author: CUTRER, Judge.

text:
    Ralph BOWN, Jr., et al., Plaintiffs-Appellants, v. AUSTRAL OIL COMPANY, INCORPORATED, Defendant-Appellee.
    No. 5221.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 6, 1976.

      Bean & Rush by Warren D. Rush, Lafayette, for plaintiffs-appellants.
    Davidson, Meaux, Onebane & Donohoe by L. E. Donohoe, Jr., Lafayette, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

The plaintiffs, Ralph Bown, Jr., L. C. Aycock and E. W. Fort, seek a declaratory judgment recognizing them as overriding royalty owners in leases held by Austral Oil Company, Inc. and an accounting for production thereunder. An exception of no cause of action filed by Austral was granted and plaintiffs’ suit dismissed. This appeal by plaintiffs followed. We affirm.

The issues presented by the pleadings are centered around a letter agreement dated March 15, 1954, and executed by Bown, Aycock and Austral. A 14 interest in said agreement was subsequently assigned to Fort and Aycock. This agreement provides as follows:

EXHIBIT “B”
AUSTRAL OIL EXPLORATION COMPANY
new YORK OFFICE INCORPORATED 630 FIFTH AVENUE ?Q? ^ Jacint0 BuILDINQ new YORK, 20, N. Y. HOUSTON 2, TEXAS TELEPHONE at-9461
March IS, 1954
Mr. Ralph Bown, Jr.
P. O. Box 34
Lafayette, Louisiana
Re: PR-36 Thornwell Prospect
Jefferson Davis and Cameron
Parishes, Louisiana
Dear Mr. Bown:
You and your associate, Mr. L. C. Aycock, Consulting Geologist of New Orleans, Louisiana, have brought to our attention the Thornwell Prospect. Austral recently secured a lease from The Lacassane Company, Inc. dated March 8, 1954, covering approximately 2354.60 acres of land situated in Townships 11 and 12 South, Ranges 4 and 5 West, Jefferson Davis and Cameron Parishes, Louisiana, subject to a royalty reserved by Lacassane of % of %. We hereby confirm our verbal agreement with you that the compensation for the services of you and Mr. Aycock in bringing the prospect to us is as follows:
1. Brokerage commission of $1.00 per acre for assistance in negotiating the lease, totaling $2354.60.
2. Austral will assign an overriding royalty to you of Vis of % on the form of the assignment listed as Exhibit “A” attached hereto and made a part hereof.
3. We have negotiated with Albert Bel, David Garrison et al for an assignment of their lease covering Prather lands in Township 11 South, Range 5 West, Jefferson Davis Parish, lying west and north of the Lacassane acreage. Negotiations for such assignment have been unsuccessful to date, but if prior to June 1, 1954, Austral secures an assignment of such lease covering all or portions of the lands therein covered, we will assign to you an overriding royalty of %6 of the net interest remaining to Austral after subtracting the royalty and overriding royalty to others, with which such interests may be burdened; provided that if the aggregate burdens of royalties, overriding royalties (including your overriding royalty), and the payments out of production to which such lease (or portions thereof) is subject upon conveyance of interests therein to Austral shall exceed % (0.200) of all the oil and gas produced from the mineral interests covered by any leasehold interests conveyed to Austral, then the overriding royalty to be assigned to you as herein provided shall be reduced or eliminated so that the net interest to be retained by Austral shall not be less than eighty percent (80%) of gross production.
4. You and Mr. Aycock have agreed that the grantee to be named on the two assignments of overriding royalty mentioned above shall be Ralph Bown, Jr. and that the brokerage commission check shall name Ralph Bown, Jr. as payee.
If this letter correctly expresses your full understanding of the entire agreement between us, please confirm your acceptance thereof by securing Mr. Aycock’s signature and placing your own signature on the attached three copies of this letter. An additional copy is enclosed for Mr. Aycock’s files.
After we have received the executed copies of this letter with your acceptance noted thereon, we will promptly transmit our check to your order in the amount of $2354.60, and will deliver to you the overriding royalty assignment for the Lacassane lease.
Yours very truly,
AUSTRAL OIL EXPLORATION COMPANY INCORPORATED
By (s) Robert S. Moehlman
Robert S. Moehlman
Vice President
ACCEPT AND AGREED TO this 16th day of March, 1954.
(s) Ralph Bown, Jr,
Ralph Bown, Jr.
(s) L. C. Aycock
L. C. Aycock

The petition alleges that under this letter agreement plaintiffs are entitled to %8 of % overriding royalty in all oil, gas and mineral leases, with specified exceptions, acquired by Austral in the “Thornwell Prospect”. Plaintiffs further allege that by assignment dated April 21, 1954 Austral transferred to Bown an interest in the mineral lease from the Lacassane Company, Inc., which lease was dated March 8, 1954. A copy of this assignment was attached to the petition.

They further allege that Austral transferred to Bown an interest in a mineral lease from Robert Francis Prather, et al. A copy of this assignment was also attached to the petition. Bown made an assignment of interests to Aycock and Fort, a copy of which is attached to the petition. The petition also alleges that Austral has refused, after amicable demand, to transfer to plaintiffs a Ms of % overriding royalty in numerous other leases set forth in Exhibit “A” and located in the "Thornwell Prospect.”

Plaintiffs further aver that they are entitled to judgment decreeing plaintiffs owners of the royalty claimed and for an accounting of all oil, gas and other hydrocarbons produced from or allocated to the numerous leases from date of initial production to the present time.

Alternatively, and in the event that it is found that the royalty interest, to which plaintiffs seek title, is a sublease for which Austral owes rent only, plaintiffs allege that they are entitled to a cancellation of all subleases for which they have not been paid and an accounting is due by Austral for 100% of the production attributable to Austral under said leases.

The issue presented is whether the trial court was in error in granting the exception of no cause of action filed by Austral. In a determination of this issue, the well pleaded facts of the petition are accepted as true along with the exhibits attached thereto.

The plaintiffs contend in argument and brief, even though not pleaded, that the letter agreement is ambiguous, and, as such, a trial on the merits should be had and parol evidence admitted to explain same. Plaintiffs contend that it was the intention of the parties to assign royalties to plaintiffs not only under the Lacassane and Prather leases, but to all leases acquired by Austral in the “Thornwell Prospect”.

The basic rules to be observed in the construction and interpretation of contracts may, in substance, be stated as follows:

The intention of the parties is of paramount importance and must be determined in accordance with the plain, ordinary and popular sense of the language used in the agreement and by giving consideration on a practical, reasonable and fair basis to the instrument in its entirety.

LSA-C.C. Article 1945 provides that agreements have the effect of law between the parties, who alone can abrogate or modify them, and that the courts are bound to give effect to all contracts according to the true intent of the parties when the language is clear and leads to no absurd consequences.

It is not within the province of the court to alter or make new contracts for the parties, its duty being confined to the interpretation of the agreements between the parties, and in the absence of any ground for denying enforcement, to render them effective. Texas Co. v. State Mineral Board, 216 La. 742, 44 So.2d 841 (1949).

Guided by the above basic rules of interpretation and construction we examine the provisions of the agreement in question to determine its meaning and the intention of the parties.

The opening paragraph relates to the fact that Aycock and Bown brought the “Thornwell Prospect” to Austral and for that reason compensation is due. The La-cassane lease had been acquired by Austral and was described therein as containing 2354.60 acres.

Then follows paragraphs enumerated 1, 2, 3 and 4.

Paragraph “1” provides for a commission of $1.00 per acre “totaling $2354.60.” The sum, $2354.60, corresponds to the acreage (2354.60), reflecting that this commission was for the Lacassane lease.

Paragraph “2” contained an agreement by Austral to assign an overriding royalty to Bown of %8 of % on a form attached. It must be noted that the overriding royalty here is designated in the singular, “an overriding royalty”, denoting one overriding royalty.

Paragraph “3” concerns the agreement of Austral to assign to Bown an overriding royalty of %6 under the Prather lease when it is acquired by Austral under certain conditions.

Again, it must be noted that Austral agreed to assign an overriding royalty under the Prather lease. This denotes a single assignment of said royalty.

Paragraph “4” clearly reflects that the above paragraphs refer to assignments of overriding royalty in only the Lacassane and Prather leases. The paragraph provides that Bown and Aycock “have agreed that the grantee to be named on the two assignments of overriding royalty mentioned above shall be Ralph Bown, Jr. and that the brokerage commission check shall name Ralph Bown, Jr. as payee.”

Only two leases and two assignments of overriding royalty were contemplated in the agreement. The only reasonable interpretation of these provisions, reading them as a whole, is that the parties agreed that the compensation due Bown and Aycock would be first $2354.60 commission for the 2354.60 acre Lacassane lease plus J4s of % overriding royalty on the Lacassane lease. In addition, a %6 overriding royalty of Austral’s net interest in the Prather lease would he assigned if and when it was acquired.

