author: MILLER, Judge. WATSON, Judge

text:
    Joseph Michael MONDELLO, III, Plaintiff-Appellee, v. STATE of Louisiana Through DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 5568.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writs Refused Jan. 12,1977.

      William J. Doran, Jr., La. Dept, of Highways, Baton Rouge, for defendant-appellant.
    G. F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and WATSON, JJ.
   MILLER, Judge.

Defendant Department of Highways appeals the judgment awarding $404,004.43 to plaintiffs Joseph Mondello and his minor son for personal injuries to Mondello and for the wrongful death of his wife. We reverse.

This case was consolidated for trial and appeal with Wood v. State, through Department of Highways, 338 So.2d 739 (La.App. 3 Cir. 1976) in which a separate opinion is being handed down this date.

Joseph Mondello was driving in a southerly direction and Willie Lee Wood in a northerly direction; they were involved in an “almost” headon collision which occurred about 9:45 p. m. on April 12, 1975. The accident occurred near the intersection of U. S. Highway 71-84 and Louisiana Highway 486 in Natchitoches Parish. As a result of the collision, Mondello’s wife was killed almost instantly, and Mondello and Wood suffered severe injuries. Following the accident, a pry bar had to be used to get into both vehicles.

About 7:00 p. m., the Mondellos left their young child in the care of the maternal grandparents and proceeded to a “housewarming party” at the newly constructed Walker residence located on La. 486. Being unfamiliar with the area, the Mondellos mistakenly turned off U. S. 71-84 onto the lower leg of La. 486 (called the Coulee Loop Road) and, after discovering their mistake, returned to U.S. 71-84 and traveled northerly about four miles to the intersection where this accident occurred some two hours later. They then turned 122° to the right onto La. 486 and found the Walker residence located some 1900' east of the intersection. They left the party about 9:40 p. m. with the intention of returning to pick up their son. Mondello drove his vehicle west on La. 486 toward the intersection of U.S. 71-84; he passed another westbound vehicle which departed the party about the same time he did. As Mondello approached the intersection, Willie Lee Wood was proceeding northerly on U.S. 71 — 84. The two vehicles collided almost headon some 80' south of the intersection; the Wood vehicle left 51' of skidmarks slanting from the direction of his lane to impact and the Mon-dello vehicle left no skidmarks prior to impact; impact occurred in the southbound lane of U.S. 71-84, causing the death of Susan Scott Mondello and pinning both Wood and Joseph Mondello behind the steering wheels of their respective vehicles.

La. 486 intersects U.S. 71-84 (the two U.S. arterial highways run together at this point) with an angle of 122° to a left turning motorist and 68° to a right turning motorist. Approaching the intersection from the east on La. 486, a driver is confronted first with a solid yellow line (no passing zone) which commences 500' from the intersection; secondly with a junction sign, well reflectorized, approximately 325' from the intersecting centerlines of the two highways; thirdly, there is a cattle guard approximately 130' from the centerline of the intersection; fourthly, there is a directional assembly sign some 70' from the centerline of the intersection indicating that U.S. 71-84 runs north and south; and finally 28' behind this sign, there is a stop sign located 42' from the centerline of the intersection.

See Detail Drawing A at page 733 to better understand the intersection and its approaches. See Detail Drawings B at page 734 for the location of gouge marks and debris together with a presentation of the likely route of the vehicles to and from the point of impact.

The trial court based the decision on Mondello’s testimony and held the sole legal cause of the collision “was the obscuring obliteration and hiding of the stop sign facing La. 486 by a highway directional sign,” due to which obscuration Mondello could not see the stop sign in time to react and stop prior to getting into the intersection. Testimony at trial, as well as photographs, indicated the stop sign was indeed obscured at certain distances by the placement of the directional assembly sign, in violation of regulations in the Highway Department Manual for traffic devices. It was also established that Mondello was unfamiliar with La. 486 in this area, having traveled the 1900' stretch only one time and then earlier that evening when he was proceeding in the opposite direction looking for the Walker residence. The speed limit on La. 486 was posted at 55 m. p. h. at the time of the accident.

Testimony indicated visibility was clear on the night of the accident and that La. 486 is a straight road as it heads west from the Walker house to U.S. 71-84. There is one slight elevation in the road about half way from the Walker home to the intersection. Both La. 486 and U.S. 71 — 84 are hard surfaced, asphalt, two-lane highways.

NEGLIGENCE OF THE HIGHWAY DEPARTMENT

Although there is no evidence of pri- or accidents at this intersection, we find no manifest error in the trial court conclusion that the Department of Highways was negligent in erecting the stop sign and the highway directional assembly sign in such close proximity to each other as to partially obscure visibility of the stop sign to a driver approaching the intersection from the east. However, we find manifest error in the trial court’s factual conclusion that the Department’s negligence was a legal cause of the unfortunate collision between the Wood and Mondello vehicles.

The Department is not the guarantor of the safety of travelers or the insurer against all injuries which may result from highway defects. It is the duty of the Highway Department to see that the state’s highways are reasonably safe for persons exercising ordinary care and reasonable prudence. Pickens v. St Tammany Parish Police Jury, 323 So.2d 430 (La.1975); Wilkinson v. American Insurance Co. of Newark, N. J., 311 So.2d 584 (La.App. 3 Cir. 1975); Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3 Cir. 1975); Dupre v. Louisiana Department of Highways, 154 So.2d 579 (La.App. 3 Cir. 1963). Liability does not attach unless the conduct complained of bears a causal connection in fact to the occurrence of the accident. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Stewart v. Gibson Products Co. of Natchitoches Parish La., Inc. 300 So.2d 870 (La.App. 3 Cir. 1974); Malone, Ruminations on Dixie Drive It Yourself versus American Beverage Company, 30 La.L.Rev. 363 (1970).

A review of this record, including numerous photographs and sketches of the accident, leads us to conclude that the Highway Department’s negligence in improperly placing signs at this intersection was not a cause in fact of the tragic accident. Had the collision occurred in the intersection and with the front of the Wood vehicle striking the left side of the Mondello vehicle, we could agree that the negligent placement of road signs was a cause in fact of the collision. Indeed, Mondello has based his case on the contention that impact occurred in the intersection, and suggests the gouge marks may not be related to the accident. Highway exhibits 15, 16 and 17 (excellent quality color photographs) conclusively establish that the gouge marks were made during this accident and that impact occurred 80' (and possibly more) south of the intersecting centerlines. A substantial amount of debris from the collision is shown in the area of and south of the fresh gouge marks.

The physical facts prove beyond peradventure that Mondello was proceeding slowly to negotiate the 122° left turn; he entered the favored road at a time when the intersection was preempted by the northbound Wood vehicle. Without skidding he almost completed the 122° left turn onto U. S. 71-84 and impact occurred at least 80' south of the intersecting centerlines. The excellent color photographs by Deputy Ash-er Vandenburg were taken at the accident scene before the vehicles were moved. A view of the photographs makes it impossible to conclude that the accident occurred in the intersection.

The Mondello vehicle did not leave skid-marks prior to impact (Tr. 280). Although the Mondello vehicle was knocked backward 34' 8" from the gouge marks (Tr. 285), it came to rest south of the intersection. The Wood vehicle came to rest 16' north of the gouge marks. Highway exhibits 15, 16 and 17 conclusively establish that the fresh gouge marks and debris at and south of the gouge marks resulted from this accident. All experts agreed that a 122° left turn was possible at a speed of no more than 26 m. p. h. The fact that Mondello left no skid-marks prior to impact establishes his speed during his left turn was something less. Mondello’s version of the accident and the trial court’s decision were both linked to a finding that the accident occurred in the intersection and Mondello’s credibility on this crucial issue was totally destroyed by the physical facts.

NEGLIGENCE OF JOSEPH MONDELLO

The Mondellos left the housewarming party at the same time as another couple, the Holleys. The Mondello vehicle passed the Holley pickup truck shortly after leaving the yard of the Walker residence— Mr. Holley testified he was still shifting gears in his truck when Mondello passed him about one hundred yards west of the Walker residence, or 1600' from the intersection itself. Mondello testified that he accelerated to 50 m. p. h., and being unfamiliar with this stretch of road, saw the stop sign only when he reached the cattle guard. Mondello could remember nothing after that, except that the “road was turning to the left.” Tr. 182. Other testimony, Mondello’s survey plat and photographs corroborate Mondello in this respect, namely, that for westbound motorists the center line itself curves 2V20 to the left at the cattle guard.

On cross examination, Mondello admitted to seeing a junction sign for U.S. 71-84, as well as a directional assembly sign; however, he said he probably continued to proceed at 50 to 55 m. p. h. after seeing both junction signs and was unaware of any traffic on U.S. 71-84. He was first aware that he needed to stop when the stop sign “popped up from behind the white sign.” Tr. 204. At that point, it was too late to .react and apply his brakes.

Mr. Holley testified he saw no illumination from brake lights on the Mondello vehicle ahead of him. When Holley reached the intersection he had to look to his left to see the Wood and Mondello vehicles.

