author: STOKER, Judge. CULPEPPER, Judge.

text:
    J. C. FONTENOT, Plaintiff-Appellant, v. Succession of Robert Glen GARLAND, Hasker Garland and Sandra G. Trahan, Defendants-Appellees.
    No. 6003.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    On Motion to Correct Original Record Rehearing Denied Nov. 29, 1977.
    Writ Refused Jan. 20, 1978.

      J. Clyde Fontenot, Ville Platte, C. Brent Coreil, Ville Platte, for plaintiff-appellant.
    Preston N. Aucoin, L. 0. Fusilier, Ville Platte, for defendants-appellees.
    Before CULPEPPER, WATSON and STOKER, JJ.
   STOKER, Judge.

This is an appeal from a judgment which denied plaintiff-appellant the relief he sought and granted the relief sought by defendants-appellees as reconvenors. Plaintiff, J. C. Fontenot, refused to comply with a bid for the purchase of real estate made by him at a public auction. Fontenot brought suit to nullify the sale and to be awarded damages. After plaintiff refused to comply with his bid, the property was readvertised and sold for $13,000.00 less than plaintiffs bid at the original sale. As reconvenors, defendants seek to recover the $13,000.00 difference in price plus $1,000.00 as the cost of the resale.

The issues posed in this appeal are as follows:

(1) Were the pleadings filed by the plaintiff enlarged to assert additional grounds for setting aside the sale at auction by reason of the taking of testimony touching on these grounds without objection from opposing counsel?

(2) Where property is sold at public auction following legal advertisement, may the terms of the advertised sale be altered or varied by the auctioneer at the time of sale by a verbal announcement before the assembled bidders?

The property involved in this case was one of several tracts of land or property advertised for sale at public auction through a legal advertisement. Plaintiff bid in the subject property. According to defendants and reconvenors the auctioneers made a verbal announcement just prior to offering the property for sale. The announcement called attention to the fact that there was an outstanding timber deed affecting the property and also the fact that the owners of the property intended to reserve the mineral rights. Plaintiff bid in the property at $33,000.00. Later plaintiff discovered that the property was not suitable for the grazing of cattle which had been his principal objective in seeking to acquire the property. In his petition the plaintiff sought to be relieved from any obligation under the sale on the ground that the advertisement had been misleading, false and deceptive. When the case came to trial plaintiff also relied upon the contention that the timber deed was not made known to bidders and there had been no notice of the intended mineral reservation. There had been no amendment of the plaintiff’s petition to allege these additional grounds.

The trial court assigned written reasons for judgment which we quote substantially in full as follows:

The plaintiff brought this action to set aside a “sale at auction” of real estate made to him on May 18,1974. He alleges that the location and nature of the property advertisement in the newspaper were erroneous, false and deceptive; that he found this out after he had become the adjudicatee at the Public Sale. He also seeks damages for the fraud which was thus perpetrated on him.
The Defendants filed a general denial and a Reconventional Demand. The Re-conventional Demand being that the Plaintiff failed to comply with his bid; that he failed and refused to pay the purchase price; .that the property had to be re-advertised and re-sold at another and subsequent public sale; that the latter sale, the tract at public auction, brought only TWENTY THOUSAND ($20,000.00) DOLLARS, instead of THIRTY-THREE THOUSAND ($33,000.00) DOLLARS, which had been the bid price of Plaintiff in the first sale. Accordingly, defendants in their Reconventional Demand seek to recover of Plaintiff the sum of THIRTEEN THOUSAND ($13,-000.00) DOLLARS, plus expenses of the sale amounting to and additional ONE THOUSAND ($1,000.00) DOLLARS, or a total of FOURTEEN THOUSAND ($14,-000.00) DOLLARS.
Considering all of the evidence presented, the court is convinced that the alleged false advertisements asserted by plaintiff as a reason to annul his bid, were not important or material in his bidding of the property at the public sale. The tract contained 81.11 acres. The judicial advertisement further described it as the West half (W/2) of the Southeast Quarter (SE/4) of Section 5, Township 3 South, Range 1 West, and gave boundaries. There was no falsity or deception. True, there was another ad, in the same newspaper, with large print, purportedly over the signatures of the auctioneers, but not a judicial ad, which stated this same tract above, was “part woodland and part openland”, and that it was “one-fourth mile from New Crooked Creek Reservoir”. The evidence developed that one of the heirs had caused this large print ad to be in the paper as an eye catcher, in addition to the judicial ad as the law requires.
Plaintiff testified that he read only the large print ad, the night before the sale, and he and a relative decided to go bid in the property the next morning, without going to see it. They intended to borrow the money from the bank, and use the land for cattle grazing. So, sight unseen, they went to the public sale; it involved many tracts and lots. The bidding was “spirited” and Plaintiff became the adju-dicatee for THIRTY-THREE THOUSAND ($33,000.00) DOLLARS as the last and highest bid. He signed a slip to that effect, and later decided not to comply with his bid, and refused to pay the price. The defendants filed a rule to make him comply. He excepted to the Rule, alleging summary process was not permitted. This was sustained by the court, and this suit followed.
The alleged causes of nullity were that:
(a) The tract was in fact all woodland;
(b) The tract was more than one-fourth mile from the reservoir — nearly a half mile;
(c) The adjudication was made subject to an outstanding timber deed and to a half oil, gas and mineral royalty reservation.
The plaintiff was present at the auction sale; the great preponderance of the evidence is that the auctioneers read and used the judicial ad in crying out the property and it was accurate and not false or erroneous. Further the auctioneers made it plan, prior to the adjudication that the timber deed was still in effect and outstanding until August of that year. That the vendors were reserving half of the mineral royalty at the sale (though this was not advertised). The court is convinced there was no deception practiced by the auctioneers. The bidding was spirited. Crowell Spencer Lumber Company was bidding for the property along with Plaintiff, and he became the last and highest bidder. The court feels that Plaintiff bidded more than the property was worth, and used the technical defense above, to get out of paying the price. His main thrust in the trial, was to get out of paying the bid price by him. He offered no evidence of other damages he claimed in his suit.
The Court believes and holds that Plaintiff is not entitled to the relief prayed for by him, and that defendants are entitled to judgment against Plaintiff on their reconventional demand in the sum of THIRTEEN THOUSAND ($13,000.00) DOLLARS, plus legal interest and costs. Their claim for an additional ONE THOUSAND ($1,000.00) DOLLARS is denied for lack of proof.

We agree with the factual findings of the trial court. The trial court apparently found that the pleadings had been enlarged and we agree with that” finding. However, we disagree with the holding of the trial court that the plaintiff must be held to the bid which he made on the defendant’s property and that he is liable for damages. Therefore, we reverse.

ENLARGEMENT OF THE PLEADINGS

In the trial court’s written opinion quoted above, it listed the causes of nullity upon which the plaintiff relied. However, the plaintiff did not allege in his petition anything at all concerning the failure to advertise the outstanding timber deed or the intention of the sellers to reserve mineral rights. As pleaded plaintiff did not base his action to set aside the auction sale on these two issues. They became so only as the trial of the case progressed. This would lead to the suspicion that the timber deed and the mineral reservation were not serious motivating factors leading the plaintiff to seek to be relieved from his obligation under the auction sale. Nevertheless, lack of initial reliance on these factors when the petition was filed would be immaterial if the petition became enlarged under the familiar and well settled principle that pleadings are enlarged to the extent that matter not pleaded is gone into at trial without objection.

During the trial defendants and reconve-nors objected to a question directed to the fact that the legal notice mentioned nothing concerning the timber sales and proposed mineral reservation on the ground that the pleadings did not cover these items. (Tr. 100) Plaintiff’s counsel urged that the pleadings had been enlarged by prior testimony on these subjects without objection. The trial court’s ruling was that the testimony be admitted subject to the objection. From his opinion it is clear that the trial court did consider that the pleadings had been enlarged. A reading of the transcript shows that the unpleaded grounds for setting aside the sale had been inquired into without objection prior to the time that the objection was made on behalf of defendants and reconvenors. See Tr. 61 and 65. When the objection to the enlargement of the pleadings was made, it came too late. Therefore, plaintiff was entitled to, and did, base his action on the additional ground that the property was sold at the auction sale on terms not contained in the legal notice of the auction.

EFFECT OF VERBAL ADDITION OF CONDITIONS OF SALE NOT CONTAINED IN LEGAL NOTICE

Plaintiff made no inspection of the property on his own prior to the sale and did not examine the title. Had he done either of these, he would have been informed as to all aspects of the property other than the mineral reservation. As to the mineral reservation, defendants’ witnesses, including the auctioneers testified it was clearly announced before the property was offered that it was being sold with the reservation. Plaintiff does not deny such an announcement was made, but only contends he failed to hear it. Despite the fact that the issues concerning the timber deed and the mineral reservation were not pleaded initially, they unquestionably materially affected the value of the property. Although one may argue that failure to plead these matters indicates that they were immaterial in plaintiff’s mind at the time he made his bid, they are quite significant grounds upon which plaintiff may seek to void the sale to him made as a result of his bid. They are sufficient in themselves to require that the sale be set aside. Therefore, we need not consider the other questions, whether or not the legal advertisement of the sale and the supplementary advertisement (not legal) were misleading, deceptive, and constituted false advertising.

