text:
    Beulah UPCHURCH, Plaintiff-Appellant, v. BITUMINOUS INSURANCE COMPANY, Defendant-Appellant.
    No. 13057.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied Jan. 10,1977.
    Writ Refused March 11,1977.

      Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for Bituminous Ins. Co.
    Eugene J. Coen, Shreveport, for Beulah Upchurch.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

This is a suit by the plaintiff, age 16 at the time of injury, for total and permanent disability benefits under the Louisiana Workmen’s Compensation Law, and for penalties and attorneys’ fees based upon arbitrary and capricious termination of benefits.

Plaintiff had been working in his employer’s machine shop for a period of five weeks when he sustained an injury to his left hand (his dominant hand) while operating a band saw. Plaintiff was holding a pipe in his left hand in the process of cutting the pipe with the saw when his hand was wedged against a bar, severely injuring the palm of the hand and cutting tendons and nerves leading to the fourth and fifth fingers. Although five separate surgical operations were performed on his hand, plaintiff cannot move his little finger which remains fixed in the form of a hook. He cannot moved the first joint of the fourth finger. There is loss of sensation in both fingers. The deep and severe cutting of the palm and nerves and formation of scar tissue at the site of these injuries causes plaintiff’s hand to be sore. The hand is particularly painful when plaintiff attempts to firmly grip any object.

The defendant paid $65 weekly compensation benefits from December 28, 1974 (date of injury) until October 24, 1975 and paid all medical expenses with the exception of $25 which it admitted owing. When defendant terminated compensation benefits counsel was employed on behalf of plaintiff and suit instituted December 15, 1975.

The trial court found plaintiff’s disability prevents him from obtaining and keeping a job. Although the trial judge recognized plaintiff’s palm injuries and impairment of the fourth finger, he felt the crooked little finger was the primary condition that created plaintiff’s total and permanent disability. The trial court held if plaintiff’s crooked little finger was amputated he could return to work and compete in the labor market. It considered the amputation of the finger minor surgery and ordered payment of benefits, conditioning the continuation of these payments upon plaintiff obtaining the amputation of the finger within a period of 30 days, with benefits to continue until he recovered from this surgery. The trial court made no award for attorneys’ fees or penalties.

On appeal plaintiff assigns as error the trial court’s conditioning the receipt of compensation benefits upon his having his finger amputated and further urged that the trial court erred in failing to award him penalties and attorneys’ fees. The defendant suspensively appealed, urging the trial court’s finding that plaintiff is totally and permanently disabled is in error for the reason plaintiff only had an 18% residual disability to his hand and was able to do the same or similar work he was doing at the time of his injury. It claims plaintiff was entitled only to benefits based upon the permanent partial disability of the hand which, when computed, reflects plaintiff has received $170 more than due. Defendant alternatively argues the trial court’s decision should be affirmed.

We affirm the trial court’s finding of disability but reverse its finding that plaintiff is required to have his finger amputated or forfeit his right to compensation. We further find defendant was arbitrary and capricious in terminating plaintiff’s compensation benefits, and is therefore liable for penalties and attorneys’ fees.

The issues presented are (1) is plaintiff totally and permanently disabled within contemplation of the Louisiana Workmen’s Compensation Law? (2) did the trial court err in requiring Jerry Wayne Upchurch to submit to surgery or forfeit his rights to workmen’s compensation benefits? (3) was defendant arbitrary and capricious in terminating compensation benefits and therefore liable for attorneys’ fees and penalties?

DISABILITY

Plaintiff is required to lift and grip the materials he works with and has pain and discomfort in his hand when he uses it in this fashion. The pain is due to the scar tissue located deep in the palm of his hand. Plaintiff also finds that he is incapable of moving his hand quickly and his crooked little finger creates a substantial handicap to him. The total loss of use in the little finger and the limitation of use of the fourth finger creates a considerable diminution in his grip as these two fingers are unable to assist his three good fingers in the gripping operation. The loss of sensation in the injured fingers also contributes to his disability.

Dr. John P. Valiulis, plaintiff’s treating physician, stated the coring out of Jerry’s palm severed the flexor tendons of the fourth and fifth fingers in two places, and even after extensive unsuccessful corrective operations there is no motion in the little finger, not even at the knuckle joint. The injury cut the nerves leading to the injured finger resulting in the little finger and top joint of the fourth finger having no feeling. The nerve endings are now located in scar tissue in the palm of the hand. The doctor stated plaintiff would have residual pain in the palm of his hand when gripping articles or objects due to these severed nerves.

When questioned about Jerry’s ability to return to work, the doctor stated that “he would have a very, very difficult time,” giving these reasons: he has no flexion in the fourth and fifth fingers, and therefore these fingers give no help in grasping or lifting; he cannot moved his hand as quickly — “Now he has an unagile hand”, which might make the hand prone to further injury; his hooked little finger is likely to catch on things, and otherwise get in the way; the loss of feeling in the ends of the injured fingers could cause him to burn or otherwise injure himself without realizing the danger. He also testified that pulling or pushing on the hooked little finger could cause considerable pain. The doctor said Jerry’s injury was a permanent condition and, in his opinion, would keep him from being able to competitively engage in manual labor. He would not recommend Jerry’s return to his old job, and thinks Jerry would have trouble obtaining employment because of most employers’ reluctance to assume the risk of further injury.

When examined about an earlier report on which he gave Jerry an 18% permanent partial disability of the hand, the doctor explained that rating as “purely based on the number of the. contracture and motion of the fourth and fifth fingers, and that is based on a form we get from compensation. We just go by that form strictly. It has got [sic] no consideration of anything but purely function, motion of the fingers.” When asked about the relation of this rating and Jerry’s ability to work, the doctor replied, “ * * * We are not talking about any relation to his job or anything like that. We don’t even think about that. Just looking at the numbers and plugging in the formula.” Dr. Valiulis is a plastic surgeon, trained in cosmetic hand surgery and general plastic surgery, and Board certified by the American Board of Plastic Reconstructive Surgery.

The only other witnesses who expressed opinions with regard to plaintiff’s disability were employees of the machine shop. One co-worker expressed the belief plaintiff could return to work. However, he admitted a person with two hands could function much better in a machine shop than a person with use of only one hand, and further acknowledged that he was incapable of making any statement with regard to whether or not plaintiff would endure any pain in the performance of his job. One of plaintiff’s supervisors testified he believed plaintiff could return to his job. He based his evaluation upon having observed plaintiff’s hand as plaintiff occasionally walked through the machine shop following his injury. He likewise acknowledged he could make no evaluation concerning the pain plaintiff might endure attempting to perform his work.

A secretary for defendant testified she had seen Jerry working on a car, a motorcycle and handling Rung Fu sticks as she passed the neighborhood where Jerry lived. Jerry denied actually working on his car and motorcycle; however he admitted handing tools to a friend who worked on these vehicles. Jerry acknowledges taking Rung Fu lessons. Defendant urges that this activity indicates an absence of disability on the part of plaintiff. Jerry testified he wears a padded glove on his left hand and never strikes anyone with it. He states these training activities 0are conducted between the parties without actual delivery of blows.

We find the testimony of plaintiff’s coworkers unimpressive when compared with the positive testimony of plaintiff’s treating physician, a well qualified plastic surgeon who actively examined and treated plaintiff for approximately one year following his injury and who has performed five separate surgical procedures upon plaintiff’s hand.

An employee is considered totally and permanently disabled if the evidence establishes that he will incur substantial pain in the performance of his employment. He is also totally and permanently disabled if the injury has substantially decreased his ability to compete with able-bodied workers in the general labor market. James v. Jake Tusa’s Restaurant and Bar, 332 So.2d 548 (La.App., 4th Cir. 1976); Ball v. American Marine Corporation, 245 La. 515, 159 So.2d 138 (1963); Washington v. Independent Ice and Cold Storage Company, 211 La. 690, 30 So.2d 758 (1947).

The trial judge’s finding that Jerry is unable to obtain or keep a job competitively in the manual labor market is a holding that Jerry’s disability renders him totally and permanently disabled. The evidence clearly supports this finding.

SURGERY

Bituminous urges if Jerry’s injury is held to constitute total and permanent disability then the evidence establishes the amputation of Jerry’s hooked little finger will relieve his disability and enable him to return to work.

The jurisprudence has established the equitable doctrine that, while an employee cannot be forced to submit to surgery, his compensation benefits may be withheld or suspended when he unreasonably refuses to submit to simple surgery which will remove his disability. Bass v. Service Pipe Trucking Company, Inc., 289 So.2d 78 (La.1974). The criteria used in rendering such an order are stated in Bass as follows:

“1. Can it be reasonably assumed that the operation will relieve the situation and permit the claimant to resume the type of work he was performing at the time of the accident?
“2. Will the operation submit the claimant to a minimum of danger and be in no sense dangerous to his life or be attended by no unusual risks and is it attended with but slight pain?
“3. Is there no serious disagreement among the surgeons as to the necessity for the operation or the type of operation to be performed, and the probability that the disability will be cured without recurrence?” Id. pages 80, 81.

The corrective surgery sometimes required by the jurisprudence as a condition of continuing to receive compensation has included the amputation of a portion of a finger. In Hamilton v. New Amsterdam Casualty Company, 208 So.2d 158 (La.App., 4th Cir. 1968), the court ordered the claimant to submit to an amputation of the tip of his index finger or forfeit his benefits. There the court pointed out:

“ * * * In the instant case there is no disagreement among physicians as to the necessity of the operation as only Dr. Aecardo testified concerning it, thus fulfilling the third test.” Id. p. 162.

