author: DENNIS, Justice. DIXON, Justice CALOGERO, Justice

text:
    R. Randolph RICHMOND, Jr. v. ZAPATA DEVELOPMENT CORP.
    No. 59127.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 26, 1977.

      J. Harrison Henderson, III, William J. Guste, III, Guste, Barnett & Shushan, New Orleans, for plaintiff-applicant.
    Herschel L. Abbott, Jr., Edward B. Poi-tevent, II, Jones, Walker, Waechter, Poitev-ent, Carrere & Denegre, New Orleans, for defendant-respondent.
   DENNIS, Justice.

The question presented by this case is whether the presence of drilling structures on land, as visible evidence of a mineral lease, will prevent a buyer of the property, who made no pre-sale inspection, from recovering in warranty from his vendor, who failed to disclose the existence of the lease.

On June 9,1972, defendant Zapata Development Corporation, conveyed to plaintiff R. Randolph Richmond, Jr., by warranty deed a parcel of immovable property located in Iberville Parish comprising some 640 acres. The act of sale declared a number of charges claimed against the property. Richmond purchased without examining the title or inspecting the premises, and later discovered that the property was being exploited for oil and gas pursuant to a mineral lease by Gay Union Corporation in favor of Gulf Refining Company of Louisiana which had been executed and properly recorded in 1930.

On October 2, 1974, Richmond filed suit against his vendor, Zapata, alleging that the extensive mineral recovery operations conducted under the 1930 Gay-Gulf lease on some 360 acres of the property rendered that portion of the property useless for any purpose other than mineral production and impaired his ability to develop and utilize the remaining 280 acres. Plaintiff alleged that the mineral lessee had placed on the property a network of pipelines, tanks, lines, canals, structures, shacks, offices, houses, drilling equipment, rigs both active and abandoned, roadways and other earthen works, ponds, pits, oil spills and pollutants. Contending that failure to declare the existence of the lease in the act of sale amounted to a breach of Zapata’s warranty against eviction, Richmond originally prayed for judgment in the amount of $120,000, but subsequently amended his petition to seek an award of $2,120,000.

Defendant Zapata filed exceptions of no cause of action and prescription, and a motion for summary judgment. In support of the latter motion it attached as exhibits copies of the 1972 act of sale of the property from Zapata to Richmond, a 1971 recorded act of sale of all oil, gas and mineral interests in the property from Southdown, Inc. to Pelto Oil Company, and the 1930 mineral lease from Gay Union Corporation to Gulf Refining Company of Louisiana.

During the six months following the filing of defendant’s motion for summary judgment, plaintiff filed no opposing affidavits demonstrating the existence of a material factual dispute. La. C.C.P. arts. 966-67. Subsequently, the district court rendered summary judgment for defendant, finding that Zapata did not warrant the property sold to be free of oil and gas exploration because of the numerous paragraphs in the deed suggestive of mineral activity, especially paragraph (k) which disclosed a 1971 sale of all mineral rights in the property from Southdown, Inc. to Pelto Oil Company. In his reasons for judgment the district judge also expressed his view that, if plaintiff’s action were regarded as one in redhibition, it had prescribed.

The court of appeal affirmed, holding that plaintiff Richmond had been apprised, by the inscriptions recited in the deed, of facts sufficient to provoke his examination of the title before purchasing. 339 So.2d 939 (La.App. 4th Cir. 1976). We granted writs to review this decision. 341 So.2d 1126 (La.1977).

In its opinion the appellate court, citing Juneau v. Laborde, 219 La. 921, 54 So.2d 325 (1951), stated our jurisprudence holds that, generally a buyer is not obliged to examine title to immovable property, but where certain facts known to him constitute a warning that further inquiry is needed, and such facts are sufficient to excite inquiry, a duty devolves upon him to investigate his vendor’s title. Defendant, Zapata, has called our attention to a number of eases it says also stand for this broad proposition. We find the Juneau case and these decisions inapposite to the instant proceeding as the holding in none of them hinges on the vendor’s obligation in warranty owed to the vendee.

Juneau v. Laborde, for example, involved a petitory action brought by heirs to immovable property against a possessor claiming the property on the basis of ten-year good faith acquisitive prescription. La. C.C. art. 3478. This Court found that the possessor was aware of facts which were sufficient to excite inquiry into the validity of his vendor’s title, and that a duty devolved upon him to investigate the title before purchasing. However, this rule provides no defense against a vendee who seeks to enforce his vendor’s obligations under a warranty deed. In fact, to allow its application in such an action would violate basic principles of warranty against eviction in the civil law and a substantial body of jurisprudence interpreting our Civil Code.

Because the registry laws are intended only as notice to third parties and have no application whatever between parties to a contract, a vendee is under no obligation to search the record in order to ascertain what his vendor has sold and what it has not, and the vendee is entitled, as between himself and his vendor, to rely upon his deed as written. Young v. Sartor, 152 La. 1064, 95 So. 223 (1923). Moreover, as a general rule, in the absence of a stipulation of non-warranty in the act of sale, knowledge of the danger of eviction does not prevent the purchaser from recovering the purchase price upon disturbance of his possession. Scott v. Featherston, 5 La.Ann. 306 (1850) citing Article 2481 of the Louisiana Civil Code of 1825 [La. C.C. art. 2505]; Hall v. Nevill, 3 La.Ann. 326 (1848). See, Comment, Warranty Against Eviction in the Civil Law: Limitations on the Extent of the Vendee’s Recovery, 23 Tul.L.Rev. 154, 169-70 (1948). Cf. Collins v. Slocum, 317 So.2d 672 (La.App. 3d Cir. 1975). But see, Culver v. Culver, 188 La. 716, 178 So. 252 (1938), criticized in 23 Tul.L.Rev., supra, at 170.

This accords with the view of a majority of French courts and writers that although such knowledge bars recovery of damages by an evicted buyer who purchases by a deed which does not contain a non-warranty clause, the purchaser is nevertheless entitled to a restitution of the price. 2 M. Planiol, Civil Law Treatise, pt. 1, §§ 1504, 1509 (La.St.L.Inst.Transl.1959); 1 M. Trop-long, Droit Civil Expliqué: De La Vente, § 482 (2d ed.1835); See, Comment, Warranty Against Eviction in the Civil Law, supra, at 160, and authorities cited therein. It is their view that this principle is not provided directly by the warranty provisions of the Code, but results from Article 1599 of the Code Napoleon [La. C.C. art. 2452] which, after declaring that the sale of the thing of another is null, adds that it can give occasion for damages “when the buyer did not know that the thing belonged to another.” See, Planiol, id. at 1509.

An exception to the rule is recognized, however, regarding an alleged eviction resulting from the existence of an apparent servitude on the property. In discussing Code Napoleon Article 1638, the French authorities have declared that the only servi-tudes which give rise to the warranty are those which at the same time are non-apparent and not declared. 2 M. Planiol, Civil Law Treatise, pt. 1, §§ 1493-95. The origin of the distinction drawn between visible servitudes and non-apparent charges against the property was explained by Po-thier, who observed:

“A . kind of real charges, of which it is the buyer’s business not to be ignorant, and against which consequently he cannot claim any warranty, though they are not expressly declared by the contract, consists of visible servitudes, such as those of light and eaves-dropping; of which the buyer cannot be ignorant, since in visiting the house before purchasing it, he cannot avoid seeing the windows or the eaves.
“Are we to include amongst the rights, which it is the buyer’s duty not to be ignorant of, a right of champart not seignorial? The reason for doubting is, that the perception of the champart being public and known in the country, it is easy for the buyer to inform himself, and to ascertain before purchasing, whether the estate is subject to that charge.
# sjc
“Notwithstanding these reasons, we must decide, that the seller is bound to warrant against a champart, which is not declared by the contract. A buyer does not buy a house without visiting it in person, or sending some one on his part, nor, consequently, without perceiving the visible servitudes; but, he cannot be instructed of the charge of champart, except by being informed of it, and he may neglect to inform himself, or be deceived in the information, which he receives. * * *” 1 R. Pothier’s Treatise on Contracts: Contract of Sale, §§ 200-01 at 123-24 (L. S. Cushing transí. 1839).

Louisiana courts also have adopted the view that a vendor does not warrant the property conveyed as free from apparent servitudes. Lallande v. Wentz & Pochelu, 18 La.Ann. 289 (1866); James v. Buchert, 144 So.2d 435 (La.App. 4th Cir. 1962). Cf. Collins v. Slocum, 317 So.2d 672 (La.App. 3d Cir. 1975). This conclusion may be inferred from La. C.C. art. 2515, which, as Code Napoleon art. 1638, provides that the seller is bound to warrant against undeclared, non-apparent servitudes. The rule is justified as a practical matter for the reasons stated by the French writers. Po-thier, supra, and Planiol, supra, § 1494.

In the instant case the undisputed material facts are as follows: The buyer acquired by deed containing no general stipulation of non-warranty. The existence of the Gay-Gulf lease as a charge on the property was not declared in the list of inscriptions bearing upon the property included in the act of sale. See, footnote 1. The extensive mineral development of which plaintiff complains does not flow from any of the charges enumerated in the act of sale, but rather from the 1930 Gay-Gulf lease. The alleged eviction stemmed from an undeclared mineral lease and not an undeclared apparent servitude, but there were on the property ample external signs of mineral production conducted pursuant to this lease.