While we have found no recent cases which consider the question, the jurisprudence we have found indicates that a legal sale at auction may not be made on the basis of amendment or alteration of the legal advertisement through verbal announcement at the time of, or just before, offering the property for sale. Nick v. Bautovich, 119 La. 1039, 44 So. 880 (1907); Porter v. Liddle, 7 Mart., O.S. 23 (1819); Macarty v. The New Orleans Canal and Banking Co., 8 Rob. 102 (1844); Freret v. Meux, 9 Rob. 414 (1845); Nott v. Oakley, 19 La. 18 (1841); Nott v. Bank of New Orleans, 19 La. 22 (1841); Poree v. Bonneval, 6 La.Ann. 386 (1851); Bodin v. McCloskey, 11 La.Ann. 46 (1856); Rochel v. Berwick, 12 La.Ann. 847 (1857) and Maginnis v. Union Oil Company, 47 La.Ann. 1489, 18 So. 459 (1895).

In his reasons for judgment the trial court found that “the auctioneers made it plain, prior to the adjudication the timber deed was still in effect and outstanding until August of that year” and that “the vendors were reserving half of the mineral royalty at the sale (though this was not advertised).” The trial court found that no deception had been practiced by the auctioneers. However, the trial court did not find that the plaintiff had heard the announcements in question. It simply held that the plaintiff was present at the auction sale. There is no proof that plaintiff did hear the announcement. Plaintiff testified that he did not hear the announcement.

In view of the holdings of the jurisprudence cited above, we are of the opinion that once property is advertised for sale at auction, the terms of the sale may not be altered or amended through an announcement made just prior to crying the property. To hold otherwise would lead to uncertainty and confusion in such sales. While there is no evidence of any intentional deception here, to permit auctioneers to make changes in the legal advertisement at the time of offering the property for sale at the auction, would open up auction sales to fraud and misrepresentations. Accordingly, the judgment of the trial court must be reversed. The judgment will be set aside, and judgment is now rendered in favor of plaintiff, J. C. Fontenot, and against defendants rescinding, nullifying and setting aside that certain sale made at public sale in Evangeline Parish on May 18, 1974, to plaintiff of property described as a certain tract of land, situated in Evangeline Parish, Louisiana, being partly woodland, and partly open land, and described as the WV2 of SEVi of Section 5, T-3-S, R-l-W, Louisiana Meridian, bounded North, South and West by Crowell Land and Mineral Corporation, and East by Pardee Lumber Company, and containing 81.11 acres, together with costs of all proceedings in the trial court. Defendants’ reconventional demands are rejected and dismissed, costs thereof to be assessed to defendants-re-convenors. The costs of this appeal are assessed to defendants-reconvenors-appel-lees.

REVERSED AND RENDERED.

On Motion To Correct The Original Record

CULPEPPER, Judge.

After our original decision was rendered in this case on October 17,1977, the defendants filed a timely application for a new trial and, in connection therewith, a motion to correct the original record. In their motion, defendants allege that through error the court reporter omitted from the record on appeal the opening statements by counsel for the plaintiff and counsel for the defendants. They attach to their motion a copy of these opening statements, certified by the court reporter as being true and correct, and they pray that this omitted portion of the record be considered by the court in deciding defendants’ application for a rehearing.

In our decision rendered on October 17, 1977, we held that the pleadings in plaintiff’s petition were enlarged by defendants’ failure to object to the admission of evidence that the judicial advertisement did not state the property was to be sold subject to the reservation of one-half of the minerals by the vendors and subject to an outstanding timber deed. We then concluded that the verbal announcement of these reservations by the auctioneers at the time of the sale did not correct the lack thereof in the judicial advertisement, and, therefore, under the jurisprudence the sale is null.

Defendants now contend that in his opening statement their counsel did object to the introduction of any evidence regarding the mineral reservation or the timber deed, and, therefore, the pleadings were not enlarged. They have filed the present motion to correct the record to include the opening statements by counsel for plaintiff and for defendants, in order that we may determine whether there was such an objection by defense counsel.

The defendants argue that under LSA-C. C.P. Article 1632 the opening statements by the plaintiff and by the defendant are listed as the first steps in the normal order of a trial. They then argue that under LSA-C. C.P. Article 2128 the content of the record on appeal may be designated by the appellant, but, if no designation is made, as was true in this case, the record shall include all of the proceedings in the trial court. Defendants contend the opening statements are part of the trial proceedings and must be transcribed as part of the record on appeal.

Plaintiff has filed an opposition to the motion to correct the record, contending that the opening statements, as the closing arguments, are merely arguments, not evidence nor testimony, and should not be included in the record on appeal. Plaintiff contends also that defendants’ motion to correct the record comes too late, since it was not filed until after our decision was rendered.

We will first consider the question of whether the motion to correct the record was timely filed. LSA-C.C.P. Article 2132 provides for correction of the record on appeal by stipulation of the parties, by the trial court or by order of the appellate court. The last sentence of this article states: “All other questions as to the content and form of the record shall be presented to the appellate court.” This is a broad authorization to the appellate court to correct the record when necessary. We find no statute which prohibits the appellate court from ordering correction of the record after its initial decision is rendered. Hence, we conclude defendants’ motion is timely.

The next issue is whether the opening statements should normally be recorded and transcribed as part of the record on appeal. LSA-C.C.P. Article 2128 provides in pertinent part that: “The form and content of the record on appeal shall be in accordance with the rules of the appellate court, except as provided in the constitution.” Rule 1, Section 3 of the Uniform Rules of the Courts of Appeal sets forth in detail the form and content normally required of the record on appeal. The opening statements of counsel are not listed as required contents of the record. Hence we conclude the opening statements are not required as part of the record on appeal.

Nevertheless, where issues are raised which require that the opening statements be made a part of the record on appeal in order to enable the appellate court to pass on these issues, the appellate court may, in its discretion, order that the record be supplemented to include the opening statements. We find no statute or jurisprudence to this effect except the general rule that the record on appeal should, if possible, include all matters necessary for a consideration of the questions presented for review. See 4 Am.Jur.2d 862-865, Appeal and Error, Sections 397-399.

In the present case, an issue has been raised on appeal which requires that we review the opening statements. Therefore, we grant the motion and will consider the transcript of the opening statements attached to defendants’ motion.

Although, as stated in our original opinion, there were no allegations in plaintiff’s petition as to the mineral reservation or the timber deed, plaintiff’s counsel referred to these in his opening statement. After listing his alleged grounds for nullity of the sale, he said: “Also, your honor, it has come to our attention in the sale, in the advertisement, there is no mention of any reservation of timber or of minerals and, at the actual sale itself on May 18, there was a reservation in the deed, at the auction, of the mineral reservation and, also, a recognition that the property was being sold subject to a timber deed.”

Then, at the very beginning of his opening statement, counsel for the defendant stated: “Now, unfortunately, counsel does not allege what he claims about the timber leases and the mineral reservations; but nevertheless, we can prove that they were announced at the sale, but still, it is not in the pleadings and it would be an enlargement of the pleadings.”

The question is whether this constitutes an objection by counsel for the defendant to the admission of any evidence regarding the mineral reservation or the timber deed. We conclude it does not. A close reading of the quoted portion of the statement shows that counsel for the defendants recognized that plaintiff had made no allegations regarding the mineral reservation or the timber deed and that any evidence introduced in this regard would enlarge the pleadings. Nevertheless, defense counsel did not in his opening statement object to such an enlargement of the pleadings. Since there was no objection, the court was not called upon to make a ruling. And, since there was no ruling by the court, the plaintiff was not afforded the right which he would have had to request an amendment to his petition. LSA-C.C.P. Article 1154.

As stated in our original opinion, the record shows that after the trial started witnesses were questioned without objection as to these unpleaded grounds for setting aside the sale. It was not until late in the trial that an objection was finally made by counsel for defendant. By this time, the pleadings had already been enlarged by the implied consent of counsel for defendants. LSA-C.C.P. Article 1154. This implied consent is corroborated by the fact that the trial judge understood this was one of the issues and mentioned it in his reasons for judgment.

We conclude that although the motion to correct the original record must be granted, a consideration of the opening statements reveals there was no objection made by counsel for defendants in his opening statement to the introduction of evidence regarding the mineral reservation or the timber deed. Thus, although we grant the motion to correct the record, we deny the application for a rehearing, as is more fully shown by a notation to this effect on defendants’ application for rehearing.

      . These grounds were not asserted in plaintiff’s petition for nullification of the sale.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    Russell DORSA v. Robert PARENT et al.
    No. 11510.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Glenn Theriot, Hammond, for Russell Dorsa, plaintiff-appellee.
    Rodney Cashe, Hammond, for Robert Parent, defendant-appellant.
    George Bevan, Baton Rouge, Eric Pittman, Hammond, for John R. Musso, defendant-appellant.
    Before LANDRY, SARTAIN, and ELLIS, JJ.
   ELLIS, Judge:

In this suit, plaintiff Russell Dorsa is asking for rescission of a lease entered into by him with John R. Musso and Robert Parent, eviction of the lessees, and attorney’s fees. The lease in question was entered into on August 15, 1969, and provided for a primary term of 10 years. Rental payments of $125.00 per month, payable in advance on the 15th day of each month were provided, but no place of payment is stipulated in the lease. It is further provided that if any payment of rent is not made when due, the lessor has the right to declare the lease terminated.. On March 6, 1974, the lease was amended to delete a portion of the leased property therefrom, and the rental was reduced to $100.00 per month.