In LeDay v. Lake Charles Pipe and Supply Company, 185 So. 655 (La.App., 1st Cir. 1939), the court in evaluating medical evidence and ordering a second amputation between the first and third joints of plaintiff’s index finger, stated as follows:

“ * * * [T]he medical testimony is almost unanimously to the effect that disability would be entirely relieved by the operation.” Id. page 657.

The only doctor who testified in these proceedings is plaintiff’s treating physician. He did not recommend the amputation of plaintiff’s finger, and further testified he could not state that removal would eliminate plaintiff’s disability. He stated he would not amputate at this time because of Jerry’s age, social and psychological ramifications, and because “. . . he (the doctor) didn’t know what the future would hold.” He stated that amputation would not “better” Jerry’s condition and is not a “cure” but would merely remove the problem of the finger being in the way. When asked if amputation would improve Jerry’s ability to do tasks, Dr. Valiulis replied, “It might. I don’t know. I really don’t know.”

The only other medical evidence in the record is a short letter written by Dr. Sim-eon P. Wall, Dr. Valiulis’ partner, who only examined Jerry one time for the purpose of evaluating him. The evidence reflects he had seen plaintiff several times while making hospital rounds as a courtesy to plaintiff’s treating physician, but that on these occasions his principal function was to be certain Jerry was comfortable and to check his chart. Dr. Wall’s letter stated:

“My recommendations are that the patient either undergo a fusion of the left little finger in a more anatomical position or to undergo an amputation of the left little finger. His permanent disability closely approximates 15% to 20% of total hand disability.”

This letter made no comment on the ability of plaintiff to return to his former employment following this surgery.

The record in this case is barren of an opinion by a physician to the effect that removal of plaintiff’s little finger would eliminate disability. The only physician who testified did not recommend surgery. An amputation of plaintiff’s little finger is not justified under the criteria as expressed in Bass, supra, and thus the trial court erred in requiring Jerry Upchurch to undergo amputation as a condition to receiving further compensation payments.

PENALTIES AND ATTORNEYS’ FEES

A workmen’s compensation carrier’s ex parte termination of benefits without a showing of probable cause for such termination is considered arbitrary and capricious. Bituminous has not introduced any medical reports or other evidence which would have lead it to believe that plaintiff’s disability terminated on October 24, 1975 nor has it otherwise shown good cause to justify its termination of plaintiff’s benefits on that date. See Morgan v. Lumbermen’s Mutual Casualty Company, 317 So.2d 7 (La. App., 1st Cir. 1975).

The employer’s secretary testified plaintiff called her on Friday, October 24, 1975 and advised her the doctor had dismissed him and he would return to work Monday. He did not return to work Monday, October 27 and instead his attorney called inquiring the name of the employer’s workmen’s compensation insurer. There was testimony by a co-worker and supervisor that they believed Jerry could resume his work at Machine Products.

Neither plaintiff’s telephone call to the secretary, immediately negated by his attorney, nor the testimony of plaintiff’s co-worker and supervisor would have been sufficient evidence to constitute a justifiable termination of benefits. The only other evidence in the record was an indication that the insurer may have had a report from plaintiff’s doctor reflecting 18% disability to his hand. The reference to this report does not show that plaintiff’s disability had terminated on October 24, 1975. There is no indication in the record that defendant had available to it the opinion of plaintiff’s co-worker, his supervisor, or the medical report as of the date it terminated plaintiff’s benefits. It is incumbent upon the insurer to make a reasonable effort to ascertain plaintiff’s exact condition at the time compensation benefits are terminated. Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App., 3d Cir. 1976).

Defendant was arbitrary and capricious in terminating plaintiff’s compensation benefits and therefore is liable for penalties and attorneys’ fees. An examination of the record shows a reasonable attorney fee is $1500.

The expert witness fee of plaintiff’s doctor who gave his deposition is assessed as court costs. Since the lower court did not set the expert witness fee, we set it at $150, taking into account the comprehensive nature of the deposition, and that deponent is a highly qualified specialist.

For the foregoing reasons, we modify the judgment of the trial court and find plaintiff totally and permanently disabled and order defendant, Bituminous Casualty Corporation (erroneously referred to in plaintiff’s petition as Bituminous Insurance Company) to pay Jerry Wayne Upchurch Workmen’s Compensation benefits of $65 per week from December 27, 1974, and to continue for a period not to exceed 500 weeks, less payments already made, along with legal interest and 12% penalties on any payment overdue, together with $1500 attorneys’ fees and the unpaid medical bill in the amount of $25. Bituminous Casualty Corporation is to pay all costs of these proceedings, including this appeal.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    The TOWN OF RICHWOOD, Plaintiff-Appellee, v. John GOSTON and Verdiacee W. Hampton Goston, Befendants-Appellants.
    No. 13059.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied Jan. 10, 1977.
    Writ Refused March 11, 1977.

      Kidd, Katz & Strickler by Paul H. Kidd, Monroe, for defendants-appellants.
    Shotwell, Brown & Sperry by L. Michael Ashbrook, Monroe, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

After a hearing, the district court rendered judgment ordering the issuance of a writ of mandamus commanding defendants, the former Mayor and Chief of Police, to deliver to the elected Mayor of the town of Richwood, all books, records, papers, books of account, funds, and other effects of the town of Richwood in defendants’ possession.

Defendants appealed, specifying as error (1) the overruling by the trial court of defendants’ “exception of jurisdiction” based on failure of plaintiff’s petition to allege the domicile of defendants as required by LSA-C.C.P. Art. 891; and (2) the trial court’s denial of defendants’ motion for a continuance based on their regular attorney being out of town on vacation. No specification of error is directed at the merits of the issuance of the writ of mandamus. We affirm the judgment of the district court.

The town of Richwood filed the mandamus action against the former Mayor and Chief of Police on July 15,1976. A hearing on the rule to show cause was set for July 21. On July 16, defendants filed a lengthy answer in proper person responding to the allegations of plaintiff’s petition.

On the day set for the hearing defendants were not present in court nor were they represented by counsel. Paul Kidd of the law firm of Kidd, Katz & Strickler, as a “friend of the court”, filed an “exception of jurisdiction” and a motion for continuance, both signed by defendants in proper person, which the law firm had assisted in preparing. The law firm, which represents defendants on this appeal, declined to enroll as counsel at the hearing or to argue the motion and exception on defendants’ behalf. The trial judge denied the motion for continuance, overruled the exception, and after the hearing on the merits at which evidence was taken, issued the writ of mandamus.

LSA-C.C.P. Art. 891 provides that a petition should set forth the domicile of the parties. Plaintiff’s petition did not comply with this provision. However, an objection based on failure of a petition to comply with Article 891 is a dilatory exception. LSA-C.C.P. Art. 926(4). If a dilatory exception is not pleaded prior to answer, it is waived. LSA-C.C.P. Art. 928. Nicosia v. Guillory, 322 So.2d 129 (La.1975). Defendants waived the objection when they filed their answer and the trial judge correctly overruled the “exception of jurisdiction.” Defendants do not argue that they are not, in fact, domiciled in Ouachita Parish, or that the court lacked proper venue. An objection of improper venue is a declina-tory exception which also must be pleaded prior to appearance or answer or is waived. LSA-C.C.P. Arts. 925 and 928.

The defendants’ motion for a continuance grounded on their attorney’s absence on vacation was not based on one of the peremptory grounds provided in LSA-C.C.P. Art. 1602. The granting of the continuance was, therefore, within the discretion of the trial court. The trial court’s ruling will not be disturbed in the absence of a clear showing of abuse of that discretion. The Supreme Court has stated that “appellate courts only interfere in such matters with reluctance and in what are considered extreme cases.” Sauce v. Bussell, 298 So.2d 832 (La.1974).

There was no abuse of discretion in this case. Defendants did not appear to argue or offer evidence in support of the motion for continuance. See LSA-C.C.P. Art. 1605. It was not established that defendants could not have secured adequate representation or that they were prejudiced by the matter being heard on the scheduled date.

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

Affirmed.


author: BOLIN, Judge.

text:
    Joyce Bennett EVANS, Individually and as the natural tutrix of the minor child, Kevin Kent Weant, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, and the Unopened Succession of James McBroom, et al., Defendants-Appellees.
    No. 13060.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied Jan. 10, 1977.

      Kidd, Katz & Strickler by George M. Strickler, Jr., Monroe, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by Charles H. Heck, Monroe, for defendants-appellees.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

A nine-year-old boy was injured when he rode his bicycle into a street intersection and was struck by an automobile entering the intersection from the boy’s left. His mother sues, among others, the City of Bas-trop’s insurer, alleging the city was negligent in failing to keep its right of way and an adjoining property owner’s corner lot free of vegetation which obstructed the boy’s view and caused the accident. The city filed a motion for summary judgment, alleging the city had no authority or duty to have the high grass and bushes cut; alternatively, that even if the city had this duty the minor was contributorily negligent as a matter of law.

The lower court denied the motion on the first ground but granted the summary judgment upon a finding that the boy was contributorily negligent as a matter of law. Plaintiff appeals and we reverse and remand.

Under Louisiana Code of Civil Procedure Article 966 a summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to a material fact "and that mover is entitled to judgment as a matter of law.

We consider first the question of whether or not the city can be liable for allowing weeds, bushes and other vegetation to grow in the right of way and on a corner lot abutting the street if the height and denseness of the vegetation obstructs the view of persons using the streets at intersections.