This conclusion is further strengthened by the. fact that the parties agreed that "the two assignments of overriding royalty” would be effectuated on a certain form, an unexecuted copy of which was attached to the letter at the time of its execution. An examination of the record reveals that the agreement to make these two assignments was carried out on the form as stipulated in the letter agreement. The Lacassane overriding royalty was assigned to Bown April 21, 1954. (Exhibit “C”). The Prather overriding royalty was assigned to Bown at a later time, July 29, 1954. (Exhibit “D”). Bown, by instrument entitled “Declaration of Interest” and dated January 28, 1955, acknowledged that Aycock and Fort were also owners of J4 each of the overriding royalties acquired by Bown under the Lacassane and Prather leases.

Applying the rules of construction and interpretation referred to herein, it is clear that the parties intended to assign overriding royalties under the two designated leases, Lacassane and Prather.

The letter and attached form refer to the subject matter in the following manner :

“Re: PR-36 Thornwell Prospect Jefferson Davis and Cameron Parishes, Louisiana”

The contention by appellants that this enlarges the specific provisions of the letter to include all leases that may be acquired by Austral in the “Thornwell Prospect”, is without merit. This reference merely reflects the subject matter of the agreement. The specific provisions in the body of the letter are the controlling provisions of same. Such general reference to the “Thornwell Prospect” must yield to the clear language of the letter agreement.

The plaintiffs contend that the unexecut-ed form of assignment attached to the letter, and its reference to a schedule of leases to be attached, extends the letter agreement to all other leases, renewals of leases or subleases. This contention cannot prevail. The letter agreement expresses the full understanding of the entire agreement between the parties. The unexecuted form attached to the letter did not make any changes in the letter agreement. No mention of, nor reference, was made to any leases other than those discussed in the letter agreement.

Plaintiffs contend that the case of Wurzlow v. Placid Oil Company, 279 So.2d 749 (La.App. 1st Cir. 1973) is very similar to this suit in that it held that the plaintiff there was entitled to assignments of all leases under the “Lapeyrouse Prospect”.

Wurzlow is not applicable to the facts herein. The letter agreement therein contained the following provisions:

“This letter is written for the purpose of clarifying our oral agreement regarding your override on new leases taken on the Lapeyrouse Prospect. Also, we think it is good business practice to have such agreements in writing.
"We understand that you are to have a one forty-eighth (Visth) overriding royalty on any new leases taken by us on the Lapeyrouse Prospect, except leases from the Louisiana Land and Exploration Company and leases from the State of Louisiana.
“If the new leases are not full interest leases, your Jisth override will be reduced in the proportion the outstanding interest bears to the interest covered by the lease.” (Our emphasis)

The letter agreement in Wurzlow stated that Wurzlow was to have an overriding royalty on any new leases taken by Placid on the “Lapeyrouse Prospect”. The term “Lapeyrouse Prospect” was not defined in the letter. The court permitted parol evidence to explain the ambiguous description of the “Lapeyrouse Prospect”. We have no such ambiguity here. The parties agreed that the two overriding royalties would be limited to the Lacassane and Prather leases.

The plaintiffs also argue that they are entitled to an assignment of overriding royalty under the leases acquired by Austral from Lacassane after the 1954 lease expired by its own terms. This argument is put to rest by the court in the case of Wier v. Glassell, 216 La. 828, 44 So.2d 882 (1950). The court, after stating that contracts affecting mineral leases are classified as real rights and incorporeal immovable property, went on to say that:

“Thus, we are here dealing with contracts relating to an incorporeal immovable, the transfer of which under Article 2275 of the Revised Civil Code, ‘must be in writing’.”

As to the effect of the expiration of a lease upon owners of an overriding royalty interest the court held as follows:

“The overriding royalty reserved by the plaintiff in the present case was a right created by the lease in which he was the lessee and which he assigned to the defendant. It depended on the continued existence of that lease to which it was an appendage. It could have no greater life than the lease itself and consequently upon the termination of the lease it became extinguished and the defendant was at liberty to deal with the owners of the property and obtain new leases either in his own name or through an agent. The allegation in plaintiff’s petition that in respect to some of the leases subsequently obtained by Fritz Muller, Muller was acting as defendant’s agent, adds nothing to his right or cause of action.”

We conclude that the trial judge was without error in granting the exception of no cause of action and dismissing plaintiffs’ suit. The letter agreement is free of ambiguity, contains the entire agreement between the parties, only applies to overriding royalty interests in the Lacassane and Prather leases agreed upon and not to any subsequent leases, renewals of leases or subleases obtained by Austral in the “Thornwell Prospect”.

For the reasons stated, the judgment appealed from is affirmed at the costs of the plaintiffs-appellants herein.

Affirmed.


source: Caselaw Access Project

author: PAVY, Judge.

license: Public Domain

text:
    Mathew ALFRED, Plaintiff-Appellee, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
    No. 5220.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.

      Dubuisson, Brinkhaus, Guglielmo & Dauzat by Jimmy L. Dauzat, Opelousas, for defendant-appellant.
    Tate & Tate by Donald J. Tate, Mamou, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

This compensation claim involves the question of causal connexity between a knee laceration on July 29, 1972 (when plaintiff was employed by defendant’s insured, Pensacola Construction Company) and a back injury on June 13, 1973 (when plaintiff was employed by Evangeline Gas Company).

In the second accident, plaintiff sustained a ruptured intervertebral disc with consequent total and permanent disability and has been continually receiving compensation benefits of $45.00 a week from the insurer of Evangeline Gas Company. This suit is solely against Travelers Insurance Company, insurer of Pensacola, and seeks to hold it liable at $49.00 per week in order to achieve the higher rate and have the additional security of another debtor. Plaintiff concedes it is not entitled to double recovery and that some credit would be effected between the two compensation carriers for payments during the overlapping period subsequent to the second accident.

It is plaintiff’s contention that the laceration left his knee in a weakened and unstable condition, and although not disabling in itself, the instability contributed to the subsequent back disability because the back injury occurred in a fall occasioned by his knee weakening or giving way. We pre-termit whether the back injury and consequent disability is within the range of com-pensable consequences with regard to the original laceration. Defendant contends that there is no causal connexity between the laceration and the later fall. The trial court gave an award for permanent and total disability at $49.00 per week commencing from the date of the first accident and subject to credits for payments by defendant and the other compensation carrier. Defendant has appealed.

Plaintiff was paid compensation benefits for the first injury until August 23, 1972. He had returned to work with his same employer on a light-duty basis for about two weeks until that job played out. In the fall, he worked for approximately a month as a farm laborer and in October went to work for Evangeline Gas Company and continued at that employment until injured in June 1973. In all these situations, plaintiff was employed as a common laborer.

Dr. Shapiro sutured plaintiff’s laceration immediately following the injury, was not further involved in treatment, had moved out of the state and did not appear as a witness.

Dr. Joseph Lee removed the sutures about a week later and discharged plaintiff on August 23, 1972, as fully recovered. At that last visit, plaintiff still had complaints of pain and the doctor prescribed a painkiller. He could find nothing in the X-rays or on physical examination to indicate any remaining effects of the laceration. He expressed the possibility of “a little residual arthritis or joint inflammation compatible with the injury and his age”. He found no instability of the knee in any way and stated that any severe cartilage injury would be obvious in examination or flexion of the knee. This doctor did not see or treat plaintiff subsequent to the August 23 discharge and his statements pertain solely to that time.

Dr. Jerome Ambrister, an orthopaedist, evaluated plaintiff at defendant’s request on May 18, 1973, within a month of the second accident. Plaintiff complained to him of inability to kneel without pain, swelling, breaking veins, discoloration and a weak, unstable sensation in the knee. The doctor described the laceration scar as located on the medial side of the right patella, being in the form of a right angle and measuring one-half inch on one line and one and one-half inches on the other line. The doctor found no discoloration, swelling or any observable conditions indicative of a venous or circulatory problem. All X-rays were negative. He put plaintiff through various tests to determine any possible instability of the knee itself or any of the ligaments involved. All the tests were negative and he stated:

“A. Now, this man did have this among the symptoms that he presented in the history, instability of this knee or a sensation of instability. A weak, unstable sensation of the right knee, he described it. Now, the array of tests that I carried out, I could find no reason for the instability or, of course, I would have found the man as having some disability or some reason for his symptoms. In other words, I could find no ligamen-tous instability. I found nothing to indicate that there was a loose body within his knee joint that would cause locking and cause him to be unstable, to fall. Now, his musculature, frequently if you injure a lower extremity and it is tied up or favored over a long period of time, the musculature becomes weak, especially in the quadriceps muscle as related to the thigh. This quadriceps muscle will give you instability of the knee. However, as I think I have previously testified, that this man’s right thigh was larger than his left. His right was his injured side, and he was righthanded. This is the usual combination that you would expect to find under normal conditions.”

At another point, his testimony was as follows:

“Q. Now, is there such a thing as increased use of a muscle in a member of the body resulting from some injury and resulting, therefore, in a finding not of atrophy but of actual — would it be hy-perdevelopment of that particular muscle? And in order that you may understand my question more fully, let me ask you, is it possible that a man might walk —that a man who injured his right knee might walk in such a fashion that actually he would use the quadriceps muscle more than he would if he had not injured his right knee and was not protecting his right knee ?
A. Not that I have ever encountered in practice. The best test actually as to how much an individual is favoring a knee is by measurement of the quadriceps muscle, because it wastes away in a hurry if it is not subjected to use in the usual manner.”