Mr. Musso and Mr. Parent were partners in the operation of a car wash on the leased premises. From the inception of the lease until the month of April, 1976, the car wash was under the immediate management of Mr. Parent, who kept the books and made the rental payments. During that time, he made all payments to the lessor at Mr. Dorsa’s store, which was adjacent to the leased premises. The record reflects that between August 15, 1969, and April 15, 1976, four rent payments were not made on time, three being made on the 16th of the month and one on the 18th.

In April, 1976, Mr. Musso took over the operation of the car wash from Mr. Parent. He did not tender the rent due on May 15, 1976, until May 23rd. Mr. Dorsa refused to accept the tender and instituted this suit against both lessees.

Mr. Musso interposed a number of defenses to the suit. Mr. Parent, however, admitted all allegations of the petition. After trial on the merits, judgment was rendered in favor of plaintiff and against defendants, declaring the lease terminated, and granting lessees 60 days within which to remove their improvements from the leased property. From this judgment, Mr. Musso has appealed.

The first specification of error is directed at the failure of the trial judge to find that a valid tender of rent, made after maturity, but before default and the filing of suit for cancellation of the lease destroys the right of the lessor to cancel the lease. In support of this rule, Mr. Musso cites the Edwards v. Standard Oil Co. of Louisiana, 175 La. 720, 144 So. 430 (1932), which contains the language to that effect. However, the case was decided on other grounds, and is not authority for the proposition for which cited. See Farmers Gas Company v. LaHaye, 195 So.2d 329 (La.App. 3rd Cir. 1967).

It is next contended that the rent was not untimely tendered since it was the duty of the lessor to demand payment thereof at the dwelling of the lessee.

Articles 2712 and 2157 of the Civil Code provide:

“Art. 2712. The lessee may be expelled from the property if he fails to pay the rent when it becomes due.”
“Art. 2157. The payment must be made in the place specified in the agreement. If the place be not thus specified, the payment, in case of a certain and deter-' minate substance, must be made in the place where was, at the time of the agreement, the thing which is the object of it.
“These two cases excepted, the payment must be made at the dwelling of the debtor.”

Absent any other circumstances, Article 2157, supra, requires that the lessor must go to the appropriate place to collect the rent, unless the lease specifies the place of payment.

However, when a custom of payment has been followed by the parties to a contract for a substantial period of time, and is acquiesced in by all of them, it has the effect of modifying the contract, and supplies the omission in the lease of fixing the place and method of payment. Saxton v. Para Rubber Co. of Louisiana, 166 La. 308, 117 So. 235 (1928).

In this case, it is clear that Mr. Parent made the rent payments for seven years by delivering the rent, by check or cash, to Mr. Dorsa at his store. We find this custom of payment is sufficient to so modify the contract' as to make it incumbent on the lessees to make payment to Mr. Dorsa at bis store.

The final specification of error relates to the failure of the trial judge to find that Mr. Dorsa had accepted late payments of the rent on a number of occasions, sufficient to establish a custom, modifying the contract in that respect. The trial judge found that accepting four late payments in seven years did not establish such a custom. We find no error in his determination.

The judgment appealed from is therefore affirmed, at Mr. Musso’s cost.

AFFIRMED.


author: PRICE, Judge.

text:
    John P. HOFFMAN et al., Plaintiffs-Appellees, v. Roland V. McKNEELY, Defendant-Appellant.
    No. 13355.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    En Banc. Rehearing Denied Dec. 5, 1977.
    McKneely & McKenzie by Roland V. McKneely, Jr., Bossier City, for defendant-appellant.
    Herold & Geneux by Simon Herold, Shreveport, for plaintiffs-appellees.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

Roland V. McKneely has appealed the judgments rendered in these consolidated petitory actions which reject his claim to ownership based on thirty-year acquisitive prescription, and which recognize the ownership of the several plaintiffs who have recorded titles to the subject properties.

The tracts in dispute are rural lands located near Blanchard in West Caddo Parish and are referred to in the record by the parties as Tracts A, B, and C.

Baker Realty Inc. and Baker Land Company brought one of the petitory actions against McKneely seeking to be declared the owners of Tracts A and C.

Ownership of Tract B is claimed in the other petitory action by numerous plaintiffs who are referred to as the Colvin heirs.

All three tracts are in Section 5, Township 18 North, Range 15 West. Tract A is the NW Vi of the NE Vi and is contiguous to Tract B which is the SW Vi of the NE Vi. These tracts comprise forty acres each. Tract C is the E lA of the SW Vi of the SE Vi comprising twenty acres.

While plaintiffs admit to not being in corporeal possession of the tracts involved, they claim ownership by record title dating back to 1848 and 1849 when United States patents were issued severing the property from the public domain. There is no dispute in regard to their recorded titles, and the record shows that ad valorem taxes on the property have been assessed to and paid by them.

Defendant, while admitting he has no recorded title, has reconvened claiming ownership by thirty-year acquisitive prescription. The issue is whether defendant has borne the burden of proof that he exercised sufficient adverse, overt, and unequivocal acts of corporeal possession without interruption for thirty years to establish his title by prescription under La.C.C. Art. 3499 et seq.

The trial judge found defendant did not meet his burden of proof and rendered judgment for plaintiffs in both actions. We affirm for the reasons assigned.

The facts reveal that in 1926 defendant began leasing an eighty-acre tract which was part of a larger area of wooded land near Blanchard that had been encircled by a fence to make it suitable for running cattle. The three tracts in dispute herein were also within the loosely fenced area containing approximately 600 acres. After leasing the eighty-acre tract, defendant allowed his cattle to run throughout the large fenced area which was also being used at the time by a third party, Ranee Bickham, for cattle grazing. The grazing area was comprised of multiple tracts owned by various parties, some of whom were unknown to defendant and Bickham.

Between 1926 and 1969 defendant claims to have maintained the fences throughout the grazing area. The evidence shows he repaired fences adjacent to one side of Tracts A and B, and he built portions of a fence approximately forty acres east of A and B. In later years defendant also placed one or two posted signs on the property. Defendant did not prove, nor did he contend, that he had ever completely enclosed on all sides any of the tracts in dispute, or that he ever made any improvements on these lands.

The nature and extent of possession required to support acquisitive prescription is set forth in La.C.C. Arts. 3478-3505. Particularly pertinent to the present facts are Arts. 3490 and 3500 which provide that possession by permission or indulgence of another does not create legal possession or accrue prescription. Instead the possession must be “continuous, uninterrupted, public, unequivocal, and under title of owner.”

The evidence shows defendant failed to establish all of the essential elements required by these articles. In 1926, defendant began using the entire fenced area for grazing cattle. He offered no proof that he used or intended to use Tracts A, B, and C differently from the rest of the tracts enclosed in the large fenced area. In fact, defendant testified that he used the entire tract just to “run the cattle.” Therefore, defendant’s actions and intentions regarding other parts of the grazing area are illustrative of his intentions concerning Tracts A, B, and C. In 1932, defendant withdrew his use of a seventy-seven-acre tract from the overall grazing area because a purchaser of that tract desired to employ the land for her own use. In 1947, the initial tract leased by defendant, the Rosa Delee tract, was removed from the grazing area because it too was purchased by a party who put it to another use. Subsequently two other tracts totaling 145 acres were taken from the grazing land in order to comply with the uses of the land made by the record owners.

The above evidence establishes that although defendant had to some extent made use of the large grazing area, he relegated his use subject to the acts of ownership manifested by the record owners, supporting the inference that defendant did not possess any of these lands openly and adversely as owner, but rather only in the absence of complaint by the true owners. Instead of possessing with the unequivocalness required by the Louisiana Civil Code, defendant possessed with the indulgence allowed by the record owners. Thus, he did not meet the standard set forth in C.C. Art. 3490. This conclusion is bolstered by the fact that in 1945 or 1946, twenty years after defendant began using the entire fenced area, he permitted removal of timber from land immediately east of and contiguous with Tracts A and B. In addition, in 1970, he bought a tract of approximately fifteen acres situated within the fenced area located near the tracts in dispute. These acts are contrary to a claim of ownership. Although it is true that the actions referred to were acts not on Tracts A, B, or C, defendant testified that he used the entire area under fence for the same purpose, and there is no proof that his intentions concerning Tracts A, B, or C were different from the rest of the land.

Although defendant testified that he had formed a definite intent to claim ownership to Tracts A and B by 1957, he concedes that he never discussed his claim of ownership to the lands in question with anyone. He claims to have given permission to two hunters to use “his” land for hunting.

Plaintiffs presented the testimony of several nearby residents who testified they were not aware defendant was exercising any claim of ownership to Tracts A or B until the Bakers contracted to sell Tract A and the proposed purchaser was ordered off the property by defendant.

The evidence as a whole does not show defendant’s claim of ownership throughout the requisite period could be considered “public” as provided by La.C.C. Art. 3500.

We are of the opinion that the facts present a defendant who merely allowed his cattle to roam some 600 acres for a few years, gradually decreasing the acreage as the dictates of the record owners surfaced, and then in the mid 1950’s decided he would claim ownership to certain tracts where there had been no encounters with the true owners. In Liles, et al v. Pitts, et al, 145 La. 650, 82 So. 735 (1919), the Supreme Court declared the well established rule that one must not only possess, but must possess as owner. The burden of proof to establish prescription rests on him making the plea. Matthews v. Carter, 138 So.2d 205 (La.App. 2d Cir. 1962).