The general rule is that a governmental body, having the duty to maintain or repair its streets, will be liable for injuries caused by a condition of which the city has actual or constructive knowledge and which creates an unreasonable danger for persons using those streets in a reasonable manner. This is particularly so if the danger is of a trap-like nature or is unusually hazardous to those using the streets. Arnold v. City-Parish Government, 290 So.2d 763 (La.App. 1st Cir., 1974); Stewart v. Lewis, 292 So.2d 303 (La.App. 1st Cir., 1974); Dupre v. Evangeline Parish Police Jury, 315 So.2d 148 (La.App. 3rd Cir., 1975).

We find the city owed a duty to keep the streets and adjoining shoulders free from high grass and weeds which would obstruct the 9-year-old cyclist’s view.

There were in effect two city ordinances relating to noxious weeds and vegetation growing on private property. One ordinance provides that the city shall, after due notice, fine owners of corner lots who allow to remain on their property fences, bushes or other plants in excess of a specified height and within a prohibited distance of the street. The second ordinance requires the property owner to cut and remove noxious and unhealthy weeds; if the owner fails to comply the city is empowered to remove the offending vegetation.

We conclude that the city, by its failure to enforce these ordinances, may have breached its general duty to maintain safe streets. Whether or not the city’s failure to take action under these ordinances constituted a breach of this duty can only be answered after a trial in which the factual issue of the existence of a hazardous condition, of which the city had actual or constructive knowledge, is resolved; and a determination of whether or not the hazardous condition caused the accident.

The lower court sustained the motion for summary judgment on the ground that the minor was guilty of contributory negligence. This conclusion was based on the depositions of the mother and son and on the affidavit of the police officer who investigated the accident.

The trial judge considered the boy’s age, mental and physical condition, experience in bicycle riding, and familiarity with traffic signals and concluded the boy was capable of contributory negligence. He found it undisputed that the boy looked both to the left and the right but did not see any approaching cars. The boy testified he could see down the street to his left but “not very far though”. From the same position in the street the investigating officer had stated there was a clear view of the street for 346 feet.

The lower court found the boy was negligent in failing to see what he should have seen and that he was contributorily negligent in entering the intersection in the path of the oncoming car; that the alleged obstruction caused by high weeds or bushes was not a cause-in-fact or substantial factor in bringing about the accident.

A determination of the issue of contributory negligence should only be made after a trial on the merits with an opportunity for the court to observe the demeanor of the child, his apparent intelligence, and whether he acted in gross disregard of his own safety in the face of known and understood danger to which he exposed himself. Freeman v. Wilcox, 303 So.2d 840 (La.App. 1st Cir., 1975); Kelly v. Messina, 318 So.2d 74 (La.App. 4th Cir., 1975); Danna v. London Guaranty & Accident Co., Ltd., 147 So.2d 739 (La.App. 2nd Cir., 1962).

In view of the factual dispute as to the distance which the child could see, and absent a showing that the child acted in reckless disregard for his own safety in the face of known danger, we conclude the trial court erred in holding the minor was con-tributorily negligent as a matter of law.

The summary judgment is reversed and the case is remanded for a trial on the merits. Appellee is cast with costs of this appeal.

HALL, J., concurs.


author: MARVIN, Judge.

text:
    AMERICAN BANK & TRUST COMPANY, Plaintiff-Appellee, v. TIL, d/b/a Spanish Villa Apartments of Monroe, et al., Defendants-Appellants.
    No. 13061.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied Jan. 10, 1977.
    Writ Refused March 11, 1977.
    Jerry A. Kirby, Monroe, for defendants-appellants.
    Dimos, Brown & Erskine by Donald R. Brown, Monroe, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Judgment below was in favor of plaintiff bank and against defendants-appellants in a suit on a promissory note. Defendants make no contention of error as to the merits of the case. Instead, defendants contend solely the lower court erred in denying their demands for jury trial. Appellee moves to dismiss the appeal on the grounds. that it is untimely as to this sole issue. We agree.

In Windham v. Security Ins. Co. of Hartford, 337 So.2d 577, 579 (La.App. 4th Cir. 1976), demand for jury trial was clearly tardy and was defective for other reasons. The trial court erroneously ordered a jury trial and declined to recall the order after a contradictory hearing. After the jury trial, on appeal from the judgment on the merits, the defendants-appellants attempted to raise the issue of the erroneous granting of jury trial. The court said:

“The contention comes too late. In the interest of judicial economy and fairness, we cannot allow the appellant to abide by the judgment dismissing the motion, try the case to the jury and then, after an adverse verdict and judgment, complain it should not have been tried to a jury. If the bank wished to complain about the ruling allowing jury trial, it should have done so prior to trial either by appeal or by an application for writs. Accordingly, we hold appellant has either acquiesced in that ruling or has effectively waived its right to so complain.” 337 So.2d 579. (footnote omitted).

The appeal in this case is from the judgment on the merits of March 31, 1976. Appeals are authorized from specified judgments and are not authorized from reasons assigned by a trial court for rendition of the judgment or for denying or granting a new trial. C.C.P. Arts. 2082, 2083. Cason v. Oglesby, 188 So.2d 718 (La.App. 2d Cir. 1966); Victory Oil Company, Inc. v. Perret, 151 So.2d 565 (La.App. 4th Cir. 1963). Any nonappealable interlocutory orders or judgments rendered during the course of the proceedings may be considered as an assignment of error on the appeal of the final judgment on their merits. C.C.P. 2083.

An interlocutory judgment which may cause irreparable injury is an appealable judgment. C.C.P. 2083. In Guidroz v. State Farm Fire & Casualty Co., 334 So.2d 535, 539 (La.App. 1st Cir. 1976), and in First National Bank of Commerce, New Orleans v. Miller, 328 So.2d 383, 384 (La.App. 4th Cir. 1976), the courts noted that being made to engage in an objectionable trial does not of itself constitute irreparable injury.

The basis for our reversing a lower court in any case is the finding of error (or an accumulation of errors) of such magnitude that the appellant’s rights were seriously prejudiced or substantially impaired. These phrases in a broad sense could be interchanged with the phrase, irreparably injured, but we do not assert this as the test for an appealable interlocutory judgment. Each determination of an appealable interlocutory judgment, of course, will have to depend on its own facts. See Comment (a), C.C.P. 2083. In instances where the trial court judgment is reversed on appeal on other grounds and a demand for jury trial has been erroneously granted or denied, certainly the appellate court is authorized to correct, as an interlocutory order, the erroneous disposition of the demand for jury trial. C.C.P. Art. 2164. See Carville v. City of Plaquemine, 303 So.2d 289 (La.App. 1st Cir. 1973).

On an appeal from a final judgment on the merits where the appellant asserts as the only error below the erroneous disposition of a demand for a jury trial, the error as such becomes relatively inconsequential because of the appellate court’s constitutional obligation to review both law and facts whether by jury trial or judge trial. La.Constitution 1974, Art. 5 § 10(B). In such cases, if the error as to disposition of the demand for jury trial was of such magnitude that it would warrant reversing the case on this sole ground, the interlocutory judgment under which the error was committed caused irreparable injury at the time it was rendered and therefore would have constituted an appealable interlocutory judgment at that time. If an appeal or application for writs was not timely taken, the disposition of the demand for jury trial need not be considered by the appellate court when the appellant asserts no error as to the judgment on the merits which would warrant reversal of the judgment. The appeal is from the judgment on the merits. This judgment makes no mention of the disposition of appellants’ demands for jury-trial. Appellant does not assert any error as to the judgment on the merits and we do not find any error in the record of the magnitude which would warrant reversal. C.C.P. 2129.

The error as to disposition of the demand for jury trial, if any, presents nothing for review. As in Windham, it comes too late. In the interest of judicial economy, a litigant, who neither timely appeals nor seeks supervisory writs as as to the disposition below of a demand for jury trial, will not be allowed to raise the issue of erroneous disposition of the demand as the sole grounds for reversing on appeal the final judgment on the merits when the final judgment is timely appealed.

Considering the appeal under these circumstances as a tardy appeal of the judgment denying a demand for jury trial, the motion to dismiss in this respect is granted at appellants’ cost.

Considering the appeal as from the judgment below on the merits, this judgment is affirmed at appellants’ cost.

      . Appellants sought a new trial below on the grounds that the lower court erroneously denied their demands for jury trial. This is not a mandatory ground for granting a new trial, C.C.P. 1972, but may be a discretionary ground. Appellants’ specifications of error do not refer to the denial below of their motion for a new trial.


author: PRICE, Judge. MARVIN, Judge

text:
    GMB GAS CORPORATION, Plaintiff-Appellee, v. George Moody COX et ux., Defendants-Appellants.
    No. 13062.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.

      Kidd, Katz & Strickler by George M. Strickler, Jr., Monroe, for defendants-appellants.
    Brown, Wicker & Lee by Ralph J. Wicker, Monroe, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

This is an appeal from the judgment rejecting the application of the co-owner of a mineral servitude for an injunction to prevent operations under a lease granted by his co-owner without appellants’ consent.

On July 1,1968, George M. Cox, joined by his wife, Irma Cox, executed an agreement to partition a tract of 400 acres of land in Ouachita Parish owned in indivisión with Mrs. Medorah H. Sanders, Thomas A. Sanders, Jr., and Jerry H. Sanders. The agreement excluded the minerals from the partition by the following provision:

It is understood and agreed, however, that no partition is made of the mineral interest and the parties shall continue to remain as owners in indivisión with respect to the oil, gas and other minerals in, on and under the property herein partitioned.