On August 2, 1973, after the second accident, Dr. Frank Davis, Jr., a cardiovascular surgeon, examined plaintiff at the request of his own counsel. He related plaintiff’s complaints of pain and swelling but observed no swelling at the time and prescribed an elastic stocking on the strength of plaintiff’s complaints of swelling. He emphatically ruled out any instability or weakness of the knee as a result of any deep-vein thrombosis or other circulatory problem.

Dr. Luke Bordelon, an orthopaedist, treated plaintiff for his back condition including removal of the affected disc. His deposition is in evidence. He did not examine plaintiff’s knee and his testimony is significant only for the history or description of the second accident given to him and his nurse by plaintiff.

Plaintiff was seen by two other doctors subsequent to the back injury but these did not testify.

Besides plaintiff himself, the witnesses were his wife and Mr. E. L. Ardoin, plaintiff’s foreman with Evangeline Gas Company, who testified that plaintiff had trouble to walk and who corroborated plaintiff’s complaint about the back injury on the same day. Plaintiff’s wife also testified regarding pain and swelling. She gave no statement regarding instability of the knee as such and stated that she had reduced the swelling with hot packs.

In his opinion, the trial judge, stated:

“In this case, plaintiff’s own testimony that he fell because of the instability of the knee arising from its chronic weakness and instability is clear and convincing. Although the medical evidence describing the condition of the knee is not sufficient to establish a case of total and permanent disability for plaintiff on that point alone, it is not inconsistent and incompatible with plaintiff’s continuing complaint of weakness and instability. Furthermore, the testimony of a disinterested supervisor, E. L. Ardoin, fully supports plaintiff’s claim that the condition of his knee caused him to limp and walk with difficulty on the Evangeline Gas Company job. Moreover, the fall resulting from the weakened knee and causing the back injuries was promptly reported, and compensation benefits are being paid by that employer. (Plaintiff concedes that the present defendant is entitled to credit for any benefits paid by the other employer).
Thus the totality of the evidence, considered as a whole, amounts to an overwhelming preponderance that plaintiff’s back injury is disabling; that it was caused by the fall of June 13, 1973; that the fall was caused by the weak and unstable condition of the knee injured on July 29, 1972; and that the back injury is well within the recognized range of compensable consequences shown in the authorities plaintiff has cited.”

We think the trial judge erred in overlooking the total effect of the medical testimony in relation to the weak lay testimony.

The jurisprudence is well settled that a plaintiff in a workmen’s compensation case carries the burden of proof as in other civil cases and is required to establish his claim to a legal certainty and by a reasonable preponderance of the evidence. The testimony of the plaintiff alone in a workmen’s compensation case may be sufficient to prove the occurrence of an accident if it is plausible and consistent and is supported by other circumstances appearing from the record. Where plaintiff’s testimony is relied upon as a sole finding for establishing his claim, such testimony must be clear and convincing. See Guillory v. New Amsterdam Casualty Company, 244 La. 225, 152 So.2d 1 (La.1963); Dodd v. Liberty Mutual Insurance Company, 269 So.2d 304 (La.App. 3rd Cir. 1972); Card v. Southern Builders, Inc., 117 So.2d 675 (La.App. 2nd Cir. 1960); Waters v. L. L. Brewton Lumber Company, La.App., 120 So.2d 842 (2nd Cir. 1960); Jones v. Sturgis-Nix Lumber Company, La.App., 136 So.2d 307 (2nd Cir. 1961); Sneed v. Lumbermen’s Mutual Casualty Company, La.App., 126 So.2d 421 (2nd Cir. 1960).

In Freeman v. Standard Materials, Inc., La.App., 246 So.2d 258 (1st Cir. 1971) it was stated:

“Although certain rules and procedures are construed liberally in favor of a claimant in a workmen’s compensation action and his testimony may be entitled to more weight on some issues than is normally the case, it must be supported and corroborated by the surrounding facts and circumstances.
The burden of proof by a preponderance of evidence is not relaxed in his favor and remains the same as it is in other civil cases. . . . This burden of proof clearly includes the element of causation.”

On the issue of whether there was in fact instability of the knee, plaintiff’s wife did not testify as to such. Plaintiff’s testimony and that of his foreman, alone among his co-employees, was the only evidence of instability. The foreman testified that plaintiff had “trouble to walk”. We do not think such evidence is sufficient in the face of the orthopaedists’ failure to find anything in the knee which would support weakness or instability and, more importantly, the orthopaedists’ finding that there was no atrophy of the right leg muscles.

On the question of whether the back injury fall was in fact caused by the knee giving way, there is a complete absence of corroboration. Plaintiff did complain to Mr. Ardoin about injuring his back by a fall. The issue is not whether the fall was corroborated; it is whether there was corroboration that the instability caused the fall. In this connection, it should be noted that plaintiff stated from the stand that his “knee kind of give up and I stumbled and fall, you know, tripped”. Mr. Ardoin testified that plaintiff told him that he “slipped or slide or slipped down and he fall”.

In relating the back injury accident to Dr. Bordelon, plaintiff did not mention the knee at all and simply stated that he “came to fall”. In describing the same accident to Dr. Bordelon’s nurse, plaintiff stated that he was walking and “he stumbled — he tried not to fall, he twisted his back, he felt a burning pain”.

We conclude that the lay testimony as to instability of the knee was too weak and scant to overcome the medical testimony and that there was no corroboration that any knee weakening caused the fall and disabling back condition.

For the reasons assigned, the decision of the district court is reversed and set aside. All costs of these proceedings are to be paid by plaintiff-appellee. Reversed.

Reversed.


author: BLANCHE, Judge.

text:
    Kenneth G. TALLEY v. John R. BLAKE and Patrick G. Simms.
    No. 10498.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    John Taylor, Baton Rouge, for appellants.
    David A. Waguespack, Baton Rouge, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Defendants-appellants, John R. Blake and Patrick G. Simms, appeal a judgment of the Nineteenth Judicial District Court ordering them to pay, in solido, the balance of $2,700 due on a promissory note, together with interest thereon at the rate of 8 percent per annum from March 18, 1972, until paid, and 10 percent of principal and interest as attorney’s fees and all costs of the proceedings to the plaintiff-appellee, Kenneth G. Talley.

On March 17, 1970, defendants purchased the plaintiff’s one-third interest in Blake, Talley and Associates, Employment Consultants, Inc., resulting in the defendants gaining complete ownership of the corporation. The purchase price of $3,600 was represented by a promissory note dated that same date, payable in equal monthly installments of $150 each, the first of which was due and payable on or before April 18, 1970. There is no dispute that the sale actually took place, nor is there any dispute that the defendants signed the promissory note in favor of the plaintiff.

After paying $900 on the obligation, the corporation failed and no further payments were made. Subsequently, the plaintiff sued Blake and Simms individually for the balance of $2,700. The defendants reconvened for the plaintiff’s one-third share of the debts of the corporation, which debts totaled $15,464.31.

The defendants, at the trial and on appeal, have attempted to controvert the clear and unambiguous wording of the act of sale by asserting that they erroneously thought the corporation was the purchaser of the stock and not them individually. They contend this error vitiated their consent and invalidated the sale. Accordingly, they argue that because the sale was invalid for lack of their consent, the note sued upon is uncollectible for failure of its underlying consideration.

To substantiate their allegation of error, both defendants testified that they conferred via telephone with their attorney, Harris D. Copenhaver, concerning the sale, and pursuant thereto both concluded that they were incurring no personal liability thereunder. We note in this regard that Copenhaver could not remember advising the defendants concerning their personal liability under the sale, and the defendants offered no other proof except their own testimony to substantiate their contention.

On the other hand, the plaintiff offered into evidence a power of attorney prepared by Copenhaver on the day of the sale. It read, in pertinent part, as follows:

“BEFORE ME, the undersigned Notary Public, personally came and appeared KENNETH G. TALLEY, who did depose and say that as part of the consideration of the sale of his stock in Blake, Talley and Associates, Employment Consultants, Inc., to John R. Blake and Patrick G. Simms, that he does hereby irrevocably, constitute and appoint the said John R. Blake as his attorney to transfer the said shares of stock, certificate number one (1), consisting of fifty (50) shares of the aforementioned corporation on the books of the said corporation with full power of substitution in the premises.” (Exhibit P-3)

Considering the clear wording of the foregoing instrument, we conclude that Co-penhaver was of the opinion that the defendants were the purchasers of the stock. Therefore, in spite of the defendants’ contention to the contrary, it is unlikely that he would have advised them otherwise.

Mark J. Harrison, C.P.A. for the corporation, could not recall specifically advising the defendants to have the corporation buy the stock, but he did say that would have been his normal advice.

The plaintiff testified at trial and also maintains on appeal that it was well understood at the time of the sale that the obligation of defendants was individual, not corporate, and that he would not have accepted a corporate debt with no individual liability, especially in view of the fact that the corporation was not on sound financial footing at the time of the sale.

