met with Newton Thibodeaux and the purchasing group. At that time the purchasing group had learned that, in addition to possible title problems and the building encroachment difficulty, the restaurant equipment belonged to the operator of the restaurant rather than to the McGee family.

All parties testified concerning what happened at the meeting on January 2, 1976, and there seems to be substantial agreement as to what was said. However, there is total disagreement between the purchasing group, which we will refer to as the “Kearney Tate group” and R. Douglas McGee as to the proper interpretation to be placed on what was said. All agree, however, that the Kearney Tate group requested Mr. McGee to excuse himself and let them discuss matters among themselves. After the elapse of some time the Kearney Tate group again conferred with Mr. McGee and suggested to him that in view of the title difficulties and the nonownership of the restaurant equipment an adjustment in price would be in order. It appears that Mr. McGee may have indicated he felt there was some justification for an adjustment. In any event, he advised that he would take the matter up with the McGee family. The purchasing group appeared to have felt that they would have an answer during the course of the day and that a formal buy and sell agreement would be drawn up. It seems to be agreed that the adjustment discussed was $6,000.00 which would have reduced the price to $119,000.00. The Kear-ney Tate group takes the position that they merely requested whether or not an adjustment would be accorded. On the other hand, Mr. McGee takes the position that a counter-offer was thereby made and that the offer to sell made through Newton Thi-bodeaux had thus been rejected.

Mr. R. Douglas McGee did not contact the Kearney Tate group again on January 2nd. He did not respond until January 7,1976, at which time he contacted the office of Newton Thibodeaux. Inasmuch as Mr. Thibo-deaux was absent, Mr. McGee left a message that the McGee family had obtained a better offer than the one submitted by the Kearney Tate group. On January 8, 1976, Mr. Newton Thibodeaux returned to his office, and upon finding the message, contacted his partners, and three of them executed a formal buy-sell agreement and posted a $25,000.00 deposit with Newton Thibo-deaux. The terms of the offer were $25,-000.00 in cash and a $100,000.00 mortgage which was to be financed by the McGee family over a ten year period at 8 percent per annum interest. The McGee family never accepted this offer.

As of January 7, 1976, a formal written contract to buy and sell was entered into by the McGee group and Charles N. Wooten and Ralph Douglas McGee, Jr. (Ralph Douglas McGee, Jr. appearing both as a proposed seller and proposed buyer) in which the purchasers agreed to purchase the property for $125,000.00 payable in cash in the amount of $25,000.00 with the balance to be paid through a mortgage note to run for 15 years at 8 and V2 percent interest per annum. As an ultimate matter the property was conveyed to Mr. Charles N. Wooten who in turn sold a one-half interest to Ralph Douglas McGee, Jr. However, as of January 20, 1976, the Kearney group were still of the impression that the matter remained open. It appears that on January 8, when Newton Thibodeaux contacted R. Douglas McGee, Jr., the latter informed Thibodeaux that the family had a better deal, but that if the Kearney group wished to submit an offer they were free to do so. As a consequence, the January 8, 1976, offer by the Kearney group was submitted and was apparently still under consideration as of January 20, 1976. At that time Mr. Newton Thibodeaux contacted R. Douglas McGee, Jr. to determine the status of the offer of the Kearney Tate group and advise that it could not remain open indefinitely. It appears that a letter to that effect was forwarded to each of the McGees. After the conveyance of the property to Mr. Wooten the operative facts involved in this case came to an end and resulted in this litigation.

POSITION OF PLAINTIFF-APPELLANT

It is the position of plaintiff-appellant, Newton Thibodeaux, that he earned a real estate commission of $5,000.00 as a result of a verbal agreement of the Kearney Tate group to purchase the property which had been verbally communicated to R. Douglas McGee prior to the expiration of the four-month listing. In the alternative, Newton Thibodeaux takes the position that he effected a second purchase agreement growing out of the January 8, 1976, written buy and sell agreement signed by three of the Kearney Tate group.

POSITION OF DEFENDANTS-APPEL-LEES

It appears to be conceded by the defendants-appellees that, had Newton Thibo-deaux obtained a written and signed buy and sell contract from the Kearney Tate group within the four-month listing period, a commission would have been owed. They appear to concede also that, had the McGee family sold the property to the Kearney Tate group within the 90 day period following the ending of the contract, a commission would be owed. However, they urge that, since no sale was made to the Kearney Tate group within that 90-day period, but was in fact made to someone else, the commission was not earned.