The gouge marks, skidmarks and debris found at the scene (Highway exhibits 15, 16 & 17), indicate the initial impact occurred 80' south (possibly further south) of the intersecting centerlines of the two highways. The physical evidence shows the Mondello vehicle did not leave skidmarks prior to impact; nevertheless it had almost completed the 122° left turn onto U.S. 71— 84 at the moment of impact. All experts agreed the 122° left turn would have been impossible on the intersection’s flat area at a speed approaching 50 m. p. h., which is well beyond the critical speed for such a turn in excess of 90°. If Mondello’s testimony is accepted as to his approximate speed on entering the intersection, the most probable result would have been that his automobile would have crossed U.S. 71-84 at the intersection. If it had, one of four things would have occurred; he would have: 1) made a “dog-leg” maneuver to his right onto the existing gravel road across U.S. 71-84; 2) negotiated a 68° right turn onto U.S. 71-84; 3) crashed into the ditch and fence straight ahead of him; or 4) been hit on the left side of his vehicle while still in the intersection.

In fact, the Mondello vehicle almost completed a 122° left turn and impacted almost headon with the Wood vehicle in the area of Mondello’s left front and side; the left front wheel of the Mondello vehicle was knocked backward to a point under the normal position for the driver’s feet (Exhibit Highway 21). The photographs show that both vehicles came to rest, some distance south of the intersection. See Detail Drawings B.

The experts estimated the total force of the impact, measured by the extent of damage to both vehicles, at approximately 50 m. p. h. (that is, the damage was equal to that resulting from a vehicle traveling 50 m. p. h. into a stationary object).

The trial court based its decision on Mon-dello’s testimony that he did not slow for the intersection because he did not see the stop sign in time. The physical facts establish that Mondello did slow for the intersection and it is on the basis of these physical facts that we find manifest error in the finding that the accident occurred in the manner described by Mondello. There is no evidence indicating that Mondello was, or any other reasonable driver would be, unaware of the solid yellow line which commenced in the westbound lane some 500' east of the intersection; this no passing zone line warns the driver to be on the lookout for a curve, a hill, or an intersection immediately ahead. Based on the physical evidence, it is apparent that the solid yellow line and the two signs indicating that U.S. 71-84 was located ahead must have served their purpose and caused Mondello to decrease speed, knowing that he was approaching the intersection.

Based on the physical evidence, we conclude that Mondello knew he was approaching the intersection; that the approach was made at a slow speed; and that the sole legal cause of this accident was Mendello’s failure to look left to ascertain that the intersection was preempted by the favored oncoming Wood vehicle. The improperly obscured stop sign was no more related to this accident than it would have been had a motorist come to a full stop at the end of the properly marked yellow no passing zone, then recklessly proceeded into the intersection in the face of a favored northbound vehicle.

Mondello was negligent in failing to maintain a proper lookout. Fontenot v. Hudak, 153 So.2d 120 (La.App. 3 Cir. 1963). Since the physical facts establish Mondello slowed before entering the intersection, he was under a duty to exercise reasonable care in executing his 122° left turn onto the favored road. His failure to exercise such care was the legal cause, the cause in fact, of this collision. We need not consider the duty/risk analysis unless defendant’s conduct is a cause in fact of the harm. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

Finding that Mondello’s failure to maintain a proper lookout and take precautions of a reasonably prudent driver under the circumstances was the cause in fact of this collision, we do not confront the issue of whether Mondello was intoxicated. The evidence in this regard is in serious conflict; particularly troublesome are: 1) Mondello’s unconfirmed account (first mentioned several weeks after the accident) that someone at the accident scene gave him two or three good-sized swallows of alcohol to relieve his pain, and 2) the blood alcohol test reading of 0.196 which indicated intoxication. This reading was disputed and although admitted “subject to the objection,” we think it was rejected by the trial court. The method used for the test did not conform to officially approved methods under LSA-R.S. 32:663 (Rules and Regulations for the Louisiana Health and Human Resources Administration). More importantly, Mon-dello’s treating physician was of the opinion that the test did not represent a correct reading of his patient’s condition. The record leaves many questions unanswered on this issue; however, the testimony and exhibits lead us to conclude that the negligent driving of Mondello, and not the negligent placement of the highway signs at the intersection, was the sole legal cause of the collision.

The trial court judgment is reversed and set aside; judgment is rendered in favor of defendant Highway Department, and against plaintiff Mondello, dismissing all demands for the wrongful death of his wife and for his personal injuries. All costs both at trial and on appeal are taxed to plaintiff Mondello.

REVERSED and RENDERED.

DOMENGEAUX, J., concurs in the result.

WATSON, J., concurs in part and dissents in part, and will assign written reasons.

WATSON, Judge

(concurring in part and dissenting in part).

This and the companion Wood case are difficult cases resulting from a near-inter-sectional collision in Natchitoches Parish. The vehicle driven by Mondello turned into the intersection and collided (in an area which the record substantiates as being some 80 feet from the center of the intersection) with the Wood vehicle which was traveling northerly on the favored highway 71-84. The stop sign facing Mondello was obscured to some extent and Mondello was to some extent (at least in my view) under the influence of alcohol. Mondello’s guest passenger, his wife, was killed and both Mondello and Wood were seriously injured.

The trial court found the Department of Highways’ negligence in obscuring the stop sign with a directional assembly sign to be the “sole and proximate cause” of the collision and further found that Mondello was not under the influence of alcoholic beverages. The trial court gave judgment against the Department and in favor of Mondello individually, in favor of Mondello on behalf of the four-year-old Mondello child for the loss of his mother, and in favor of Willie Lee Wood.

The majority has reversed the judgments against the Department of Highways and has given Wood judgment against Mondel-lo.

After a careful study of the record, I would hold Mondello negligent and the Department of Highways negligent, and I would find the negligence of both to be causes in fact of the accident. There is no question that the Department was negligent; the only question is whether that negligence was a contributing cause of the accident. The trial court held that it was and I believe under the manifest error rule the judgment should be affirmed as to the Department.

However, I agree with the majority in reversing the trial court on its finding of fact as to Mondello’s negligence. I find the evidence persuasive, without detailing the particulars, that Mondello was under the influence. Perhaps this accounts for Mon-dello’s apparent failure to jam on his brakes and skid into the intersection. Nevertheless, there is testimony in the record by expert witnesses to the effect that, even if Mondello had hit the brakes as soon as the stop sign became visible (at about the catt-legap), he could not have stopped. (See Professor Barnwell’s testimony at TR. 115). The trial judge accepted this testimony.

It is not certain how the Mondello vehicle proceeded just prior to the collision. The record suggests that, when Mondello crossed the cattlegap and became aware of the stop sign which was then visible, he slacked off the accelerator and decreased his speed to 20 or 25 m. p. h. and swung into the turn without hard braking. There is no evidence that he either skidded around the turn or that he skidded because of brake pressure prior to entering the turn.

The case presents a driver, somewhat under the influence, entering an intersection, which was so negligently signed that he could not have stopped if entirely alert. How can it be said that Mondello’s negligence was the only cause, or, on the contrary, that the Department’s negligence was the only cause?

The law presumes that when a stop sign is in place, drivers will obey it. Ory v. Travelers Insurance Company, 235 So.2d 212 (La.App. 4 Cir. 1970); Funderburk v. Temple, 268 So.2d 689 (La.App. 1 Cir. 1972), writ refused, 264 La. 223, 270 So.2d 875 (1973). When the stop sign is missing and drivers fail to stop, the missing sign is deemed a cause in fact of the collision. Vallot v. Touchet, 337 So.2d 687 (La.App. 3 Cir. 1976). The same reasoning would apply to an obscured stop sign; if a driver cannot see a stop sign until it is too late and he fails to stop, the obscured sign is a cause in fact of the collision. The majority here emphasizes that the collision occurred 80 feet from the center of the intersection. This indicates only that Mondello was able to slow enough to turn partially without skidding or turning over. He must have entered the intersection rather suddenly because Wood hit the brakes and skidded partially onto the wrong side of the road.

The trial court found the Department’s negligence to be a cause in fact. I find no clear or obvious error in that conclusion. I would reverse Mondello’s judgment, individually, against the Department, but I would affirm the judgment on behalf of the Mondello child against the Department. I would give Wood (and there is a serious question about the adequacy of his award for loss of wages) judgment against both Mondello and the Department.

Thus, I respectfully concur as to Mondel-lo’s liability, but dissent as to dismissing the Department of Highways.


source: Caselaw Access Project

author: MILLER, Judge. PER CURIAM.

license: Public Domain

text:
    Willie Lee WOOD, Plaintiff-Appellee-Appellant, v. STATE of Louisiana Through DEPARTMENT OF HIGHWAYS et al., Defendants-Appellants-Appellees.
    No. 5569.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writ Refused Jan. 12,1977.
    William J. Doran, Jr., Baton Rouge, for defendants-appellants-appellees.
    Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, Cook, Clark, Egan, Yancey & King by Herschel E. Richard, Jr., Shreveport, for plaintiff-appel-lee-appellant.

      Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and WATSON, JJ.
   MILLER, Judge.