Hence, if it is the vendee’s duty not to be ignorant of apparent mineral leases as well as apparent servitudes, the action in warranty should be refused him, and the vendor would be entitled to judgment as a matter of law. On the other hand, if the vendee is presumed to know only of apparent servitudes, the vendor must respond in warranty because the eviction resulted from a different kind of visible charge which was not declared at the time of the sale.

The Civil Code does not expressly address the issue. It merely indicates that the buyer has a warranty against a servitude which at the same time is non-apparent and not declared. La. C.C. art. 2515. The civilian writers do not seem to have considered whether other charges equally as visible as apparent servitudes are excluded from the vendor’s warranty. In discussing the special rules as to servitudes, however, the writers dwell not upon the legal classification of the charge but on the practical question of whether the premises may be examined without perceiving the visible signs of its existence. If the buyer cannot avoid seeing evidence of the charge should he visit the property before the purchase there is no need for the seller to inform him of it. In the event the purchaser is unable to learn of a charge because it is non-apparent, fairness demands that the buyer must either inform him of it before the sale or protect him against eviction.

As the treatise writers, we think paramount importance should be attached to whether the charge produces visible external effects on the property rather than upon the legal classification of the charge. In the present case, for instance, the drilling structures and other artifacts of mineral production would be equally apparent regardless of their source. A simple inspection of the premises would have apprised the buyer of the existence of a significant charge against the property whether it derived from a lease or a servitude. Furthermore, there is probably less difference between a mineral lease and a mineral servitude than between other servitudes and charges. Both are basic mineral rights, and they share many of the same attributes. See, La.R.S. 31:16, 31:21 et seq., 31:114 et seq., and comments. For all these reasons we conclude that, just as an apparent servitude, an undisclosed mineral lease which produces on the property ample signs of its existence is a real charge of which it is the buyer’s business not to be ignorant and against which he cannot claim warranty.

For the foregoing reasons, we find there is no genuine issue of material fact in this case and that the defendant Zapata is entitled to judgment as a matter of law. Although we do not approve of the reasons given by the trial court and court of appeal, we conclude they reached the correct result. Accordingly, the judgment of the court of appeal is affirmed at appellant’s cost.

Affirmed.

SUMMERS, J., concurs.

DIXON, J., concurs with reasons.

CALOGERO, J., dissents and assigns reasons.

DIXON, Justice

(concurring).

I respectfully disagree with the holding of the majority, but concur in the result, because the deed disclosed a sale of all minerals and extensive mineral activity, enough to put the purchaser on notice of probable extensive mineral activity which might result in the surface encroachment of which plaintiff complains.

CALOGERO, Justice

(dissenting).

Until rendition of this opinion, there has been no statutory or jurisprudential authority for declaring that a vendee, acquiring by deed containing no general stipulation of non-warranty, and ignorant of “apparent mineral leases,” should be denied an action in warranty. In fact this Court has said that a buyer who purchases under a warranty deed has no duty to investigate his title by searching the mortgage and conveyance record or by visiting the property. Young v. Sartor, 152 La. 1064, 95 So. 223 (1922).

I would not extend to “apparent mineral leases ” by analogy or otherwise the Codal (inferentially) and jurisprudential rule that a vendor under warranty deed does not warrant property conveyed as free from apparent servitudes. Accordingly I respectfully dissent.

      . The deed recited that the “[p]urchaser takes cognizance of the following inscriptions which bear against the property:
      a) Right of Way Agreement dated August 6, 1957, from Gay Union Corporation to The Dow Chemical Company, recorded in Conveyance Book 142, Entry No. 97, Records of Iberville Parish, Louisiana, granting an easement for pipeline purposes.
      b) Letter agreement dated May 12, 1960, by and between Gulf States Utilities Company and Gay Union Corporation, granting right to extend existing electrical lines.
      c) Agreement dated March 16, 1953, from Gay Union Corporation to Humble Pipe Line Company, recorded in Conveyance Book 160, Entry 226, Records of Iberville Parish, Louisiana.
      d) Pipeline Right-of-way dated October 4, 1968, from Gay Union Corporation to Humble Gas Transmission Company, recorded in Conveyance Book 181, Entry 396, Records of Iberville Parish, Louisiana.
      e) Right of Way Grant dated May 23, 1953, from Gay Union Corporation to Interstate Natural Gas Company, Incorporated, recorded in Conveyance Book 107, Entry 327, Records of Iberville Parish, Louisiana, as amended by Amendment to Right of Way Grant dated October 4, 1968, by and between Gay Union Corporation and Humble Gas Transmission Company, recorded in Conveyance Book 181, Entry 397 of said Records.
      f) Agreement dated November 20, 1936, from Gay Union Corporation to Standated [sic] Oil Company of Louisiana, recorded in Convey-anee Book 61, Entry 542, Records of Iberville Parish, Louisiana.
      g) Right of Way Agreement dated May 25, 1943, from Gay Union Corporation to Standard Oil Company of Texas, recorded in Conveyance Book 75 Entry 331, Records of Iberville Parish, Louisiana.
      h) Right of Way Agreement dated April 29, 1957, from Gay Union Corporation to Temple Hargrove and Freeport Oil Company, recorded in Conveyance Book 139, Entry 26, records of Iberville Parish, Louisiana.
      i) Agreement dated January 1, 1970, from Southdown, Inc. to A. L. Carson, granting a grazing lease on the West Half (V2) of Section 61, T-9-S, R-12-E, Iberville Parish, Louisiana.
      j) Oil, gas and mineral lease from Gay Union Corporation to Davis Oil Company dated June 6, 1969, recorded in Conveyance Book 184, page 394, Entry 339, Records of Iberville Parish, Louisiana, for a primary term of three years and 120 days.
      k) Sale of all minerals by Southdown Lands Inc. to Pelto Oil Company in act before Luther E. Hall Jr., N.P., dated May 3, 1971, registered in COB 191 folio 245, Entry 202, Parish of Iberville, Louisiana. 1)Right of Way Servitude between Zapata Development Corporation and Humble Pipe Line Col, [sic] dated March 14, 1972 registered in C.O.B._folio_”

      . In this Court defendant reurged its exception of prescription, contending that plaintiff alleged a cause of action in redhibition which was barred by one year liberative prescription. La. C.C. art. 2534; Yeargain v. Blum, 144 So.2d 756 (La.App. 4th Cir. 1962); Pursell v. Kelly, 139 So.2d 12 (La.App. 4th Cir. 1962); Crowley Grain Drier, Inc. v. Fontenot, 132 So.2d 573 (La.App. 3d Cir. 1961). As we understand plaintiff’s petition, however, he is not seeking avoidance of the sale or reduction of the price because of hidden defects in the property. See, La. C.C. art. 2520 et seq. On the contrary, he alleges that he has been partially evicted by the admittedly apparent mineral activity on the property and prays for recovery because the lease from which the mineral production stemmed is alleged to be a charge on the property against which his vendor gave its warranty. See, La. C.C. arts. 2500-19. In view of our conclusion that Zapata did not warrant the property to be free of visible mineral production, we find it unnecessary to express any opinion respecting defendant’s plea of prescription.

      . Wells v. Joseph, 234 La. 780, 101 So.2d 667 (1958) (suit to quiet title in property purchased by plaintiffs ancestor in title at tax sale); Dugas v. Powell, 207 La. 316, 21 So.2d 366 (1945) (petitory action by alleged heirs against vendee of others claiming to be sole heirs of the property); Tyson v. Spearman, 190 La. 871, 183 So. 201 (1938) (petitory action by owner against defendant claiming property by ten-year good faith acquisitive prescription); Breaux-Renoud-et Cypress-Lumber Co. v. Shadel, 52 La.Ann. 2094, 28 So. 292 (1900) (suit by owner for injunction and money damages against defendant who claimed one-half interest in property on basis of non-warranty deed); Thibodeaux v. Quebodeaux, 282 So.2d 845 (La.App. 3d Cir. 1973) (petitory action by owner against defendant claiming property by ten-year good faith acquisitive prescription); Ilgenfritz v. Normann, 290 So.2d 441 (La.App. 4th Cir. 1974) (suit by lessees claiming occupancy against defendant, who occupied by virtue of his timely exercise of option to renew his previously recorded lease); Board of Commissioners for the Lafourche Basin Levee District v. Elmer, 268 So.2d 274 (La.App. 4th Cir. 1972) (suit by Board to annul tax sale against defendant claiming ownership by ten-year good faith acquisitive prescription); Malone v. Fowler, 228 So.2d 500 (La.App. 3d Cir. 1969) (suit by plaintiffs to partition property by licitation; issue is defendant’s claim of ownership in property by virtue of ten-year good faith acquisitive prescription); La Fleur v. Fontenot, 93 So.2d 285 (La.App. 1st Cir. 1957) (petitory action by plaintiffs against defendant claiming ownership by ten-year good faith acquisitive prescription); Hasslocher v. Recknagel, 160 So.2d 421 (La.App. 2d Cir. 1964) (suit by plaintiffs claiming rights to minerals by virtue of unrecorded deed against purchasers of property); Lynn v. Lafitte, 177 So. 83 (La.App. 2d Cir. 1937) (plaintiff claimed ownership of movable property stolen from him and later sold to defendants).

      . In Juneau, defendant had called his vendor in warranty, and this Court found the record insufficient to support a ruling on the extent of the vendor’s liability under his warranty obligations to the defendant. By implication the case suggests that the duty of the vendee to investigate title does not apply to bar his claim in warranty against his vendor.