The trial court allowed recovery on the note, concluding that even if the defendants were in error concerning their liability for the purchase price, such error was not the principal cause of the agreement and, therefore, under Civil Code Articles 1823 and 1846 the contract could not be set aside. The defendants’ reconventional demand was denied, based upon a hold-harmless clause in the act of sale. The denial of the reconventional demand has not been appealed and, therefore, the only issue before this Court is the validity of the promissory note.

The defendants bear the burden of proving their consent was vitiated by error, LSA-C.C.P. Art. 1005, New Amsterdam Casualty Company v. Culotta, 230 So.2d 339 (La.App. 4th Cir. 1970). This they have not done. Implicit throughout the testimony of both defendants was the desire to buy the plaintiff out of the corporation, in view of the fact that plaintiff was not producing income therefor. This desire was accomplished through the subject sale. Now, however, after the fact and in spite of the clear wording of the act, defendants, in order to avoid personal liability therefor, seek to insert into the sale their subjective motive, that is, to buy plaintiff’s stock without incurring personal liability. However, neither the proof adduced at trial by the defendants, nor the circumstances surrounding said sale convince this Court that we should disregard the plain, unambiguous language of the act and allow the defendants to invalidate same for this purported unilateral error.

As previously noted, the only proof offered by the defendants to substantiate their claim is their own uncorroborated testimony. This contention was not substantiated by either Copenhaver or Harrison, both of whom testified at the trial of the matter. It is obvious that defendants desired to buy plaintiff’s share of the corporation and the act clearly accomplished that goal. However, we are of the opinion that any other motive which might have been incidental to the transfer of the stock has not been proven by the defendants, and, therefore, they are not entitled to have the sale set aside for error.

Additionally, we note that even had defendants proved their purported motive, they, nevertheless, cannot escape liability on the note. This is so in view of the fact that it is not every error, whether of fact or law, that will invalidate a contract. To do so it must be in some point which was a principal cause for making the contract, such as the motive therefor, LSA-C.C. Art. 1823, and in addition, the other party must be apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it, LSA-C.C. Art. 1826.

The defendants’ purported motive was not communicated to the plaintiff prior to the sale, and from the facts and circumstances surrounding the sale, we cannot conclude that the plaintiff should have presumed that the defendants’ principal motive was to purchase his stock without incurring personal liability therefor.

All of the cases relied upon by the defendants in support of their position involved errors, the essence of which was either communicated to the other party or should have been presumed from the nature of the contract. Therefore, they are not controlling in the instant case.

For the above reasons, the judgment of the trial court is affirmed, at appellants’ cost.

Affirmed.

      . The act of sale sets forth the following: “SELLER: KENNETH G. TALLEY, who by this sale does hereby resign his position as officer (Secretary-Treasurer), Director, and any other official capacity with the corporation known as Blake, Talley and Associates, Employment Consultants, Inc., 5700 Florida Boulevard, Baton Rouge, Louisiana 70806; and
      “BUYERS: JOHN R. BLAKE AND PATRICK G. SIMMS, who are the remaining stockholders of the above corporation, and in their capacity as stockholders, officers and directors of the corporation accept the resignation of Kenneth G. Talley, Seller, from all affairs of the corporation as of this date.” (Exhibit P-2)


author: CULPEPPER, Judge.

text:
    WILLIAM T. BURTON INDUSTRIES, INC., Plaintiff and Appellant, v. Ivey COOK, Defendant and Appellee.
    No. 5181.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 6, 1976.
    Camp, Carmouche, Palmer, Carwile & Barsh by Karl E. Boellert, Lake Charles, for plaintiff and appellant.

      Teekell & Chaudoir by Lloyd G. Teekell, Alexandria, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

This is a petitory action. The plaintiff, William T. Burton Industries, Inc., claims ownership of a 40-acre tract of land by recorded title. The defendants in possession are Ivey Cook and his four children, who have a recorded title to the land adjoining the 40 acres on the west, and who claim 4.69 acres off of the west side of plaintiff’s 40 acres by the acquisitive prescription of 30 years. Defendants filed an answer and a reconventional demand praying for recognition of their ownership of the 4.69 acres in dispute. The district court rendered judgment dismissing plaintiff’s suit and recognizing defendants as owners of the 4.69 acres. Plaintiff appealed. We affirm.

The substantial issue is whether the defendant Cook corporeally possessed as owner for 30 years the 4.69 acres in dispute, which he enclosed as part of his farm in 1924 or 1925 by rebuilding an old bow-shaped fence which encroaches on the 40 acres of which plaintiff claims ownership by recorded title. Plaintiff contends the mere erection and maintenance of the fence down to the present date is not sufficient, in the absence of cultivation, timber cutting or other acts of corporeal possession of every square foot of the disputed land.

The record shows that in 1922 defendant Cook purchased from Harvey Duck an 80-acre farm adjoining on the west the 40-acre tract claimed by the plaintiff Burton. Mr. Cook and his wife moved onto the farm in 1924. Shortly thereafter, Cook rebuilt with wire an old bow-shaped wooden fence which Duck had erected so as to include within his fenced field the 4.69 acres off of the adjoining tract of land which is now claimed by Burton.

At the time of the trial in 1975, Cook was 79 years of age and still lived on this farm. He testified that beginning in about 1925 he cultivated most of the 80 acres which he purchased from Duck. As to the 4.69 acres in dispute, he says he cultivated at least one-fourth of an acre lying south of Cheney Creek, which traverses the southern portion. Although Cook admitted that he never cultivated that portion of the 4.69 acres north of the Creek, he says he did use it for pasture for his horses, cattle and hogs. He testified he continued his farming operations until 1965 or 1967. Since that time, he has used the property in dispute for pasture.

Cook admitted that he never cultivated all of the 4.69 acres, nor did he cut the timber on it. But Cook and two of his neighbors testified positively that, beginning in 1924 or 1925, Cook maintained around his home and cultivated field and including the 4.69 acres in dispute, a good fence sufficient to protect this own farm from the livestock of others in this “open range” area, and also sufficient to maintain Cook’s own livestock within his fence. It was stipulated that three other witnesses for defendant would have testified to the same facts if placed on the stand. Plaintiff called no witnesses. So the testimony of defendant and his witnesses is uncontradicted.

LSA-C.C. Article 3499 provides “The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.” The next three articles describe the nature of the possession necessary. Article 3500 provides “The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.” Article 3501 provides “The possession necessary for this species of prescription, when it is commenced by the corporeal possession of the thing, may, if it has not been interrupted, be preserved by external and public signs, announcing the possessor’s intention to preserve the possession of the thing, as the keeping up of roads and levees, the payment of taxes, and other similar acts.” Article 3502 states: “A man may even retain the civil possession of an estate, sufficient to prescribe, so long as there remain on it any vestiges of works erected by him, as, for example, the ruins of a house.” Article 3503 provides: “How favorable soever prescription may be, it shall be restricted within just limits1. Thus, in the prescription of thirty years, which is acquired without title, it extends only to that which has been actually possessed by the person pleading it.”

The particular acts which constitute sufficient possession for acquisition by acquisitive prescription of 30 years vary with the circumstances of the individual case. Bagby v. Clause, La.App., 251 So.2d 172 (1st Cir. 1971). The nature of the land involved is the chief consideration as to what acts of possession are sufficient. Clayton v. Langston, La.App., 311 So.2d 74 (3rd Cir. 1975); Martin v. Howell, La.App., 280 So.2d 358 (1st Cir. 1973); Valvoline Oil Company v. Concordia Parish School Board, La.App., 216 So.2d 702 (3rd Cir. 1968); King v. Board of Commissioners for Atchafalaya Basin Levee District, La.App., 148 So.2d 138 (3rd Cir. 1962); ABA Exploration Gas & Oil Company v. A. Wilbert Sons Lumber & Shingle Company, La.App., 170 So.2d 752 (1st Cir. 1965).

The land involved in the present suit is rural and is best suited for agriculture or growing timber. There is no question that the acts of possession by Cook constituted corporeal possession of this type of land.

In the landmark case of Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952) the issue was whether the plaintiff had the requisite possession to bring the possessory action. After stating that the nature of the possession required for the possessory action is the same as that for the acquisitive prescription of 30 years, the court then discussed the required possession with particular reference to the nature and effect of enclosures. The court stated:

“We recognize also that under the jurisprudence a person claiming by possession alone and without title is required to show an adverse possession by enclosures, and that his claim will not extend beyond such enclosures. But, when this jurisprudence is considered with the articles of the Code announcing the law applicable to such cases, we do not think that a strict interpretation should be given to the word ‘enclosures’.
“[9] We are supported in this view by the interpretation given by this court in the case of Leader Realty Co. v. Taylor, 147 La. 256, 84 So. 648, 651, to the word ‘boundaries’ as used in Article 3437 of the Civil Code dealing with possession. That article provides: ‘It is not necessary, however, that a person wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries.’ In that case this court said that ‘ * * * The word “boundaries,” in that article, means the limits or marks of inclosure if the possession be without title, or the boundaries or limits stated in the title deed if the possession be under a title. * * * ’ (Italics ours.)
* * ^ * *
“What the court means by ‘enclosures’, as that term is used in the numerous cases found in the jurisprudence, is that the land actually, physically and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof.”