Defendant Department of Highways appeals the judgment awarding $120,149.57 to plaintiff Willie Lee Wood for personal injuries. Wood also appealed seeking to increase the award and to hold defendant Joseph Michael Mondello jointly liable for his injuries. We reverse the judgment against the Highway Department and award judgment to Wood against defendant Mondello.

This case was consolidated for trial and appeal with Mondello v. State, through Department of Highways, 338 So.2d 730 (La. App. 3 Cir. 1976) in which a separate opinion is being handed down this date.

For reasons there assigned, we find Mondello’s negligence to have been the sole legal cause of the accident. Wood’s response to the sudden emergency was immediate and reasonable. He was free from negligence and is entitled to recover damages from defendant Mondello.

Counsel for defendant Joseph Michael Mondello has not suggested that the $120,149.57 should be reduced, so the quantum issue is limited to Wood’s contention that the award should be increased.

This 22 year old plaintiff suffered serious and permanent disabling injuries. He was unconscious and on the critical list for several days after the accident. He sustained a brain stem injury causing seizures and convulsions; contusions over his lower extremities; a fracture of the left elbow; and perineal nerve palsy resulting in a drop of his left foot requiring a leg brace. During hospitalization he developed an ulcer which required plastic surgery. At discharge from the hospital, his memory recall was very poor. His treating physician was of the opinion seven months post accident that plaintiff should not return to his job of driving a truck.

Wood was awarded $10,179.57 for his medical expenses; $10,000 for loss of earnings and $100,000 for general damages. The trial judge saw plaintiff Wood at trial; he knew that the objective symptoms of his disability were limited, and the psychological evidence indicating total disability was qualified by the statement that Wood might improve in the following seventeen months.

While we find the award on the low side, we are unable to conclude that the trial court’s large discretion in these matters has been breached. We therefore affirm the amount of the award assessed by the trial court. LSA-C.C. art. 1934(3); Lester v. Employers Mut. Liability Ins. Co. of Wisconsin, 333 So.2d 672 (La.App. 3 Cir. 1976); Ogaard v. Wiley, 325 So.2d 642 (La.App. 3 Cir. 1975).

The judgment in favor of Joseph Michael Mondello and against the State of Louisiana, through the Department of Highways is reversed and set aside. Plaintiff, Willie Lee Wood, is awarded $120,149.57 in damages against defendant Joseph Michael Mondello, together with legal interest from date of judicial demand. All costs both at trial and on appeal are taxed to defendant Mondello.

QUANTUM AFFIRMED; remainder of judgment REVERSED and RENDERED.

DOMENGEAUX, J., concurs in the result.

WATSON, J., concurs in part and dissents in part, and will assign written reasons in Mondello v. State Dept. of Highways, La.App., 338 So.2d 730.

ON APPLICATION FOR REHEARING

PER CURIAM.

In an application for rehearing, plaintiff Willie Lee Wood directs our attention to an oversight in the trial court’s decree and in our affirmation. All parties stipulated that the expert economist, Dr. David Townsend, was entitled to an expert fee of $300.

We amend the trial court’s judgment and our decree to award this expert fee and tax it as costs. With this amendment, the application for rehearing is denied.

DECREE AMENDED; REHEARING DENIED.

WATSON, J., concurs in amending the decree.


author: WATSON, Judge. HOOD, Judge

text:
    Ava Lee DEMERY et al., Plaintiffs-Appellees, v. WILMAR PLYWOOD, INC., Defendant-Appellant.
    No. 5510.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for defendant-appellant.
    Albin A. Provosty, III, Alexandria, for defendant-appellee.
    Andrew S. Vallien, Natchitoches, for plaintiff-appellee.
    Before HOOD, CULPEPPER, MILLER, WATSON and PETERS, JJ.
   WATSON, Judge.

Defendant, Wilmar Plywood, Inc., has appealed from an award of damages to plaintiffs: Ava Lee Demery; Ava Lee Demery, on behalf of her minor children, Jerry Dem-ery and Terry Demery; and the other Dem-ery children, Willie Lee Demery, Lee Edward Demery, Lucille Demery Brady, Betty Jean Demery Brady, Robert Lee Demery, Jimmy Lee Demery, Lee Roy Demery and Essie Lee Demery. Ava Lee Demery was given judgment for $2,000 and the children, heirs of her late husband, Garrett Demery, judgment for another $2,000.

The trial court found that Wilmar’s discharge of large quantities of water and waste material damaged plaintiffs’ two-acre tract in Natchitoches Parish, Louisiana.

A companion suit, docket # 5511, Demery v. Wilmar Plywood, Inc., La.App., 338 So.2d 744, was filed as an intervention. However, a separate judgment was signed in favor of the intervenor and it is treated as a separate appeal. Lee Edward Demery, who owns a nearby tract about one-half acre in size, was awarded $575 and Wilmar has also appealed from this judgment. A separate opinion has been rendered this date in # 5511.

Wilmar filed third party demands against the Texas & Pacific Railway Company in both suits, alleging that the Texas & Pacific had obstructed the natural drainage and was liable for any damages for which Wil-mar might be cast. The judgments dismissed the third party demands against the Texas & Pacific Railway.

Wilmar contends on appeal that:
(1) the Demery estate is servient to the drainage from Wilmar;
(2) the railroad caused the problem by failure to clear its right-of-way; and
(3) the awards, totaling $4,575.00, are excessive and not supported by the evidence.

The issues are essentially factual.

FACTS:

The plywood plant was purchased by Wil-mar from Columbia Southern in 1971. A re-circulating pond was installed to sprinkle logs at the rate of about 2400 gallons an hour or 37,000 gallons a day. The re-circulating pond is filled by wash-down water used to clean the plant and by a fresh water system when it runs low. The debris from the logs is re-circulated back into the pond and periodically cleaned out. The capacity of the pond is about a million gallons.

The Demery property is south of the plywood plant and at a lower elevation. The east boundary of both Wilmar and Demery is the Texas & Pacific railroad line. South of the Demery property is a pond which has now enlarged to cover most of the property.

According to Ava Lee Demery, she and Garrett had eleven children, the oldest, Willie Pearl, being 35, and the youngest, Terry, being 15. Ava Lee and Garrett lived on their two acres of ground during the marriage, and Ava Lee remained after his death until the house caught fire in October of 1974. She testified that she was unable to rebuild because of the water from the plywood plant. She said the debris and water caused her chickens, ducks and geese to die; she was unable to continue with her garden; her toolshed and chickenhouse rotted down; her fig and peach trees were killed. Mrs. Demery testified repeatedly that there was natural drainage over the property before the plywood plant was built, but the water started backing up after construction of the plant.

Lee Edward Demery testified that he bought his half-acre in 1967 with a house on it. According to him, he is no longer able to raise hogs, or a garden because of the water and debris from the plywood plant.

Pete Lubcker, a witness for Wilmar, said it was possible for the re-circulating pond to overflow. Lubcker admitted that the construction and operations of the plywood plant altered the natural flow of water in the area; and that the alteration in the natural drainage caused an overflow onto the Texas & Pacific railroad tracks.

John R. Bauman, a civil engineer, testified as an expert for Wilmar and said that the underbrush on the edge of the Demery property has shavings and bark in it which impede the flow of water. Bauman also said that the railroad allowed a drainage pipe under their tracks to become clogged or blocked.

E. H. Morton, roadmaster of the Texas & Pacific Railroad, testified that he has been in charge of the track in the area and responsible for maintenance of the roadbed since 1967. Morton had complained to Wil-mar, because a manmade ditch cut by the plywood plant caused a build-up of bark and shavings, which were blocking drainage across the right-of-way. There was erosion under the ties as a result, but Wilmar changed back to the natural drainage after Morton complained. According to Morton, the 54" culvert under the railroad allows drainage and has not been blocked.

ISSUES:

The issues are:
(1) whether there is manifest error in the trial court’s conclusion that the railroad was not at fault; and
(2) whether the awards of damages are supported by the evidence.

LIABILITY OF THE RAILROAD:

There is ample evidence to support the trial court’s decision that the problem was caused by the quantity of water utilized by Wilmar and not by the railroad. While Wilmar argues strongly that the railroad blocked the drainage by allowing brush to grow on the right-of-way, by allowing vines to grow at the top of the pipe and by allowing the bottom of the drain pipe to silt up, we find the testimony to be weak and unconvincing on these charges, as apparently did the trial judge. The plywood plant altered the natural drainage with the discharge of extreme amounts of water, as well as wood chips and other debris. The evidence does not establish that the railroad obstructed or interfered with the natural drainage. After hearing the evidence and personally inspecting the scene, the trial court found the fault to be Wilmar’s and not the railroad’s. We find no manifest error in the conclusion that the railroad was not at fault and in the rejection of Wilmar’s third party demands against the railroad.

DAMAGES:

The testimony of Ava Lee Demery about the inconvenience and loss of assets she suffered and her inability to build a new house on her property because of standing water was accepted by the trial court. We find no abuse of discretion in the award of $2,000 to Ava Lee Demery.