      . Champart is defined as: “A land rent, or charge upon land, consisting of a fixed part of the produce; also, the tenure by which land is held upon payment of such a rent * * Webster’s New International Dictionary of the English Language (2d ed. Unabridged, 1950).

      . “If the servitude is apparent, or if not apparent it was announced to the buyer, he has no recourse. Of what can he complain if he buys with full knowledge? Of what again should he complain if he did not examine the property himself and did not see the external signs showing the servitude? For the same reason, and even though the law does not say so, one should refuse any action in warranty to the buyer who had in fact, by whatever means, knowledge of a servitude or of an apparent charge, which the vendor has omitted to declare. The vendor did not have to inform him of a thing which he already knew, and it would be a deceit on his part to afterwards plead that he had not been warned. * * *” 2 M. Pla-niol, Civil Law Treatise, § 1494 (La.St. Law Inst, transí. 1959).

      . Planiol, however, implies this in at least one instance. 2 M. Planiol, Civil Law Treatise, § 1494 (La.St.Law Inst.transl.1959).


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    GEORGE ENGINE CO., INC. v. SOUTHERN SHIPBUILDING CORPORATION, Alain R. Seligman and Roger Seligman.
    Nos. 59307, 59410.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    R. King Milling, Charles M. Steen, W. Richard House, Jr., Milling, Benson, Woodward, Hillyer & Pierson, New Orleans, Maurice LeGardeur, Burns, Farmer & Le-Gardeur, Covington, for plaintiff-relator.

      John N. Gallaspy, Gallaspy & Paduda, Bogalusa, Charles Lee Eisen, Richard C. Stearns, Hill, Christopher & Phillips, Washington, D. C., for defendants-respondents.
   SUMMERS, Justice.

By three separate instruments dated October 12, 1972 George Engine Company, Inc., contracted to have Southern Shipbuilding Corporation construct three tug supply vessels designated as Hulls 107,108 and 109. These vessels were designed and intended to be sold by George to companies engaged in offshore oil operations. By the terms of the contracts, delivery, after required trials, was prescribed as follows: Hull 107 on October 12, 1973; Hull 108 on November 12, 1973; and Hull 109 on December 12, 1973. The contracts were signed by Alain Selig-man individually and as president of Southern.

Thereafter on June 7, 1973 the parties executed two additional contracts for the construction of vessels with hull numbers 110 and 111 providing for delivery dates of March 30, 1974 and April 30, 1974, respectively.

A dispute arose between the parties concerning the delivery dates and the ultimate contract price of the vessels.

On August 20, 1974 Southern wrote George claiming that because of “force majeure” situations and economic developments a complete review of construction contracts was imperative. Completion of the vessels for the current contract price under prevailing conditions was, according to Southern, completely unreasonable and impossible. Unless an escalation of the contract price could be agreed upon Southern would be compelled to “phase down” construction of the vessels. Several following letters from Southern were to the same effect.

Under these circumstances negotiations were entered into in an effort to resolve the differences. As a result, on September 19, 1974, an agreement was entered into setting forth that time was of the essence in the performance of these construction contracts. Provision was made for revised delivery dates, increased liquidated damages Southern would have to pay George for failure to comply and making George liable in liquidated damages to Southern for delays due to acts or omissions of George.

By this September 19, 1974 agreement George agreed to pay Southern the sum of $400,000 as a “performance bonus” in addition to the contract price for construction of the five vessels. The agreement also contained the following arbitration clause:

“The parties hereto agree:
(a) That any controversy or claim arising out of or relating to the construction contracts, as amended by this Agreement, or any breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association (hereinafter referred to as AAA), except to the extent that the rules of the AAA are in conflict with this Agreement;
(b) That any controversy or claim arising out of or relating to the Construction Contracts, as amended by this Agreement or any breach thereof, shall be submitted to three (3) arbitrators to be selected within five (5) days after request for arbitration; one (1) to be appointed by George, one (1) to be appointed by Southern, and the third (3rd) to be selected by the two (2) so appointed from the Panel of Arbitrators of the AAA. In the event that the two (2) arbitrators appointed by the parties cannot agree as to the selection of the third (3rd), such third (3rd) arbitrator shall be appointed by the AAA.
(c) That the decision of the aforementioned arbitrators or that of any two (2) of them shall be final.
(d) That they will abide by and conform with any final award rendered by the arbitrators, and
(e) That a judgment on any award so rendered may be entered in any court having jurisdiction thereof.”

Thereafter, on November 12, 1976, George instituted suit against Southern and Alain R. Seligman based upon contracts of October 12, 1972 and June 7, 1973 for the construction of the five tug supply vessels. The petition alleged that Southern’s letter of August 20, 1974 advised that unless it was paid an additional amount under each of the five contracts Southern would phase down the construction of all five vessels thus effectively terminating the contracts.

As a result, faced with Southern’s threat to “phase down” construction and the prospect of being unable to fulfill its obligations to its intended vendees engaged in offshore oil operations, George entered into the agreement of September 19, 1974. This agreement was reached only because George understood that Southern had ascertained in advance that there were no impediments to Southern’s ability to deliver each vessel on or before the revised delivery dates specified in the September 19, 1974 agreement.

The petition further alleges that George was advised by Southern that the delivery dates were established after Southern had ascertained from each of its major suppliers of materials that materials could be furnished in time for prompt delivery of each vessel on the dates specified.

When the agreement was executed Southern knew or should have known that mud tanks required for two of the vessels were no longer being manufactured and that the suppliers of propeller shafts and rudder stocks were struck by its employees, and the strike continued through November 1974. Southern failed to inform George of these facts, knowing that they constituted impediments to timely delivery. The vessels were therefore not in fact delivered timely.

George alleges that had it known of the impediments to timely delivery it would not have entered into the agreement of September 19,1974 and would have pursued its remedy for breach of contract against Southern.

As a result of the misrepresentation of material facts constituting error in the principal cause of the agreement, a total lack of consideration and a nonexistent motive, George alleges it is entitled to a rescission of the agreement of September 19, 1974 and a return of the $400,000 paid as a performance bonus and $482,200 in liquidated damages. Alternatively, George seeks $840,000 as liquidated damages for late delivery.

To this petition Southern filed a motion to stay the proceedings and for summary judgment in its favor. The motion alleges that George initiated arbitration proceedings before the American Arbitration Association on February 11, 1976 and is in the position of one who, having agreed to and commenced arbitration now prefers to suspend those proceedings and burden the court with matters which are better settled through arbitration with a saving of time and cost for all parties. The motion asserts as grounds for the summary judgment that there is no genuine issue of material fact alleged in plaintiff’s petition.

After a hearing on January 12, 1977 the trial judge granted the motion to stay the court proceedings and ordered George to proceed with the arbitration of its claim. George applied to the First Circuit for writs to review the ruling and also moved for a suspensive appeal. The application for writs and the motion for suspensive appeal were denied. Applications to this Court to review these rulings were granted. La., 342 So.2d 1114; La., 342 So.2d 1115. The matter, we feel, is properly presented by the writ application to review the ruling granting the stay order. The writ to review the ruling denying the suspensive appeal is recalled as improvidently issued.

In its brief George sets forth that the threats to “phase down” construction contained in Southern’s letter of August 20, 1974 and those following created a situation which required the filing of a suit against Southern by one of the third party purchasers in the United States District Court seeking specific performance. The injunction sought was denied by the United States District Court. When this relief was not forthcoming George, faced with Southern’s threats to phase down construction, commenced negotiations to insure continued construction and prompt completion of the vessels. George’s customers were depending on these vessels for supplying and equipping offshore oil and gas production. According to George’s brief, Southern was specifically requested to contact suppliers to determine whether critical materials could be delivered in time to meet the stipulated delivery dates. Having been assured that there was no impediment to timely delivery, George signed the agreement of September 19, 1974. The representations upon which it relied, George asserts, were later learned to be false. Apparently Southern did not verify the delivery date of materials and had no assurance that the vessels could be completed on time.

The issue thus presented is whether a party to a contract containing an arbitration clause may sue to rescind that contract in a court of competent jurisdiction on the ground that it is, and was, void ab initio.

George’s position is that four requisites are necessary to the validity of all contracts, one being the consent of the parties legally given. La.Civil Code art. 1779(2). The argument is that George’s consent to the agreement of September 19,1974 lacked this essential requisite because its consent was vitiated through error, misrepresentation and coercion on the part of Southern at the time of the confection of the contract. It is a threshold issue. George seeks by this suit to litigate the merits of that issue. However, the stay order imposed by the trial judge prevents such an adjudication. Instead George has been ordered to comply with an arbitration clause contained in a contract which it contends has never been validly confected.

The Louisiana Arbitration Act (La.Rev. Stat. 9:4201-17) pertinently provides in Section 4201:

“A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract . shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (emphasis added).

A study of the agreement of September 19, 1974 and the incorporated construction contracts together with the quoted arbitration clause evinces no intent of the parties to specifically arbitrate the issue of error in the inducement of the agreement; nor is the language in the agreement broad enough to comprehend arbitration of that issue. Atcas v. Credit Clearing Corporation of America, 292 Minn. 334, 197 N.W.2d 448 (1972). To the contrary, a stipulation in the agreement “that when such matters are submitted to arbitration” refers to cause and extent of delays in delivery of the vessels and the assessment of liquidated damages, matters properly subject to arbitration. It would be an absurdity to compel arbitration of the conditions in a contract which does not exist in its entirety in legal contemplation.