We find no error in the conclusion of the trial court that the evidence fails to establish that defendant unequivocally and publicly possessed as owner for thirty years. We affirm the judgment of the trial court rejecting the reconventional demand of Roland V. McKneely and recognizing John P. Hoffman, James L. Colvin, Crawford C. Jinks, Bertha W. Jinks, Evelyn Clark Col-vin, Executrix, Succession of Gus W. Colvin, No. 230,656, Docket of First Judicial District Court, Caddo Parish, Louisiana; Jean Mansell Colvin and John 1)1. Colvin, Jr., Provisional Co-Administrators, Succession of John M. Colvin, No. 236,837, Docket of First Judicial District Court, Caddo Parish, Louisiana; Dorothy Colvin Jordan, Mary Colvin Davis and Jeani Marcom Colvin Ma-gee, Tutrix of the Minors, Charles Marcom Colvin, Beverly Catherine Colvin and James David Colvin as owners of:

The SW Vi of NE lA, Section 5, Township 18 North, Range 15 West, Caddo Parish, Louisiana.

Costs of this appeal are assessed to appellant.


text:
    BAKER REALTY, INC., et al., Plaintiffs-Appellees, v. Roland V. McKNEELY, Defendant-Appellant.
    No. 13356.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    En Banc Rehearing Denied Dec. 5, 1977.
    McKneely & McKenzie by Roland V. McKneely, Jr., Bossier City, for defendant-appellant.
    Booth, Lockard, Jack, Pleasant & LeSage by John R. Pleasant, Shreveport, for plaintiffs-appellees.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

This is a petitory action brought by plaintiffs, Baker Realty, Inc. and Baker Land Company, a partnership composed of J. W. Baker, John D. Baker, and Raymond W. Baker, against Roland V. McKneely seeking to have plaintiffs’ ownership of the land and minerals recognized on two tracts of land in Caddo Parish. The ease was consolidated for the purpose of trial and appeal with the case of Hoffman, et al. v. McKneely, No. 13,355 on the docket of this court in which an opinion was rendered on this date, reported in 352 So.2d 260.

For the reasons assigned in the opinion referred to, we., affirm the trial court’s judgment rejecting the reeonventional demand of Roland V. McKneely and recognizing Baker Realty Inc. as owner of the property, and Baker Land Company, a partnership composed of J. W. Baker, John D. Baker, and Raymond W. Baker, owners of the minerals in the E V2 of the SE of the SE Vi and the NW lU of the NE Vt of Section 5, Township 18 North, Range 15 West, Caddo Parish, Louisiana.

Costs of this appeal are assessed to appellant.


author: MARVIN, Judge.

text:
    SMITH-HEARRON, Plaintiff-Appellee, v. FRAZIER, INC., et al., Defendants-Appellants.
    No. 13357.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    En Banc. Rehearing Denied Dec. 5, 1977.
    Writ Refused Jan. 20, 1978.

      Martin S. Sanders, Jr., Winnfield, for defendants-appellants.
    Bice, Russell & Allen, by Charles B. Bice, Winnfield, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

The president of Frazier, Inc., appeals a $30,000 personal judgment against him in favor of the plaintiff partnership, which performed under a written contract with Frazier, Inc., architectural services for a proposed government housing project.

Plaintiff sued Frazier, Inc., its president, and assignees or vendees of these defendants when it became apparent that Frazier, Inc. was being legally dissolved and that the construction of the project would be undertaken by others. A separate judgment was rendered against Frazier, Inc. and another corporation, and plaintiff’s demands against other individual defendants, except for the judgment appealed, by the corporate president, were rejected. Only the corporate president appeals. We affirm.

The president-appellant contends that Act 105 of 1968, amending or recodifying the Business Corporations Law, R.S. 12:1 et seq., effectively overruled prior decisions under which piercing of the corporate veil was allowed in certain circumstances. R.S. 12:93(B), C.C. Arts. 435, 437. Appellant alternatively contends that the factual circumstances here, in any event, do not justify imposition of the doctrine against him.

Kingsman Enterprises v. Bakerfield Elec. Co., 339 So.2d 1280 (La.App. 1st Cir. 1976), decided after Act 105 of 1968, did not impose the doctrine, but recognized its validity and cited the several cases applying the doctrine. We also find the doctrine yet viable in Louisiana. Kingsman stated that the circumstances which justify the imposition of the doctrine include:

(1) Commingling of corporate and shareholder funds;

(2) Failure to follow statutory formalities required for incorporation and for the transaction of corporate affairs;

(3) Undercapitalization; and

(4) Failure to hold regular shareholder or directors meetings.

A recent Comment at 38 Tulane Law Review 738 discusses and elaborates on the doctrine as applied by Louisiana courts. It is recognized that the doctrine is imposed even in the absence of fraud where there has been a disregard of the corporate entity to such an extent that the corporation is indistinguishable from its shareholder(s). See Keller v. Haas, 202 La. 486, 12 So.2d 238 (1943); Brown v. Benton Creosoting Company, 147 So.2d 89 (La.App.2d Cir.1962).

Whether the doctrine is to be imposed is determined by the totality of the circumstances and is primarily a factual finding best made by the trial court. We do not find the lower court erred in its determination here. Among other supporting evidence, the record shows that the appellant was the sole shareholder. No shares were ever issued. A corporate board of directors was named or elected but performed no functions and held no meetings. Its “minute book” contained only blank pages. The corporation had no net worth. It was created in 1970 and had no property other than 13 acres acquired in 1973 which was valued at $34,000, but on which was owed $38,000, borrowed from a bank which held a mortgage on the 13 acres. The mortgage was executed about the same time the corporation acquired the 13 acres. The mortgage note was delinquent in 1975, as Frazier, Inc. had paid nothing thereon. Frazier, Inc. then conveyed the 13 acres to American Community Development Corporation (ACDC), a corporation which was created to attempt the housing project. The appellant was issued 400 of 2,000 ACDC shares in return for his services to ACDC. The remaining shares (1,600) were issued to another individual. ACDC borrowed funds from this same bank and paid the note ($43,000 in principal and interest) owed by Frazier, Inc. to the bank. Frazier, Inc. was thereafter dissolved. ACDC eventually constructed the government housing project on the 13 acres. Judgment was also rendered in favor of plaintiff against ACDC iri solido with appellant.

The lower court, in excellent reasons for judgment, detailed appellants’ “machinations throughout the whole transaction, from 1970 until the date of this trial, [which] touched all parties to the housing project,” and labeled them as “fraud and chicanery” insofar as they affected the indebtedness of plaintiff. The circumstances support a determination that the corporate entity of Frazier, Inc. was in fact disregarded to such an extent that a judgment against appellant is legally justified.

For reasons detailed in the lower court’s reasons for judgment and summarized here, and at appellants’ cost, judgment is

AFFIRMED.


author: BOLIN, Judge.

text:
    Carl E. YOUNGBLOOD, Plaintiff-Appellant, v. Edward N. DETTENHEIM, Defendant-Appellee.
    No. 13358.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    En Banc. Rehearing Denied Dec. 5, 1977.
    Writ Refused Jan. 30, 1978.

      Carl E. Youngblod, in pro. per.
    Barham, Adkins & Coleman, Ruston, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff brought suit in proper person seeking damages for slander and libel, grounded on the allegation that defendant signed a libelous statement about plaintiff to the Social Security Administration. Defendant filed exceptions of no cause or right of action and one year prescription which the court sustained. Plaintiff appeals; we overrule the exception of no cause of action and remand the case for further consideration of the prescriptive plea.

The issues are: Has plaintiff stated a cause of action for libel and slander? If so, has the action prescribed?

The statement claimed to be defamatory is quoted in plaintiff’s amended petition:

In my opinion, Mr. Youngblood may well qualify as totally and permanently mentally disabled, but I do not see how he can be considered physically disabled to such an extent. I think he is intentionally perpetrating fraud.

It is alleged that on December 15, 1972, and again on March 23, 1973, defendant made the statement to the Social Security Administration on a United States Government form which he signed. This statement was alleged to be false, slanderous, and libelous, and to have caused plaintiff mental strain and suspense.

The words, “I think he is intentionally perpetrating fraud” are defamatory on their face, especially since the alleged recipient of the communication was the Social Security Administration from which plaintiff was receiving disability payments. Lucas v. Ludwig, 265 So.2d 245 (La.App. 4th Cir. 1972) and cases cited; see also Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2d Cir. 1975). We find plaintiffs petition states a cause of action entitling him to a trial on the merits.

The more difficult issue is that of prescription. Louisiana Civil Code Article 3536 provides that an action for injurious words prescribes in one year. Article 3537 provides that the prescription mentioned in 3536 “runs . . . from [the day] on which the injurious words, disturbances or damage were sustained.”

Plaintiff alleged the statement was signed in 1972 and 1973, four years before suit was filed in 1977. If prescription commenced running when the statement was signed, the action had prescribed. However, plaintiff alleged he made every effort possible to obtain copies of the statement but could not until after the effective date of the “Privacy Act of 1975” [5 U.S.C.A. § 552(a) eff. 1975] was passed. Thereafter, on April 5, 1976 plaintiff did receive copies of defendant’s signed statement, and suit was filed March 7, 1977, less than a year after receipt of the copies.

The general rule is that where the face of the petition reflects the action has prescribed (as here) plaintiff must allege and prove facts sufficient to show a suspension or interruption of prescription in order to bring the action within the prescriptive period. Hunter v. Sisters of Charity of the Incarnate Word, 236 So.2d 565 (La.App. 1st Cir. 1970).