As to the children, the record does not reveal which of them remained with their mother after construction of the plywood plant, and they did not testify as to any damages they suffered. There is also no evidence to support an award for diminution in the value of their father’s estate. Therefore, the award to the heirs of Garrett Demery in the sum of $2,000 must be reversed.

For the foregoing reasons, the judgment of the trial court herein is affirmed in its award to Ava Lee Demery of $2,000. The judgment is also affirmed in its dismissal of the third party demand of Wilmar Plywood, Inc. against the Texas & Pacific Railway Company. The trial court’s award of $2,000 to the children of Ava Lee and Garrett Demery is reversed.

All costs of this appeal are assessed against defendant-appellant, Wilmar Plywood, Inc.

AFFIRMED IN PART; REVERSED IN PART.

HOOD, J., dissents and assigns written reasons.

PETERS, J., dissents for the reasons assigned by HOOD, J.

HOOD, Judge

(dissenting).

I agree with the majority that that part of the judgment appealed from which awards $2,000.00 to “the heirs of Gary Dem-ery” should be reversed. I disagree, however, with some of the other conclusions reached by my colleagues.

The evidence convinces me, for instance, that The Texas and Pacific Railway Company was negligent in allowing the natural drain across its property to become obstructed by debris, limbs, trash, vegetation, silt and other matter, and that its negligence in that respect contributed to the damages sustained by plaintiff. In my opinion Wilmar Plywood, Inc., is entitled to recover on its third party demand for contribution from the Railway Company. I disagree with the majority, therefore, in the holding that Wilmar’s third party demand against the Railway Company should be rejected.

I also feel that the award made to Ava Lee Demery by the trial court is excessive, and that the majority erred in not reducing that award.

For these reasons, I respectfully dissent.


text:
    Lee Edward DEMERY, Plaintiff-Appellee, v. WILMAR PLYWOOD, INC., Defendant-Appellant.
    No. 5511.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for defendant-appellant.
    Albin A. Provosty, Alexandria, for defendant-appellee.
    Andrew S. Vallien, Natchitoches, for plaintiff-appellee.
    Before HOOD, CULPEPPER, MILLER, WATSON and PETERS, JJ.
   WATSON, Judge.

This is a companion case to our docket # 5510, Demery et al. v. Wilmar Plywood, Inc., La.App., 338 So.2d 741. Defendant, Wilmar Plywood, Inc., has appealed from an award of $575 in damages to plaintiff, Lee Edward Demery, and from the dismissal of its third party demand against the Texas & Pacific Railway Company. The award of damages shows no abuse of discretion by the trial court. For the further reasons assigned in # 5510, the judgment of the trial court is affirmed. All costs of this appeal are assessed to defendant-appellant, Wilmar Plywood, Inc.

AFFIRMED.

HOOD, J., dissents and assigns written reasons.

PETERS, J., dissents for the reasons assigned by HOOD, J.

HOOD, Judge

(Dissenting).

I feel that the trial court erred in dismissing the third party demand of Wilmar Plywood against the Texas and Pacific Railway Company. In my opinion, the Railway Company was negligent in allowing the natural drain across its property to become obstructed, that its negligence in that respect contributed to plaintiff’s damages, and that Wilmar thus is entitled to contribution from the Railway Company.

For these reasons, I respectfully dissent.


author: T. LEMMON, Judge.

text:
    Frank B. WOOD v. BOARD OF COMMISSIONERS FOR the PONTCHARTRAIN LEVEE DISTRICT.
    No. 7504.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1976.
    Rehearing Denied Nov. 16, 1976.
    Writ Refused Jan. 14,1977.

      Ponder & Richardson (Lamar M. Richardson, Jr., Metairie, Ralph R. Miller, Norco, for plaintiff-appellant.
    Thomas J. Kliebert, Gramercy, for defendant-appellee.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   T. LEMMON, Judge.

This is an action to recover the value of and damages to plaintiff’s two parcels of vacant land which defendant Levee Board used to construct or to enlarge levees along two separate canals which empty into Lake Pontchartrain. Plaintiff has appealed from a judgment awarding him the value of the land as of 1949, the year in which construction of the original levees commenced. On appeal plaintiff contends that the judgment should be based on the value in 1962, the year in which he learned of the illegal taking and instituted this action. We do not reach the issue, however, as to the proper date for fixing compensation, because we conclude that plaintiff is not entitled to compensation.

Insofar as this record shows, the Board’s only attempt to acquire any right to occupy either parcel was a 1949 appropriation resolution pertaining only to the parcel in Metairieville Subdivision. We agree with plaintiff’s contention that appropriation is not applicable when the land was not riparian in origin to the Mississippi River at the time of its separation from the public domain. See Thomas v. Bd. of Comm’rs, supra. However, plaintiff’s further contention that there has never been a legal taking is contingent upon the property’s being privately owned at the time of levee construction or expansion. Plaintiff’s failure to prove this fact defeats his claim.

Plaintiff acquired the Metairie-ville parcel, consisting of two lots numbered 8 and 9, in 1954 and 1956. Lot 8 had been sold to the state in 1936 for unpaid taxes and was not redeemed until 1954, several months after plaintiff acquired a quitclaim from the tax debtor. Lot 9 had been sold to the state in 1937 for unpaid taxes and was acquired by plaintiff in 1956 by process verbal and patent. Therefore, at the time of original levee construction in 1949, title to the two lots was in the state by virtue of the two tax sales and the expiration of the redemptive periods. When property is adjudicated to the state for delinquent taxes, title passes to the state subject to the right of redemption; and if the right is not seasonably exercised, the title to the state becomes absolute. Board of Comm’rs v. Concordia Land & Timber Co., 141 La. 247, 74 So. 921 (1917).

In Emery v. Orleans Levee Bd., 207 La. 386, 21 So.2d 418 (1945) the disputed property was adjudicated to,the state for unpaid taxes in 1922. Act 99 of 1924 authorized and directed the Board to construct the Bohemia Spillway and to acquire the privately owned property necessary for the construction. The subject property was utilized for spillway construction, but there was no express dedication of the specific property for public use, nor were the tax debtors notified of that use. After the spillway was constructed, and after the period for redemption had elapsed, the tax debtors redeemed the property in 1938 and then filed a petitory action, claiming the redemption placed the property back in the condition it was prior to the tax adjudication. The court held that when the tax debtors obtained the redemption, the property had been dedicated for spillway purposes and removed from commerce. The court noted that while there was no specific dedication of lands belonging to the state, there was obvious legislative intention for all land included in the project to be set aside for the public purpose and removed from commerce. The assent of the state to such use is presumed. See also Klause v. State, 243 La. 242, 142 So.2d 410 (1962).

It is important to note, both in this case and in the Emery case, that the property in dispute was not privately owned property at the time that it was applied to public use. Under these circumstances the constitutional provisions for due process and payment of just compensation are inapplicable.

We conclude that when plaintiff acquired the two lots by patent from the state and by quitclaim from the tax debtor followed by redemption from the state, his acquisition was subject to the previous dedication to public use for levee purposes.

Plaintiff contends, however, that the levee did not encroach on the Metairieville parcel until the base was expanded in about 1960, after his acquisition. His testimony supporting this contention, given only under cross-examination, was contradicted by an engineer from the Department of Public Works and was not corroborated in any manner, although he made reference to information from the Corps of Engineers and from an adjoining property owner who resided there. Plaintiff’s failure to produce corroborating evidence defeats this contention.

The Kenner Project parcel, consisting of four lots, was acquired by plaintiff in December, 1959 after his vendor acquired the lots during the same month by process verbal and patent from the state. Uncontra-dicted evidence showed the original levee occupied a portion of these lots and a 1959 expansion took an additional amount of depth. Since title to these lots was in the state, insofar as this record shows, at the time of levee construction and expansion, we deny plaintiff’s claim for the same reasons we denied the claim on the Metairie-ville lots.

Inasmuch as plaintiff was the only party who perfected an appeal, we can merely refuse to increase the amount of the award.

The judgment is affirmed.

AFFIRMED.

      . When this action was commenced in 1962, it was quickly dismissed on an exception of prescription under R.S. 9:5626. This court remanded, finding the evidence insufficient to support the plea of prescription. 151 So.2d 524. The case was then tried on the exception and the merits in 1967, and the trial judge filed written reasons proposing to again maintain the exception of prescription. We are informed that signing of the judgment was withheld by consent, first to await appellate action in a similar case [Thomas v. Bd. of Comm’rs, 208 So.2d 163 (La.App. 4th Cir. 1968)] and then to pursue settlement negotiations. The case was ultimately resubmitted on the 1967 evidence, and that judgment (rendered in 1975) is now before us for review.

      . Furthermore, plaintiff has no claim against the state as vendor of the property. Tax sales from the state are executed without warranty.


author: SAMUEL, Judge.

text:
    Al B. JOHNSON a/k/a Al Brown v. GUASTELLA CONSTRUCTION AND REALTY COMPANY and Commercial Union Insurance Company.
    No. 7255.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.
    Writ Refused Jan. 19,1977.

      Marvin C. Grodsky, New Orleans, for plaintiff-appellant.
    Warren M. Simon, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against his employer and its compensation insurer for total and permanent disability benefits under the Louisiana Workmen’s Compensation Act, and for penalties and attorney’s fees.