This Court’s jurisdiction cannot be displaced whenever a contract contains an arbitration clause. The arbitration law and arbitration clauses in contracts do not vest in arbitrators the historic jurisdiction of the courts to determine fraud or duress in the inception of a contract. It may be said that courts are far better qualified to decide issues of this kind. These are not questions of “construction law”, particularly applicable to the building of boats, nor is a question of fact involved that arbitrators are peculiarly well qualified to consider.

Nor does Section 4201 of the Arbitration Act compel arbitration of a question involving the validity ab initio of a contract containing an arbitration clause. While provisions for arbitration of controversies arising out of contracts are declared to be valid, irrevocable and enforceable, validity, irrevo-cability and enforceability are by the terms of Section 4201 made dependent upon “such grounds as exist at law or in equity for the revocation of any contract.” Stone v. Stone, 292 So.2d 686 (La.1974). By its very terms Section 4201 presupposes the existence of a valid contract as a basis for invoking arbitration.

Southern relies upon the decision in Bodman, Murrell & Webb v. Acacia Foundation of L.S.U., Inc., 246 So.2d 323 (La.App.1971), certiorari denied, 258 La. 766, 247 So.2d 864 (1971) in support of its position. The Bod-man case holds that Section 4201 “can be reasonably interpreted to mean only that there must exist grounds for the revocation of the arbitration provision itself, apart from the grounds that may exist for the revocation of the remainder of the contract, before a party thereto can avoid the enforcement of its provisions.” While the opinion of this court in Stone v. Stone, supra, states that Bodman was correctly decided, it was careful to point out that the broad rationale of the Bodman decision was not being decided. Moreover, the Bodman case can be distinguished from the case at bar in the following respect: the Bodman case involved a factual issue of contract performance, whereas the ease at bar involves the legal issue of the validity in its inception of the contract itself, based on the alleged lack of valid consent.

Aside from a natural reluctance to surrender the historical jurisdiction of courts to decide the legal issue presented by a petition to rescind a contract on account of error in its inducement, arbitrators are designated to arbitrate and resolve factual controversies arising out of valid contracts between the parties. They need not be lawyers and in all probability are wholly unqualified to decide legal issues. Indeed they are not bound to apply the law. Arbitration, moreover, deprives a party of a jury trial and the right to appeal, substantial rights which should not be denied unless voluntarily and knowingly waived. It was in all probability to preserve these rights and to limit arbitration within proper bounds that the Legislature created an exception to the enforceability of arbitration provisions in contracts where “grounds . exist at law or in equity for the revocation of any contract.” La.Rev.Stat. 9:4201.

Reference to Section 4203 of the Arbitration Law further supports the view that the issue presented here is properly decided by the court and not by arbitration. The section provides a remedy to the party aggrieved by the alleged failure or refusal of another to perform under a written agreement to arbitrate. A petition to a court having jurisdiction is authorized for an order directing arbitration to proceed allowing five days for the party in default. Thereafter, the Section sets forth that the court shall hear the parties, “and upon being satisfied that the making of the agreement for arbitration ... is not an issue” the court shall order arbitration. Again the Arbitration Law excepts the issue of the validity of the principal agreement from compulsory arbitration. If the court finds that “the making of the agreement for arbitration” is “at issue” the section then specifically directs that the court shall hear and determine that question, reserving to the parties the right to trial by jury. Thus, by reading Sections 4201 and 4203 together, the legislative intent becomes clear. These sections simply say that an arbitration agreement is to be enforced by the court unless the court, not the arbitrator, finds grounds “at law or in equity for the revocation of any contract.”

Lack of consent, of course, is one of the grounds for revoking a contract. It is a vice which rescinds the contract from its inception. Consequently, without valid consent there is no contract to be arbitrated. Surely a court would not be expected to compel arbitration of the conditions in a contract which does not exist in legal contemplation. Here the validity of the entire contract of which the arbitration clause is a part is called into question by George. If the agreement lacked the valid consent of George it cannot be said that George “voluntarily" waived its right to have the court determine whether the agreement should be rescinded and declared void ab initio.

It is recognized that arbitration finds its principal support in the knowledge, experience and expertise of the arbitrator which qualify him to decide factual questions in regard to the day-to-day performance of contractual obligations, and the speed at which arbitration, as contrasted to litigation, can resolve disputes over performance of contracts and thus mitigate the damages and allow the parties to continue performance under the contracts. However, arbitration serves neither of these functions where an entire contract is sought to be rescinded on the ground of lack of valid consent. Courts have far more expertise in resolving legal issues which go to the validity of a contract than do arbitrators and that resolution can be made just as expeditiously as it can be by arbitrators.

Southern has relied to a considerable extent upon the authority of the decision in Prima Paint Corp. v. Flood & Conklin, 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). That decision interprets the Federal Arbitration Act (9 U.S.C. §§ 1-14) and holds that the issue of fraud in the inducement of a contract generally must be submitted to arbitration when the contract contains an arbitration clause. Although ordinarily this opinion by the United States Supreme Court would bear great weight upon our decision, in the instant case reason and law in this Court’s view weigh more heavily in favor of the dissenting opinion of Mr. Justice Black joined in by Mr. Justice Douglas and Mr. Justice Stewart as the reasons assigned herein will demonstrate. Further justification for adopting the dissenting view is found in the circumstance that a state statute is being interpreted and no federal question or federal constitutional principle is involved which compels this Court to follow the views expressed by the United States Supreme Court. Under these circumstances Louisiana’s highest court is free to interpret this State’s law in accordance with its understanding of the legislative intent and its appreciation of what is more logical, reasonable and just.

For the reasons assigned, the ruling of the trial court staying this suit for rescission of the agreement of September 19, 1974 is annulled and set aside, and the case is remanded to the trial court to be proceeded with in a manner not inconsistent with the views expressed in this opinion. On remand the trial judge shall determine the validity of George’s consent to the agreement of September 19, 1974. In the meantime arbitration proceedings will be stayed until the issue of consent has been determined by the court.

TATE, J., dissents and assigns reasons.

TATE, Justice, dissenting.

I respectfully dissent.

The persuasive majority opinion is in accord with interpretations reached by a number of other of American jurisdictions with similar arbitration statutes. Nevertheless, I am in accord with the contrary view of a nearly equal number of other jurisdictions, as well as of the doctrinal writers, that such an interpretation destroys the very purpose of the arbitration statutes and of arbitration agreements confected in accordance therewith. See Domke on Commercial Arbitration, Sections 8.01-8.06 (1968).

The interpretation reached by the majority permits a party to an arbitration agreement who desires to avoid arbitration, to delay it indefinitely. By suing to rescind the parent contract itself on grounds of fraudulent inducement, however groundless the claim, he may thus avoid arbitration until termination of the judicial proceedings, including appellate review, which adjudicate the validity of the claim for rescission.

By La.R.S. 9:4201, the legislature provided that “A provision in any written contract . to settle by arbitration . or an agreement ... to submit to arbitration . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

The statutory language may reasonably be interpreted to mean, as a substantial number of courts (including the United States Supreme Court) have, that the arbitration agreement is irrevocable and enforceable unless the arbitration agreement itself (not a parent contract) may be revoked upon such grounds as other contracts may be revoked. Prima Paint Corp. v. Flood & Conklin, 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); Domke, cited above.

Indeed, the Louisiana Court of Appeal, First Circuit, so held. Bodman, Murrell & Webb v. Acacia Found, of LSU, 246 So.2d 323 (La.App.1971), cert. denied, 258 La. 766, 247 So.2d 864 (1971). Bodman held, with regard to the italicized language, that it meant “only that there must exist grounds for the revocation of the arbitration agreement itself, apart from the grounds that may exist for the revocation of the remainder of the contract, before a party thereto can avoid the enforcement of its provision.” 246 So.2d 326.

Despite an arbitration agreement, we have nevertheless held that some matters are non-arbitrable because of rights given by substantive law, such as the right to dissolve a partnership of indefinite duration, Stone v. Stone, 292 So.2d 686 (La.1974), or matters not subject to non-judicial determination, such as child-custody rights, see Stone at 292 So.2d 691.

However, as earlier noted the better view that the determination of whether the parent contract itself is rescindable for error or fraud is not such a non-arbitrable issue that must always and necessarily be decided by judicial proceedings rather than by arbitration.

Where the parties freely consent to arbitration of future disputes arising out of or relating to a contract, and their consent to the arbitration agreement itself is not based upon any fraud or misrepresentation as to It, the very purpose of their full consent to the arbitration agreement is to avoid the expense, delays, and uncertainties of litigation regarding the validity of either the contractual undertaking itself or the contractual performance.

Here, the parties amended the initial contracts, after disputes as to them had arisen, and then agreed in writing to submit to arbitration “any controversy or claim arising out of or related to the construction contracts, as amended by this Agreement.” No claim is made that both parties did not freely intend to arbitrate all future disputes relating to the contract, nor that any misrepresentation induced either party to enter into such arbitration agreement (which is separable from the parent contract itself) and specifically reject litigation as the means of resolving future disputes.

Nevertheless, the majority in effect holds that, no matter what the intention of the parties, they may never agree to submit to future arbitration the issue of the rescinda-bility of the parent contract upon any existing ground “at law or in equity for the revocation of any contract.” La.R.S. 9:4201.