OBJECTIONS TO PAROL EVIDENCE

Early in the trial at the first point at which plaintiff’s counsel sought to elicit testimony concerning the verbal transmission of the agreement of the Kearney Tate group to purchase the property within the four-month listing period, counsel for the defendants-appellees objected to this evidence on the ground that it was inadmissible as parol evidence.

TRIAL COURT’S DENIAL OF RECOVERY

The trial court denied recovery and dismissed plaintiff’s suit. While his reasons for judgment, given in written form, are somewhat different, from ours, we reach the same conclusion and affirm.

As we see the issues in this case, they are simplified to this extent: Plaintiff has no right to recover a real estate commission unless it be upon the basis of services performed by him within the four-month listing period, that is, prior to December 21, 1975. Once the four-month listing period had expired, all other facts are immaterial.

We regard as immaterial those understandings (perhaps a better term would be misunderstandings) which came about on January 2, 1976. The Kearney Tate group insist in their testimony that their $125,-000.00 purchase offer was never withdrawn and that they merely approached the McGee family through R. Douglas McGee, Jr. for an adjustment. As noted above, Mr. McGee took the request as a rejection inasmuch as the request was in the form of a counter offer. However, it is immaterial whether or not a counter offer was made or whether there was simply a request for an adjustment without a withdrawal of the $125,000.00 offer. The fact of the matter is that there never was a binding agreement between the McGee family and the Kearney Tate group at any time, either before December 22, 1975, or afterwards. Consequently, the parties were simply dealing with one another without any binding agreement existing between them from the time Newton Thibodeaux informed Mr. McGee that he had a sale until January 2, 1976. Admittedly, until January 2, 1976, there appears to have been no question but that the sale would go through. In fact, Mr. McGee had called late in December to determine what the hold up was from the stand point of the Kearney Tate group. He had furnished succession proceedings through his attorney and was informed of the need for a survey; he agreed to do one and did so.

We also regard everything that took place after January 2,1976, as being immaterial for the reason, as stated above, recovery of a real estate commission by the plaintiff would depend solely on whether or not he is entitled to one on the basis of what he did prior to December 22, 1975. The fact that he obtained a written buy and sell agreement on January 8, 1976, with parties with whom he had been dealing is of no moment. At that time he could not commit the McGee group because he was beyond his listing contract. Plaintiff has •attempted to cast some doubt as to the validity of the January 7, 1976, contract to buy and sell between Mr. Wooten and R. Douglas McGee, Jr. and the rest of his family. However, we see no significance to be drawn from whatever the facts may have been. The fact is that the McGee family never did accept the buy and sell agreement, which in effect constituted an offer, of the Kearney Tate group. Much is made of the fact that on January 8, 1976, Mr. R. Douglas McGee, Jr. told Newton Thibodeaux that his family would welcome another offer from the Kearney Tate group. Much is also made of the fact that after the January 20, 1976, communication from Mr. Thibodeaux, Mr. R. Douglas McGee, Jr. asked for an extension of time. However, Mr. McGee explains all of his action on the basis of the fact that the negotiations with Mr. Wooten were not settled because they were not finally approved by one member of the family. Nevertheless, as has been indicated, all of the acts, conversations, offers, contracts, and other operative facts which took place after December 21, 1975, have no legal significance inasmuch as the property was never sold to any of the Kearney Tate group. Mr. Newton Thibodeaux never offered the property to Charles N. Wooten. Therefore, nothing that plaintiff did in his post-listing contract period was of legal significance. In view of our holding, we find it unnecessary to discuss the applicability of the parol evidence rule.

Accordingly, for the reasons assigned the judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: HEARD, Judge.

text:
    Matthew J. WILLIS, Plaintiff-Appellee, v. STAUFFER CHEMICAL CO. et al., Defendants-Appellants.
    No. 6002.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 23, 1977.
    Woodley & Fenet by E. E. Woodley, Lake Charles, for defendants-appellants.
    Gravel, Roy & Burnes by James J. Brady, Alexandria, for plaintiff-appellee.
    Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for intervenor-appellee.
    Stafford, Randow, O’Neal & Smith by Grove Stafford, Jr., Alexandria, for defendant-appellee.