Following trial on the merits and a partial new trial, there was judgment awarding compensation at the rate of $17.50 per week for 200 weeks, based upon a finding of 15% partial permanent disability (of the upper right extremity), as provided by LSA-R.S. 23:1221(4) (f), (n) and (o). Plaintiff has appealed.

The record reveals the following facts: Appellant, a carpenter, was born Ale Brown and worked under that name for the defendant, Guastella Construction Company. He was raised by a foster mother named Johnson, and for most of his life went by the name of Ale Johnson. On November 15, 1973 he fell from a scaffold while in the employ of Guastella and was immediately taken to Dr. Russel Rawls, the defendant’s physician.

Dr. Rawls thought the injury would be of three or four days duration and that he could return to work at the end of that time. However, appellant did not return to work. In December, 1973 he again saw the doctor with complaints of pain in the upper right extremity. Dr. Rawls then referred him to Dr. Harry Hoerner, an orthopedic specialist, who determined he had a transverse fracture of the right navicular. He was in a cast for five months and the trial court found he had sustained a 15% permanent partial disability of the upper right extremity.

In this court appellant contends: (1) he is entitled to total and permanent disability benefits; (2) alternatively, the amount awarded was incorrectly computed; and (3) he is entitled to penalties and attorney’s fees. His claim for total and permanent disability was and is based upon the asserted fact that he can no longer perform his duties as a carpenter without pain.

Expert medical testimony was given by Drs. Rawls and Hoerner. Dr. Rawls testified on November 15, 1973, the date of the accident, x-rays showed no fractures. He diagnosed the injuries as a multiple contusion involving both wrists, hands, right side, and an abrasion to the right patella. He told appellant to return to work in three or four days. Appellant again was seen on December 12, because he was not improving. The doctor then referred him to an orthopedic specialist, Dr. Hoerner, who thereafter took over treatment. X-rays supplied by Dr. Hoerner revealed a transverse fracture of the right navicular. Based on this evidence, as of December 14, 1973, Dr. Rawls felt he should be able to return to work within three or four weeks.

Dr. Hoerner testified: It is not uncommon for a fracture of this type to fail to show up in the initial x-rays; it could appear in a later x-ray as a result of absorption around the site. A cast was applied to the right wrist and forearm. At the end of five months the fracture had healed and the cast was removed. The contusion of the left wrist healed without the necessity of a cast.

Dr. Hoerner was of the opinion that, although advised to do so by Dr. Rawls, the failure to return to work from November 15, 1973 through December 13, 1973 was consistent with the findings of a fracture, and that pain in the right hand could be expected during that period. Dr. Hoerner told appellant he could return to work in December if assigned to light duties, as he would have to wear a cast for about five months. Johnson made several visits to the doctor over the five month period. When last seen on July 10, 1974 the fracture had completely healed, although there was limitation of motion of a few degrees of dorsi-flexion of the right wrist and a few degrees of volvar flexion. There was no tenderness over the fractured bone, but Johnson complained of aching in the left hand over the ulna border. Examination of the left hand was normal. The doctor’s report of July 22, 1974 rated the disability as 10% to 15% partial of the upper right extremity from the shoulder to the fingertips. Although Dr. Hoerner was aware of the fact that this injury was of more consequence to a carpenter than to another worker whose job would not include hammering, sawing, handling sheetrock, erecting scaffolding, climbing, and the like, at the time of this final examination he concluded Johnson could return to his full duties as a carpenter.

The jurisprudence is to the effect that residual pain or discomfort which an employee suffers following an industrial accident is disabling only if it is sufficiently substantial or intense as to prevent him from carrying out some of the functions of his job, hinders him in the performance of his duties, or makes performance of his work deleterious to his health or dangerous to the safety of others.

The only medical evidence concerning permanent disability is that of Dr. Hoerner. Based upon that evidence the trial court concluded appellant sustained a 15% disability and as of July, 1974 could return to his work as a carpenter.

Appellant argues we are not bound exclusively by the medical evidence and that we are obliged to consider the lay testimony as well, citing the case of Tantillo v. Liberty Mutual Insurance Company, La., 315 So.2d 743, which overruled a long line of cases holding that if there was no conflict in the medical testimony then lay testimony should not be considered. Tantillo holds that while it is generally true medical testimony which is not in conflict cannot be overcome by lay testimony, nevertheless, in each case the totality of evidence, medical and lay, must be considered and examined by the court in making its determination.

Here there is no conflict in the medical testimony; both doctors are of the opinion Johnson can perform his full duties. The only lay testimony regarding whether or not he is able to work without substantial or appreciable pain is that given by Johnson himself.

He testified: He did not return to work although advised to do so because he was in too much pain. When the cast was removed in 1974, he still had pain in the hand. At the time of the trial (October 30, 1974), he had no pain but he experiences pain when he works for a long period of time. He had tried to return to carpentry, doing sheetrock for a neighbor, but was able to do so only for a brief period because of the pain. He is unable to work eight full hours as a carpenter, and can only work for three or four hours before he has to stop.

Proof of disability arising by reason of subjective pain depends to a great extent on the trial court’s evaluation of credibility in the light of medical testimony; and whether such pain is substantial enough to be disabling is a question for the trier of fact. Here it is clear the trial court did not believe appellant’s testimony relative to pain. We note that Johnson made little attempt to determine whether or not he could work without substantial pain and he denied ever having been in a previous accident, or having prior compensation claims, yet on cross examination he “remembered” he had been in a prior accident when his arm had almost been amputated.

Considering both the only lay testimony (Johnson’s) and the medical testimony relative to pain, we cannot say the trial court committed error, nor can we say appellant has proved, by a preponderance of the evidence, that he is permanently and totally disabled.

We agree with appellant’s second contention. The rate of compensation should have been based on a six day week. As stated in Carrington v. Consolidated Underwriters, 230 La. 939, 89 So.2d 399, the established rule is:

“After determining an employee’s daily wage, the six day week is to be employed in calculating his weekly wage. If he is injured, he is deprived of this ability to work six days per week, and remuneration is awarded him for this deprivation. This test must be applied regardless of the number of days he works for the particular employer, by whom he is employed at the time of his injury.”

It is not contested that appellant earned $4.50 per hour. Therefore, as the trial court found a 15% disability, under the provisions of LSA-R.S. 23:1221(4)(f), (n) and (o ); $4.60 per hour x 48 hours = $216 per week; 65% of $216 = $140.40; and 15% of $140.40 = $21.06 per week, as opposed to the $17.50 per week awarded. We amend the judgment accordingly.

Appellant’s final contention is that he should be awarded penalties and attorney’s fees. In this connection, LSA-R.S. 22:658 is applicable. It provides for the imposition of penalties and attorney’s fees when the failure to pay workmen’s compensation is “arbitrary, capricious, or without probable cause.” The purpose of the penalty provision is to deter unjustified termination of payments to injured employees during their period of distress.

Appellant argues the insurer was in violation of R.S. 22:658 in that: (1) it failed to start benefits until January 23, 1974, although the accident happened on November 15, 1973; (2) it prematurely terminated payment of benefits on May 19, 1974; and (3) it failed to resume benefits when it received medical evidence that appellant had a'partial permanent disability.

(1) We do not agree that the failure to begin benefits until January 23, 1974 was arbitrary, capricious or without probable cause. That delay was due to confusion created by Johnson’s use of a pseudonym. His attorney made demand on behalf of his client, “A1 Johnson”. Guastella had no employee by that name, because Johnson was working under the name of “Ale Brown”. When the discrepancy was discovered, the insurer prepared a draft for all compensation due from the date of the accident. Johnson was to pick up the draft at the insurer’s office. When he failed to appear for two weeks, the insurer issued a second draft and mailed both of them to the appellant.

(2) Nor do we agree that the benefits, which were paid weekly from their inception until May 19, 1974, were arbitrarily terminated. While appellant complains the termination supposedly was based upon a telephone call from his then attorney advising the insurer he had returned to work (he had not returned to work for Guastella), Doctor Hoerner testified he informed the insurer in May that plaintiff could return to work. Based upon that assurance by the doctor, the insurer did not act arbitrarily or capriciously in terminating benefits at that time.

(3) The first time the insurer was aware appellant had a partial residual disability was on July 24, 1974 when it received a medical report from Dr. Hoerner indicating Johnson had a 10% to 15% partial permanent disability of the upper right extremity. The insurer then knew, or should have known, that appellant was entitled to a minimum of $14.04 [10% disability] for 200 weeks or a maximum of $21.06 [15% disability] for a like period. Since appellant had been paid $1,620, defendant clearly owed him more compensation benefits. While the insurer’s adjuster made several offers to compromise the matter, at no time was any additional amount tendered.

Failure to tender the minimum amount clearly due constitutes arbitrary and capricious refusal to pay, and subjects the insurer to penalties of 12% of the difference between the amount paid and the amount found due, as provided by R.S. 22:658. Accordingly, we award a penalty in the amount of 12% of the difference between the amount of compensation already paid ($1,620) and the amount we now find due ($4,300), together with attorney’s fees in the sum of $1,000, which we conclude is a reasonable fee under all of the circumstances. The penalty and attorney’s fees are to be paid only by the defendant-insurer.