Other cases which have applied to 30 years acquisitive prescription the rule of Article 3437 that corporeal possession of a part constitutes corporeal possession of the whole of the land within enclosures are Gaudet v. Lawes, La.App., 197 So.2d 723 (1st Cir. 1967); Robertson v. Morgan, La.App., 116 So.2d 141 (1st Cir. 1959); Long v. Chailan, 196 La. 380, 199 So. 222 (1940); Continental Land & Fur Company v. Lacoste, 192 La. 561, 188 So. 700 (1939); Peters v. Crawford, La.App., 185 So. 716 (2d Cir. 1939); Winn v. Calhoun, La.App., 94 So.2d 545 (2d Cir. 1957), and Labarre v. Rateau, 210 La. 34, 26 So.2d 279 (1946).

Applying these rules to the facts of the present case, it is clear that the fence rebuilt by Cook in 1924 or 1925 was a sufficient “enclosure” to give definite notice to the public and to all the world of the extent of Cook’s possession. Anyone who saw this fence which enclosed Cook’s home and his farm and included the 4.69 acres in question, was put on notice that Cook intended to possess as owner all of the land within the fence. Under LSA-C.C. Article 3437, it was not necessary for Cook to “pass over” every part of the enclosed farm to exercise corporeal possession over it. It was sufficient that he lived upon and cultivated only a part of the land with the intention of possessing all included within the fence. The evidence, as outlined above, shows that beginning as early as about 1925 Cook farmed part of the 80 acres and even cultivated about }4th of an acre of the 4.69-acre tract in dispute until 1965 or 1967, a period of over 40 years. After he stopped farming, Cook continued to maintain the fence and to live upon and use the property for pasture down to the time this case was tried in 1975. Clearly, Cook proved his ownership by the acquisitive prescription of 30 years.

Plaintiff argues that while Article 3437 provides that a person may take possession of an estate without passing over every part of it, this provision must yield to Article 3503, which restricts prescription to what “has been actually possessed by the person pleading it.” Plaintiff contends that in the present case it was necessary that Cook prove that he actually possessed every square foot of the 4.69 acres by cultivating it or by cutting timber or by other such acts of corporeal possession “foot by foot.” With this contention we cannot agree. Article 3503 is in Chapter 3 of our Civil Code entitled “Of Prescription”. Article 3437 is found in Chapter 2 of the Code entitled “Of Possession”. Article 3437 is not in conflict with Article 3503. The two articles must be read together, as explained in the above quotation from Hill v. Richey. The word “boundaries” in Article 3437 means enclosure, and if the possession be without title, as under Article 3503, corporeal possession of part constitutes corporeal possession of all the land within the enclosure.

For the reasons assigned, the judgment appealed is affirmed at appellant’s cost.

Affirmed.


author: SARTAIN, Judge.

text:
    CALCON, INCORPORATED, Plaintiff-Appellee, v. The YOUNG COMPANIES, INC., Defendant-Appellant.
    No. 10477.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.

      Edward W. Gray, Baton Rouge, for appellant.
    John B. Noland, Baton Rouge, for appel-lee.
    Before SARTAIN, BAILES and PICKETT, JJ.
   SARTAIN, Judge.

Calcon, Inc. (Calcon) instituted this suit against The Young Companies, Inc. (Young) for damages for alleged breach of contract. The trial judge, for oral reasons assigned, entered judgment for Calcon for the sum of $20,054.37, from which judgment Young has appealed. Calcon has answered the appeal urging that the trial judge erred in failing to award it the additional sum of $2,000.00 for loss of anticipated profits. We affirm.

Young is the owner-contractor of a two hundred ninety-eight unit apartment complex known as Chateau Dijon located on Essen Lane in the City of Baton Rouge. Under date of January 8, 1973, Calcon entered into a written contract with Young whereby the former obligated itself to perform the following work during the construction of the complex, viz.:

“1. Tape and float all sheetrock, including furnishing all metal corners.
2. Spray acoustical ceilings.
3. Caulking all exterior windows & doors.
4. Stripping parking area.
5. One coat interior walls, two coats in kitchen, baths, door, jams and base. Two coats exterior.” (Emphasis added)

The aforementioned contract further provided that Calcon was to furnish all materials and to complete the task assigned to it in a thoroughly workmanlike manner in accordance with specifications prepared by ADH Systems, Inc. which were supposed to have been dated and signed by the parties executing the contract. These specifications were never dated nor signed nor furnished to Calcon by Young.

On October 18, 1973, Calcon was notified by telegram that its contract was can-celled for its failure to perform “good workmanship”. The telegram was signed by the job superintendent, Bill Wilson. In his oral reasons for judgment the trial judge found that the defendant did, in fact, breach the contract by forcing the plaintiff off the job and terminating its work on the project in question. The award was itemized as follows: $10,894.35, the stipulated retainage; $1,660.00 for extra work; and, $7,500.00 for anticipated profits.

There are two principal issues for resolution, one legal and the other factual.

The legal issue concerns the admissibility of the specifications mentioned above. It is noted that Item 5 of the contract calls for “one coat interior walls, . . . ” and does not designate any particular brand or grade of paint. On the other hand the specifications with respect to interior walls, provide:

“1. Gypsum board — texture, size and one coat Alkyd flat enamel, Napko or equal.”

When the defendant endeavored to elicit testimony to show that the specifications were in fact a part of the contract and that Calcon did not perform services in accordance with the specifications an objection was made as to the admissibility of the specifications. The trial judge sustained the objections. The specifications and testimony relative to them were made a part of the record by proffer of the same as permitted under C.C.P. Art. 1636. It is conceded that Calcon applied one coat of PPG Apartment House Latex, a paint that it determined was sufficient to satisfy the one coat requirement of the written portion of the contract. Young, on the other hand, argues that an Alkyd flat enamel, Napko paint or equal, should have been used.

We agree with the ruling of the trial judge that the specifications cannot be considered as part of the contract entered into between the parties to the litigation. C.C. Art. 1761 provides:

“A contract is an agreement, by which one person obligates himself to another, to give, to do or permit, or not to do something, expressed or implied by such agreement.”

When a controversy arises between the parties to a contract and litigation follows, it becomes the duty of the court to ascertain the intent of the parties in order to give the contract legal effect and thereby establish the rights and duties involved. C.C. Art. 1945; Admiral Paint Company v. Goltzman, 254 So.2d 104 (La,App.3rd1971); writs refused, 260 La. 289, 255 So.2d 772.

Further, contracts need not be imposed in a single instrument but may include documents by reference thereto. Admiral Paint Co. v. Goltzman, supra; and, Action Finance Corporation v. Nichols, 180 So.2d 81 (La.App.2nd 1965).

Thus, the question is whether it was the intent of the parties that the specifications be included in and made a part of the contract. It must be answered in the negative. The contract itself was prepared by the defendant and signed by Mr. Curtis Williams. Mr. Williams did not testify though he was identified as a vice-president of the defendant corporation. It is noted that the contract itself provided that the specifications were to be “dated and signed” by the parties. These specifications were never presented to nor seen by the representatives of the plaintiff prior to the institution of this litigation. Likewise, there is no evidence in the record before us that it was ever dated and signed by anyone on behalf of the defendant.

Plaintiff commenced work under the contract in February of 1973 and continued to fulfill its obligations thereunder until October 18, 1973. During this period of time at least three job superintendents, agents of the defendant, who had direct supervision over plaintiff’s employees, were not only not furnished a copy of the specifications but had never seen a set of them. There were none on the job site itself. Under these circumstances defendant can not now be heard to say that it was the intent of the parties that the proffered specifications were to be a part of the contract.

We now turn to Calcon’s claim on the merits, i. e., that Young terminated its contract with Calcon without just cause. This is a basic question of fact.

It is implicit in every construction contract that the work of the painter is to be performed in a good, workmanlike manner free from defects attributable to either faulty materials or poor workmanship. C. C. Art. 2769; Rathe v. Maher, 184 So.2d 256 (La.App.1st 1966).

In the instant case Young contends (1) that plaintiff was dilatory in the execution of the contract and (2) that the paint used by Calcon was inferior. The burden of proving these charges rests with Young. Rathe v. Maher, supra.

The evidence in the record does not support a finding that Calcon was either behind schedule, holding up the work of other subcontractors, or in any way deficient in the execution of its work from a time point of view.

Mr. Bill Wilson, who became job superintendent for Young, replaced Mr. Anthony Graza on October 10, 1973. Mr. Graza testified that as of that date Calcon was on schedule and possibly ahead of schedule. Mr. Graza further testified that at no time did he consider Young to be behind schedule. Our perusal of Mr. Wilson’s testimony in this respect leaves us with the distinct impression that he was under orders from his superiors to expedite the completion of the apartment complex and that it was Mr. Wilson’s individual determination that Calcon could execute its work in a quicker fashion by the hiring of extra painters. The other evidence in the record is to the contrary, namely that a painter can not satisfactorily complete its work until the carpentry, plumbing and electrical work has been substantially completed.

The coordination of the various crafts on a complex of this size is indeed a difficult task but the testimony relative to the expectations of Mr. Wilson is not supported by the testimony of other witnesses.