Plaintiff’s allegation that he made every effort possible to obtain copies of the statement but could not; that he filed suit within the year after receipt of the copies, is an apparent attempt to show that he could not bring suit and that prescription did not commence to run until the copies were received.

In order to avoid the harsh results which would in many cases result from a strict construction of the prescription articles, a rule that no prescription runs against a person unable to bring an action has become embedded in the Louisiana jurisprudence. Basically, this rule has been interpreted to mean prescription does not run against one who is ignorant of facts that would entitle him to bring suit, as long as such ignorance is not willful and does not result from his neglect. Dean v. Hercules, Inc., 328 So.2d 69 (La.1976) and cases cited.

The allegation that plaintiff was prevented from obtaining copies of the statement by the then existing protected confidentiality of such statements until passage of the Privacy Act of 1975 is a sufficient allegation that his failure to obtain the copies earlier was not due to his negligence.

From the record it is not clear whether plaintiff had other knowledge of the statement before he received the copies reflecting the defamatory nature of the statement and the identity of the person who signed it. It is also not clear whether the plea of prescription was decided on the pleadings or with the benefit of evidence.

Since plaintiff does not have counsel, justice would be better served by remanding the case for the introduction of any testimony on the question of plaintiff’s knowledge of the existence of facts which would entitle him to bring suit against the proper defendant. Dean v. Hercules, supra.

The portion of the judgment sustaining the exception of no cause or right of action is reversed and the exception is overruled; the portion of the judgment sustaining the plea of prescription is set aside and the case is remanded for further proceedings consistent with law and the views expressed herein, assessment of costs to await the termination of the cause.


text:
    Gracie SAPP, Plaintiff-Appellant, v. J. A. WEST COMPANY, Defendant-Appellee.
    No. 13361.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    En Banc. Rehearing Denied Dec. 5, 1977.
    Writ Refused Jan. 20, 1978.
    Baker, Culpepper & Brunson by James R. Hatch, Jonesboro, for plaintiff-appellant.
    Gist, Methvin & Trimble by Alonzo P. Wilson, Alexandria, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiff appeals the rejection of her demands for damages arising out of an incident in defendant’s Winnfield store which caused plaintiff to be arrested for attempted shoplifting. The reasonableness of the actions of defendant’s employees and store manager are at issue. We affirm.

Plaintiff was noticed at a display counter of the store when she picked up and carried away a clear plastic-wrapped merchandising package containing a red clutch purse and matching billfold. When plaintiff walked into another aisle of the store, the employee who was observing plaintiff’s movements noticed that the package was no longer in plaintiff’s hand, but had disappeared. Plaintiff was carrying a large drawstring purse and defendant’s employee suspected that plaintiff had concealed the package in her purse.

Observation of plaintiff continued until plaintiff entered a store dressing room to try on a pair of blue jeans. One employee, who stood watch outside the dressing room, heard noises in the room which were described as sounds of one rumbling through a purse and removing plastic or cellophane wrapping from a package. The area which plaintiff traversed in the store after leaving the purse counter was searched by defendant’s employees in an unsuccessful effort to find the missing red purse and billfold.

After plaintiff came out of the dressing room, surveillance continued. The dressing room was then searched and the purse and billfold, unpackaged, were found on the floor. The dressing room had been checked by an employee for debris within five minutes before plaintiff entered and the purse and billfold were not seen in the room at that time.

Defendant’s manager was advised of these circumstances. He asked plaintiff if she had taken from the display counter a billfold belonging to the store. At the manager’s request, plaintiff accompanied him toward the store office, but in a stockroom enroute, plaintiff stopped, opened to the manager her purse, told the manager that she already had a clutch purse and did not need one and that she had funds with which to purchase a clutch purse. Plaintiff refused to proceed further or to await the arrival of police. The manager made no attempt to physically detain plaintiff and allowed her exit from the store.

The police came to the store in response to a telephone call and learned from the manager the circumstances and the license number of the automobile in which plaintiff left the premises. The manager did not request the arrest of plaintiff by the police. Plaintiff was later arrested by the police at her home, was returned to the store by the police for identification, was booked at the police station, and in about one hour, made bail to effect her release. About two hours after plaintiff was arrested, the police dropped the charges against her at the request of defendant’s store manager.

Apparently conceding that her initial detention was reasonable under the circumstances, plaintiff contends on appeal that all of the defendant’s actions after the initial detention were unreasonable or without probable (reasonable) cause and that the trial court erred in finding otherwise. We do not agree.

The store manager’s actions toward plaintiff after the initial detention were to report the incident to law enforcement authorities and to identify the plaintiff when she was returned to the store for that purpose by police. We do not find these actions unreasonable. See Strong v. American Ry. Express Co., 163 La. 180, 111 So. 669 (1927).

There are cases, including several cited to us by plaintiff, which hold that reasonable cause for initial detention under Art. 215, La.C.Cr.P., may cease to exist under certain circumstances and that the subsequent arrest and prosecution of a shoplifting suspect may impose civil liability. See Hardin v. Barker’s of Monroe, Inc., 336 So.2d 1031 (La.App.2d Cir. 1976) and cases cited there. The cases recognizing this principle were decided on their own particular facts, for indeed, it is the circumstances of the individual case which must be weighed against the statutory requisite of reasonable cause. Reasonable cause in eases of this type depends on the store owner’s honest and reasonable belief that the facts on which he acts, or which he reports to law enforcement authorities, are the full, relevant and true facts. Reasonable efforts by a citizen toward suppression of crime, even where a simple mistake exists, do not automatically impose civil liability, if all the circumstances indicate the efforts were reasonable. The law should, and does, encourage citizens to report suspected criminal activity to proper authorities. See Carter v. Catfish Cabin, 316 So.2d 517 (La.App.2d Cir. 1975).

We expressly noted in Barker that the inquiry in damage suits based on a store owner’s actions toward a suspected shoplifter is twofold. Did the store owner have reasonable cause to suspect and initially detain and investigate the customer, and secondly, was any further detention of the customer reasonable under the additional circumstances which may have been revealed by the initial detention and investigation.

To the store manager and likewise to the trial judge, the plaintiff did not attempt to explain her possession of the package containing the red purse and billfold. Instead, and contrary to the testimony of the store employee who observed her at the purse counter and thereafter, plaintiff denied ever having the package in her hands. This presented a credibility question for both the store manager and the trial judge. With this question answered in the light of the other circumstances, it is not unreasonable to conclude that plaintiff was attempting to steal the packaged items. The record supports the judgment below, and at appellant’s cost, it is

AFFIRMED.


author: BOLIN, Judge. MARVIN, Judge,

text:
    Bennie MOORE, Sr., et ux., Plaintiffs-Appellants, v. The TRAVELERS INDEMNITY COMPANY et al., Defendants-Appellees.
    No. 13366.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    En Banc. Rehearing Denied Dec. 5, 1977.
    Writ Refused Feb. 10, 1978.

      Leon M. Pliner, Shreveport, for plaintiffs-appellants.

      Blanchard, Walker, O’Quin & Roberts by William Timothy Allen, III, Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Plaintiffs’ son was killed when the car he was driving was struck by a state police vehicle. For his wrongful death plaintiffs sued the state trooper-driver of the patrol car, his employer, and the latter’s insurer. The state trooper reconvened for his own injuries. The trial court found the accident resulted from the joint negligence of plaintiffs’ son and the state trooper, and rejected the demands of both plaintiffs and defendant. Plaintiffs alone appealed. We reverse and render judgment in favor of the plaintiffs.

Since we find the state trooper’s negligence in driving a police car at an excessive rate of speed without using flashing lights or siren was a cause of the accident, the principal question is whether the deceased driver was contributorily negligent in crossing a highway in front of the oncoming police car.

Trial on the merits was held in 1971 before the late Judge Eugene B. Middleton. After Judge Middleton’s death his successor decided the case from the record. Since the judge who rendered the decision had no opportunity to hear or observe the witnesses, the rule of according great weight to his factual findings is not applicable. Allstate Insurance Co. v. Shemwell, 142 So.2d 866 (La.App. 2d Cir., 1962).

Shortly before midnight on April 25, 1969, plaintiffs’ 18-year-old son, accompanied by two companions, was driving the family automobile south on U.S. Highway 171, a four-lane thoroughfare with its northbound and southbound lanes separated by a grassy median. At the same time Sgt. Hill of the Louisiana State Police was driving north on U.S. 171 in pursuit of two speeding vehicles.

Intending to turn left onto a private road leading to a local dragstrip, plaintiffs’ son drove into the median at a crossover and brought his vehicle to a stop before crossing the northbound lanes of traffic. At this point the highway was straight and level to the south for a distance of at least 0.7 of a mile. Weather conditions were clear and dry. There was little traffic in either direction on this rural stretch of road.

The state trooper testified his new police car was “semi-marked”: only decals on the front doors and a public license plate identified it as a state police unit. The car was equipped with a siren, which could be engaged by depressing a dimmer-like switch on the floorboard, and a portable flashing red light, which could be mounted on the dash and activated by plugging a cord into the cigarette lighter. However, the trooper used neither siren nor flashing light while pursuing the two speeding automobiles. He testified concerning difficulties experienced with the portable light, including his inability to properly secure it to the dash. He also said that, to prevent evasion by the violators, it was his “practice” to refrain from using siren and flashing lights during pursuit on the open highway until apprehension was imminent.