Subsequent to the partition, the Sanders executed a mineral lease to plaintiff, GMB Gas Corporation, covering the entire 400 acre tract. Cox was not a party to the lease and refused to allow GMB to conduct exploratory operations on the part of the land received by him in the partition.

GMB filed suit for an injunction against Cox’s interference. Cox reconvened for judgment declaring the lease invalid and requesting an injunction forbidding further operations by GMB on any part of the 400 acre tract in which he is co-owner of the mineral servitude.

An exception of no right or cause of action filed by Cox to the demands of GMB was overruled and his application for an injunction against GMB was denied.

This appeal concerns only the refusal of the trial court to grant the injunction sought by Cox.

The issue is whether the lessee of a co-owner of a mineral servitude created pri- or to the enactment of the Mineral Code may conduct operations on lands subject to the servitude without the consent of the other co-owner.

The trial court held that GMB, as the lessee of the owner of a fractional interest in a mineral servitude, had an absolute real right to explore the affected property relying on the decisions in Huckabay v. Texas Company, 227 La. 191, 78 So.2d 829 (La. 1955); Clark v. Tensas Delta Land Co., 172 La. 913, 136 So. 1 (La.1931); and Union Sulphur Company, Inc. v. Lognion, 26 So.2d 845 (La.App. 1st Cir. 1946).

There are two areas of factual distinction in the cases relied on by the trial court which make them inapposite to the instant case. First, these cases were primarily concerned with owners of fractional mineral interests seeking to get their share of proceeds without paying their pro rata part of development and production costs. Second, in Huckabay, Clark, and Union Sulphur there was no co-owner of a single mineral servitude as we find exists in the case under consideration. We recognize that prior to the Mineral Code, there have been doubts expressed by some legal authorities that a single servitude could be created in a partition by co-owners as this is contrary to the traditional concept that a landowner may not fractionate his title in favor of himself. See 28 La.L.Rev. 367 (1968). The only case in which this question was presented was decided on a construction of the partition agreement holding the parties intended to create separate servitudes on the tracts received by each. Whitehall Oil Co., Inc. v. Heard, 197 So.2d 672 (La.App. 3rd Cir. 1967). However, the court in Whitehall indicated a single servitude would legally be permissible under a partition agreement which clearly shows such to be the true intent of the parties.

The rights in dispute were created prior to the January 1, 1975, effective date of the Mineral Code. Although the Code clearly resolves the issue presented in this case, there may be constitutional questions presented in giving retroactive effect to the provisions of the Code that affect vested rights. To establish stability in this area of the law, the provisions of the Mineral Code should be followed on pre-code issues which have not been clearly resolved by the jurisprudence. This approach to the problem is supported by the pronounced intent in the introduction to the Code by the Louisiana Law Institute that it is intended to be a codification and clarification of the already existing body of jurisprudence relating to mineral ownership in this state. The Code further represents an expression of the legislature as to what it considered the law should be in those areas where the courts had not specifically ruled. Articles 66 and 67 of the Code provide:

The owners of several contiguous tracts of land may establish a single mineral servitude in favor of one or more of them or of a third party.
Co-owners of land constituting a continuous whole may partition it and reserve a single mineral servitude in favor of one or more of them.

The language of the partition agreement adopted by Cox and Sanders leaves no doubt that they intended to own the minerals under the entire 400 acre tract in indivi-sión and to create a single mineral servitude for this purpose. We, therefore, find this to be the effect of their agreement.

There have been no cases holding that the consent of both co-owners of a mineral servitude is necessary to grant an enforceable lease under a true co-owner concept. The most analogous situation is posed in Gulf Refining Co. v. Carroll, 145 La. 299, 82 So. 277 (La.1919). The court there held a mineral lease granted by one co-owner of land did not create a right of mineral exploration against a non-consenting co-owner. A similar result was reached in Sun Oil Co. v. State Mineral Board, 231 La. 689, 92 So.2d 583 (La.1956); Amerada Petroleum Corp. v. Murphy, 204 La. 721, 16 So.2d 244 (La.1943); Amerada Petroleum Corp. v. Reese, 195 La. 359, 196 So. 558 (La.1940). These latter cases held the lease valid between the lessor and lessee, but unenforceable against the co-owners of the land who did not consent. The cases of Carroll, Murphy, Sun Oil, and Reese are consistent with the provisions of Article 175 of the Mineral Code which provides:

A co-owner of a mineral servitude may not conduct operations on the property subject to the servitude without the consent of the other co-owner.

Article 176 provides an exception to Article 175 in instances where a co-owner acts without the consent of his co-owner to prevent waste or extinction of the servitude. There is no evidence presented here which would activate the provisions of this article.

Although there are some factual distinctions in the instant case from Carroll, Murphy, Sun Oil, and Reese, these cases were decided on principles which are more analogous to the issue now before us than the line of cases relied on by the trial court. For that reason, and to create a consistent pattern of mineral law as to rights established prior to the Code, we deem it appropriate to adopt the rule provided by Article 175 as the law governing this case.

The Sanders parties who are co-owners with Cox are not without a remedy as contended by GMB, as a partition of the mineral servitude is authorized by Article 172 of the Code.

In summary, we hold the lease to GMB does not authorize the lessee to conduct operations for mineral development without the consent of the co-owners of the mineral servitude. Cox is entitled to the injunctive relief sought to prevent the exploration and development without his consent. The judgment is reversed, and the case is remanded to the district court for the issuance of the injunctive relief prayed for, and for further proceedings in accord with law. Costs of these proceedings are assessed to appellee.

MARVIN, J., concurs with written reasons.

MARVIN, Judge

(concurring).

In effect, we are holding the Mineral Code (R.S. 31, Act 50 of 1974, effective January 1,1975) to be retroactive under the guise of promoting stability or uniformity, notwithstanding R.S. 31:214:

“The provisions of this Code shall apply to all mineral rights, including those existing on the effective date hereof; but no provision may be applied to divest already vested rights or to impair the obligation of contracts.” (Emphasis Ours).

I agree, however, that it is desirable to have stability in property or mineral law, although I have some doubt that we are not divesting the rights of, or impairing the obligation, between the parties (Sanders, the Sanders’ lessee, and Cox) as they existed prior to the adoption of the mineral code.

The partition agreement resulted in Cox receiving 140 acres and Sanders receiving 260 acres. The majority has found the effect of the agreement to create a single mineral servitude under the 400 acres, owned in indivisión by Cox and Sanders. While this result is possible under the new Mineral Code, I have some reservations that it was possible before, even assuming the found “intent” of the parties. See Justice Tate’s opinion, Whitehall Oil Company v. Heard, 197 So.2d 672 (La.App. 3d Cir. 1967), writ refused.

These problems, and others which concern me, however, are not created by this opinion, but by the Mineral Code.

Where the pre-Mineral Code authorities have not established a rule of mineral law, certainly the courts should adopt the Mineral Code approach to maintain some continuity and stability for resolution of pre- and post-code issues.

I concur in the result.

      . Our mineral law evolved from application of civilian property principles, respect for which was purposely maintained by the courts and the scholars commenting thereon. See generally Frost-Johnson Lumber Co. v. Sailings’ Heirs, 150 La. 756, 91 So. 207 (1922), cases and Law Reviews since discussing application and extension of Civil Code principles to the mineral servitude and rights deriving thereunder. See also Daggett, Louisiana Mineral Rights (Rev.Ed. 1949).
      R.S. 31:175 apparently was intended to read just the opposite of its wording, which would perhaps have been more in harmony with pre-Mineral Code cases. See for instance the comments under sections 176 and 177, which respectively, in part, state:
      “. However, subsequent cases indicate that a co-owner of land may grant a valid lease, but it may not be exercised without consent of the remaining co-owners This latter rule will not be applicable to mineral servitudes under Article 175, which gives an independent right of operation to each co-owner of a mineral servitude.” R.S. 31:176 (Citations omitted).
      “In prohibiting operation without consent of all co-owners of a mineral lease, Article 177 applies the established rule applicable to co-owners of land . . This rule has not been applied to mineral servitudes for reasons set forth in the comment following Article 175; nor has it been applied to mineral royalties for the reason that the royalty is not an operating interest.” R.S. 31:177 (Citations omitted and Emphasis Ours).
      The Comment under R.S. 31:175, however, states that the article “preserves what is understood to be the present law.” Obviously there was or is serious question among the redactors as to the “present law,” if the quoted comments are not misprints or misplaced. Compare further Articles 171, 174, 176 and 177 and comments thereunder. Compare also the comments under Article 168 with Article 172.


text:
    J. P. PEEVY, Represented by Adrian G. Peevy, et al., Plaintiffs-Appellees, v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 13063.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied Jan. 10, 1977.
    Writ Refused March 18, 1977.
    Bernard L. Malone, Jr., D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Baton Rouge, Johnson, Johnson & Joyce by Don H. Johnson, Monroe, for defendant-appellant.
    Baker, Culpepper & Brunson by William H. Baker, Herman A. Castete, Jonesboro, for plaintiffs-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Plaintiffs sold to the State two strips or parcels of property to be included in the right of way necessary for the widening of Highway 167 through Jonesboro-Hodge. Two months later, plaintiffs brought this action to rescind the sale on the grounds of lesion beyond moiety. Judgment below granted plaintiffs’ demand and the State appealed. We reverse.

From the record, we have prepared the following map of pertinent factors. Tracts A and B in boldface, are plaintiffs’ parent tracts from which they sold parcels to the State. Other tracts 1-8 are properties from which the State has expropriated parcels to be included in the right of way and the value of which has been considered on appeal. Comparable sales used by expert witnesses in appraising property in those cases were used by the appraisers here.