For the reasons assigned, the judgment appealed from is affirmed in part, amended in part, reversed in part and recast to read as follows:

It is ordered that there be judgment in favor of the plaintiff, Al B. Johnson, and against the defendants, Guastella Construction Company and Northern Assurance Company of America, in solido, for workmen’s compensation for a period of 200 weeks, at $21.06 per week, beginning November 15, 1973, together with legal interest on each installment from its due date until paid, subject however to a credit for compensation already paid.

It is further ordered that there be judgment in favor of the plaintiff, Al B. Johnson, and against the defendant, Northern Assurance Company of America, in the full sum of $321.60 (12% of $2,680) with legal interest thereon from July 24, 1974 until paid.

It is further ordered that there be judgment in favor of the plaintiff, AI B. Johnson, and against the defendant, Northern-Assurance Company of America, in the full sum of $1,000 as attorney’s fees.

All costs in both courts are to be paid by both defendants.

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART; AND RECAST.

      . As the accident in suit occurred on November 15, 1973, the following provisions are applicable:
      “(4) In the following cases the compensation shall be as follows:
      (f) For the loss of an arm, sixty-five per cen-tum of wages during two hundred weeks.
      (n) A permanent total loss of the use of a member is equivalent to the amputation of the member.
      (o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.

      . Incorrectly named Guastella Construction and Realty Company in the original petition, and subsequently corrected by supplemental petition. Likewise, the correct insurer is Northern Assurance Company, properly named in the judgment.

      . Lantier v. Guy Scroggins, Inc., La.App., 223 So.2d 252; Rutherford v. Dixie Concrete, Inc., La.App., 222 So.2d 508; Mouton v. Habetz, La.App., 215 So.2d 363; Jones v. Woodson

        Construction Company, La.App., 213 So.2d 151; Landry v. Central Excavation Company, La.App., 196 So.2d 571; Holmes v. Morville Plantation, Inc., La.App., 314 So.2d 752; Dupard v. M & C Construction Co., La.App., 312 So.2d 660.

      . Holmes v. Morville Plantation, Inc.; Dupard v. M & C Construction Co., Footnote 3.

      . Footnote 1.

      .“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. . . . ”

      . Guillory v. Travelers Insurance Company, La., 294 So.2d 215; Poindexter v. South Coast Corporation, La.App., 204 So.2d 615.

      . See Fruge v. Pacific Employers Insurance Company, 226 La. 530; 76 So.2d 719; Guillory v. Travelers Insurance Company, Footnote 7; Breen v. Bituminous Casualty Company, La. App., 249 So.2d 338; Berry v. Higgins, Inc., La.App., 136 So.2d 170; Fruge v. Hub City Iron Works, Inc., La.App., 131 So.2d 593.

      . Lethermon v. American Insurance Co., La.App., 129 So.2d 507; Bassemier v. W. S. Young Construction Co., La.App., 110 So.2d 766.


author: REDMANN, Judge.

text:
    Fisher E. SIMMONS, Jr. and H. D. Webster, M.D. v. The BOARD OF ZONING ADJUSTMENTS FOR the CITY OF NEW ORLEANS et al.
    No. 7584.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.
    Henry B. Alsobrook, Jr., Robert E. Couh-ig, Jr., Adams & Reese, New Orleans, for plaintiffs-appellants.

      Philip R. Riegel, Jr., Sydney J. Parlongue, New Orleans, for intervenors-appellees.
    Joseph E. Berrigan, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   REDMANN, Judge.

Residence-owners whose lot adjoins the rear of a corner lot appeal from a judgment upholding New Orleans’ having granted permits for construction of an accessory building on that rear line.

We reject the argument that the zoning ordinance unconstitutionally differentiates by allowing construction on rear lines but not-side lines (here, the common line between the lots): art. 10 § 12(2) allows construction on [interior] side as well as on rear lines.

We also reject the argument that the neighbors’ having begun work (with expired permits) prior to obtaining (valid) permits should visit upon them some penalty other than the doubled or quadrupled permit fees of Building Code arts. 204-205. One has “the right to use, to enjoy and to dispose of one’s property in the most unlimited manner, provided it is not used in any way prohibited by laws or ordinances.” C.C. 491. The neighbors’ work was not, in substance, contrary to any ordinance. It was, in procedure, contrary to Building Code art. 201’s requirement of a permit: but that Code only penalizes work started without a permit, if the work is otherwise permittable, by increased permit fees.

Affirmed.


author: REDMANN, Judge. SAMUEL, Judge

text:
    Therese SEARS and Frank Sears, Individually and on behalf of the Community of Acquets and gains existing between them v. PARKCHESTER APARTMENTS, INC., et al.
    No. 7587.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.

      Michael Stagg Guillory, New Orleans, for plaintiffs-appellants.
    Frederick R. Bott, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   REDMANN, Judge.

In 1954, in Davis v. Lewis & Lewis, 226 La. 1059, 78 So.2d 173, 174, the Louisiana Supreme Court commented on a plaintiff’s inability to obtain the name of an adjuster-represented insurance company: “To give the name of the liability insurance carrier should become the prevailing ethics.”

In 1974, the adjuster in this suit still refused to disclose the names of its insurers “and in the industry in whole, it’s generally assumed if the insurance company, the plaintiff’s attorney does not know the insurance company involved, that we don’t generally give him that information, that’s just readily available to the attorney to start with.”

Plaintiffs appeal from a judgment dismissing on an exception of prescription their action for personal injuries at an apartment complex. Plaintiffs filed suit on the last day of the tort-prescription year, against the wrong person as the owner of the apartment, an “undisclosed” insurer, and General Adjustment Bureau, Inc., alleged to be an insurer. Two months later, a supplemental petition named All-Star Insurance Corp. as the undisclosed insurer and added it as a defendant; and plaintiffs dismissed General Adjustment. Three months thereafter, a second supplemental petition named Unigard Mutual Ins. Co. as the undisclosed insurer and added it and the true owners of the apartment complex as defendants. Those new defendants filed the exception of prescription which was maintained.

General Adjustment Bureau was but an independent adjuster, who was handling plaintiffs’ claim for a principal whom it refused to disclose prior to suit. (Plaintiffs’ inquiry to the state insurance rating commission did not produce the insurer’s name, presumably because plaintiff inquired only for the insurer of “Parkchester Apartments.”) The adjuster was made a defendant because it refused to disclose its principal (though the petition does not set these facts forth). Once sued, the adjuster disclosed that its principal was All-Star (and plaintiffs therefore sued All-Star and dismissed the adjuster from the suit).

Up to this point, we deem this case substantially identical to Davis, supra. However, All-Star turned out to be the re-insurer, from whom plaintiffs finally learned that the insurer was Unigard. By the time Unigard was made a defendant, the adjuster had been dismissed from the suit. (The adjuster, incidentally, reported only to All-Star — the re-insurer — rather than Uni-gard.)

Unigard would distinguish Davis on the basis that, first, plaintiffs did not follow the Davis formulary of alleging it was suing the undisclosed insurer through the adjuster and, second, the adjuster had been voluntarily dismissed before Unigard was sued.

We deem the first ground a matter of vagueness of the petition, curable by amendment, C.C.P. 933. That plaintiffs did not clearly state the relationship of General Adjustment to the “undisclosed” insurer does not affect the prescription of their claim.

The second ground would ordinarily result in considering the interruption of prescription as “having never happened,” C.C. 3519, after the dismissal of the adjuster (see Levy v. Stelly, La.App. 4 Cir. 1973, 277 So.2d 194, writ refused La., 279 So.2d 203). However, before that dismissal All-Star had been joined, and All-Star was acting for Unigard in managing the adjusting of Unigard’s materialized risk (which All-Star also re-insured). (All-Star itself, if only a re-insurer, is not liable to plaintiffs in a direct action; Fontenot v. Marquette Casualty, 1971, 258 La. 671, 247 So.2d 572). We therefore deem the principles of Davis equally applicable to make the continuance of the suit against All-Star a continuing interruption of prescription against Uni-gard.

Reversed; the exception of prescription is overruled.

SAMUEL, Judge

(concurring).

I respectfully concur.


author: MORIAL, Judge.

text:
    Nunzio DISTEFANO d/b/a Distefano Plumbing and Heating v. A M & A, INC. and American Bank.
    No. 7593.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.
    Norman J. Pitre, Luling, for plaintiff-appellant.
    Vial, Vial & Lemmon, Leon C. Vial, III, Hahnville, for defendants-appellees.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

This suit was filed by plaintiff against A M & A, Inc., and American Bank on Monday, December 30, 1974. Plaintiff alleged that he furnished labor in the amount of $650.00 to complete the plumbing work on a dwelling defendant A M & A, Inc., caused to be constructed on its property described in the petition; plaintiff also alleged that he was not paid for his labor and caused a lien to be recorded on December 28, 1973 in the mortgage records of the Parish of St. Charles in MOB 182, folio 544 and that subsequent to the recordation of the lien American Bank acquired the property. Plaintiff’s prayer for relief stated in pertinent part as follows:

“ * * * that there be judgment herein against defendants, A M & A, Inc. and the American Bank and in favor of your petitioner Nunzio Distefano, d/b/a Diste-fano Plumbing and Heating in the full and true sum of Six Hundred Fifty and No/100 ($650.00) Dollars, together with legal interestt [sic] from date of demand, until paid and for all costs of these proceedings.”