To interpret the statutory language so, obviously opens up to either party his unilateral option to postpone indefinite arbitration. He may do so, once an arbitrable dispute arises, by filing judicial proceedings urging grounds for rescission of the parent contract. Arbitration would not then be available until the courts had finally determined to be meritless the grounds so ad-vhnced for rescission.

The interpretation thus reached by the majority defeats the purposes of the arbitration statute. The enactment authorizes parties to make irrevocable agreements to arbitrate future disputes arising out of a contract. The purposes are both to afford ready and efficient non-judicial means to resolve disputes relating to the contract, as well as to divert these disputes from the courts so as to avoid contributing to (and their speedy resolution being prejudiced by) congestion and delay in the litigation process.

The majority’s interpretation thus permits any party, contrary to the intent of the statute and of the arbitration agreement itself, to postpone indefinitely arbitration and to require prior resort to the judicial machinery, upon a simple ex parte claim that the parent contract is rescindable, despite that party’s previous agreement to submit to arbitration any such claim along with all other claims relating to the contract.

Mr. Justice Holmes observed that, in statutory interpretation, “the general purpose is a more important aid to meaning than any rule which grammar or formal logic may lay down.” United States v. Whitridge, 197 U.S. 135, 143, 25 S.Ct. 406, 408, 49 L.Ed. 696 (1905). In my opinion, the majority has ignored the purposes of the statutory enactment validating and encouraging arbitration agreements. In interpreting the statutory exception to valid arbitration agreements otherwise authorized by La.R.S. 9:4201, the majority has construed the exception so broadly as to destroy the purposes of the statute as a whole, rather than narrowly in accord with and so as to serve such statutory purposes.

I therefore respectfully dissent.

      .La.Civil Code art. 1779:
      “Four requisites are necessary to the validity of a contract:
      1. Parties legally capable of contracting.
      2. Their consent legally given.
      3. A certain object, which forms the matter of agreement.
      4. A lawful purpose.”


text:
    STATE of Louisiana v. John Andrew FAUST.
    No. 60232.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: John Andrew Faust applying for remedial writs.

Writ denied. There is no final judgment. Applicant has an adequate remedy by review in the event of conviction.


author: DIXON, J.,

text:
    STATE of Louisiana v. Nick S. KARNO.
    No. 60374.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: State of Louisiana applying for writ of certiorari.

Writ denied. There was no abuse of discretion in the ruling of the trial judge.

DIXON, J.,

dissents from the denial and would grant.


author: DIXON, J., CALOGERO, J., DENNIS, J.,

text:
    Victor L. QUICK, Individually and as Administrator of the Estate of the minor, Andrea La Vaughn Quick v. AETNA CASUALTY AND SURETY COMPANY et al.
    No. 60328.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: Victor L. Quick, etc., et al. applying for certiorari or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 347 So.2d 59.

Writ denied. On the facts found by the Court of Appeal there is no error of law in its judgment.

DIXON, J.,

dissents and would grant.

CALOGERO, J.,

is of the opinion the writ should be granted.

DENNIS, J.,

would grant the writ.


text:
    STATE of Louisiana v. Ruben BIAS.
    No. 60224.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: Ruben Bias applying for remedial writs.

Writ denied. The relator may obtain access to the transcript through his counsel.

DIXON, J.,

is of the opinion this applicant should be furnished a copy of the transcript, which is' in this Court, until this Court needs it.


author: MARCUS, J.,

text:
    R. S. ELECTRIC AND ARMATURE WORKS v. GEORGE ENGINE CO., INC., et al.
    No. 60220.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: George Engine Co., Inc., et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Lafourche. 346 So.2d 783.

Writ denied. On the facts found, the result is correct.

MARCUS, J.,

is of the opinion that the writ should be granted.


author: SANDERS, C. J., CALOGERO, J., DENNIS, J.,

text:
    David ODOM v. BURAS CONTRACTORS, INC.
    No. 60207.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: Buras Contractors, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Plaquemines. 346 So.2d 246.

Writ denied. On the facts found by the Court of Appeal, the result is correct.

SANDERS, C. J.,

is of the opinion that a writ should be granted.

CALOGERO, J.,

would grant this writ.

DENNIS, J.,

would grant the writ.


author: TATE, J., DIXON and CALOGERO, JJ.,

text:
    Betty BOUCHER, wife of Paul Boucher v. ORLEANS PARISH SCHOOL BOARD.
    No. 60198.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: Betty Boucher applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 1124.

Writ refused. On the facts found by the Court of Appeal, there is no error of law. The issue is factual.

TATE, J.,

dissents. I would not have disturbed the trial court’s finding of disability resulting from a work-cause psychosis which substantially reduced the market for the plaintiff’s employability.

DIXON and CALOGERO, JJ.,

are of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Stanley GILBERT.
    No. 60227.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: State of Louisiana through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition and mandamus.

Writ granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Frank A. Marullo, Jr., Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 12th day of October, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Milton E. RUTLEDGE v. 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE.
    No. 60396.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: Milton E. Rutledge applying for writ of mandamus.

Writ granted. Based upon information from the District Attorney that the charges against relator, Milton E. Rutledge, have been dismissed, it is ordered that the Sheriff of East Baton Rouge withdraw the de-tainer or show cause in this court within ten days.


text:
    STATE of Louisiana v. Clarence Wilson BURKES and Jody Renee Burkes.
    No. 60657.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: State of La. through the District Attorney, Ossie Brown applying for supervisory writs.

Writ granted. The ruling of the trial judge is reversed and extradition is ordered in compliance with the Oklahoma request.


text:
    H. Lanier RICHEY v. VENTURE OIL AND GAS CORP. (H & W Oil & Gas Co., Inc.).
    No. 60196.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: H & W Oil and Gas Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Plaquemines. 346 So.2d 875.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    Leonard ADAMS v. EYE, EAR, NOSE AND THROAT HOSPITAL et al.
    No. 60199.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: Leonard Adams applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 327.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


text:
    Mrs. Gail GAUDET, wife of/and Philip Gaudet v. ALLSTATE INSURANCE CO. and Leopold J. Schouest.
    No. 60208.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: Mrs. Gail Gaudet, wife of/and Philip Gaudet applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 346 So.2d 333.

Writ denied. On the facts found by the Court of Appeal, the result is correct.


text:
    Delphine BRIGNAC v. D. H. HOLMES CO., LTD.
    No. 60231.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: Delphine Brignac applying for remedial writ.

Writ refused. No error in ruling of trial judge.


text:
    BOB BURKE, INC., et al. v. Monroe N. FLENIKEN et ux.
    No. 60233.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: Monroe N. Fleniken, et ux. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 346 So.2d 754.

Writ Denied: No error of law.


text:
    STATE of Louisiana v. Darlene ROBERTSON.
    No. 60697.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: Darlene Robertson applying for writs of review and stay order.

Writ and stay order denied. Inadequate showing for supervisory review at this stage. The accused has an adequate remedy by review in the event of conviction,


text:
    STATE of Louisiana ex rel. Willie Lee SLEDGE v. Bill C. DOWNEY, Clerk, Parish of Ouachita.
    No. 60225.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
   In re: Willie Lee Sledge applying for writ of mandamus.

Writ denied: The relator does not state a claim for relief. Cf., United States v. MacCollom, 428 U.S. 1045, 96 S.Ct. 768, 46 L.Ed.2d 638 (1976).


author: DIXON and CALOGERO, JJ.,

text:
    STATE of Louisiana v. James Phillip RICHARDS.
    No. 60460.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: James Phillip Richards applying for remedial writs of certiorari, prohibition, mandamus, remedial relief and stay order.

Writ denied. There is no showing of abuse of the trial judge’s discretion. Relator’s right to request additional portions of the record on appeal is reserved.

DIXON and CALOGERO, JJ.,

dissent from the denial; Defendant is entitled under C.Cr.P. to designate the record on appeal; under Art. 1, § 19 of the Constitution of 1974, he has a constitutional right to a complete record of all evidence on which the judgment of conviction was based.


author: TATE, J.,

text:
    Charlie HOPKINS v. Bill KEITH and the Shreveport Times.
    No. 60743.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Charlie Hopkins applying for Cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 348 So.2d 999.

Not considered. Not timely filed.

TATE, J.,

concurs. The application’s postmark shows it was mailed on September 29, or the day following expiration of the delay. It was therefore not timely mailed. See Rule 10, Section 4(b).


text:
    STATE of Louisiana v. Theodore CONRAD a/k/a Steve Rogers.
    No. 60818.
    Supreme Court of Louisiana.
    Oct. 13, 1977.
   In re: Theodore Conrad a/k/a Steve Rogers applying for writs of certiorari, prohibition and mandamus and stay order.

Writ denied. No error in the ruling of the trial judge.


text:
    CITY OF NEW ORLEANS v. Kenneth OWEN.
    No. 60745.
    Supreme Court of Louisiana.
    Oct. 13, 1977.
   In re: Kenneth Owen applying for writs of certiorari, mandamus and prohibition.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Andrew G. Búcaro, Judge Ad Hoc, Criminal District Court; Servando Garcia, Judge Ad Hoc, Municipal Court, City of New Orleans, for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 27th day of October, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained..

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Antoinette JACOB, widow of Joseph Icar Hymel v. TOM ALEXANDER BROKERAGE CO. et al.
    No. 60531.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Empire Fire and Marine Insurance Co. applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. John the Baptist. 348 So.2d 104.