From Tract B plaintiffs sold the shaded triangular parcel at the northwest corner (57' on each street and 46.5' on the third side) comprising .028 acres (1219 square feet). From Tract A plaintiffs sold a strip varying in width along their entire highway frontage (almost 1600 linear feet) comprising 2.298 acres (100,100.88 square feet). This strip averages 62.56 feet.

The deed from plaintiffs to the State recites this consideration:

“. . . [$30,808.00] . . . “It is understood and agreed that Vendor reserves unto himself, his heirs and assigns, all oil, gas and other minerals beneath the area hereinabove described, and more specifically under the provisions of Act 278 of the Regular Session of the Louisiana Legislature for the year 1958; it being specifically understood, however, that while no exploration, drilling, nor mining of oil, gas or other minerals of any kind shall be conducted upon said area, there may be directional drilling from adjacent lands to extract the oil, gas or other minerals from under said area.
“The Department shall construct a standard vehicular approach within the limits of the property herein conveyed, from the roadway to the Vendor’s remaining property to the left of the centerline opposite Highway Survey Station 83 + 00.
“The Vendor acknowledge [sic] by these presents that a portion of the herein-above described property is being acquired for a sight clearance flare and that no direct access shall be permitted to and from the adjacent property across that portion of property designated as sight clearance flare on the construction plans for said project, and this provision shall be binding upon the said Vendor, his heirs, successors, and assigns forever.”

The cash portion of the consideration is not apportioned between the parcels acquired from Tracts A and B.

Estimating the fair market value of the triangular parcel sold from Tract B west of the highway presents no real difficulty. The grade or elevation of this parcel is generally the same as the highway. The parent tract is accessible and is or has been used as commercial property (a drive-in retail food establishment). The highest estimate by the State’s appraisers was $1.30 a square foot. The lowest estimate by plaintiffs’ appraisers was $2.00 a square foot. The trial court found the square foot value to have been $1.75, which is generally in accord with the values determined by this court in the expropriation cases mentioned. Whitman, for instance, assigned this same square foot value to Tract (2); Bounds, Tract (3), assigned $1.25; Oil Mark, Tract (5), assigned $1.80. The fair market value of the parcel sold from Tract B (1219 square feet) at the time of the sale was $2,134.44.

The fair market value of the strip along the highway which was sold from Tract A is not so easily estimated. The parent tract, comprising approximately 13 acres, is undeveloped because of its topography. Except for the northernmost 400 feet (which itself is some 10 feet below highway grade) most of Tract A is 20-40' below highway grade. The highest appraisal by the State’s expert witnesses for the strip sold from Tract A was $37,000.00, while the lowest appraisal by plaintiffs’ appraisers was $84,085.00. Plaintiffs’ appraisers, however, generally reached their valuations by estimating the quantity and cost of fill dirt considered necessary to bring the front portion of Tract A to a grade which would be commercially usable. This estimated cost was then deducted from the estimates of what the property would be worth if commercially usable to reach a fair market value. Plaintiffs’ three appraisers differed in (1) the estimates of the amount of fill dirt necessary; (2) the grade or elevation to which the property would be brought; (3) the source of fill dirt and the areas along the highway where and in what respective quantity the fill dirt would be placed, and (4) the cost of acquiring and compacting the fill dirt.

Some of several appraisers (four for the State and three for the plaintiffs) arbitrarily divided the property into different economic units. No one appraiser’s division corresponded exactly with the division used by the others, in size or in number of units.

The trial court used an economic unit approach and also used the front land-rear land method or approach. In dividing the property into economic units, the court generally followed the division suggested by some of the appraisers. Three economic units were selected and superimposed on the front land-rear land approach. The southernmost unit, as the least usable because of terrain, was allotted a highway frontage of 786 feet; the middle unit, the next least usable, was allotted 300 feet, and the northernmost unit, as the most usable, was allotted approximately 400 feet of highway frontage. The trial court valued the southernmost unit at 30 cents a square foot, the middle unit at 75 cents and the northernmost unit at $1.50. The lower court determined by this method that the value of the entire strip was $60,394.00, which when added to the value of the triangular parcel from Tract B, would be $62,-528.84, or more than twice the' consideration paid by the State ($30,808.00). We observe that the value of the strip could have varied by simply adjusting the highway frontage of each economic unit and that if the value of the entire property (from Tracts A and B) was determined to have been only $912.84 less than $62,528.84 the sale would not have been deemed lesionary below.

The Civil Code Articles (1860, 1861, 1870, 1871, 2589-2591) and cases interpreting them establish several principles. We summarized the applicable principles in V.alley Land Corporation v. Fielder, 242 So.2d 358 (La.App. 2d Cir. 1970). We said:

“The standard to be applied for determination of the value of the property is the fair market value at the time of the sale. ‘Fair market value’ has been defined in numerous cases as meaning the amount a willing purchaser would pay a willing seller for a particular piece of property . Our review of the jurisprudence convinces us a party attempting to set aside a sale must discharge the burden of proof incumbent upon him which requires that he prove the value of the property by clear and convincing evidence. The burden of proof is much more stringent in lesion cases than in expropriation cases. The evaluation may not be based on conjecture, possibility or speculation. However, the highest and best use of the property may be considered along with all other evidence of value so long as it tends to show ‘the value which it (the immovable) had at the time of the sale.’” [sic]. 242 So.2d 361-362.

We emphasize that we are not here considering the issue of value of the land as exclusively under expropriation guidelines, but under the principles applicable to lesion. We also observe the cash consideration for the two parcels is not the sole consideration. The deed also recites (1) that minerals were reserved to plaintiffs (and imprescriptably, by former R.S. 9:5806, repealed by Act 50 of 1974 and reenacted as R.S. 31:149) and that a “standard vehicular approach” from the highway to plaintiffs’ remaining property was required to be constructed by the State. Some value of course, must be assigned to these items, as well as to whatever benefits may be derived by plaintiffs’ property from the improving and widening of the highway.

The factors concerning fill dirt, economic units and highway frontage, and consideration other than the cash amount recited, render speculative the result below. The burden is on plaintiffs to establish by clear and convincing, and not by speculative, evidence that the price paid for immovable property did not exceed by one-half the market value of the property at the time of the sale. Valley Land Corporation v. Fielder, supra.

For these reasons, and at the cost of plaintiffs-appellees, judgment below is reversed and the demands of plaintiffs are rejected.

      . Respectively, these tracts were considered in these appeals: State, Dept, of Highways

      (1) v. McDonald, 329 So.2d 898 (1976);
      (2) v. Whitman, 313 So.2d 918 (1975);
      (3) v. Bounds, 319 So.2d 549 (1975);
      (4) v. Salter, 332 So.2d 308 (1976);
      (5) v. Oil Mark Corporation, 324 So.2d 606 (1975);
      (6) v. Warner, 329 So.2d 913 (1976);
      (7) v. Kilpatrick, 327 So.2d 452 (1976);
      (8) v. DeJean, 322 So.2d 265 (1975).
      Other appeals which we have considered involve properties north of tract eight. These appeals include: State, Dept, of Highways v. United Pentescostal Church, 313 So.2d 886 (1975);
      and

        v. Model Development Corporation, 322 So.2d 270 (1975).

      . In Model Development Corp., supra, we observed:
      “In [cited cases] . . ., there was employed the front portion-rear portion of determining value where a strip of property is taken. The rule of thumb under this technique is to assign four times the value to the front one-fourth of the tract as is assigned to the rearmost one-fourth of the property. If the rearmost portion of the instant property, brought to an improved condition by use of fill dirt and culverts, is worth $12,000.00 per acre, approximately 25 cents per square foot, the front portion improved is worth $1.00 or more per square foot. These factors support our determination of just compensation for the property taken.” 322 So.2d 274. (citations omitted).
      The rear portion of the Model Development Corporation tract was about five feet below highway grade.

      . See also: Succession of Witting, 121 La. 501, 46 So. 606 (La. 1908); Foos v. Creaghan, 226 La. 619, 76 So.2d 907 (1954); Morris v. Kieinpeter, 197 La. 758, 2 So.2d 203 (La.1941).


author: PRICE, Judge.

text:
    PRESCOTT MURPHY REALTY, INC., Plaintiff-Appellee, v. WARD PETERS INVESTMENT CO., INC., Defendant-Appellant.
    No. 13064.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied Jan. 10, 1977.

      Milton C. Trichel, Jr., Neil Martin Trichel by Milton C. Trichel, Jr., Shreveport, for defendant-appellant.
    Ervin & Waguespack by R. J. Calongne, Jr., Baton Rouge, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Ward Peters Investment Co., Inc., has appealed the judgment awarding Prescott Murphy Realty, Inc., a commission for procuring a purchaser under a real estate listing contract. The issue presented is factual: Did plaintiff find a buyer that was ready, willing, and able to purchase on the terms offered by defendant under its open listing agreement with plaintiff?

The trial court found plaintiff had earned its commission, and awarded judgment for $2,700. We reverse and reject plaintiff’s demands for the following reasons.

Ward Peters of Shreveport is the president and general manager of Ward Peters Investment Co., Inc., and Pel State Oil Company. The investment company owns gasoline service station sites in Louisiana and leases them to Pel State, a retailer of petroleum products. Peters closed down a location on Government Street in Baton Rouge in 1974, because of the oil shortage.

Subsequent to the closing of the station, Ben R. Franklin, III, President of Prescott Murphy Realty, Inc., contacted Peters by telephone and asked if he was interested in selling the property. Peters advised Franklin he would sell for a minimum of $45,000, exclusive of pumps and station equipment. Franklin’s request for an exclusive listing contract was refused and an open listing of the property was allowed by Peters.