      Before HOOD, FORET and HEARD, JJ.
   ON REHEARING

HEARD, Judge.

We granted a rehearing in this matter, on application of intervenor, Aetna Casualty and Surety Company, to reconsider that part of our original opinion which failed to grant legal interest on weekly workmen’s compensation benefits and medical expenses previously paid, and to be paid, by Aetna pending finality of this appeal.

In our original opinion we stated that Hall v. Hartford Accident & Indemnity Company, 278 So.2d 795 (La.App. 4th Cir. 1973), had disallowed judicial interest in a case such as the one at bar. We erred in that respect. Hall made no mention of interest one way or another. However, the court in the Hall ease cited as authority for its holding the case of Barrois v. Service Drayage Company, 250 So.2d 135 (La.App. 4 Cir. 1971). In Barrois, the Court of Appeal specifically provided for interest “thereon from May 17, 1967, until paid,” that date apparently being the one on which the Insurance Company of North America had intervened. In Burley v. Louisiana Power & Light Company, 327 So.2d 585 (La.App. 4 Cir. 1976), the Court of Appeal, in awarding an intervenor-eompensation-insurer judgment for compensation benefits paid, did not mention legal interest, but relied on Barrois. In Cain v. Witco Chemical Corp., 341 So.2d 1220 (La.App. 1 Cir. 1977), citing both Hall and Barrois, the First Circuit awarded to the intervenor, Employer’s Insurance Company of Wausau, such workmen’s compensation benefits as Employer’s had paid, or was required to pay, “together with legal interest thereon from date of judicial demand, until paid.”

From the foregoing, we conclude that we erred in our original opinion in not allowing legal interest as demanded by intervenor, Aetna Casualty and Surety Company.

Accordingly, we hereby amend our original judgment and the judgment of the trial court to decree that Aetna Casualty and Surety Company, intervenor, shall be paid by Stauffer Chemical Company and Travelers Insurance Company, by preference and priority out of the sums awarded to plaintiff Matthew J. Willis, (1) the full amount which Aetna actually paid up to and including November 8, 1973, to or in behalf of Matthew J. Willis, as weekly workmen’s compensation benefits and medical expenses, plus legal interest thereon from date of judicial demand, November 8, 1973, until paid; and (2) the full amount which Aetna actually has paid or will have paid to or in behalf of Willis, as compensation benefits and medical expenses, from November 8, 1973, until this judgment becomes final, plus legal interest on the amount of each such payment from the date the payment was or will have been made, until paid.

In all other respects our original decree is affirmed and reinstated.


author: HAMITER, Justice. McCALEB, Justice

text:
    213 La. 458
    ATKINS et al. v. JOHNSTON et al.
    No. 38494.
    Supreme Court of Louisiana.
    March 22, 1948.
    Tucker, Bronson & Martin, of Shreveport, for plaintiffs and appellants.
    Pyburn & Pyburn, of Shreveport, for defendants and appellees.
   HAMITER, Justice.

John B. Atkins and Mrs Katherine Adger Atkins, who are husband and wife, and the Commercial National Bank in Shreveport, instituted this suit to enforce specific performance of a contract in which the defendants, Ben T. Johnston and Jack T. Moore, agreed to purchase certain real estate.

By an instrument dated December 29, 1944, the said Mr. and Mrs. Atkins created the John B. Atkins Foundation, a charitable trust, designating the Commercial National Bank in Shreveport the trustee thereof. And to the Foundation they donated 266 lots in Forest Glen Subdivision which is located in Caddo Parish.

In a written contract executed on September 6, 1946, Atkins, his wife, and the Commercial National Bank in Shreveport, as Trustee of the Foundation, agreed to sell and Ben T. Johnston and Jack T. Moore obligated themselves to purchase (subject to delivery of a valid title) 657 lots in the mentioned Forest Glen Subdivision, including the 266 lots previously donated by the Atkinses to the John B. Atkins Foundation. The total consideration for the sale was declared in the contract to be $38,750, payable $1000 cash, $7750 (evidenced by a note) on execution of formal deed, and $30,000 thereafter in semi-annual installments.