The real issue in this case involves the charge that Calcon adulterated its paint by adding equal amounts of water to the paint. An expert witness, Dr. Charles William Walker, testified that he performed a materials analysis on some samples that he took from one apartment. The result of his test showed that the paint had been diluted with approximately fifty percent water. The test was performed by magnifying the sample seven hundred fifty times its actual size. When this was accomplished the porosity of the paint disclosed the alleged water content. He conceded that this could not be ascertained by visual observation. When asked if he took samples from other apartments he answered in the negative saying that he viewed several other apartments and they appeared to him to be typical of the one from which he took the sample. This expert testimony was not commented on by the trial judge. We must therefore assume that the trial judge considered the remaining evidence of other witnesses to have preponderated over that of Dr. Walker.

We feel that it would serve no useful purpose here to reiterate in detail the conflicting testimony of the many witnesses, both lay and expert, concerning the quality of the paint. It suffices here to say that all of the witnesses presented by Calcon stated that the paint used by Calcon appeared to them to be satisfactory in every respect. Most of these witnesses conceded that in a one coat application there will be weak areas and that the sheetrock beneath the paint will be discernible.

Mr. Harold Lane Thompson, Sr., a licensed architect, was accepted by the court as an expert in the field of apartment construction. This witness had considerable experience in the design, construction and inspection of multiple housing units. He stated that it was the general rule to use a one coat application of PPG Apartment House Latex and that the work performed by Calcon was acceptable and executed in a good workmanlike manner.

Of particular significance to us is the fact that Mr. Graza, who was the job superintendent for Young throughout the major portion of Calcon’s work, considered the job performed by Calcon to be satisfactory and acceptable for a one coat application.

Mr. Wilson was emphatic in his opinion that the apartment should have been painted first with the primer and then with an alkyd base paint. When Mr. Wilson terminated Calcon’s contract he did not know that the contract called for a one coat application and did not require an alkyd base paint.

The trial judge, faced with this conflict in the testimony, resolved that Young had failed to bear the burden of proving that Calcon had indeed failed to perform its end of the obligation in a good, workmanlike manner, free from defects as to both material and workmanship. We are not disposed to say that the trier of fact committed manifest error in this respect.

The remaining issue relates to Cal-con’s answer to the appeal seeking an increase in the amount awarded to it for loss of anticipated profits from $7,500.00 to $9,500.00. The evidence reflects that there was some disparity in the testimony pertaining to some of the charges made by Calcon. We note that Calcon brad received advance payments for a total of three hundred fifteen units whereas Calcon had completed work on only two hundred seventy-three units. It is true that some of the units had to be reworked because of subsequent water damage. However, we do not find any justification for finding that forty-two units had to be reworked. It is an obvious error on Calcon’s part and undoubtedly a factor considered by the trial judge in declining to adhere to Cal-con’s contention that it was entitled to $9,500.00 for this item. A reduction by $2,000.00 or the award of $7,500.00 is within the sound discretion of the trial judge and we find no reasonable justification for modifying this award. C.C. Art. 1934(3).

Accordingly, for the above and foregoing reasons the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


author: ELLIS, Judge.

text:
    Lee L. PHILLIPS as representative of his minor son, Robert L. Phillips v. STATE of Louisiana Through the DEPARTMENT OF INSTITUTIONS and Louisiana Penitentiary.
    No. 10483.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    J. Marvin Montgomery, Baton Rouge, for appellant.
    Stan E. Branton, St. Francisville, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

At about 6:00 o’clock a. m. on March 2, 1972, Robert L. Phillips was injured when the automobile he was driving collided with a number of dairy cows. The accident happened on the grounds of the Louisiana State Penitentiary at Angola, where plaintiff was employed as a guard. Plaintiffs herein are Robert L. Phillips and Lee L. Phillips, his father, who was the owner of the automobile. The suit was originally brought against the State of Louisiana, through the Department of Institutions and the Louisiana State Penitentiary. However, the answer was filed by the State of Louisiana, through the Department of Corrections, which is the proper party, and the only defendant.

After trial on the merits, the court gave judgment for the value of the automobile, medical expenses, and $1,500.00 for pain and suffering. From that judgment, the defendant has appealed.

Robert L. Phillips was the only witness who testified relative to the facts of the accident. He stated that he was on his way to work at about ten minutes before six in the morning. It was dark, foggy, and drizzling, and the visibility was poor. He was driving at a speed of about 35 miles per hour, with his headlights on.

At the same time, there was a herd of dairy cattle on the road, being herded by three inmates of the penitentiary. They carried no lights or other devices to warn of the presence of the cows on the road. Plaintiff testified in one place that he did not see the cows before he hit them, and in another that he saw them when he was about 10 feet away.

Plaintiff also testified that he had never seen cattle at this place before and had never seen cattle being transferred from one pasture to another on the penitentiary grounds. However, he was aware that there were both beef and dairy cattle at the penitentiary, and had seen cattle roaming at large in other parts of the grounds.

He further testified that he felt that he was driving at a safe speed and that he did not expect to meet any obstruction on the road. He also stated that, because of visibility conditions, he could not have stopped in time to avoid an obstruction when it became visible.

Because the accident happened on the penitentiary grounds, the road on which it happened was not a public road, and not subject to the Highway Regulatory Act. However, since there is no evidence that any other regulations apply, we may look to the provisions thereof for guidance in determining fault. Bizette v. Lastilla, 238 So.2d 767 (La.App. 1 Cir. 1970).

R.S. 32:64, subd. A provides:

“No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the traffic on, and the surface and width of, the highway, and the condition of the weather, and in no event at a speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant thereto.”

In Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 (1972), the court said:

“It is well settled that when visibility is impaired by smoke, fog, or other unfavorable atmospheric conditions, a motorist must exercise care in the operation of his vehicle commensurate with the danger created by the conditions. He must reduce his speed and maintain a close lookout. As an extreme measure, when visibility is destroyed or greatly obscured, he must stop his vehicle until conditions permit him to resume1 travel in reasonable safety.”

From plaintiff’s own testimony, we learn that the weather was bad and the visibility impaired as a result. He admitted that, at 35 miles per hour, he could not stop within the range of his vision. We think it clear that the law requires that he be able to do so under the condilions existing in this case. Since he failed to meet this standard of conduct, he is guilty of negligence, which precludes recovery by the plaintiffs in this case.

The judgment appealed from is reversed, and there will be judgment in favor of defendant dismissing plaintiffs’ suit at their cost.

Reversed and rendered.


author: PICKETT, Judge:

text:
    Joseph RANEY, Plaintiff-Appellant, v. The STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
    No. 10497.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Byron Magvee, Baton Rouge, for plaintiff-appellant.
    Robert E. Funderburk, Jr., Baton Rouge, for defendant-appellee.
    Before SARTAIN, BAILES and PICKETT, JJ.
   PICKETT, Judge:

This is a suit in which the Plaintiff, Joseph Raney, a former inmate of the Louisiana State Penitentiary, at Angola, seeks to recover for personal injuries inflicted upon him on November 15, 1974, by two other inmates, at a time when they were confined together in a cell in Cell Block D, Isolation.

Plaintiff contends that two other inmates, namely, Billy Self and Frederick Smith, sexually assaulted him; that Smith beat him about the head and body with piece of brick, while Self grabbed his legs and pulled him down. Plaintiff sustained a broken nose, cuts about his face, and other lacerations and bruises.

The Defendant is the State of Louisiana, through the Department of Corrections.

Plaintiff contends that Defendant was negligent in

(1) either not inspecting plaintiff’s cell to see if any potential weapons were present; or,

(2) failure to search and inspect thoroughly all prisoners going into plaintiff’s cell; or,

(3) putting too many persons in one cell with plaintiff; or,

(4) placing him in a cell with inmates known to have a potential for these type of attacks; or,

(5) any or all of these.

Defendant denies liability, and alternatively, pleads the contributory negligence of Plaintiff, and the assumption of the risk by plaintiff in inviting and provoking the attack, if any occurred, and in failing to express his fear of receiving bodily harm to any officials of the Louisiana Department of Corrections.

The Trial Court rendered judgment for Defendant, and Plaintiff appeals.

The evidence establishes that at about noon, on November 15, 1974, Plaintiff was placed in a cell in Cell Block D, Isolation, as a punishment for violating a prison regulation. He was placed in the same cell with three other persons, namely, Billy Self, Frederick Smith, and a third party, whose name was never revealed.

Plaintiff testified that shortly after he was placed in the cell Smith and Self questioned him as to whether he would submit to homosexual acts, and he refused. Argument ensued, and was finally interrupted by the noon meal. After this noon meal was over, according to Plaintiff, Smith again talked of homosexual acts and threatened Plaintiff, “You are going to do it one way or the other.”

Plaintiff further testified that at about 3:00-3:30 P.M. he called a guard to the door of the cell and requested to be moved to another cell because the “dudes” in the cell with him were trying to sexually assault him. He said the guard told him he would see what he could do, but that he never saw this guard again, and he was not moved out of the cell.

Smith, in his testimony, denied that he was a homosexual, and denied that Plaintiff ever talked to a guard, on the afternoon in question.