The trooper testified that when he saw the Moore vehicle stop at the crossover ahead of him his car’s speedometer indicated a speed of 90 miles per hour. He said he immediately lifted his foot from the accelerator and began to pump his headlight dimmer switch to give warning of his approach. However, according to Sgt. Hill’s testimony, the Moore automobile entered the traveled portion of the northbound lanes when his police car was approximately 150 feet south of the crossover and, although he immediately applied his brakes with full force, he could not avoid the resulting collision. The collision occurred near the middle of the outside or right lane. The point of impact was over the right rear wheel of the Moore vehicle. Plaintiffs’ son was thrown from the car on impact and killed instantly. The police car left 53 feet of skidmarks prior to impact. Both vehicles came to rest off the highway approximately 150 feet northeast of the point of impact.

The passengers in the Moore vehicle both testified their driver waited in the median until two speeding cars, traveling side by side, passed in front of them and reached a small bridge one-tenth of a mile north of the crossover. Each testified young Moore then looked to his right (south) before attempting to cross the northbound lanes. Both passengers said they also looked right but saw no vehicle approaching.

Plaintiffs’ expert witness testified the accident would not have happened had the police vehicle been traveling at the legal speed limit (70 miles per hour at the time of the accident). This expert’s conclusions were based on calculations derived from a hypothetical set of facts.

As did the trial court, we find the state trooper’s negligence in driving at an excessive speed patent on the face of the record. Ponville v. Travelers Insurance Co., 340 So.2d 331 (La.App. 1st Cir., 1976). Since he had neither his siren nor his flashing red light in operation while driving at a high rate of speed in pursuit of speeding motorists, he is not entitled to the protection of the emergency vehicle statute, Louisiana Revised Statutes 32:24.

Practical difficulties which the officer confronted in the use of his portable light and his “practice” of pursuing violators silently so as to remain undetected did not relieve this driver of his duty to exercise due regard for the safety of plaintiffs’ son and his passengers.

We find the trooper’s repeated use of his dimmer switch was not sufficient warning to the driver of the Moore vehicle to place defendant under the protection of La.R.S. 32:24C. The alternate flashing of high and low beam headlights is at best a signal fraught with ambiguity. The trooper’s use of the dimmer switch only serves as a painful reminder that a siren switch was located only inches away; its use could have saved a life. In summary, defendant driver was guilty of negligence which was a cause of the accident.

Defendants pled the contributory negligence of plaintiffs’ son as a bar to recovery for his wrongful death. As with other affirmative defenses, defendants bear the burden of proving contributory negligence by a preponderance of the evidence. Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976); Carpenter v. Hartford Accident and Indemnity Co., 333 So.2d 296 (La.App. 1st Cir., 1976).

There is no evidence in the record that young Moore did not look to the south before entering the traveled portion of the northbound lanes from the median. Although his companions testified they looked but did not see the police car approaching, we cannot assume Moore also looked and was oblivious, absent positive evidence of that fact. Rather, since the Moore vehicle was visible to the state trooper, it must likewise be assumed Moore saw or should have seen the police car’s approach. See Gulotta v. Toups, 183 So.2d 383 (La.App. 4th Cir., 1966). Moore was then entitled to presume the approaching vehicle was traveling at a lawful rate of speed. Ponville v. Travelers Insurance Co., supra.

In crossing a favored street in front of an oncoming automobile, the test is whether a driver acts as a reasonably prudent and cautious person under the circumstances. Camet v. Guillot, 291 So.2d 438 (La.App. 4th Cir., 1974). The only evidence suggesting deceased did not satisfy this test is the uncorroborated testimony of the state trooper that he was approximately 150 feet south of the crossover when he noticed the Moore vehicle begin to enter the northbound lanes in front of him. However, to infer from the trooper’s testimony that Moore was negligent in crossing a favored highway, when he should .have known such a maneuver was unsafe, is to ignore the preponderance of the evidence. The admittedly excessive speed of the trooper’s vehicle, the location of the collision near the middle of the outside lane, and the testimony of plaintiffs’ expert in accident analysis lead us to conclude defendants have failed to prove plaintiffs’ son was contributorily negligent. We therefore find the trooper’s negligence was the sole cause of the accident and resulting death.

While no amount of money can compensate Mr. and Mrs. Moore for the loss of their son, this court must nevertheless assess a reasonable amount as damages for his wrongful death. The record shows Bennie Moore, Jr. was the oldest of six children. At the time of his death he was a high school student with part-time employment. His employer intended to hire him full-time during the summer months. There is evidence that young Moore willingly assisted his parents financially from the proceeds of his employment. An especially close relationship was shown to exist between both parents and their first-born son. Mindful of these factors and that this action was tried in 1971, we hold an award of $20,000 as damages for each parent is reasonable.

We find the following special damages were proved:

Wellman’s Funeral Parlors, Inc. $ 500.00
Forest Park West, Inc. (Interment) 75.00
Value of 1961 Chevrolet sedan less salvage ($50) 445.00
Total $1020.00

Plaintiffs are entitled to legal interest on the amount of the judgment from judicial demand until paid. Since demand was made on August 25, 1969, the rate of interest will be 5%, which was the legal rate on the date of demand. O’Donnell v. Fidelity General Insurance Co., 344 So.2d 91 (La. App.2d Cir., 1977); Winzer v. Lewis, 251 So.2d 650 (La.App.2d Cir., 1971).

The judgment of the trial court is reversed and set aside. There is judgment in favor of Bennie Moore, Sr. against defendants June R. Hill, the State of Louisiana through the Department of Public Safety, Division of State Police, and The Travelers Indemnity Company, individually and in solido, for $21,020, with 5% interest from date of judicial demand until paid.

There is also judgment in favor of Josephine Rachel Moore against the same defendants for $20,000 with 5% interest from date of judicial demand until paid.

Appellees are to pay all costs.

MARVIN, J., dissented from refusal to grant rehearing and assigned written reasons.

MARVIN, Judge,

dissents.

I respectfully dissent from the refusal to grant a rehearing because I believe that the decedent driver, plaintiff’s son, was clearly contributorily negligent under the facts as found by this court.

1. The scene is essentially rural and there were no distracting conditions on the night in question.

2. The northbound trooper on a divided four-lane highway saw the decedent’s vehicle stop in the median neutral area between the divided lanes. When the trooper saw this, he decelerated from 90 mph to a speed not determined during the one or more seconds the decedent’s vehicle remained stopped. The two speeding vehicles which passed in front of the decedent traveled 528 feet before the decedent pulled out in front of the oncoming trooper.

3. It is assumed in the opinion that the decedent looked and saw the approaching police car sometime after the decedent stopped. It is also assumed that the decedent saw the “pumping” (continuous on and off flashing) of the high and low beams of the trooper’s vehicle.

4. At this time, the trooper’s vehicle was going less than 90 mph. The speed limit at this time was 70 mph.

5. When the decedent pulled out into the favored highway (it was not legally an “intersection”) the trooper’s vehicle was approximately 150 feet away by the trooper’s estimate with its lights flashing as they had been for some length of time.

6. While the opinion has characterized the continuous flashing of the lights as “fraught with ambiguity,” this certainly afforded notice to the decedent (however “ambiguous”) that the oncoming vehicle on the favored highway was not proceeding in the usual or unambiguous manner. There is something unusual, in my opinion, about an oncoming automobile on a favored thoroughfare which continuously flashes its lights at a vehicle sitting perpendicular to the favored thoroughfare.

7. When there is no other traffic involved and where the speed limit is 70 miles an hour, it is patently unsafe and imprudent for a driver of a vehicle perpendicular to the favored thoroughfare and in the median area of the thoroughfare, to drive his vehicle into the thoroughfare in the face of an oncoming vehicle which is continuously flashing its lights at the vehicle in the median.

8. Time and distance factors support a conclusion that the trooper’s vehicle had slowed considerably from the speed of 90 mph when the decedent stopped in the median. The passing speeding vehicles covered 528 feet (Vio mile) before the decedent started to pull out. The fact that the oncoming vehicle with its lights flashing (at whatever speed) was following two vehicles which were obviously speeding past the decedent, should have served as additional and further warning that the oncoming vehicle with flashing lights was proceeding other than in an ordinary manner.

9. Even assuming arguendo, that the trooper was negligent in speeding and in not using his siren and red light (and this question as to cause in fact is extremely close in my mind), the decedent driver was contributorily negligent in entering the highway under the circumstances.

10. The location of the collision near the middle of the outside northbound lane does not negate contributory negligence or lead me to conclude that the defendants failed to prove contributory negligence because the comparative speed of each vehicle is not found, except by the assumption of the expert for plaintiff.

I would grant the rehearing.


author: HALL, Judge.

text:
    G. T. BLACKSHERE, Plaintiff-Appellant-Appellee, v. KEMPER INSURANCE COMPANY, Hughes Oxygen Company, Inc. and Union Carbide Corporation, Defendants-Appellants-Appellees.
    No. 13367.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    En Banc. Rehearing Denied Dec. 5, 1977.

      Gamm, Greenberg & Kaplan by Irving M. Greenberg, Shreveport, for plaintiff-appellant-appellee, G. T. Blackshere.
    Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., James P. Boden-heimer, Shreveport, for defendants-appellants-appellees, Union Carbide Corp. and American Motorists Ins. Co.
    Cook, Clark, Egan, Yancey & King by Gordon E. Rountree, Shreveport, for inter-venor-appellant-appellee, Reliance Ins. Co.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Shreveport, for defendant-appellee, Hughes Oxygen Co., Inc.
   HALL, Judge.