On December 10, 1946, all of the named vendors signed a deed to the property, which had been prepared in accordance with the terms of the contract and contained a warranty of title provision, and tendered it to the vendees. The latter acknowledged the tender in writing but refused to accept the deed, they having been advised by their attorneys that the vendors could not deliver an indefeasible title to the 266 lots donated to the John B. Atkins Foundation.

This suit for specific performance followed. Defendants; in answer to the petition, averred that the title tendered to the mentioned 266 lots is invalid and unmer-chantable for the reasons: (1) The Trustee of John B. Atkins Foundation has., no authority to sell the real estate; and (2) the property donated to the Foundation is subject to an action by the forced heirs of the donors to reduce the donation if at the time of the donors’ death it be determined that the donation exceeds the disposable portion of the donors’ estate. They prayed that the demands of plaintiffs be rejected, and further that there be judgment in reconvention for the return of the $1000 cash payment and the note of $7750 delivered to plaintiffs at the time of the signing of the original contract.

The judgment of the district court rejected the demands of plaintiffs; it did not mention, however, the reconventional demands of defendants.

Plaintiffs appealed, and the defendants answered the appeal, praying that the judgment be amended so as to grant their reconventional demands.

Obviously there is no merit to the first objection that the Trustee has no authority to sell the real estate. John B. Atkins and his wife, who alone established the John B. Atkins Foundation, are parties to the deed tendered to the defendants; and, if the trust instrument failed to authorize the Trustee to make the sale, authority is impliedly given by and through their concurrence in transferring the property.

Appellees’ other objection to accepting title is based on Civil Code, Article 1517, reading:

“The action of reduction or revendication may be brought by the heirs against third persons holding the immovable property, which has been alienated by the donee, in the same manner and order that it may be brought against the donee himself, ' but after discussion of the property of the donee."

This codal provision grants to forced heirs a right of action against third persons holding immovable property that has been the subject of a donation in excess of the disposable portion. And regarding the grant this court appropriately remarked in Tessier v. Roussel, 41 La.Ann. 474, 6 So. 542, 543, that:

“The law of Louisiana, while recognizing the ‘ right of every man to deal with his property as he chooses so far as onerous dispositions are concerned, places certain restrictions on the power of gratuitous disposition which cannot be disregarded. So far as gratuitous dispositions are concerned, the law divides the estate of every person into two parts, — of which one is called the ‘disposable’ portion, of which he may dispose gratuitously, according to his pleasure; the other is called the ‘reserve’ or ‘forced portion,’ of which he is not permitted to dispose gratuitously to the prejudice of his legitimate descendants or ascendants, to whom the law reserves it, and forces the person to leave it, and who are, therefore, called ‘forced heirs.’ ”

It was held in Scudder v. Howe, 44 La.Ann. 1103, 11 So. 824, 825, however, that a donation, although irrevocable in nature, is revoked by a conventional act of revocation executed by the donor and donee resulting in the property’s being returned to the donor’s estate free of any possible future claims by forced heirs, just as if the donation had never occurred; and, further, that a subsequent sale by the donor of the same property is in no manner affected by the revoked donation, even when the proceeds of the sale are given to the same donee. In the Scudder case plaintiff sued to compel defendant to accept a tender of title to property that had been the subject of a donation to a charitable institution. The original donor had reacquired the property, through and by a conventional revocation of the donation, and thereafter sold it to a third person, delivering the proceeds of the sale to the original donee, the charitable institution. In support of its holding, referred to above, the court commented :

“But the parties, donor and donee, have the authority to rescind or modify the donation 'by mutual consent. * * *
“The forced heirs are, and will always be, without interest to assail the donation revoked.
“It is no concern of theirs, in law, that their mother has revoked the donation.”

The doctrine enunciated in Scudder v. Howe, supra, was approved and followed in Abes v. Davis, 46 La.Ann. 818, 15 So. 178, in Quirk v. Smith, 124 La. 11, 49 So. 728, and in the more recent case of Derby v. De Saix Corporation, 201 La. 1060, 10 So.2d 896.

But there is no particular form prescribed for the revocation of a donation. The revocation need not be by a formal conventional instrument; it may be tacit, deducible from acts of the donor and donee manifesting an intention to revoke. Succession of Hale, 26 La.Ann. 195; Lavedan v. Jenkins, 47 La.Ann. 725, 17 So. 256.