Franklin obtained a written offer from Colgin Associates, Inc., of Morgan City, on August 1, 1974, for the price of $43,000. Peters rejected this offer as being below the minimum price asked.

In early September, Franklin contacted Peters by telephone and advised him his clients would agree to pay the $45,000.

On September 27th, a Ruston realtor, W. Y. McCain, contacted Peters on behalf of Church’s Fried Chicken in regard to purchasing the property. Peters signed a contract on October 3rd agreeing to sell to Church’s for $47,000, less a ten per cent commission to McCain. This price would have netted Peters the same amount as the proposed sale to Colgin Associates because of the difference in the real estate commission. On the same date that Peters agreed to sell to Church’s, he received a telephone call from an attorney in Morgan City representing Colgin Associates requesting certain information about the property. Peters informed the attorney he could not sell to Colgin as he had already agreed to another sale.

Plaintiff contends it is entitled to its commission under the circumstances presented. There is no dispute on the law that a real estate agent earns a commission if he procures a buyer who is ready, willing, and able to purchase on the vendor’s terms, even if the sale is not consummated. Eanes v. McKnight, 262 La. 915, 265 So.2d 220 (La.1972).

Plaintiff has not borne the burden of proving his prospective purchaser meets this standard.

The testimony is conflicting in regard to the terms upon which Colgin Associates agreed to purchase other than the cash consideration of $45,000. Earl Colgin, who represented the corporation in its negotiations with plaintiff, testified his offer to purchase included the station equipment and gasoline pumps. This is clearly contrary to the letter written by Peters allowing Franklin to list the property for sale. Col-gin also testified the seller was to fill the underground tanks with sand. Peters denies having discussed this with Franklin after the first offer was rejected.

In an attempt to show the ability of Colgin Associates, Inc., to purchase the property for the sum requested, plaintiff offered the testimony of an official of the Morgan City Bank and Trust Company, who granted a conditional commitment to the corporation for a loan on the property. This testimony shows one of the conditions on which the commitment was made was for four individuals who are the principal owners of the corporation to personally endorse the note. There is no evidence showing these four individuals agreed to the endorsement. It is immaterial that one or more of the individuals who are principal owners of the corporation may individually have sufficient funds to have made the purchase. See Morere v. Dixon Real Estate Co., Inc., 188 So.2d 623 (La.App. 4th Cir. 1966). The loan application was made in the corporation’s name in this instance, and we must assume the corporation was the proposed purchaser with whom plaintiff was negotiating.

The information conveyed to Peters by plaintiff in regard to whether he had a bona fide offer from Colgin is contradictory and indefinite. On September 9th, plaintiff wrote Peters the following letter:

I spoke with my clients today concerning your property on Government Street and they have advised me that their loan has been approved for the purchase of the site. They are coming in Wednesday to draw up a new purchase agreement for your price. I will give you a call as soon" as I have it on paper.

No purchase agreement was ever obtained as indicated in this letter. Plaintiff has not satisfactorily explained why he did not obtain a second written agreement to bind the purchasers to an enforceable agreement. Plaintiff testified he was having difficulty getting the Colgin principals together as they lived in different cities in Louisiana. Peters offered, on one occasion, to fly to Morgan City for the convenience of the purchasers, and a date was fixed for a meeting. This appointment was cancelled by a telephone call made to Peters’ office manager by plaintiff.

Peters heard nothing further from Franklin after September 13th. He understood the parties intended to meet in Morgan City to sign a contract to buy and sell. He testified he was unaware the Colgin group was making preparations for the transfer of title until Colgin’s attorney called him on October 1st. Although Franklin testified Peters understood in their conversation of September 13th that a firm commitment had been made by the Colgins to buy and that the transaction would be closed in a reasonable time, Peters denies any such understanding. In view of Franklin’s letter of September 9th, Peters’ testimony should be accepted and given more weight. Peters could have reasonably believed the Colgin group had lost interest in the property and was justified in agreeing to sell to a third party.

The judgment is reversed, and plaintiff’s demands are rejected at its costs.


text:
    Donald A. CROSSLIN, et ux., Plaintiffs-Appellees, v. Stanford B. WHATLEY d/b/a Fantasia No. 2, Defendant-Appellant.
    No. 13067.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied Jan. 10, 1977.

      Hamilton & Sermons by Joel M. Sermons, Shreveport, for defendant-appellant.
    Lewis Weinstein, Richard C. Goorley, Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Judy Crosslin was stopped and searched when her departure from defendant’s clothing store activated a shoplifting warning device. The trial court held the search was unreasonable and awarded plaintiff $350 damages. Defendant appeals and we affirm.

The facts of this case are identical to those in Smith et ux. v. Whatley d/b/a Fantasia No. 2, 338 So.2d 153 (La.App. 2nd Cir., 1976). Plaintiff in that case was accompanied by plaintiff in this case when they were both stopped and searched by employees of defendant. It was stipulated that the testimony in this case would be the same as in Smith and a copy of that transcript of testimony is filed in this record.

For the reasons assigned in Smith v. Whatley, the judgment is affirmed at appellant’s cost.


text:
    CUSTOM FINANCING OF BOSSIER CITY, INC., Plaintiff-Appellant. v. Allen WILLIAMS and Doris Garrison Williams, in solido, Defendant-Appellee.
    No. 13068.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.

      Eatman & Hunter by Henley A. Hunter, Shreveport, for plaintiff-appellant.
    James L. Portson, Jr., Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

This is an appeal by plaintiff from ,the judgment dismissing its action to reform the description in a deed of property purchased at a sheriff’s sale. The issues are the sufficiency of the evidence to establish mutual error, and whether the subsequent compromise of the debt on which the writ of seizure and sale was issued should preclude plaintiff’s right to have the erroneous description corrected.

Custom Financing of Bossier City obtained a default judgment for $728 with eight per cent interest and attorney’s fees against Allen Williams and his first wife, Doris Garrison Williams. The judgment was for the balance owed on a note secured by a mortgage on certain land in Bossier Parish which was erroneously described in the act of mortgage as follows:

The East one acre of the South five (5) acres of the North fifteen (15) acres of the Northeast Half (NE 1/2) of the Northwest Quarter of Section 18, T18 North Range 11 West, Bossier Parish, Louisiana. (Emphasis Added)

The land was seized under a writ of fieri facias and sold to the plaintiff for $500. The sheriff’s deed contained the above description. In an attempt to satisfy its claim, plaintiff subsequently garnished the defendant’s bank account and the wages of defendant’s second wife, Ruby Gladney Williams. By joint motion, the wife’s garnishment was dissolved on allegations thát “ . . . the remaining balance due on this suit has been settled.” Over a year after the judicial sale, plaintiff filed suit to reform the sheriff’s deed to correctly describe the property conveyed as follows:

East one acre of South five (5) acres of North fifteen (15) acres of the Northeast Quarter of the Northwest Quarter of Section 18, Township 18 North, Range 11 West, Bossier Parish, Louisiana. (Emphasis Added)

The trial judge rejected plaintiff’s demand as he found the original debt had been fully paid and satisfied by the compromise agreement. We reverse for the following reasons.

The evidence satisfies us the description in the sheriff’s deed to plaintiff is inaccurate and was caused by mutual error. The inadvertent substitution of “NE 1/2 of the NW 1/4 of Sec. 18” instead of the correct “NE 1/4 of the NW 1/4 of Sec. 18” resulted from the transmittal of the legal description of Williams’s property from his attorney’s office to plaintiff’s office for the purpose of preparing a mortgage in connection with the loan made to Williams. The error was then carried forth to the sheriff’s records in their preparation of the writ of fieri facias and the deed conveying the property to plaintiff as the purchaser at the sheriff’s sale.

Williams admits in his testimony that he owned no other property in Bossier Parish at the time of these transactions. He further admits he was present at the sheriff’s sale and subsequently talked to the civil deputy who prepared the deed and acknowledged to him the legal description was erroneous. He admitted agreeing at that time to sign a corrective instrument and later refusing to sign on advice of his attorney.

The general rule on reformation of an instrument is:

The law respecting reformation of instruments is well settled here and elsewhere. It is an equitable remedy and lies only to correct mistakes or errors in written instruments when such instruments, as written, do not express the true contract of the parties. See Ober v. Williams, 213 La. 568, 35 So.2d 219, citing 45 Am.Jur. Sec. 45 et seq. It is a personal action, even when applied to real estate (see Louisiana Oil Refining Corporation v. Gandy, 168 La. 37, 121 So. 183), in which the burden is on the one seeking reformation to establish the mutual error and mistake by clear and convincing proof, parol evidence being admissible for this purpose. Waller v. Colvin, 151 La. 765, 92 So. 328; Smith v. Chappell, 177 La. 311, 148 So. 242; Fair v. Williams, 187 La. 953, 175 So. 631 and Southwest Gas Producing Co. v. Hattie Brothers, 230 La. 339, 88 So. 2d 649. Hence, it follows that the instant case presents for determination mainly a question of fact, bearing in mind that plaintiff carries the burden of proof and that the evidence of mutual error must be strong and convincing.

Agurs v. Holt, 232 La. 1026, 95 So.2d 644, 645-646 (La.1957). Also see Segall v. Traham, 290 So. 2d 854 (La.1974).

A judicial sale of real estate erroneously describing the property intended to be sold is also subject to reformation. Moody v. Singleton, 113 So.2d 472 (La.App. 2nd Cir. 1959).