Defendant, American Bank, filed an exception of no cause of action based upon its purchase of the property described in plaintiff’s petition at a Sheriff’s Sale which can-celled all liens, mortgages or privileges which may have encumbered the property, and that it, as a subsequent owner, is not personally liable for the debt. Without written reasons the district court maintained defendant’s exception and dismissed plaintiff’s suit as to American Bank. Plaintiff appeals. We affirm.

Since no contract or bond was recorded in conjunction with the agreement between plaintiff and defendant, A M & A, Inc., this case falls within the ambit of LSA-R.S. 9:4812. The mentioned statute grants any person performing labor on a building a lien and privilege on the lands and improvements for the value of the labor performed in connection with the building or improvements. LSA-R.S. 9:4812 also in part pertinently provides:

“The said claim, recorded as aforesaid, shall preserve a privilege against the property for a period of one year from the date of its recordation and may be enforced by a civil action in any court of competent jurisdiction in the parish in which the land is situated and- such cause of action shall prescribe within one year from the date of the recordation of the claim in the mortgage records of the office of the clerk of court or the office of the recorder of mortgages. The effect of the recordation of the claim shall cease and the privilege preserved by the recor-dation shall preempt unless a notice of filing of a suit (giving the name of the court, the title and number of the proceedings, and date of filing, a description of the property and a reference to the recorded claim), on said claim is recorded within one year from the date of the recordation of the inscription of said claim.
* * * * * *
“Any person furnishing service or material or performing any labor on the said building or other work to or for a contractor or subcontractor, when a contract, oral or written has been entered into, but no contract has been timely recorded, shall have a personal cause of action against the owner for the amount of his claim for a period of one-year from the aforesaid recordation of his claim, which cause of action shall prescribe one year after the date of said recordation. This shall not interfere with the personal liability of the owner for material sold to or services or labor performed for him or his authorized agent.
* * if * ‡ *
“The claim for wages of a laborer for work done by him on any building, shall, when properly presented and recorded by him in accordance with the provisions of his Sub-part, preserve in his favor a privilege on the land and improvements which will prime the right of mortgagees or vendors.” (emphasis supplied)

At the outset we are confronted with the issue of whether plaintiff’s suit was timely filed. Saturday, December 28, 1974 a legal holiday, was the last day of the prescriptive period and is not to be included in computing a period of legally prescribed time. Accordingly, the prescriptive period ran until the end of the next succeeding legal day, Monday, December 30, 1974. Therefore, plaintiff’s suit was timely filed. See LSA-C.C.P. Article 5059.

In his suit plaintiff prays simply for a personal judgment against both defendants and does not ask for the recognition and enforcement of his lien and privilege which he alleged attached to the property. While the statute clearly provides for a personal cause of action against the original owner-defendant, A M & A, Inc., for whom the labor was performed, it does not create a personal cause of action against the present owner-defendant, American Bank, even though the property passed into the hands of American Bank within a year after recordation of the claim against it. See Lafayette Woodworks v. Boudreaux, 255 So.2d 176, 179 (La.App. 1 Cir. 1971) and 44 Tu.L.R. 326, 340.

For the foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.


author: LEMMON, Judge.

text:
    Donald W. KANUK and Mrs. Lastenia Viguez Kanuk et al. v. Melvin H. POHLMANN and Robert Conn.
    No. 7598.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.
    Writ Refused Jan. 19, 1977.
    Nelson, Nelson & Lombard, Ltd., Irving H. Koch, New Orleans, for plaintiffs-appellants.
    Lenfant & Villere, Plauche F. Villere, Jr., New Orleans, for defendant-appellee Melvin Pohlmann.
    John J. McCann and Raoul P. Sere, John J. McCann, New Orleans, for defendant-ap-pellee Robert Conn.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

The principal issue in plaintiffs’ appeal from a judgment dismissing their suit under C.C.P. art. 561 is whether the filing of an unsigned motion to fix for trial on the merits constituted a step in the prosecution of the case so as to prevent dismissal for abandonment.

Between April 8, 1970 (when plaintiffs filed an amended petition) and August 12, 1975 (when defendants moved to dismiss the case for want of prosecution), the parties admittedly took no step in the prosecution or defense of the case other than by filing on March 26, 1975 the motion to fix for trial on the merits. The motion was presented on a blank form supplied by the district court. The name and address of one of the plaintiffs (who is also an attorney) were handprinted in the appropriate blank spaces on the form, but the motion was not signed by plaintiffs or their counsel.

The purpose of the C.C.P. art. 561 is to dismiss actions which have been abandoned, and the article provides for dismissal of those cases in which a plaintiff’s inaction during a legislatively ordained period has clearly demonstrated his abandonment of the case. The article was not intended, however, to dismiss those cases in which a plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon the action) The filing of the technically defective motion in this case was a step toward moving the suit to judgment and militated against any intention to abandon the action.

Furthermore, the purpose of C.C.P. art. 863’s requirement of signed pleadings is to place the responsibility for truthful and accurate allegations upon the attorney so as to subject him to disciplinary action for willful violation. (See C.C.P. art. 864, which also provides sanctions for scandalous or indecent matter in pleadings.) See also Berglund v. F. W. Woolworth Co., 236 So.2d 266 (La.App. 4th Cir. 1970). This purpose is completely unrelated to the application of the article in the present case and to the harsh, technical result of that application.

Pertinent is the following observation in 5 Wright & Miller, Federal Practice and Procedure § 1334 (1969), relative to Federal Rule 11, the source of C.C.P. art. 863:

“A failure to sign is a mere technical defect. Accordingly, in view of the basic policy of the federal rules to adjudicate actions on their merits rather than on procedural niceties, a motion to dismiss or to strike under this rule should not be granted unless the moving party has been severely prejudiced or misled by the pleader’s failure to sign. It is highly unlikely that a party will be able to show sufficient prejudice to justify dismissal. Moreover, the liberal philosophy of Rule 15 seems to encourage the court’s giving leave to amend to correct a failure to sign a pleading.” (Citations omitted)

Defendants have not even attempted to show any prejudice sustained because of plaintiffs’ failure to sign the motion to fix for trial.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that the motion to dismiss be denied and the case remanded for further proceedings.

REVERSED AND REMANDED.


author: GULOTTA, Judge.

text:
    FOREST OIL CORPORATION v. The SUPERIOR OIL COMPANY.
    No. 7601.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.

      Doyle, Smith & Doyle, Roger H. Doyle, New Orleans, for plaintiff-appellant.
    Liskow & Lewis, Gene W. Lafitte, William R. Pitts, New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment granting defendant’s motion for summary judgment. We affirm.

Plaintiff’s claim is for the balance allegedly owed by Superior Oil for its pro rata share of costs incurred in connection with the joint operation of the construction and drilling of a well which resulted in a dry hole. Forest and Superior, as well as others not parties to this suit, entered into a contract providing for the drilling for minerals on land in St. Landry Parish. This Joint Operating Agreement (JOA), furnished by Forest and executed by all parties, governed the relationship of the parties and set forth the extent in which which the expenses of drilling and exploration were to be borne. Forest was designated as “Operator” and charged with the responsibility of managing, developing and operating the well. The contract provided that the Operator was to pay all costs and expenses of the operation and was to bill each of the Non-Operators (Superior and others) for its proportionate share of the expenses. Superior’s share was set at approximately 44.17% of the total cost. The estimated costs for drilling a dry hole were set at $636,875.00 and for a producer at $925,-575.00. These cost estimates were included in an “Authorization for Expenditure” (AFE) request which was transmitted by plaintiff to the Non-Operating parties. The authorization was approved and the drilling of the well commenced.

The primary dispute revolves around the interpretation of Article VII. of the JOA. According to this provision, any expenditure in excess of 150% of the “original estimated cost of the well consented to, as set out in the AFE issued by Operator” requires the consent of the Non-Operator. Specifically, the issue is whether Article VII. necessitated Superior’s consent to certain expenditures made by Forest in setting pipe, perforating and testing sands (defined later herein as initial steps taken toward completion of the well), and conducting other operations subsequent to February 9, 1972 (when defendant refused to give consent to further expenditures), but before the well was plugged and abandoned as a dry hole on March 21, 1972.

The JOA became effective September 1, 1971. On January 13, 1972, Forest sought and received consent from the Non-Operators for additional expenditures. On January 26, further consent for additional expenditures required for deepening the well was sought and obtained from the Non-Operators.