If, in the instant case, Atkins and fa'is wife, as donors, and the Trustee of the John B. Atkins Foundation, as donee, had executed a formal act of revocation, indisputably, under the established jurisprudence of this state, a deed from-the At-kinses to appellees would transfer an indefeasible title. This being true, it appears to us that the donors’ joining with the donee in the signing of the warranty deed tendered to appellees (an act manifesting an intention of revoking the donation), as was done here, results in a tacit revocation, just as effective as one expressly confected, and furnishes a title equally as good and valid.

Should the Atkinses, following the transfer of title, be the recipients of and retain all of the proceeds of the sale the rights of their heirs would not and could not be prejudiced to any extent. Should, on the other hand, such proceeds be given to the John B. Atkins Foundation it would be the sum donated which lessens the estate of the donors, not the property sold; and that sum alone could be subject to the heirs’ future rights. Scudder v. Howe, supra.

The significance of the donors’ joining with the donee .in executing the act of sale of the donated property is well illustrated in Derby v. De Saix Corporation, supra. Therein, as here, suit was instituted to enforce specific performance of a contract to purchase. The land involved had been donated by Colonel Derby to a trust established by him for his children. Following the donation the property was sold to the Anti-Tuberculosis League, with the donor and trustees joining in the act of sale, and the proceeds were devoted to the trust purpose. In approving the title tendered, we said [201 La. 1060, 10 So.2d 897]:

* * * In that connection it must be remembered that Colonel Derby and his wife signed the act of sale to the Anti-Tuberculosis League. The trustees, in signing the deed, acted as the agents for Colonel Derby, and were merely fulfilling the obligations of the trust which he had imposed upon them, to sell his interest in the property to the Anti-Tuberculosis League, and to administer the price or proceeds of the sale for the benefit of his three sons and daughter. His interest in the property did not pass from him to the trustees and from them to the Anti-Tuberculosis League, but passed directly from him to the Anti-Tuberculosis League, not by virtue of a donation but by virtue of a sale by Colonel Derby to the Anti-Tuberculosis League. * * * ”

True, in the Derby case the instrument creating the trust stipulated that if the negotiations then pending with the Anti-Tuberculosis League “ * * * should result in the League’s consenting to buy the land at the price stated the trustees were instructed by Colonel Derby to join in the sale to the League, and thereafter to administer the proceeds of the sale for the benefit of Colonel Derby’s four children.” But that circumstance seemingly was not all important to a decision of the case, for immediately after making the observations quoted above the author of the opinion said: “In this aspect of the transaction the case is like Scudder v. Howe * * The Scudder case, analyzed and discussed supra, furnished no circumstance of that kind.

It is our opinion, therefore, that the ap-pellees herein, on accepting the tendered deed executed by the donors and donee, will be fully protected against an action of re-vendication or reduction by the forced heirs of the donors claiming that the donation exceeded the disposable portion.

The case of Tessier v. Roussel, supra, cited by counsel for appellees, as well as its sequel Guidry v. Caire, 181 La. 895, 160 So. 622, is not decisive of this action. Therein it does not appear that the donor and donee performed any act evidencing a complete revocation of the donation.

For the reasons assigned the judgment of the district court is reversed and set aside, and there is now judgment in favor of plaintiffs, John B. Atkins, Mrs. Katherine Adger Atkins, and Commercial National Bank in Shreveport, condemning the defendants, Ben T. Johnston and Jack T. Moore, to comply with the terms and conditions of their agreement to purchase the property involved in this suit and to accept title thereto tendered them by the plaintiffs. There is further judgment rejecting the reconventional demands of defendants and ordering that they pay all costs of the suit in both courts

O’NIELL, C. J., and McCALEB, J., dissent.

McCALEB, Justice

(dissenting).

I do not subscribe to the view that a donation inter vivos of real property may be revoked by implication- nor can I agree that “the donors’ joining with the donee in the signing of the warranty deed tendered to appellees * * * results in a tacit revocation * * * ” of the donation to John B. Atkins Foundation and that, therefore, the title tendered is not assailable by the forced heirs of the donors under Article 1517 of the Civil Code in the event the donation should hereafter be found to exceed the disposable portion.