At the time of the seizure and sale which gave rise to the deed in issue, there was no question that Williams owed the full amount of the judgment against him. The subsequent joint motion to dismiss a garnishment on the basis that the balance owed had been settled has no effect on the validity of the prior judicial sale. The settlement was partially effected by proceeds credited to the judgment from the sheriff’s sale.

The trial judge apparently confused the chronological sequence of events and was under the impression the compromise occurred prior to the judicial sale. We quote his reference to these incidents in his reasons for judgment dictated into the record at the conclusion of the trial:

* * * Now this action is to reform a Sheriff’s Sale, which resulted after a compromise settlement had been entered into by the parties involving suit number 40,968, Custom Financing versus Allen Williams, which is executed by both parties through their counsel, and the Court feels that the suit to foreclose the mortgage should not have been filed . if the claim had been settled, * * *

Plaintiff has sufficiently shown the property it purchased at the judicial sale was erroneously described because of mutual error and is entitled to have the sheriff’s deed reformed.

The judgment is reversed and it is ordered that plaintiff have judgment against defendants, correcting and reforming that certain deed from the Sheriff and Ex Offi-cio Auctioneer of Bossier Parish to Custom Financing of Bossier City, Inc., dated October 30, 1974, and recorded October 31,1974, in Conveyance Book 529 at page 792, under registry # 269,392, to include and describe the property conveyed as follows:

East one acre of South Five (5) acres of North fifteen (15) acres of the Northeast Quarter of the Northwest Quarter of Section 18, Township 18 North, Range 11 West, Bossier Parish, Louisiana.

All costs of this proceeding are assessed to defendant, Allen Williams.


text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY, Plaintiff-Appellant, v. Grover KIMBALL, Individually and as Administrator of the Estate of his minor child, Millard Kimball, Defendant-Appellee.
    No. 13070.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied Jan. 10, 1977.

      Mayer, Smith & Roberts by Ronald R. Inderbitzin, Shreveport, for plaintiff-appellant.
    Horton & Jones by Donald G. Horton, Coiishatta, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiffs insured automobile sustained property damage when it struck a bull of defendant’s minor son during the nighttime on a state highway in a closed range area of Red River Parish. The lower court found the presumption of negligence against defendants had been overcome or successfully rebutted and denied plaintiff’s subrogated demand. We affirm.

The bull in question was two and one-half years old and weighed over 1200 pounds. Defendant’s minor son had raised the animal as a show bull. The evidence shows it was an extremely gentle animal and a virtual pet of the younger defendant. The bull was one of seven bulls kept by defendant in a three-acre pasture which had been used for that purpose for four years.

The pasture was enclosed by a five-strand barbed wire fence which was extremely well maintained. The gate to the pasture was kept chained and secured, but not padlocked. A photograph of the fence shows that some, if not all of the fence posts, are cross-ties or are of similar appearance. None of the bulls had ever escaped or attempted to escape from the pasture before this accident. The other bulls were not out of the pasture on the night of the accident.

Defendant and his minor son were in the pasture at about 3:30 p. m. on the day of the accident. They saw no evidence of any fences being down at that time. They fed the bulls and thereafter the entire family departed to Ruston where the minor son was engaged in a school activity. The accident occurred shortly before the family returned home about 11:30 p. m.

A police officer who went to the scene “walked” the road fence [parallel to the highway] on that night. He testified:

“I found the gate was locked [chained, but not padlocked] and we walked the road fence and we didn’t see anywhere the bull could get out.”

Defendant, Mr. Kimball, inspected the entire enclosure shortly after the accident and he and his minor son again made the same inspection the next morning after daylight. They saw no evidence of where the bull could have gotten out of the pasture. Mr. Kimball stated he had “no idea [of how the bull could have gotten out of the pasture] unless somebody let him out.”

In Womack v. Rhymes, 300 So.2d 226, 230-231 (La.App. 2d Cir. 1974), we summarized principles of law applicable in closed range areas:

“A number of cases arising out of highway accidents involving livestock have expressed the rule as imposing upon the owner of the livestock the burden of freeing himself from negligence by showing that he has taken every precaution expected of a reasonably prudent individual to prevent his livestock from leaving their confines and roaming at large .
“Other cases have expressed the rule as imposing the burden upon the owner of the animal to show when, where and how the animal escaped from its enclosure, that is his freedom from fault, even in the slightest degree .
******
“We conclude the better rule is that the defendant must not only show he has taken all reasonably prudent precautions to enclose his livestock, but must also explain the presence of the livestock on the highway by showing how the animal escaped in order to overcome the presumption of negligence and to prove freedom from fault in the slightest degree [A] general showing of fences in good condition does not negate the possibility of some defect which could have been discovered and remedied by the exercise of reasonable precaution and inspection. The defendant is in the better, and usually sole position to explain how the livestock got out of their enclosure and onto the highway and in the absence of such proof general evidence as to reasonable precautions is not sufficient.” (Citations omitted).

We held there that the presumption had not been overcome, after making this observation about the evidence:

“After the accident the fences were inspected to some extent by the foreman and by [some of defendants] and found to be in generally good condition, except adjacent to soybean or cotton fields where cattle were not pastured. While the fences were in generally good condition, the extent of the inspection and other evidence was not sufficient to negate the possibility of there being some place along the miles of fences where a cow could get out.” 300 So.2d 226, 230.

We adhere to the principle of Womack, but find in this case more adequate inspections of the fence around a three-acre pasture (less than 2,000 linear feet) as opposed to the “miles” of fences there. There was the possibility of a defect there which could have allowed an escape. The evidence here shows no possibility of a defect in the fence which could have allowed an escape. These issues are factual and we find no abuse of discretion below.

Appellant also contends that the owner of the bull should be strictly liable under Holland v. Buckley, 305 So.2d 113 (La.1974), known in legal circles as the dog-bite case. In essence, appellant’s position is that expressed by one of two dissenting justices in Harrington v. Upchurch, 337 So.2d 222 (La.1976), wherein an application for writs was denied.

In our recent case of Flores v. Commercial Union Insurance Co., 337 So.2d 264, 269 (La.App. 2d Cir. 1976), involving an open range area, we dealt with the issue in this fashion:

“It is significant that the legislature has amended LSA-R.S. 3:2803 on numberous occasions, adding thereto additional highways where roaming livestock is prohibited. There were amendments as late as 1975. The legislature is no doubt fully cognizant of the numerous judicial interpretations of its applicability and legal significance. If the legislature desires to apply the rule of strict liability as provided for in the Supreme Court’s interpretation of Civil Code Article 2321 in the Holland decision to accidents involving cattle on the highways of this state, then it could affirmatively do so and it has taken no action in this regard. We decline to exercise this legislative function. “We hold that the decision of Holland and its interpretation of Article 2321 is inapplicable to the instant case.”
At appellants’ cost, judgment below is

AFFIRMED.

      . “DIXON, J., dissents from denial. Only if it can be said that a cow darting into highway at night is not a ‘domesticated animal (which) harms another’, can the court hold Holland v. Buckley inapplicable to establish the presumption of fault ‘in the nature of strict liability.’ No statute or other law gave the owner of the cow the right to permit it to go on the highway, nor excused the owner in any way. If we are to have a ‘cow law’ different from ‘dog law’, we should more adequately explain it.”


text:
    In re BRANNON.
    No. 13074.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied Jan. 10, 1977.
    James R. Phillips, Bossier City, for opponent-appellant.
    Wilson & Armstrong by Glenn F. Armstrong, Bossier City, for petitioner-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

Brannon seeks to adopt the two children of his wife by a prior marriage. The principal issue is whether the imprisonment of the natural father is sufficient justification for failing to support the children to preclude the application of LSA-R.S. 9:422.1, permitting adoption without his consent.

The district court found the adoption to be in the best interest of the children and granted the adoption over the opposition of the father. The father appeals, and we affirm the judgment.

The natural father was married to Mrs. Brannon in 1969 while he was in military service. He was discharged from the service approximately six months after the marriage, and the couple lived a transient life because of the husband’s inability to keep employment. A daughter was born on July 28, 1970, and a son on February 27, 1973. In 1972, the father was extradited from Mississippi to Texas on a charge of murder. He was convicted of first degree murder on October 21, 1972, and sentenced to fifty years in the state penitentiary. The children have had almost no association with their father because of his incarceration.

Mrs. Brannon procured a divorce from the father in Bossier Parish in October,

1974, and was awarded custody of the children. She married Brannon in November, 1974. He has maintained and supported the children in his home since the marriage.

This proceeding, filed in October, 1975, alleges the consent of the father is unnecessary under LSA-R.S. 9:422.1 which provides in part:

If the spouse of the petitioner is the legitimate parent of the child, . then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
(1) The spouse of the petitioner . have been granted custody of the child by a court of competent jurisdiction and
* s|e sf: % sjt sfc
(3) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother .

There is no real question regarding any payment of support by the father. He has personally paid nothing since the divorce. His sole contribution was the sum of $50 from the inmate relief fund shortly after his commitment to the penitentiary. He contends his sister forwarded two checks to Mrs. Brannon on his behalf. The evidence is insufficient to prove this fact.

The most serious issue is the father’s asserted inability to pay because of his incarceration. He relies on the case of In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963), in which the court construed the intent of the legislature in adopting LSA-R.S. 9:422.1, as follows:

* * * The Legislature never intended by this provision to dispense with consent where the legitimate parent shows that his failure to comply with the court order for support was for reasons beyond his control. It intended that consent be dispensed with only where the parent refuses to comply with the order or fails to comply with the order without justification.