Plaintiff, G. T. Blackshere, an employee of Williams Truck Parts, Inc., was injured when a valve stem assembly blew out of an oxygen cylinder while he was in the process of changing to a full tank in the course of his work with a cutting torch. A portion of the metal handwheel of the cylinder valve passed through his right hand causing him to sustain a severe and permanently disabling injury to the hand. Plaintiff brought suit in tort to recover damages for pain and suffering, permanent disability, loss of earnings and medical expenses. The viable defendants at the time of trial and on appeal are (1) Union Carbide Corporation, manufacturer, owner and lessor of the cylinder and its component valve; (2) American Motorists Insurance Company, Union Carbide’s liability insurer; and (3) Hughes Oxygen Company, Inc., distributor of Union Carbide products who leased the tank, inspected it, filled it with oxygen and sold the oxygen in the tank for commercial use. Reliance Insurance Company, the workmen’s compensation insurer of Williams Truck Parts, Inc., intervened seeking reimbursement for workmen’s compensation benefits paid to plaintiff.

After trial the district court, accepting the theory of Hughes’ expert witness as being the most plausible explanation of the cause of the accident, found the cause of the accident was worn and defective threads on the valve stem assembly, which allowed the valve stem assembly to be ejected by pressure from within the cylinder. Further finding that the condition of the valve was the responsibility of Union Carbide and that Hughes Oxygen did not have an opportunity to inspect or know of the condition of the valve stem assembly, the district court rendered judgment in favor of the plaintiff for $47,350 against Union Carbide and its liability insurer, including $14,521.20 due intervenor for compensation benefits paid to plaintiff. Plaintiff’s demands against Hughes Oxygen were rejected.

Plaintiff and intervenor appealed asking that Hughes Oxygen be cast in solido with Union Carbide. Plaintiff also asks for an increase in the amount awarded. Union Carbide appealed seeking reversal of the judgment against it; alternatively, seeking to have Hughes Oxygen cast in solido with it; and seeking reduction of the expert witness fees awarded. For reasons set forth in this opinion, we affirm the judgment against Union Carbide, reverse the judgment rejecting plaintiff’s demands against Hughes Oxygen, render judgment against Hughes Oxygen in solido with Union Carbide, increase the amount awarded to $59,000, and affirm the amounts of the expert witness fees.

On July 17,1972, plaintiff was engaged in his principal duty of cutting metal parts from automobile and truck bodies, requiring the use of a cutting torch which operated off of a cylinder of compressed oxygen. The oxygen cylinder being used by plaintiff became empty. A co-employee, Harvey Thomas, went to Shreveport Iron & Supply Company, which purchased oxygen from Hughes Oxygen for its own use and for resale to Williams Truck Parts, Inc., and returned about 15 minutes later with a full cylinder in the back of his pickup truck. Plaintiff removed the full cylinder and placed it on the bed of another pickup truck used in connection with the torch operation. He then began to attach the regulator which had been removed from the expended cylinder to the valve body on the full cylinder. He hand-tightened the nut by which the regulator attached to the valve. As he reached for a wrench to further tighten the nut, an explosion occurred and the valve stem assembly was violently ejected from the valve body. Parts of the handwheel punctured plaintiff’s hand.

Both plaintiff and Thomas testified to observing a “dark oily substance” spewing or “bubbling” from the valve and spraying over the bed and back of the cab of the truck. Other witnesses observed the dark substance on the truck immediately after the accident. A dark substance was observed on plaintiff’s hand by the doctor who treated him. Both plaintiff and Thomas testified that at no time did either of them open the valve. The evidence establishes that the procedure employed by plaintiff was the normal and proper procedure for using compressed oxygen and for attaching the regulator and torch equipment to the valve of the oxygen cylinder.

The ejected valve stem assembly and parts of the broken metal handwheel were found in the bed of the pickup truck after the accident. These parts and the cylinder and valve body were preserved, examined by the experts, and offered into evidence.

The cylinder or tank was manufactured by Union Carbide in 1920. The valve, including the component valve stem assembly, was manufactured by Union Carbide in 1948. Under federal regulations at the time, Union Carbide was required to inspect the equipment at least every five years. The tank bore a stamp which showed that it was last inspected by Union Carbide in December, 1970, approximately two years pri- or to the accident. The tank and valve were owned by Union Carbide at the time of the accident.

Under a written contract Hughes Oxygen was a distributor of Union Carbide products. A large number of oxygen tanks were leased by Union Carbide to Hughes Oxygen for a monthly rental. Under the contract Hughes had the responsibility for inspecting and maintaining the cylinders and valves, as well as filling the tanks with oxygen and selling the oxygen in the tanks for commercial use. Valve replacement parts were furnished to Hughes as required at no charge. Pursuant to this arrangement, Hughes, from time to time, repaired and replaced valves or valve parts. Prom time to time, upon discovering defects in the cylinders or valves, Hughes returned the cylinders and valves to Union Carbide for repair or replacement.

Union Carbide also leased to Hughes the equipment required for filling the tanks with compressed oxygen, transformed from liquid oxygen sold by Union Carbide to Hughes.

The inspection and filling procedure employed by Hughes was prescribed by Union Carbide. The procedure consisted of:

(1) Visual inspection of the cylinder, valve and threads by a pumper for dents, cracks or bends, foreign substances or any other visual defects;

(2) A hammer test consisting of the pumper hitting the cylinder with a small hammer, with a thud indicating the presence of a foreign substance and a ring indicating an empty cylinder;

(3) An odor test in which the pumper opens the valve and sniffs the exhausting gas. Since oxygen is odorless, any odor would indicate the presence of a foreign substance;

(4) Placing of the cylinders on the charging rack at which time any gas still present in the cylinders is pulled from them with a vacuum pump;

(5) Filling the cylinders with oxygen to a pressure of 2200 pounds per square inch, measured by various gauges and regulators; and

(6) A soap test in which soap is applied to the valve to check for leaks which are disclosed by a bubbling of the soap around the valve.

The evidence establishes these procedures were regularly followed by Hughes. The cylinder involved in this accident bore a label stating that it had been inspected and filled by Hughes Oxygen Company. There is no evidence that the cylinder or valve was misused or abused in any respect after it left the hands of Hughes.

Three expert engineering witnesses testified at the trial. Richard L. Madison of Haag Engineering Company in Dallas was employed by intervenor and testified on behalf of intervenor and plaintiff. He examined the cylinder, valve and components and talked to the plaintiff, Thomas, and other witnesses shortly after the accident. Madison theorized that the explosion was caused by an overpressurization in the cylinder tank probably caused by a reaction between the oxygen and a foreign substance such as oil or other hydrocarbon which was present in the cylinder itself. Madison observed that the male and female threads by which the valve stem assembly connected to the valve body were damaged, which damage was caused principally by the explosion, but which could have existed to some extent prior to the explosion. He concluded that the threads on the valve stem were weaker than the tank, thereby allowing the ejection of the valve stem by the explosion.

Robert M. Neary, an experienced engineer employed by Union Carbide, testified on behalf of his employer. Neary attributed the cause of the accident to the presence of hydrocarbons on the regulator. He was of the opinion that plaintiff must have opened the cylinder valve prior to the explosion which allowed a movement of gas into the regulator and caused an explosion in the regulator which moved into the top of the main cylinder and then blew the valve stem out under the extreme pressure being exerted.

Leonidas L. Denson of Denson Engineers, Inc., in New Orleans testified on behalf of Hughes Oxygen. His findings, which were adopted by the trial court, were that the explosion occurred because of defective threads on the valve stem assembly. It was his opinion that the five threads on the valve stem assembly were inadequate in view of the federal requirements that connections to the tank must have at least six threads. He was further of the opinion that the threads were in a defective condition due to wear and tear prior to the accident and that this condition should have been discovered by Union Carbide in their 1970 inspection. Denson believed that the valve stem assembly, in its defective condition, was ejected by the normal pressure contained in the tank and that the explosion occurred almost simultaneously thereafter when gas was allowed to move into the regulator. Denson was of the opinion the valve must have been opened prior to the ejection of the valve stem assembly in order for enough force to have been exerted on the assembly by the normal pressure in the cylinder.

None of the experts performed any metallurgical tests on the valve parts. The conclusions of the experts were based primarily on visual inspection, some experiments with similar parts, their knowledge of the supposed strength of the different components, and reconstruction based on their knowledge, expertise, and experience. Each of the three theories has substantial deficiencies. For example, Neary’s theory is based on the premise that the valve was opened allowing oxygen to come into the regulator under high pressure. (Neary also opined that the oxygen could have come into the regulator by bleeding back through the hoses leading to the cutting torch but he advanced this alternative theory without much conviction). The evidence is convincing, however, that the valve was not opened by Blackshere or Thomas. Neary’s theory also does not account for the well-established fact that a black, oily substance spewed out of the valve in substantial quantity at the time of the explosion. Den-son’s theory that the valve stem assembly ejected under normal pressure prior to the explosion also depends on the valve being opened. With the valve closed it is improbable that enough force could be exerted through the small opening from the cylinder to the seat of the valve stem assembly to cause its ejection, even in a weakened condition. The significance of five versus six threads on the connection is not established. Denson’s theory also does not account for the presence of the black, oily substance. Madison’s theory is weakened by the fact that an explosion within the cylinder of a magnitude sufficient to eject the valve stem assembly, if in good condition, and to cause the damage done to the regulator would have also caused the tank itself to explode.