A perusal of the provisions of the Code dealing with donations inter vivos will disclose that these donations, except in the case of gifts between husband and wife under Article 1749, are fundamentally not susceptible of revocation by implication. A donation inter vivos is defined'by Article 1468 as “an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts it.” The particular part of the Code which treats of donations inter vivos is Chapter 5 of Title II of Book III. This Chapter is composed of three sections; Section 1, Articles 1523-1535, which contains general dispositions; Section 2, Articles 1536-1558, which deals with the form of such donations and Section 3, Articles 1559-1569, which sets forth the exceptions to the rule respecting the irrevocability of donations inter vivos.

It is manifest from the definition o-f the donation inter vivos, Article 1468, that it is generally regarded as irrevocable insofar as the donor is' concerned. And Article 1536 makes it essential to the validity of every donation of immovable property that it be by an authentic fact. Consequently, it might be argued with considerable force that a revocation of such a donation must be in the same form as i't involves a re-transfer of the real estate to the donor. At all events, since revocation entails the transfer of an immovable, it must be in writing. See Article 2275.

The four causes for which donations inter vivos may be revoked or dissolved are set forth in Article 1559. The first three of these grant to the donor the right to revoke for (1) ingratitude of the donee, (2) non-fulfillment of conditions suspending consummation of the donation.and (3) nonperformance by the donee of conditions imposed upon him. The fourth cause for revocation is the only one which could be applicable to this case. It is stated in Article 1559 to be “4. The legal or conventional return.” The legal return, as I understand it, occurs when the donation is revoked by operation of law, such as where it exceeds the disposable portion of the donor’s estate and is either fictitiously added to his succession property at the tinie of his demise, as provided by Article 1505, or is revendicated as the result of an action brought by the forced heirs under Article 1517. The conventional return, on the other hand, speaks for itself. It envisions a recission of the donation by act of both parties and has the effect of restoring the property donated to the donor in its integrity.

The cases cited in the majority opinion do not, in my view, sustain the conclusion reached. Surely, it cannot be said that the decision in Scudder v. Howe, 44 La.Ann. 1103, 11 So. 824, is authority for the holding that a donation inter vivos of immovable property may be rescinded by implication — for,- in that matter, there was a conventional recission of the donation by .mutual consent of the donor and donee and title to the real estate actually revested in the donor. In truth, it takes no more than a reading of the illuminating concurrence of Justice Fenner (see pages 1110 and 1111 of 44 La.Ann., pages 826 and 827 of 11 So.) to become aware of the necessity of the revesting of title to the real estate in the donor by express agreement in order for the property to be freed from the action of revendication granted to forced heirs by Article 1517.'

The other cases cited by the majority in support of the finding that tacit revocations of donations inter vivos of real estate are permissible, with the exception of Derby v. De Saix Corporation, 201 La. 1060, 10 So.2d 896, and Quirk v. Smith, 124 La. 11, 49 So. 728, involved donations between married persons which were formerly subject to revocation by the donor at any time during marriage under Article 1749. Those cases are clearly inapposite to the situation in the case at bar.

Successsion of Hale, 26 La.Ann. 195, concerned a manual gift of money by the husband to the wife. It was contended by counsel for the executrix that Article 1749 applied only to donations by public act and not to manual gifts which require no formalities for delivery. This proposition was refused.

Abes v. Davis, 46 La.Ann. 818, 15 So. 178, was a suit for specific performance, the defense being that the property was donated by plaintiff to his wife in their marriage contract and that, though this donation had been revoked, the property, by reason of the donation, became subject to a claim of the donor’s children for their legitime. The court held (1) that donations between the spouses are revocable and (2) that, when revoked, the property returns to the donor free of any claims of the children for their legitime.

Lavedan v. Jenkins, 47 La.Ann. 725, 17 So. 256, posed the same question presented in Abes v. Davis, i. e., revocation of a donation between husband and wife, with one important exception. In the Lavedan case, the question arose as to whether the authorization of the husband in the sale by the wife of the donated property constituted a revocation of the donation. A majority of the court (three to two, Nichols, C. J. and Watkins, J. dissenting) found that, since the husband had the right to revoke the donation at any time, the wife’s ownership was merely nominal and that, when he authorized her to sell the propeity, it was an act inconsistent with the donation, constituting a revocation.