Whether incarceration for a criminal offense is justification for failure to provide support is apparently an unsettled question in the jurisprudence of this state. This defense was raised, but not reached in the case of In re Berry v. Berryhill, 330 So.2d 405 (La.App. 3rd Cir. 1976).

As a general rule, adoption statutes are in derogation of the natural rights of parents and must be strictly construed in favor of the parent. In re Ackenhausen, supra; In re LaFitte, 247 La. 856, 174 So.2d 804 (1965). However, the legislature has provided parental rights may be subrogated to the welfare of the child under defined circumstances. The abdication of the parental responsibility of providing support for a prescribed period of time has been declared a sufficient cause for forfeiting the parental rights. The Supreme Court, in Ackenhausen, has construed the statutory provision to protect the right of a parent who could not provide the prescribed support for justifiable reasons.

The instant case presents circumstances which require a practical approach to the application of the Ackenhausen rule.

The natural father has, through his own fault, placed himself in the position where he can no longer provide financial assistance nor a satisfactory relationship with his children for an indeterminate number of years. His sentence is for fifty years and there is no evidence in the record showing eligibility for parole at an earlier time. He has alleged the pendency of applications for review of his conviction and sentence, but there is no evidence in the record in this regard.

The home provided by Brannon is exemplary. He is .an Air Force Major, a deacon in his church, and has provided a comfortable residence for the family. The younger child suffers from myeoclonic epilepsy and requires frequent and regular medical treatment. This is being provided by Bran-non.

There is no question that Brannon has made an ideal father for the children, and that their adoption by him is in their best interest.

To deny the children this opportunity merely to safeguard the parental rights of their natural father, who has intentionally committed an offense against society that has prevented the fulfillment of his parental responsibilities, would be unjust and not in keeping with the intent of the legislature in enacting LSA-R.S. 9:422.1. Under the circumstances presented in this case, the consent of the natural father is unnecessary.

We recognize that there can be no set rule that will resolve the question of whether incarceration is justification for non-support under different circumstances, and each case must be decided under its own particular facts.

The judgment is affirmed.


text:
    Jean Patricia Chatt McKAY, Plaintiff-Appellee, v. Raymond Earl McKAY, Defendant-Appellant.
    No. 13078.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    Charles E. Welsh, Bossier City, for defendant-appellant.
    James B. Wells & Associates, by A. R. Snell, Bossier City, for plaintiff-appellee.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Jean Patricia Chatt McKay brought this action against Raymond Earl McKay for a separation on the grounds of cruelty and habitual intemperance. Defendant filed a reconventional demand seeking similar relief on allegations of cruel treatment on the part of his wife. The trial court awarded Mrs. McKay a separation and rejected defendant’s reconventional demand. Judgment was rendered on an accompanying rule awarding plaintiff the custody of a sixteen-year-old daughter together with child support. The seventeen and eighteen-year-old sons remained with defendant in accord with their request.

Defendant has appealed from both judgments assigning numerous specifications of error.

He contends plaintiff was guilty of cruel treatment toward him which should entitle him to judgment on his reconven-tional demand, or in the alternative, should preclude her from obtaining the separation under the doctrine of mutual fault. (Act 495 of 1976 re-enacting Article 141 of the Louisiana Civil Code to authorize a separation where mutual fault is found, is not applicable to this suit which was tried and decided prior to its effective date.)

The evidence supports the trial judge’s finding that defendant’s conduct toward plaintiff entitled her to a separation. There is sufficient testimony to establish defendant has for many years consumed excessive quantities of alcoholic beverages, and frequently uses obscene and foul language toward plaintiff and the children. He also has, on occasion, ridiculed plaintiff in public and referred to her by derogatory names. He frequently remains away from home after work hours and on weekends.

The accusations of fault by defendant against plaintiff consist principally of an attitude of coldness and indifference toward him beginning approximately two years ago after he suffered a paralysis of a vocal cord affecting his speech.

Plaintiff’s allegations of fault against defendant are supported by the evidence. To the contrary, the proof of any cruel treatment on the part of plaintiff toward defendant is not of sufficient severity to justify a finding of mutual fault.

Defendant contends the reasons given by the trial judge contain a statement which constitute a finding of equal fault on the part of the wife. The reference made by the court to some fault of plaintiff is an observation that, in most cases, there is always some degree of fault on the part of both parties. We do not understand the court to intend a specific finding of equal fault on the part of plaintiff by this comment. Such a construction would not be in accord with the evidence.

Defendant contends the judgment on the rule for child support awarded plaintiff an excessive amount for the support of the daughter. An award of $180 per month for the sixteen-year-old daughter was made by the trial court. Plaintiff’s net income is shown to be $486.77 per month. She has requested no alimony for herself. Defendant has a net income after taxes, social security, and insurance of approximately $1,000 per month. He is a career air force man at Barksdale Air Force Base which gives him additional economic benefits such as medical and hospitalization services.

Under these circumstances, there has been no abuse shown by the trial judge in fixing child support.

Counsel have requested that the judgment of separation be modified to remove the provision enjoining defendant from disposing of community funds on deposit in Bossier Bank and Trust Company, as these funds were amicably divided prior to rendition of judgment.

In accord with the foregoing, the judgment of June 9, 1976, awarding plaintiff a separation from bed and board is reversed in so far as it permanently enjoins defendant from disposing of community funds on deposit in Bossier Bank and Trust Company; the judgment in all other respects is affirmed.

The judgment of June 9, 1976, awarding custody of the minor daughter to plaintiff, together with the sum of $180 per month for her support, is affirmed.

Costs of this appeal are assessed to appellant.


text:
    Jack M. KENNEDY, Plaintiff-Appellant, v. BRYANT & SONS, INC., Defendant-Appellee.
    No. 13082.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied Jan. 10, 1977.
    Writ Refused March 11, 1977.
    Pugh & Nelson, by Sidney B. Nelson, Shreveport, for plaintiff-appellant.
    Maynard E. Cush, Shreveport, for defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff planned to open and operate a KOA campground. In order to stabilize or hard-surface the grounds for the parking of mobile campers and trailers, he entered into a written contract with defendant who agreed to stabilize the parking pads, roadway, and drives by using a soil cement mix. Plaintiff sued for breach of contract alleging that shortly after the stabilization work was finished the soil base began deteriorating, rendering the campground unfit for the parking of trailers. The trial court rejected plaintiff’s demands without written reasons. Plaintiff appeals and we reverse.

The primary issue is whether defendant breached its contract.

Plaintiff was operating on limited funds. He had contacted a number of contractors concerning the cost of surfacing the pads and drives but all the bids were in excess of $20,000, which was more than plaintiff was able to spend. Defendant company had made several proposals to plaintiff for doing the work and after some discussion defendant offered to construct a four-inch soil cement base. The president of defendant company told plaintiff that by this method the surface would be stabilized for a reasonable length of time after which plaintiff would be required to cover the soil cement with an asphalt sealer. In the course of the discussion between plaintiff and the president of defendant company, plaintiff was shown a similar project which defendant had constructed at a nearby airport and plaintiff was led to believe the surface of the campground would be as hard as that of the airport for about a year.

After these discussions the parties entered into a contract which provided:

“We propose to stabilize existing material 4" deep with Portland Cement on parking pads and road way also drives. Approximately 18,000 sq. yds.
“Prime all roads and pads. Shoot 1 shot of seal on parking lot and main road in to camp grounds and around club house for the unit price of $14,535.50.”

Plaintiff contends that after he had operated the campground for approximately three months the surface began developing potholes, deep ruts, and flaking. Plaintiff complained of these defects to defendant and some repairs were made by placing either a prime coat or some hot mix sealer on portions of the surface.

During trial plaintiff and several expert civil engineers testified that the project was not done in a workmanlike manner. The engineers testified generally that the defects were caused by the soil cement being improperly mixed and laid. One engineer estimated it would cost approximately $16,-000 to rework and properly stabilize the entire surface.

Testifying for defendant, in addition to the officers of the company, were several experts. These witnesses, while not graduate engineers, were experienced in stabilizing soil with soil cement. Defense witnesses testified generally that the stabilization work was done in a satisfactory manner; that most of the defects were due to the unusually wet weather following the completion of the project; and that the deterioration which developed was normal in extremely wet weather unless the soil cement had been covered with an asphalt sealer.

This case presents a question of fact. Plaintiff undoubtedly did not get the type of surface that he desired and expected, but we do not find defendant is responsible for all of the deterioration which developed. Some deterioration may be attributed to the excessive rainfall which followed the completion of the project. Further, a soil cement surface by its very nature tends to deteriorate in the absence of a sealer. Witnesses for both parties agreed they would not recommend a soil cement surface stabilized to a depth of only four inches.

We find the defects complained of must be at least partially attributed to defendant’s failure to properly perform under the contract. Although the cement was mixed to a depth of from three and one-half to seven inches, it was not stabilized to a uniform depth of four inches. We are convinced that had defendant stabilized the surface to a depth of four inches as provided in the contract, the surface would not have deteriorated to the extent that it did.

Plaintiff contends a large portion of the surfaced area must be completely reworked to render it suitable for permanent sealing. Defendant, on the other hand, argues that the sealer could be applied to the surface in its present condition. We conclude the truth lies somewhere between these two contentions. We are satisfied that the defects caused by defendant could be repaired without completely reworking and restabi-lizing the entire surface. We find an award of $5,000 is adequate.

The judgment rejecting plaintiffs demands is reversed and there is now judgment in favor of Jack M. Kennedy against Bryant & Sons, Inc., in the sum of $5,000 with legal interest from judicial demand until paid, plus all costs.