Apparently nothing more happened involving Plaintiff until about 10:00 P.M., after the mattresses were passed out. Plaintiff said he was sitting on the commode when suddenly Smith, without provocation, attacked him, and began beating his face with a piece of concrete brick, striking him several times. Simultaneously, Self grabbed his legs and pulled him down. Plaintiff testified that he got to the door, somehow, and rattled it, and a guard promptly appeared, and broke up the assault, and took him to receive medical attention. Smith disputed this version, stating that Plaintiff made a homosexual advance to him, “touched” him, whereupon Smith pushed Plaintiff, and Plaintiff struck at Smith. The fight started, and he, Smith, with a small piece of brick in his hand, to make his fist harder, struck Plaintiff several times. Plaintiff also struck Smith several times. The fight was of short duration. Within seconds a guard broke it up.

Plaintiff testified that after the fight the brick was “full of blood”. Smith denied this, and Mr. James Meredith, the Correctional Officer who broke up the fight also said the piece of brick, which was about two inches in diameter, had no blood on it.

Plaintiff had a reputation at Angola of being a trouble maker. In the one year and approximately nine months that he had been there he had been in several fights. He had been in Isolation several times before this occasion. Smith did not have a reputation as a trouble maker, although he did have the reputation of not being a good worker.

The evidence establishes that a head count is made in Cell Block D every hour, irregularly, as a routine. Also, the cells are checked and the prisoners are frisked for weapons every other day. These searches were conducted unannounced.

Guards are near at hand at all times, although it is acknowledged that security could be tighter if more guards were employed. If an inmate wanted to talk to a guard he could get the guard’s attention by shaking or rattling the bars, and a guard would go see what he wanted.

The paramount issue here involved is the question of the responsibility of the State to protect one inmate from intentional harm caused him by another inmate.

With reference to this question we quote from the opinion of the very able Trial Judge, as follows:

“The landmark case dealing with the standard of responsibility due by the State of Louisiana and its employees in the maintenance of a penal institution and the care of those detained therein was initially stated in St. Julian v. State, 98 So.2d 284 (La.App. 1st Cir. 1957), wherein it stated:
‘ * * * (I)n order to hold the State or the employees of a state who have charge of a prison liable for injury to one inmate inflicted by another inmate, there must be knowledge on the part of such officers in charge that such injuries will be inflicted, or good reason to anticipate such, and following that, there must be a showing of negligence on the part of those officials in failing to prevent the injury.’
‘This holding has been adhered to in other recent cases wherein the factual circumstances were similar. Bastida v. State, Department of Corrections, 269 So.2d 544 (La.App. 1st Cir. 1972); Nedd v. State, Department of Institutions, 281 So.2d 131 (La.1973). Particularly, in Parker, the Court declared:
‘A penal institution is not an insurer of an inmate against attacks by other inmates. The standard is that of reasonable or ordinary care. The majority rule is that in order to hold the penal authorities liable for an injury inflicted upon an inmate by another inmate, the authorities must know or have reason to anticipate that harm will ensue and fail to use reasonable care in preventing the harm.’ ”

This same standard of care was reaffirmed by us in the recent case of Craft v. State, 308 So.2d 290 (La.App. 1st Cir. 1975), wherein we stated that:

“Under the facts in Parker [Parker v. State, 282 So.2d 483], the Supreme Court held- that the issue was not one of absolute liability under the statutes but was whether or not the prison officials had adhered to a standard of care that is reasonable.”

In the instant case there is no evidence that the Corrections Officers were negligent in the search of the inmates or the inspection of the cells for weapons. On the contrary the evidence establishes that routine, unannounced inspection of both prisoners and cells were made regularly. Every reasonable means of locating and confiscating weapons was employed. The difficulty in locating and confiscating every piece of brick, and cinder block is readily understandable, especially in view of the continued activity of prisoners in breaking or working pieces of masonry loose from walls and other places.

Plaintiff has likewise failed to establish any negligence on the part of the State in failing to separate Plaintiff from the other inmates in the cell. The Trial Court gave no credence to Plaintiff’s testimony that he had made a complaint concerning his fellow inmates. We concur. Plaintiff’s failure to complain for many hours after his professed original complaint, refutes the contention that any complaint was ever made. The proximity and ready availability of guards is evidenced by the promptness with which a guard arrived on the scene to break up the altercation that ultimately did occur.

We find no negligence on the part of the prison officials in the inspection of the cells, and the search of the inmates for weapons. On the contrary, we find that the prison authorities exercised every reasonable effort to locate and confiscate any object that might be used by an inmate as a weapon.

Additionally, we find no negligence on the part of the prison authorities in failing to separate Plaintiff from the inmates who later harmed him. The record fails to establish that the prison authorities ever had adequate reason to anticipate that harm would come to Plaintiff.

Accordingly, for reasons assigned, the judgment of the District Court is affirmed, at Appellant’s costs.

Affirmed.


text:
    Bennie B. STRICKLAND v. Wallace STAFFORD.
    No. 10458.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Joseph D. Lupo, Independence, for appellant.
    Jesse P. Lagarde, Amite, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

Plaintiff Bennie B. Strickland is the owner of SO acres in Section 3, Township 1 South, Range 8 East in Tangipahoa Parish. Wallace Stafford owns 98 acres in the same section, lying immediately to the west of the Strickland property. Strickland acquired his parcel in 1925, and Stafford his in 1944. Both parties have resided on their respective properties since their acquisitions.

The Stafford property lies about 300 feet east of Potts Road, a blacktop parish road, and is separated therefrom by the property of John W. Schilling. Mr. Stafford has access to Potts Road via a gravel road which runs from his house to the Potts Road.

Mr. Stafford is a dairy farmer, and his property is fenced and cross fenced so as to divide it into a number of pastures. The easterly portion of his property, adjoining the Strickland property, is divided into three pastures by two cross fences which run in an approximate east-west direction.

For many years, Mr. Strickland has gone in and out of his property along a road or lane which runs from his house along the more northerly of the two cross fences, and which joins Mr. Stafford’s road near his home. Along this road there are presently three gates, one by Mr. Stafford’s home, one where the road enters the middle of the three rear pastures, and one at Mr. Strickland’s fence. We are satisfied from the record that these gates, or others, have beexi in place since 1945, when Mr. Stafford fenced his pastures.

At some time between 1965 and 1970, the testimony being in dispute as to when, three wooden cattle guards were built at the sites of the three gates. The labor in connection therewith was performed by the employees of the Tangipahoa Parish Police Jury.

In 1972, the cattle guards had deteriorated to the point where they no longer served their purpose, and cattle were beginning to escape from the pastures. Mr. Stafford began using his gates again, and, according to plaintiff, restricted the size of the vehicles which could use the road by placing iron pipes in the cattle guards. In July, 1974, this suit was filed.

In his petition, plaintiff alleges that he is entitled to a servitude of passage across the Stafford property under Article 701 of the Civil Code, which must, under Article 702, be adequate for his “animals, carts, instruments of agriculture, and everything which may be necessary for the use and working of his land.” Alternatively, it is claimed that the road is a public road under R.S. 48:491 because of having been maintained by the Police Jury of Tangipa-hoa Parish for more than three years.

By way of defense, Mr. Stafford denies that the plaintiff is entitled to a servitude of passage across his property, because of the presence of a dedicated, but not opened, public road along the section line between Sections 3 and 49, which forms the south boundary of both plaintiff’s and defendant’s properties and which runs to Potts Road. He further denies that the road has become public by virtue of maintenance by the Police Jury. Defendant third partied the Police Jury, asking that it be requested to open and maintain the road along the section line so as to afford ingress and egress to plaintiff’s property.

After trial on the merits, judgment was rendered in favor of plaintiff, declaring the road to Mr. Strickland’s house to be a public road and ordering Mr. Stafford to remove all obstructions therefrom. The third party demand against the Police Jury was dismissed. From that judgment, defendant has appealed.

In reaching his decision, the trial judge found that there had been sufficient maintenance by the Police Jury to make the road public in character. He did not consider the main contentions of the plaintiff under Articles 701 and 702 of the Civil Code.

The evidence offered by the plaintiff relative to the maintenance of the road is to the effect that the Police Jury, on a regular basis, put gravel on the road and bladed it from 1960 to 1972.

The evidence offered by the defendant on that point is that the Police Jury maintained the road on a regular basis only in 1969 and 1970, and that any other work which may have been done was negligible. Defendant asserts that he never consented or intended that his property become a public road.

The district judge found as a matter of fact that the section of road in dispute had been maintained on a regular basis by the Police Jury, and we find no manifest error in this conclusion.

R.S. 48:491 provides:

“All roads or streets in this state that are opened, laid out or appointed by virtue of any act of the legislature or by virtue of an order of any parish governing authority in any parish, or any municipal governing authority in any municipality, or which have been or are hereafter kept up, maintained or worked for a period of three years by authority of any parish governing authority in its parish or by authority of any municipal governing authority in its municipality shall be public roads or streets as the case may be. Also all roads or streets made on the front of their respective tracts of lands by individuals when the lands have their front on any of the rivers or bayous within this state shall be public roads when located outside of municipalities and shall be public streets when located inside of municipalities.”