Denied.

MARCUS, J.,

is of the opinion that the writ should be granted on alleged error of the court of appeal in affirming an award of damages for mental anguish because of damage to property.


text:
    STATE of Louisiana ex rel. Tommy BARBER v. Gordon E. CAUSEY, Judge, 21st Judicial District Court.
    No. 60594.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Tommy Barber applying for writ of mandamus.

Writ denied. The Clerk of Court is instructed to transmit to relator a copy of minutes of the trial court denying habeas corpus.


text:
    Samuel HAUGHTON v. FIREMAN’S FUND AMERICAN INSURANCE CO.
    No. 60765.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Samuel Haughton applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 349 So.2d 385.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in Duplicate of the case; and that counsel for plaintiff and defendant be notified.


author: SANDERS, C. J., SUMMERS, J.,

text:
    STATE of Louisiana v. Eugene E. BUTLER, Jr.
    No. 60835.
    Supreme Court of Louisiana.
    Oct. 18, 1977.
   In re: Eugene E. Butler, Jr. applying for writs of certiorari, prohibition, mandamus and habeas corpus.

Writ granted. Hearing ordered to fix bail.

SANDERS, C. J.,

dissents from the granting of writ.

SUMMERS, J.,

dissents.


author: SANDERS, C. J., SUMMERS, J., MARCUS, J.,

text:
    Anthony J. ROY, Sr. v. The UNION BANK.
    No. 60316.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: The Union Bank, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Avoyelles. 347 So.2d 286.

Writ denied. No error of law.

SANDERS, C. J.,

is of the opinion that a writ should be granted.

SUMMERS, J.,

is of the opinion the writ should be granted.

MARCUS, J.,

is of the opinion the writ should be granted.


author: SUMMERS, J.,

text:
    Succession of Pierre Tanner TATUM.
    No. 60327.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Sion Smith Tatum, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 347 So.2d 79.

Writ refused. No error of law.

SUMMERS, J.,

is of the opinion the writ should be granted.


author: SUMMERS, J., DENNIS, J.,

text:
    Griffin E. VAUGHN v. Mrs. Garrie DeMoss WILLIAMS, wife of/and Hayden Williams.
    No. 60118.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Mrs. Carrie DeMoss Williams, wife of/and Hayden Williams, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Red River. 345 So.2d 1195.

Application denied; No error of law in the Court of Appeal judgment.

SUMMERS, J.,

is of the opinion the writ should be granted.

DENNIS, J.,

is of the opinion the writ should be granted.


author: SUMMERS, J., MARCUS, J.,

text:
    BOWLES & EDENS CO. v. H & H SEWER SYSTEMS, INC., et al.
    No. 60341.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: American Employers Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 324 So.2d 528.

Writ refused. There is no error of law in the judgments of the courts of appeal as to the bond. As to the law of the case issue, the result is correct.

SUMMERS, J.,

is of the opinion the writ should be granted.

MARCUS, J.,

is of the opinion that the writ should be granted.


author: CALOGERO, J.,

text:
    DAMSON OIL CORPORATION et al. v. Larry A. SARVER et al.
    No. 60346.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: La. Irrigation and Mill Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Acadia. 346 So.2d 1304.

Writ refused. The result is correct.

CALOGERO, J.,

is of the opinion the writ should be granted.


author: SANDERS, C. J., SUMMERS, J., DENNIS, J.,

text:
    JOSEPH A. NEYREY, GENERAL CONTRACTOR, INC. v. LOUISIANA POWER & LIGHT COMPANY.
    No. 60362.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Louisiana Power & Light Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 347 So.2d 266.

Application denied.

SANDERS, C. J.,

is of the opinion that a writ should be granted.

SUMMERS, J.,

is of the opinion the writ should be granted.

DENNIS, J.,

would grant the writ.


text:
    Frank L. THORNTON et al. v. Sharon MORAN et al. Sharon MORAN v. Frank L. THORNTON et al.
    No. 60342.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Frank L. Thornton applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 348 So.2d 79.

Writ refused. No error of law.


text:
    Lee F. REDEMER v. Brooks S. HOLLIS and Trailer Equipment Manufacturing Co., Inc.
    No. 60340.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Lee F. Redemer applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Webster. 347 So.2d 48.

Writ denied. The result is correct.


text:
    Frank L. THORNTON et al. v. Sharon MORAN et al. Sharon MORAN v. Frank L. THORNTON et al.
    No. 60334.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Frank L. Thornton and Myrtis Thornton applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 348 So.2d 79.

Writ refused. The result is correct.


text:
    STATE of Louisiana ex rel. Ronald O. CLESI v. Matthew BRANIFF, Judge, Criminal District Court, Parish of Orleans.
    No. 60284.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Ronald 0. Clesi, applying for writ of mandamus.

Writ denied. Trial judge rendered judgment on relator’s application for habeas relief on October 13, 1977. Accordingly, the matter is moot.


text:
    Alton M. FOLSE et al. v. STATE of Louisiana, Through DEPT. OF HIGHWAYS.
    No. 60345.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re; Alton M. Folse and Frank M. P. DeVille, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 347 So.2d 1176.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Roy Lee VALENTINE.
    No. 60459.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Roy Lee Valentine applying for writ of review.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Monty M. Wyche, Judge of the 26th Judicial District Court for the Parish of Webster, to transmit to the Supreme Court of Louisiana, on or before the 4th day of November, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Michael THOMAS.
    No. 60825.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Michael Thomas applying for writs of certiorari, prohibition, mandamus and stay order.

Granted. Defendant to be admitted to bail as determined by the trial judge.


text:
    STATE of Louisiana ex rel. Jimmy TONEY v. Hon. Rudolph BECKER, Judge.
    No. 60762.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Jimmy Toney, applying for writ of mandamus.

Writ granted in part. Application transferred to trial court for consideration.


text:
    STATE of Louisiana v. Sandra K. TATE.
    No. 60779.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Motion to withdraw petition for supervisory writ.

Petition dismissed.


text:
    STATE of Louisiana v. Merle KEMMERLY, Jr., et al.
    No. 60840.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Merle F. Kemmerly, Jr., applying for writs of certiorari, prohibition and mandamus.

Writ denied. Inadequate showing for exercise of our supervisory jurisdiction. Petitioner has an adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. John O. STEPHENS.
    No. 60771.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: John 0. Stephens applying for certiorari, prohibition, mandamus and for stay order.

Writ denied. Considering the trial court’s finding after evidentiary hearing on the underlying charges upon which the new convictions are based, we find no error in the trial court’s revocation of petitioner’s probation.


text:
    STATE of Louisiana ex rel. Felton WILLIAMS v. Hon. Israel AUGUSTINE, Criminal District Court, Parish of Orleans.
    No. 60752.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Felton Williams applying for writ of mandamus.

Writ denied. The matter is moot.


text:
    Frank L. THORNTON et al. v. Sharon MORAN et al. Sharon MORAN v. Frank L. THORNTON et al.
    No. 60420.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Frank L. Thornton and Government Employees Ins. Co., applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 348 So.2d 79.

Writ denied. The result is correct.


text:
    STATE of Louisiana v. Jimmy GARCIA.
    No. 60385.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Jimmy Garcia applying for writs of review and certiorari.

Writ denied. No error of law.


text:
    STATE of Louisiana v. Albert C. PITRE et al.
    No. 60384.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: State of Louisiana, applying for writs of certiorari, prohibition and mandamus.

Writ denied. On the showing made, there is no error in the ruling of the trial court.


text:
    STATE of Louisiana v. Nick S. KARNO.
    No. 60375.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: State of Louisiana through the District Attorney, Harry Connick, applying for writ of certiorari.

Writ denied. The showing doesn’t warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana v. Cleveland Curtis SHAW.
    No. 60367.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Cleveland Curtis Shaw applying for remedial writs.

Writ denied. The relator is not entitled to a transcript upon the showing made.


text:
    LOUISIANA INTRASTATE GAS CORPORATION v. Hazel Mary LeDOUX.
    No. 60363.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Hazel Mary LeDoux, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. 347 So.2d 4.

Writ refused. No error of law.


text:
    STATE of Louisiana ex rel. Thomas DENNIS, Jr. v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60357.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Thomas Dennis, Jr. applying for writs of certiorari and habeas corpus.

Writ denied. No error in the trial court’s determination.


text:
    Anthony J. ROY, Sr. v. The UNION BANK.
    No. 60356.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Anthony J. Roy, Sr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Avoyelles. 347 So.2d 286.

Writ denied. No error of law.


text:
    Harry G. PROPHIT, Jr., et al. v. McSWEEN, BROOK AND BOLTON, et al.
    No. 60351.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: McSween, Brooks & Bolton applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 347 So.2d 11.

Writ denied. On the facts found by the Court of Appeal, the judgment is correct.


text:
    ORKIN EXTERMINATING CO., INC. v. Hodges J. BROUSSARD, d/b/a Broussard’s Pest Control.
    No. 60348.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Orkin Exterminating Co., Inc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vermilion. 346 So.2d 1274.

Writ denied. No error of law.


text:
    STATE of Louisiana ex rel. David WATERS v. Henry MATTHEW, Clerk of Court, Parish of Webster.
    No. 60366.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: David Waters applying for writ of habeas corpus.