The crucial exchange of telegrams giving rise to this suit occurred in February, 1972. On February 8, Forest notified Superior that a depth of 17,500 feet had been reached and recommended additional casing, perforating and testing operations at an additional estimated cost. The communication stated that under Article VII. each party had 24 hours within which to elect to cease or to continue participation. On February 9, Superior elected not to participate in the February 8 proposal and notified Forest of its decision. Forest conducted the unsuccessful operations. Despite the February 9 telegram, Forest billed Superior for its proportionate share of the costs of the well incurred subsequent to February 9. Superior’s refusal to pay resulted in this litigation.

COMPLETION OPERATIONS

We reject plaintiff’s contention that the expenditures proposed in the February 8 telegram were in connection with completion operations; and, according to the terms of the JOA, that no prior authorization for expenditure was necessary. It is true that Article VII. of the JOA provides:

“ * * * Upon Non-Operators’ consent to the drilling of a well, Operator shall not be required to obtain Non-Operators’ consent to the separate items of expense incurred by Operator in . completing said well . . . ”

However, Article VII. also contains the following proviso:

“ * * * . . . provided further, however, without the further consent of Non-Operators, expenditures may not be made in excess of one hundred fifty percent (150%) of the original estimated cost of the well consented to, as set out in the AFE issued by Operator. * * * ”

When we read the above quoted sections in pari materia, we interpret Article VII. to require consent from the Non-Operator when the completion costs exceed 150% of the original AFE.

ORIGINAL OR SUPPLEMENTAL AFE

However, plaintiff contends that the expenses in question did not exceed 150% of the supplemental authorization for expenditures and, therefore, did not require consent by the Non-Operator in accordance with Article VII. It is plaintiff’s position that the consent required in Article VII. is for expenditures in excess of 150% of the sum of the original AFE and any supplemental AFE. While acknowledging that Article VII. refers to “original estimated cost” and “original AFE”, plaintiff contends that the word “original” must be given a descriptive rather than a restrictive reading. Further, plaintiff observes that the full phrase used in the JO A is “original estimated cost of the well consented to, as set out in the AFE issued by Operator.” To restrict the meaning of this phrase to the original AFE, it argues, would be to render the words “consented to” meaningless. It contends, therefore, that the entire phrase means, for the purposes requiring consent of a Non-Operator, that the original AFE and any supplemental “consented to” costs are to be added and the 150% rule applied to that sum. We do not agree.

The language of Article VII. is clear and unambiguous. The words “consented to” in the first paragraph of Article VII. (see footnote 1.) do not modify the phrase “cost of the well” as plaintiff argues; but rather, they modify the word “well”. Article VII. begins “No well or wells shall be drilled for the joint account . . . without the consent of Non-Operators.” Clearly, the words “consented to” refer to the “well”, the drilling of which has been authorized by the Non-Operators. Furthermore, the first sentence of the final paragraph of Article VII. reads:

“As soon as feasible after Operator revises its estimate of the total cost of any well to the effect that its cost, as revised, will be in excess of one hundred fifty percent (150%) of the estimated cost of the well as set out in the original AFE issued by Operator, Operator shall notify all parties participating in the drilling of such well. * * * ” (emphasis ours)

We conclude, therefore, for the purpose of applying the 150% rule, that the phrase “original estimated cost” means the original AFE and not a supplemental AFE as argued by plaintiff.

AFE FOR PRODUCER OR DRY HOLE

Finally, we reject plaintiff’s further contention that no authorization was necessary for the expenditures proposed in the February 8 telegram because they, when added to the actual expenditures to that date, were not in excess of 150% of the original AFE for a producer. Plaintiff correctly points out that the operations of perforating, acidizing and casing set forth in the February 8 telegram are operations which appear only in the producer column of the original AFE. According to plaintiff, therefore, the original AFE for a producer is the amount ($925,575.00) that should be used in ascertaining whether or not the 150% limitation clause of the agreement is applicable. We do not agree. Plaintiff’s argument, while appearing to have merit, overlooks a basic, pertinent fact, i. e., that the operation, in this case, resulted in a “dry hole”. Furthermore, as defendant argues, the operations proposed in the February 8 telegram are only part of the full completion operations set forth in the producer column of the original AFE. In an uncontradicted affidavit, Raymond Kerr of Superior states that the difference between the AFE for a dry hole and the AFE for a producer is the estimated cost of testing and completing the well; and that two-thirds (%) of this estimated cost relates to operations and expenses “which would only be incurred as incidental to producing hydrocarbons from the well”. Because the well in this case was dry, these operations were never performed. The difference between the original AFE for a dry hole and a producer is $288,000.00. Kerr avers, therefore, that the costs of the operations set forth in the February 8 telegram could not exceed $100,000.00. When we consider Kerr’s affidavit, together with the fact that the operation resulted in a “dry hole” and the additional fact that the total estimated amount for a producer was not expended, we cannot conclude (as argued by plaintiff) that the estimated cost of a producer should be the base figure upon which to apply the 150% limitation clause of the agreement. We are further persuaded by the additional fact (upon which both parties to the litigation agree) that some testing and completion attempts are usually made in order to determine whether a well is a producer or a dry hole.

On the other hand, because some completion costs were contemplated to be expended and are not listed in the “dry hole” column, these completion costs expended ($100,000.00) prior to ascertaining that the operation was a “dry hole” must be added to the dry hole costs ($636,875.00) as listed in the AFE. This sum total is “the original estimated cost of the well” within the meaning of Article VII. of the JOA. The expenditures proposed in the February 8 telegram when added to the estimated costs of the actual expenditures to that date resulted in a total in excess of 150% of the “original estimated cost of the well” and, according to the unambiguous language of Article VIL, Superior had the right to elect to cease participation in the well. In its timely reply telegram, Superior did, in fact, elect not to participate. Under the circumstances, plaintiff is not entitled to recover from Superior any part of the amount expended subsequent to Superior’s non-consent.

The judgment is affirmed.

AFFIRMED.

      .Article VII. of the JOA, in pertinent part, provides:
      VII.

        LIMITATION ON EXPENDITURES

      “No well or wells shall be drilled for the joint account or any expenses incurred therefor by Operator on the subject leases in excess of TEN THOUSAND and NO/100 DOLLARS ($10,000.00) without the consent of Non-Operators. Upon Non-Operators’ consent to the drilling of a well, Operator shall not be required to obtain Non-Operators’ consent to the separate items of expense incurred by Operator in drilling, testing and completing said well; . provided further, however, without the further consent of Non-Operators, expenditures may not be made in excess of one hundred fifty percent (150%) of the original estimated cost of the well consented to, as set out in the AFE issued by Operator. * * *
      $ ‡ $ 4: ‡ ‡
      “As soon as feasible after Operator revises its estimate of the total cost of any well to the effect that its cost, as revised, will be in excess of one hundred fifty percent (150%) of the estimated cost of the well as set out in the original AFE issued by Operator, Operator shall notify all parties participating in the drilling of such well. Upon receipt of such notice, each party shall have twenty-four (24) hours, exclusive of Saturday, Sunday, or holidays, within which to elect to cease or continue participating in the well. * * * ”

      . The expenses proposed in the January 13 telegram amounted to $109,450.00. As of that date, an estimated $900,065.00 had already been spent in drilling the well. The sum of these two figures was $1,009,515.00, an amount in excess of 150% of the original AFE for a dry hole of $636,875.00. The supplemental AFE furnished by Forest reflected the $372,640.00 in excess of the original AFE.

      . According to the uncontested affidavit of Raymond Kerr, assistant chief engineer of Superior, perforating, testing, acidizing and casing operations, such as those set forth in the February 8 telegram, “may be referred to in the oil and gas industry as either additional testing preceding a completion attempt or one of the initial stages of a completion attempt”.

      . According to plaintiff, the sum of the original AFE ($636,875.00) for a dry hole and the supplemental expenditures of $372,640.00 (consented to on January 14 by Superior) is $1,009,-515.00. One hundred fifty percent (150%) of this figure is $1,514,272.50. Plaintiff argues, therefore, that the $77,000.00 expenditure proposed on February 8 when added to the actual expenditures of that date ($1,125,192.88) totals a sum which is below the $1,514,272.50 figure.

      . The original AFE for a producer was $925,-575.00. One hundred fifty percent (150%) of this figure is $1,388,362.50. According to the uncontested affidavit of J. J. Bugno, comptroller of Superior Oil, the actual expenditures of the venture prior to February 8 were $1,125,-192.88. The expenditure of $77,000.00 proposed in the February 8 telegram when added to the actual costs prior to February 8 results in a total of $1,202,192.88, a figure considerably below 150% of the original AFE for a producer.

      . The original AFE for a dry hole is $636,-875.00. According to Kerr’s affidavit, the maximum. cost of the expenditures proposed in the February 8 telegram would be $100,000.00. Adding this figure to the original AFE for a dry hole, we arrive at the sum of $736,875.00. One hundred fifty percent (150%) of this figure is $1,105,302.50. According to Bugno, the actual expenditures in the well operation up to 2:00 p. m., February 9, amounted to $1,125,192.88. The sum of this figure and $77,000.00, the proposed expenditures set forth in the telegram, is $1,202,192.88, a figure in excess of $1,105,-302.50.