The basic reason for the conclusion in the Lavedan case and other cases involving donations between married persons is that Article 1749 vested the donor with the right of revocation which must be considered to be exercised at any time he performs an act inconsistent with the maintenance of the donation. But that doctrine is not appropriate in the instant matter as, here, Atkins and wife have no right to revoke the donation and there is nothing contained in the act of sale tendered by plaintiffs to defendants to indicate that the donee, Atkins Foundation, is attempting to rescind it.

Quirk v. Smith, supra, offers little comfort to the majority. That was a suit for specific performance which was defended on the ground that the title was not merchantable. The facts showed that plaintiff acquired the property in 1893. In 1896 he donated it to one of his daughters. However, after her marriage, the donation was cancelled by consent of the parties and the property was reconveyed to plaintiff. The contention of the defendant was that the donation made in 1896 was irrevocable and that it could not be renounced or rescinded, even by consent of the parties, as the act of rescission was, in effect, a donation by plaintiff’s daughter to plaintiff and thus might be held to impair the rights of her children. The court rejected this contention, holding that, under Article 1559 of the Civil Code, Scudder v. Howe and other authorities, a donation inter vivos may be rescinded by mutual. consent of the parties.

I cannot perceive that Derby v. De Saix Corporation, supra, supports the holding in this matter. There, the donation of real estate was subject to certain negotiations between the donor and the Anti-Tuberculosis League. It was provided in the act of donation that, if an agreement to purchase was confected, the trustees would be required to transfer the property to the League and the proceeds of the sale would be administered for the benefit of the donor’s three sons and daughters. In other words, the donation of the real estate was to become effective only in the event the Anti-Tuberculosis League did not buy the property and the court correctly held that the donor’s interest in the property “did not pass from him to the trustees” as the trustees “in signing the deed, acted as the agents for Colonel Derby and were merely fulfilling the obligations of the trust which he had imposed upon them * *

Aside from my belief that a revocation of a donation inter vivos of real property must be expressed in writing in order to revest title of the property in the donor, I am also impelled to take issue with the deduction that “the donors joining with the donee in the signing of the warranty deed tendered to appellees * * * results in a tacit revocation * * The deed tendered by plaintiffs to defendants shows that Mr. and Mrs. Atkins and the trustee of John B. Atkins Foundation are offering to deliver 657 lots in Forest Glen Subdivision and that Mr. and Mrs. Atkins unconditionally warrant title to all of the property to be conveyed, whereas, the trustee of the Foundation warrants title only against its own acts and encumbrances. This does not indicate to me that the Atkins Foundation is impliedly revoking the donation. Conversely, it strikes me that the unconditional warranty by Mr. and Mrs. Atkins of title to the donated property, as well as their own property, might be considered as an act confirming their donation — forsooth, an act in recognition of the trustee’s authority to sell the lots. In this connection, it is to be noted that the majority have decided that the donors’ joinder in the deed with the Atkins Foundation provided a sufficient answer to defendants’ other contention that the act of donation did not vest in the Foundation the right to sell the lots. Thus, the paradox resulting from the effect given the joinder of Mr. and Mrs. Atkins in the deed comes to light for, in answer to defendants’ first contention concerning the trustees’ authority to sell, the joinder of the donors is said to operate as a confirmation of its authority, whereas, on their second contention, this same joinder is the premise upon which the conclusion of tacit revocation of the donation is founded.

Bearing in'mind that this was not a donation between married persons under Article 1749 of the Code, it is necessary under Article 1559 and the jurisprudence, Scudder v. Howe, supra, and Quirk v. Smith, supra, that the donor and donee evince an intention (even under the theory that a tacit revocation is permissible) to rescind the donation. Here, I find nothing in the act tendered to defendants which connotes that the Atkins Foundation has relinquished its ownership to the 266 lots and that title thereto has been reinstated in the donors.

I respectfully dissent.

       This article was repealed by Act No. 187 of 1942. That law provides that donations between married persons shall bo irrevocable as fully and to the same extent as they may be to strangers unless the donation is by notarial act and the donor reserves the right of revocation by express stipulation therein.