Application denied. Applicants’ conviction was affirmed on appeal under the style State v. Jenkins et al., La., 340 So.2d 157, in 1976, and his transcript can be of no further help on appeal.


text:
    In re PARISH OF JEFFERSON v. Hugh B. EXNICIOS.
    No. 60763.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Hugh B. Exnicios applying for remedial writs of certiorari.

Writ denied. Ruling of trial judge is correct. No valid ground for recusal has been alleged. La.Code Civ.P. Art. 154.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 60756.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Larry Joe Phillips, applying for remedial writs.

Writ denied. Relator’s application for writs under Nos. 60,190 and 60,305 were previously denied. An application for rehearing will not be considered from a denial of application for a writ. Rule 9, Sec. 6, Louisiana Supreme Court Rules. Moreover, writ of habeas corpus will not be granted pending an appeal. La.Code Crim. Procedure, Art. 363.


text:
    Willie S. COOLEY v. LIBERTY MUTUAL INSURANCE CO et al.
    No. 60344.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Willie S. Cooley applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 346 So.2d 1352.

Writ denied.


text:
    Jeffrey Allen ALCORN v. STATE of Louisiana, Through STATE PARKS AND RECREATION COMMISSION.
    No. 60830.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Jeffrey Allen Alcorn applying for supervisory writs.

Not considered. Application not timely filed in the court. Rule 10, Section 5, Louisiana Supreme Court Rules.

TATE, J.,

concurs. Applicant did not file here within 10 days of the court of appeal denial. The applicant may, however, renew his application by securing a time delay from the district court within which to apply to this court.


text:
    Sweeney BENOIT, as Personal Representative of William Benoit, Jr. v. FIREMAN’S FUND INS. CO., Standby Crews, Inc., and Deepwater Boats, Inc.
    No. 60336.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Sweeney Benoit, as personal representative of Wm. Benoit, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Cameron. 347 So.2d 269.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


author: SANDERS, C. J., and MARCUS, J. SUMMERS, J.,

text:
    Chester C. BAUDOIN, Sheriff, St. Mary Parish v. Michael FONSECA.
    No. 60412.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Michael Fonseca applying for Cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Mary. 347 So.2d 1246.

Granted, and remanded to the district court to reconsider its forfeiture judgment in the light of State v. 1971 Green GMC Van and State v. One 1973 Grand Prix Pontiac, docket No. 59,635, decided September 19, 1977.

SANDERS, C. J., and MARCUS, J.

having dissented in the cited cases concur in the granting of writ.

SUMMERS, J.,

dissents. Because I do not agree with the decisions of this Court referred to in the reasons assigned by the majority, and in my view the decision of the trial and appellate courts was correct, I would deny this writ.


text:
    Rex NELSON v. John D. NEWMAN, Jr.
    No. 60338.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Rex Nelson applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Washington. 347 So.2d 1212.

Writ denied. No error of law.

TATE, J.,

while the dismissal of the appeal may be correct insofar as the jurisprudence holds that timely filing of the appeal bond is jurisdictional, this jurisprudence should be re-evaluated in the light of its present statutory context. By this, all costs (which alone are secured by the devolutive appeal bond) were required by law to be paid in advance of the date on which the appeal (supposedly securing such costs) was to be filed. See also Messina v. Koch Industries, 273 So.2d 275 (La.1973).


author: SANDERS, C. J., and MARCUS, J., SUMMERS, J.,

text:
    STATE of Louisiana v. Frank H. BORNE.
    No. 60372.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: State of Louisiana through the District Attorney, Harry Connick, applying for writs of certiorari, mandamus and prohibition.

Writ denied. See State v. 1971 Green GMC Van, No. 59,461; State v. 1973 Pontiac Grand Prix, 59,635.

SANDERS, C. J., and MARCUS, J.,

having dissented un the cited cases, concur in the denial.

SUMMERS, J.,

dissents, on the basis of the dissent in the cases holding the Act unconstitutional.


text:
    STATE of Louisiana v. James N. GRAVOIS.
    No. 60119.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: State of Louisiana applying for writ of certiorari.

Writ denied. See State v. 1971 Green GMC Van, No. 59,461; State v. 1973 Pontiac Grand Prix, 59,635.

SANDERS, C. J., and MARCUS, J.,

having dissented in the cited cases, concur in denial.

SUMMERS, J.,

dissents. I do not agree with the decision in State v. 1971 Green GMC Van, No. 59,461, or No. 59,635 holding the Act involved here unconstitutional.


author: DENNIS, J.,

text:
    STATE of Louisiana v. Edeard BERRY, Ernest Boudray, Ray A. Harrison, Robert A. Champagne, John Edward, Simon P. Elliser and Pamela P. Sarvis.
    No. 60461.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: State of Louisiana, applying for writs of review, certiorari, mandamus and prohibition and supervisory writs.

Granted. The case is remanded for the correction of the sentence in accordance with our decision in State v. Rugon, No. 60,001.

DENNIS, J.,

dissents for the reasons assigned in State v. Rugon.


text:
    STATE of Louisiana v. Curtis THORNTON and Kevin Thornton, et al.
    No. 60373.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: State of Louisiana through the District Attorney, Harry Connick applying for writs of review, certiorari, mandamus and prohibition.

Granted. The case is remanded for the correction of the sentence in accordance with our decision in State v. Rugon, No. 60,001.

DENNIS, J.,

dissents for the reasons assigned in State v. Rugon, No. 60,001.


author: EDWARDS, Judge.

text:
    U.S. OIL OF LOUISIANA, LTD., et al. v. LOUISIANA POWER & LIGHT CO.
    No. 10937.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1977.
    Rehearing Denied Aug. 24, 1977.

      Claude D. Vasser, John V. Baus and Herbert W. Cristenberry, Jr., New Orleans, for plaintiffs and appellees.
    Donald L. Peltier, Peltier & Peltier, Thi-bodaux, Eugene G. Taggert, Monroe & Lemann, New Orleans, for defendant and appellant.
    Edward J. Rice, Jr., Adams & Reese, New Orleans, for third-party defendant and ap-pellee Ward Transformer Co.
    Charles J. LeBlanc, Thibodaux, for third-party defendants, Clyde J. Naquin and Leon J. Naquin and Sons, Inc.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

U.S. Oil of Louisiana, Ltd., John W. Me-com, Sr., Mary Elizabeth Mecom and U.S. Oil of Louisiana, Inc., together with their partial subrogees, The Travelers Indemnity Company and Aetna Casualty and Surety Company, and other parties by later amendment, filed suit for damages to U.S. Oil of Louisiana, Ltd.’s sulfur plant mining facilities located at Chacahoula, Louisiana. The damages resulted from a power outage at the plant on February 5, 1968, a power outage and fire at the plant on August 25, 1968, and a power outage and fire at the plant on October 2, 1968. The defendant, Louisiana Power & Light Company, brought third party actions for indemnification and/or contribution against Ward Transformer Company, Inc., and Wayne Johnson d/b/a Continental Transformer Company for any damages for which it might be liable as a result of the February and August incidents, and against Clyde Naquin and Sons, Inc., for any damages for which it might be liable as a result of the August incident. Ward Transformer Company, Inc., brought a third party action against Clyde Naquin and Leon Naquin and Sons, Inc., for indemnity and/or contribution for any damages for which it might be liable as a result of the August outage and fire.

The trial court rendered judgment in favor of the plaintiffs in the amount of $111,-770.81 plus interest, and in favor of Aetna Casualty and Surety Company, the plaintiffs’ subrogee (for the October 2 incident), in the amount of $5,112.60 plus interest. The total award mentioned above represented damages resulting from incidents of February 5, 1968 and October 2, 1968. The trial court held that Louisiana Power & Light Company was liable for the outage of February 5, 1968, resulting in an award of damages totaling $21,170.03. Louisiana Power & Light Company admitted liability for the October 2, 1968, outage and fire. For the October 2, 1968, incident, the court awarded total damages of $95,713.38, which represented $41,350.79 as the stipulated damages to the plant; $1,792.59 as the cost of employee overtime; and $52,570.00 as the value of lost production. The third party demands were dismissed.

The fee of the court-appointed expert, Dr. Charles Monier, was fixed at $2,784.00 and taxed as costs. Costs were ordered equally divided between plaintiffs and defendant.

Defendant now appeals, contending that the trial court erred in holding it liable for the February 5, 1968 electrical outage and further erred in awarding damages to plaintiff for loss of production. Plaintiff appeals also, and argues that the Court’s award of damages was inadequate, that the Court erred in failing to hold defendant liable for the August 25, 1968 outage, that the Court erred in considering the report of its expert, Dr. Monier, and that all costs should have been borne by defendant.

For purposes of our review of this involved dispute, we will treat the various issues as follows: (1) the report of the court-appointed expert, (2) liability for the two outages, (3) the award of damages, and (4) the levy of costs.

REPORT OF COURT-APPOINTED EXPERT

The trial of this matter terminated on May 10, 1973. Subsequently, on February 8, 1974, the trial court, on its own motion pursuant to LSA-C.C.P. art. 192, appointed Dr. Charles Monier, electrical engineer, as its expert to consult with, advise and assist the court in the adjudication of the case.

Dr. Monier, after review of the transcript, exhibits, and briefs of counsel, rendered a written report to the court on July 31, 1975, and a supplemental report on August 21, 1975 which reports were filed in the record of this case on February 23,1976. The trial court rendered judgment on March 30, 1976.

At issue is the propriety of this procedure.