In applying the above provisions, the courts have held that maintenance of a road by a police jury for three continuous years gives rise to a “tacit dedication” thereof to public use by its owner. Frierson v. Police Jury of Caddo Parish, 160 La. 957, 107 So. 709 (1926). In that case, the statute was also held to be constitutional. But cf. Town of Eunice v. Childs, 205 So.2d 897 (La.App. 3 Cir. 1967), writ ref. 251 La. 937, 207 So.2d 540 (1968); Harrison v. Louisiana Power and Light Co., 288 So.2d 37 (La., 1973).

The courts have consistently applied this statute to roads maintained by a public authority, even when no real public purpose is served thereby, as when only one person or family utilizes the road as a driveway to his property. Curtis v. Goebel, 101 So.2d 462 (La.App. 1 Cir. 1958). The same has been held true when the police jury itself refuses to recognize the road as public. Latour v. Dupuis, 164 So.2d 620 (La.App. 3 Cir. 1964). In addition, the courts have treated that portion of R.S. 48:491 dealing with maintenance as though it were a separate statute and not part of a series of articles dealing with the laying out of public roads by local governing authorities. See R.S. 48:491-495. Those statutes would appear to require more formal action on the part of a governing authority than unilateral action on the part of its employees or one of its members to evidence its intent to give public character to private property.

Be that as it may, under the jurisprudence as it presently stands, we think the district judge properly decided the issues before him.

The judgment appealed from is affirmed, at defendant’s cost.

Affirmed.


author: ELLIS, Judge:

text:
    Christopher G. LITTELL, etc., et al. v. Esau WRIGHT, etc., et al.
    No. 10487.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.

      Etta Kay Hearn, Baton Rouge, for appellants.
    Henry D. Salassi, Jr., Baton Rouge, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

On February 7, 1974, Mrs. Emily Dianne Littell was involved in an altercation with Mrs. Violena Wright, as a result of which she suffered certain physical injuries. This suit was brought for damages arising therefrom. Plaintiffs are Mrs. Littell and her husband, Christopher G. Littell. Defendants are Mrs. Wright and her husband, Esau Wright. After trial on the merits, judgment was rendered in favor of plaintiffs for $51.00 special damages and $2,750.00 for the injuries suffered by Mrs. Littell, and defendants have appealed. In this court, defendants’ only complaint is that the award made to Mrs. Littell is excessive.

Plaintiffs’ version of the altercation, which was accepted as true by the trial judge, is as follows: Mrs. Littell was in the girls’ dressing room when Mrs. Wright came in to see her relative to the suspension from school of Reginald Wright, defendants’ son. Mrs. Littell was attempting to leave the dressing room to find the principal when she was attacked by Mrs. Wright, who struck her with her fists, kicked her and pulled her hair. Mrs. Lit-tell’s glasses and a pendant watch were broken. The event was witnessed by a group of young girls who were in the dressing room.

As a result of the attack, Mrs. Littell may have suffered a mild concussion, but there was no physical consequence other than a swelling of her face, and soreness of her nose, side and back. Mrs. Littell went to the emergency room at the Baton Rouge General Hospital, and later saw her own physician. X-rays were made of her face to check for a broken nose, but these proved to be negative. She missed two days at school. A police escort was furnished her for a week. She also began to experience some disciplinary difficulty with the students which she had not had previously.

Away from school, she would no longer go places by herself, was highly nervous, and had difficulty sleeping at night. These difficulties persisted for about a month. Mrs. Littell testified that she became concerned about her career as a teacher. She applied for and received a transfer from the school where she was teaching to another school in the Baton Rouge area.

In assessing the damages, the trial judge stated that he was impressed by the testimony of Mrs. Littell, and believed that she must have suffered embarrassment and fear as a result of the altercation. He also considered the adverse reaction of some of the students to Mrs. Littell after the event, as well as the effect on her of the police escort, which she did not request.

Considering all of the above, we are of the opinion that the award of $2,750.00, although high, is within the bounds of the discretion of the trier of fact. In brief, defendants have cited many cases in which lower awards have been made in similar situations. We have considered these cases, but do not find that defendants have demonstrated an abuse of discretion on the part of the trial judge. See Article 1934(3), Civil Code; and Revon v. American Guarantee & Liability Insurance Company, 296 So.2d 257 (La., 1974) for a review of the jurisprudence in this area.

The judgment appealed from is affirmed, at defendants’ cost.

Affirmed.


author: ROBERTS, Justice.

text:
    Kenneth Paul SCHELL, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 47787.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Kenneth Paul Schell, in pro per.
   ROBERTS, Justice.

Petitioner by Petition for Writ of Ha-beas Corpus seeks credit for the full time he has served on parole toward his sentence.

Petitioner alleges that he has lived in accordance to the rules of parole supervision from July 2, 1974 until March 20, 1975, the latter being the date of his arrest for parole violation. This Court forwarded a copy of the Petition for Writ of Habeas Corpus to the Supervisor of Inmate Records, Division of Corrections, with directions to show cause why petitioner should not receive credit for the time served under parole supervision. We received a response from the Division of Corrections in this and several other causes relating to the same issue which provides in pertinent part:

“Florida Statute 947.21 specifically states that a parole or MCR violator is not entitled for deduction of time spent on parole should that individual violate parole and the parole is subsequently revoked.
“Brumit vs. Wainwright provides that a subject is to receive credit for time from the date of arrest for parole/MCR violation to the date of the revocation of said parole or MCR. This time is now being credited by the Florida Parole and Probation Commission upon revocation.
“I find that the above subject’s petitions to be without merit. My opinion on this is based upon present Florida statutes and Brumit vs. Wainwright as I understand them. As to the contentions made in these writs regarding the interpretation of laws, this, of course, is a matter which the courts would have to rule on.”

The statutory provision referred to by the Division of Corrections 947.21 which provided :

“947.21. Violations of parole. — A violation of the terms of parole may render the parolee liable to arrest and a return to prison to serve out the term for which he was sentenced. No part of the time he may have been on parole shall in such event, in any manner diminish the time of such sentence, (underscoring supplied.)

was amended by the Legislature during the 1974 legislative session by Chapter 74-112, Laws of Florida, to provide:

“947.21. Violations of parole.—
(1) A violation of the terms of parole may render the parolee liable to arrest and a return to prison to serve out the term for which he was sentenced.
(2) An offender whose parole is revoked may, at the discretion of the commission, be credited with any portion of the time he has satisfactorily served on parole.”

The effective date of this statute is July 1, 1974.

Accordingly, after the effective date of Chapter 74-112, Florida Statutes, the question of credit for time satisfactorily served on parole became discretionary with the Parole and Probation Commission and, therefore, not subject to collateral attack. The Petition for Writ of Habeas Corpus is denied without prejudice to petitioner to make application to the Parole and Probation Commission for such relief as the Commission, within its discretion, deems appropriate under 947.21, Florida Statutes (1974).

It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and SUNDBERG, JJ., concur.

      . Although not material sub judice, we note that by Chapter 75-49, General Laws, 1975, the Legislature transferred all powers, duties and functions of the Parole and Probation Commission, except those relating to the exercise of its quasi-judieial duties and fuñe-tions, as provided by law, by a type four transfer pursuant to s. 20.06(4) to the Department of Offender Rehabilitation,

      . Petitioner’s revocation occurred after the ef-feetive date of Chapter 74-112.


author: PER CURIAM.

text:
    Robert Earl HOLLOWAY, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 47786.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Robert Earl Holloway, in pro per.
   PER CURIAM.

Denied. Schell v. Wainwright, 322 So.2d 897 (Fla.1975).

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., concur.


text:
    Robert M. TURNER, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 47788.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Robert M. Turner, in pro per.
   PER CURIAM.

Denied. Schell v. Wainwright, 322 So.2d 897 (Fla.1975).

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., concur.


text:
    Greg T. BUSBY, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 47789.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Greg T. Busby, in pro per.
   PER CURIAM.

Denied. Schell v. Wainwright, 322 So.2d 897 (Fla.1975).

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., concur.


text:
    Rudolph FRAZIER, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 47790.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Rudolph Frazier, in pro per.
   PER CURIAM.

Denied. Schell v. Wainwright, 322 So.2d 897 (Fla.1975).

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., concur.


text:
    Barney Wyman CHESHIRE, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 47791.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Barney Wyman Cheshire, in pro per.
   PER CURIAM.

Denied. Schell v. Wainwright, 322 So.2d 897 (Fla.1975).

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., concur.


text:
    Morton J. CLEMONS, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 47792.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Morton J. Clemons, in pro per.
   PER CURIAM.

Denied. Schell v. Wainwright, 322 So.2d 897 (Fla.1975).

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., concur.


text:
    Floyd RIVERS, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 47793.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Floyd Rivers, in pro per.
   PER CURIAM.

Denied. Schell v. Wainwright, 322 So.2d 897 (Fla.1975).

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., concur.


text:
    Charles Leroy SAWYER, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 47794.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Charles Leroy Sawyer, in pro per.
   PER CURIAM.

Denied. Schell v. Wainwright, 322 So. 2d 897 (Fla.1975).

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., concur.