Although the precise origin, cause, nature and magnitude of the explosion may not be discernible from the evidence in this record, a number of facts can be said to be solidly established:

(1) The cylinder and valve were being put to normal use by plaintiff in the manner for which they were intended at the time of the accident;

(2) The valve had not been opened by plaintiff or his co-employee;

(3) There was an explosion and the valve stem assembly was forcibly ejected from the valve body, causing plaintiffs injury;

(4) There was a foreign substance within the cylinder and/or valve in a significant quantity which was spewed from the valve at the time of the explosion and which was probably oil or a similar hydrocarbon;

(5) The explosion was caused by a reaction between the compressed oxygen and a foreign substance such as a hydrocarbon; and

(6) The threads on the valve stem assembly were weak and defective prior to the accident allowing the assembly to be ejected by a force less than that which would have been required to cause its ejection if it had been in proper condition.

It is reasonable to conclude, and this court does conclude, that the presence of a quantity of hydrocarbon in the valve or cylinder and the defective threads on the assembly connection were both significant contributing causes of the forcible ejection of the assembly and the resulting injury to plaintiff’s hand.

Those who deal in or handle dangerous substances or agencies such as explosives, electricity, gas, firearms, combustibles, and fireworks are held to an extraordinary degree of care. Royal Insurance Company v. Fidelity and Casualty Company of New York, 256 So.2d 352 (La.App. 1st Cir. 1971) and eases cited therein. Compressed oxygen is an explosive and is an ultrahaz-ardous and dangerous substance or agency.

The doctrine of res ipsa loquitur is applicable in this case. See Hake v. Air Reduction Sales Co., 210 La. 810, 28 So.2d 441 (1946). The facts of this case suggest that the negligence of defendants, rather than some other fact or factors, is the most plausible explanation of the accident. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972). The evidence creates an inference of negligence on the part of defendants. King v. King, 253 La. 270, 217 So.2d 395 (1968); Alexander v. St. Paul Fire and Marine Insurance Company, 312 So.2d 139 (La.App. 1st Cir. 1975), writ refused, La., 313 So.3d 846 (1975). In certain types of cases involving certain types of accidents, exclusive possession and control by the defendant is not a prerequisite to application of res ipsa loqui-tur. When proof is made of freedom of fault on the part of those through whose hands the instrumentality passed after it left the hands of the defendants, as in the present case, negligence of the defendant is inferred from the happening of the accident and to escape liability it must overcome the inference. This principle has been applied in cases similar to the present case. See Plunkett v. United Electric Service, 214 La. 145, 36 So.2d 704 (1948); Hake v. Air Reduction Sales Co., supra; and cases cited therein.

Res ipsa loquitur applies equally to each of the defendants in this case and creates an inference of negligence on the part of each. Each defendant had joint continuing control over and responsibility for the condition of the cylinder valve. Union Carbide was the manufacturer, owner and lessor of the cylinder and valve. It was required by federal regulations and did, in fact, make periodic inspections of the equipment. The equipment was used in furtherance of Union Carbide’s business. Union Carbide furnished replacement parts and contractually required its distributor to maintain and inspect the valves and prescribed procedures to be followed in this respect. Hughes contractually undertook the responsibility for inspecting and maintaining the equipment and actually performed inspection and maintenance procedures. It furnished the equipment to consumers in furtherance of its business, with the equipment marked “Inspected and filled by Hughes Oxygen Company”.

The inference of negligence was not effectively overcome by either defendant. While there is evidence that Hughes routinely performed inspection procedures in connection with the filling of all cylinders, there is no evidence of what was done in connection with this cylinder and valve specifically. Assuming that the routine inspection procedures were followed in connection with this cylinder and valve, it necessarily must be concluded because of the existence of the defect and its nondetection that the inspection was inadequately performed or that the procedure itself was inadequate. The valve involved in this case was 24 years old although the evidence does not show how long it had actually been in use. It stands to reason that metal parts will deteriorate or wear out, as demonstrated by the evidence that Hughes and Union Carbide from time to time had to repair and replace parts. Worn and weak threads can be and should have been detected by careful inspection. It offers Hughes no protection from legal responsibility for the condition of the valve to say that its normal inspection procedure did not include an inspection of the internal components of the valve.

Further dealing with Hughes’ responsibility, the presence of the foreign substance in the cylinder or valve, which we have held to be a contributing cause of the accident, necessarily resulted from inadequate or improper inspection and filling by Hughes.

Union Carbide and Hughes are soli-darily liable to the plaintiff for his damages sustained by reason of their joint negligence.

The trial court awarded plaintiff $47,350 itemized as follows:

Past and future loss of earnings $28,350
Past and future pain and suffering 6,500
Permanent disability 8,300
Past and future medical expenses 4,200
Total $47,350

Plaintiff seeks substantial increases in the amounts awarded for past and future loss of earnings and for pain, suffering and disability.

The injury to the hand was severe, painful and disabling. Plaintiff was in the hospital several days. His treatment extended over many months and included two operations. He continues to have some pain in his hand and has restriction and limitation of movement of his fingers, particularly the middle and ring fingers. Plaintiff can no longer use a cutting torch or similar equipment and cannot do any type of work causing pressure to the palm of his right hand or requiring gripping of tools or other implements.

Plaintiff was 46 years old at the time of the accident. He had done farm work during most of his adult life but during the previous eight or nine years had worked at various common labor jobs. Plaintiff learned to use a cutting torch and had worked regularly for Williams Truck Parts for several months, earning $1.75 per hour, slightly over the then minimum wage of $1.60 per hour. His wages the last two quarters he worked exceeded $900 per quarter. Considering plaintiffs age, intelligence and capabilities, it is highly unlikely that he could learn new skills which would enable him to do work that does not require the use of his hands. In the several years between the date of the accident and date of trial the only work done by plaintiff was a few odd jobs for a cousin. He is totally and permanently disabled from obtaining regular, gainful employment even at minimum wage.

The award of $14,800 for pain, suffering and disability is conservative but is within the range of the trial court’s discretion. The evidence, however, compels an increase in the amount awarded for past and future loss of earnings. At the time of trial in the latter part of 1976, approximately four and one-half years after the accident, plaintiff had lost some $16,200 in wages based on his earnings at the time of the accident of approximately $3,600 per year. Assuming 15 more years of work life expectancy at the same wages, future loss of earnings would be $54,000. These figures do not take into account increases in minimum wage which have already taken place and which will take place in the future, nor is inflation taken into account. Even if it is assumed that plaintiff will be able to earn some occasional or part-time wages in the future and even if the future loss of wages is discounted, the award for past and future loss of earnings must be at least the $40,000 amount prayed for in plaintiff’s petition. This award will be increased from $28,350 to $40,000.

Union Carbide and its insurer complain of awards made for the fees of two of the expert witnesses in the amounts of $2,185.83 for Madison and $4,520.19 for Denson. The fee awarded for Madison is supported by an itemized statement of his services and expenses in the record and does not appear to be out of line. We find nothing in the record either supporting or refuting the fee awarded for Denson and there is no basis for a review of that award by this court. The amount does not of itself indicate an abuse of the trial court’s discretion. The awards for expert witness fees will be affirmed.

For the reasons assigned, the judgment of the district court is affirmed in part, reversed in part, amended, and recast as follows:

It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, G. T. Blackshere, against Union Carbide Corporation and American Motorists Insurance Company and against Hughes Oxygen Company, in solido, in the amount of $59,000, together with legal interest thereon from date of judicial demand until paid and for all costs of these proceedings.

It is further ordered, adjudged and decreed that there be judgment in favor of intervenor, Reliance Insurance Company against defendants Union Carbide Corporation and American Motorists Insurance Company, and against defendant, Hughes Oxygen Company, in solido, in the full sum of $14,521.20, which sum is for workmen’s compensation and medical expenses paid to and in behalf of plaintiff by Reliance Insurance Company up to and including January 7, 1977. In addition, there is a judgment herein in favor of Reliance Insurance Company against Union Carbide Corporation and American Motorists Insurance Company, and against Hughes Oxygen Company, in solido, for any additional workmen’s compensation payments made to plaintiff from January 7, 1977, up to and including the date that this judgment is paid in full. Reliance Insurance Company is further entitled to judgment for legal interest from date of judicial demand or date of payment, whichever is later, until paid.

The above said monies awarded Reliance Insurance Company are included within the described sum of $59,000 awarded to plaintiff and such sums will be paid with preference and priority to Reliance Insurance Company out of the said $59,000 and further, in view of the fact that said $59,000 judgment is greater than the amount due to Reliande Insurance Company, pursuant to LSA-R.S. 23:1103, upon payment of the excess to the plaintiff, the liability of Reliance Insurance Company for compensation shall cease for such part of the compensation due computed at 6% per annum and shall be satisfied by said excess payment.

It is further ordered, adjudged and decreed that the said expert witness fees are taxed as costs of this suit and Union Carbide Corporation and American Motorists Insurance Company and Hughes Oxygen Company, in solido, shall bear all costs of this suit. The expert witness fee of Richard L. Madison, plaintiff’s expert, is hereby fixed at $2,185.83. The expert witness fee of Dr. C. G. McAllister is hereby fixed at $125. The expert witness fee of Leonidas L. Denson, expert for Hughes Oxygen Company, is hereby fixed at $4,520.19.