In his report, Dr. Monier evaluated the various opinions propounded by the experts who testified at trial. He weighed the evidence, noted corroboration and contradiction therein, and reached conclusions as to the probable causes of the outages.

We hold that the trial court erred in considering Dr. Monier’s report in reaching a decision in this case.

The proper role of the court-appointed expert under LSA-C.C.P. art. 192 is to provide the judge with facts and information necessary for a complete and just determination of the issues. It is not the function of that expert to decide or to judge the case, or to engage in any of the corollary functions thereof. Moreover, that expert, as any other expert, clearly should be subject to cross examination by the parties. Otherwise, and as here, the report is objectionable and inadmissable as hearsay. The authority of the trial court pursuant to Article 192, however broad, does not include the right ex parte to consider evidence obtained without affording the parties the opportunity of cross examination. Our review, therefore, will exclude the report of Dr. Monier.

OUTAGE OF FEBRUARY 5, 1968

The cause of this outage was the failure of one of the three transformers in the Louisiana Power & Light Company substation adjacent to the U.S. Oil of Louisiana, Ltd., plant. On February 5,1968, prior to the transformer failure, a 100 amp fuse on the 13 kv lateral line serving the sub-station blew. The trial court held that the failure of this fuse was notice to L.P. & L. that a defect may have existed in its equipment and that replacement of the fuse with a solid blade switch, without an investigation as to possible dangerous conditions, was negligent conduct by L.P. & L. Therefore, the trial court held L.P. & L. liable for damages sustained due to the February 5, 1968 outage.

In Olivedell Planting Co., Inc. v. Town of Lake Providence, 217 La. 621, 47 So.2d 23, 29 (1950), the Court stated that:

“An electric company is under a duty to make reasonable and prompt inspection of its wires and appliances; and, where the defect does not arise from an electric company’s negligence, its liability turns on whether it knew, either actually or constructively, of the dangerous condition in time, by the exercise of reasonable care, to have avoided the injury.”

The evidence adduced at trial shows that the cause of the transformer failure on February 5, 1968 was unknown. Thus the defect did not arise from L.P. & L.’s negligence. Liability, therefore, must turn on whether the failure of the fuse was notice to L.P. & L. of a dangerous condition. Plaintiffs argue that the transformer was damaged by lightning when the fuse blew, and that, had L.P. & L. investigated this dangerous condition (a transformer damaged by lightning) they would have learned of the damage and possibly forestalled the outage.

L.P. & L., on the other hand, contends that the fuse blew because of gradually increasing load on the customer side, a normal occurrence. Mr. Joseph Pardue, expert witness for L.P. & L. testified that, in such a situation, it was standard practice to install a switch which simply assimilates the lateral into the main distribution circuit.

To support their allegation, plaintiffs rely on the letter of November 11, 1968 from Mr. R. E. Ward, President of Ward Transformer to Louisiana Power & Light. In that letter Ward stated that lightning had damaged the transformer. However, Ward later testified at trial and repudiated the letter, admitting that he had written the letter simply to tell L.P. & L. anything just to get by. He never examined the transformer. In fact, there is no credible evidence whatsoever that lightning damaged the transformer, but only speculation on the plaintiffs’ part. Moreover, L.P. & L’s explanation for replacing the fuse with a switch is reasonable and unrebutted. There is no evidence in the record connecting the transformer failure with the earlier blown fuse. Therefore, it was error for the trial judge to have concluded that the blown fuse was notice to L.P. & L. of a defect in their equipment. Absent such notice, no duty was breached by L.P. & L. in failing to investigate further.

Plaintiffs cite the case of Hughes v. Louisiana Power & Light Company, 94 So.2d 532 (La.App.1st Cir. 1957) as supporting their position. The difference in that case and the instant one is that in the former it was clearly established that lightning caused the fuse to blow. The Court stated therein that:

“Had the replaced fuse been simply burned out, such as might have been compatible with a normal cause such as an overload on the line, then we do not think that the electric company’s employees were under any duty to anticipate equipment or wiring so defective, that their resumption of electrical service by replacing the fuse might cause damage to plaintiff’s property. But under all the circumstances of this case, the fuse replaced by defendant’s employees was burned and charred to such an extent that defendant’s employees (with their specialized knowledge) were put on notice of the good probability that the wiring had been damaged beyond the fuse by a surge of lightning, and that because of this it was dangerous to resume electrical service; and therefore, as a consequence of this presumed knowledge, the replacing of the fuse permitting the resumption of electrical service to plaintiff’s milking machine circuit without taking some safeguarding precaution or warning plaintiff so as to enable him to take same, constituted actionable negligence imputed to their employer, the defendant herein; as a result of which the District Court properly cast defendant for damages sustained through these negligent acts¡ and omissions.” (Emphasis added).

It is clear from the record that there was no lightning damage to the transformer that failed on February 5, 1968. The overload was a reasonable and likely cause of the fuse blowing. Since this is no indication of a dangerous condition, the replacement of the blown fuse with a switch by L.P. & L. without investigation constituted no breach of duty on its part.

OUTAGE AND FIRE OF AUGUST 25, 1968

The cause of this outage and resultant damage is the primary issue. If, as defendant contends, the cause was equipment improperly designed and installed by plaintiffs on Mecom’s side of the point of delivery, then it is not liable. On the other hand, if the cause of the outage was transformer failure due to defendant’s negligence, then it is liable.

The trial court found as a fact that the most probable cause of the outage and fire was the improper design of the raceway through which the wires entered plaintiffs’ plant and for which plaintiff was responsible.

We affirm this factual finding. There was produced, by both parties, much expert testimony bearing on this salient issue. Without reviewing in detail the conclusions of each expert, we will note that they were conflicting and fairly evenly divided. We are most impressed by the testimony of Leroy Naquin, a former employee of Leon Naquin and Son, the electrical contractor that installed the raceway. He testified that he worked on the plate used in the raceway and that it was a steel plate. He further testified that 750 circular mil wires were used in the raceway. According to the standards set forth in the National Electric Code, aluminum, rather than steel, should have been used for the plate; and 500 circular mil, rather than 750, was the proper size. Although Leon Naquin said that he used aluminum and 500 circular mil wire, his invoices therefore were not corroborative. In such a factual determination, the trial court is better able to evaluate live witnesses than we through a cold (and 4,700 page-long) record.

The findings of the trial court are thus entitled to great weight and should not be disturbed where there is, as here, a reasonable basis for its findings, Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Dr. Robert Drake testified that the combination of the 750 circular mil wire and the steel plate used in the raceway resulted in the three phase short circuit, which was external to the transformer and prior to its failure.

Since his opinion was based on facts established in the record, we find no error in the trial court’s accepting that conclusion.

DAMAGES

Since L.P. & L. stipulated its liability for the October 2, 1968 outage, as well as physical damage to the plant in the amount of $41,350.79, the issues presented are the amount, if any, of loss of production and of extra expense in restoring the plant to operation.

The trial court determined the expense of restoring the plant to normal operation by finding the amount of pay due each employee for extra time worked beyond normal hours (which extra time was attributable to restoration of normal operations), and adding these amounts together. We find no error in this procedure, and affirm the award in the amount of $1,792.59.

The trial court found the value of production lost to be $52,570.00. In arriving at this figure, the Court considered the following:

“Production from October 2 through October 10 was 261 tons. Based on a normal production per day of 195.9 tons this was a loss of 1,502 tons. Average daily production is based on the Area B production from November 1, through November 30, 1968. Except for the outage this production level would have been reached nine days sooner.
The value of the sulfur to the plaintiff ($35.00 per ton) is the difference between the selling price at that time ($43.91 per ton) and the additional cost of production ($8.91 per ton).”

However, based on the trial court’s finding that normal production was 195.9 tons per day, this production was not reached until October 31, 1968. Prior to that, the highest per day figure following the outage was 148 tons. Therefore the outage affected production for 29 days, during which time only 2,197 tons were produced, compared with a normal production total for the same period of time of 5,681.1 tons. The difference is the loss of production, 3,484.1 tons. At $35.00 per ton net profit, plaintiffs’ loss is $121,943.50.

Defendants contend that plaintiffs suffered no loss of income for the sulfur not mined during the period between the outage and restoration of normal production because the sulfur was not lost but its production merely delayed. A similar contention was rejected in Continental Oil Company v. S.S. Electra, 431 F.2d 391 (5th Cir. 1970). The court therein noted that the plaintiff oil company suffered loss of production equal to net profit for oil the recovery of which was delayed while production equipment was repaired. That reasoning is applicable herein. Stated simply, production for that period of time was forever lost.

ASSESSMENT OF COSTS

LSA-C.C.P. art. 1920 gives the trial court discretion to divide costs as it considers equitable. Also, LSA-C.C.P. art. 192 clearly recognizes the authority of the trial court to appoint its own expert. That article further provides that the reasonable fees and expenses of the expert shall be taxed as costs. Therefore, the trial court was within its discretion in dividing equally the costs, including the fees of its expert, between the plaintiffs and defendant herein.

DECREE

For the reasons assigned, the judgment of the trial court is:

Reversed, as to its finding defendant liable for the February 5, 1968 outage and damages therefor;

Amended, to reflect a loss of production in the amount of $121,943.50 attributable to the October 2, 1968 outage; and

Affirmed in all other respects. All costs are to be paid one-half by the plaintiffs, and one-half by the defendant.

REVERSED IN PART, AMENDED IN PART, AND AS AMENDED, AFFIRMED.