author: PRICE, Judge.

text:
    James A. GALLAGHER, Plaintiff-Appellant, v. Bobbie Jo Smith GALLAGHER, Defendant-Appellee.
    No. 13026.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Refused Feb. 3, 1977.

      Love, Rigby, Dehan & Love by Kenneth Rigby, Shreveport, for plaintiff-appellant.
    Neil Dixon, Shreveport, for defendant-ap-pellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

James A. Gallagher brought this action against his former wife, Bobbie Jo Smith Gallagher, for a partition by licitation of the former community home in Shreveport. His demands were rejected by the trial court on a finding that defendant had been granted a right of use and habitation of the property, and the property was not susceptible to being partitioned. On appeal, the plaintiff presents three issues:

1) Should the right to remain in the residence granted by plaintiff to defendant pursuant .to a property settlement agreement be construed as a real right in the nature of a usufruct terminable at her option?
2) Have‘the parties 'contractually stipulated against a judicial partition by licitation?
3) Can a co-owner whose indivisible interest is burdened with a right of use and habitation in favor of his co-owner enforce the right of partition by licitation of the naked ownership?

The parties were married in 1966 and resided in Shreveport until their separation in September, 1973. Plaintiff filed an action for a divorce in the State of Arkansas. On January 9,1974, the litigants executed a “Community Property Settlement and Partition and Support Agreement.” By its terms, defendant allowed plaintiff to procure the Arkansas divorce and acquiesced in its recognition in Caddo Parish District Court. Judgment was rendered recognizing the divorce and their contractual stipulations on February 13, 1974.

Plaintiff instituted this action in June, 1975, seeking partition by licitation of the residence. Defendant denies he is entitled to this relief based on the following provisions of the contract:

Mrs. Gallagher shall have the right to remain in the former matrimonial domicile at 6306 River Road, Shreveport, Cad-do Parish, Louisiana, as long as she desires to live there. However, she shall have the option at any time to place the said residence on the market for sale in accordance with the following agreement. An appraisal shall be obtained on the house at the time it is offered for sale, the appraisal to be made by an appraiser to be mutually selected by both Mr. and Mrs. Gallagher. The house shall be offered for sale at the appraised value, with each agreeing that it shall be sold for this appraised sum. However, Mrs. Gallagher shall have the right to sell the house herself without a commission, for the price and under the terms set forth herein. During the period of time that the house is offered for sale and until it is sold, this agreement shall provide for the exclusive occupancy of the house by Mrs. Gallagher. The property shall be listed with Aulds, Horne & White as the realtor for sale. Upon the sale of the house, the net proceeds of the sale after the payment of the first mortgage on the residence shall be divided equally between Mr. and Mrs. Gallagher.
Until the house is sold as above described, Mr. Gallagher will agree to pay to Mrs. Gallagher the sum of $470.00 per month cash, divided $100.00 a month child support and $370.00 a month alimony. He additionally obligates himself to pay all of the hospital, doctor and dental bills on the minor children of the marriage. Additionally, he will keep in full force and effect the hospitalization insurance, both on the children and Mrs. Gallagher. Mrs. Gallagher obligates herself to pay the first mortgage payment on the residence as long as she occupies the same, as consideration for her occupancy. In the event that Mrs. Gallagher elects no longer to occupy the said residence, and moves out, she agrees that the house shall be offered for sale as above provided.

Plaintiff contends the parties intended for defendant to temporarily remain in the house during the period of time required for sale of the residence in accord with the provisions of the agreement. He contends the trial court was in error in construing this provision as a right of use and habitation which is a real right in the property in the nature of a usufruct. He further-contends the right may only be established by an instrument translative of title which clearly evidences the intent to convey such a property right.

The right of habitation is provided by Louisiana Civil Code Article 627 as follows:

The right of habitation is the right of dwelling gratuitously in a house the property of another person.

The methods of establishing and extinguishing this right are the same as prescribed by the Code for a usufruct. Article 628. The right of usufruct may be established by “all sorts of titles” as provided by Article 540. Specifically enumerated in this article is an agreement of compromise. The property settlement agreement is an authentic act which effects a compromise of the disputed claims of the parties relating to the partition of the community and alimony rights. It meets all of the requirements of Article 540 to be an instrument translative of title.

The language employed is clear and unambiguous in defining the rights accorded to defendant:

Mrs. Gallagher shall have the right to remain in the former matrimonial domicile ... as long as she desires to live there.
Sfc * Sfc Sfc
* * * Mrs. Gallagher obligates herself to pay the first mortgage payment on the residence as long as she occupies same, as consideration for her occupancy. In the event that Mrs. Gallagher elects no longer to occupy the said residence, and moves out, she agrees that the house shall be offered for sale as above provided.

This language negates the argument by plaintiff that the right was intended to be for a temporary period.

We find the trial court was correct in construing the instrument to establish a right of habitation as provided by Article 627.

Plaintiff contends, in the alternative, that should defendant’s claim to a right of habitation be upheld, he should, nevertheless, be allowed to partition the naked ownership of the property. Defendant opposes this position contending it is contrary to the agreement, and secondly, that property subject to a usufruct or right of habitation is not susceptible of partition under the decision in Smith v. Nelson, 121 La. 170, 46 So. 200 (1908). We do not find it necessary to resolve the latter issue as we find the parties have stipulated against the right to a judicial partition under the terms of the agreement. Louisiana Civil Code Article 1289, providing for the right of partition of a thing held in common, also recognizes the right to stipulate against partition. This article is further modified by Article 1298 providing that co-heirs can agree not to partition the effects of a succession for a certain limited time. (Article 1290 provides the rules for partition between co-heirs are also applicable to owners of a thing held in common.)

Plaintiff contends the agreement does not meet the requirements for a stipulation against partition because it is too indefinite to be enforceable under Article 1298, and the jurisprudence interpreting it. See Walker v. Chapital, 218 La. 663, 50 So.2d 641 (1951), and Giardina v. Giardina, 181 La. 42, 158 So. 615 (1935).

The decisions of Giardina and Walker are not applicable to the circumstances presented. In those cases, the purported agreements against partitioning property were rejected because the agreements were vague and indefinite. The property settlement between the Gallaghers clearly shows an intent not to partition the residence until Mrs. Gallagher chooses to move out of the house.

The fact that the specific term in this instance is dependent upon the defendant’s option does not render it unenforceable. The option was granted to her in return for the rights and advantages accruing to the plaintiff under the agreement.

The agreement provides with particularity the mechanics of determining the price of the property and method of sale should defendant exercise her option to terminate her right of habitation.

The parties, having provided a specific method for non-judicial partition at the expiration of the defendant’s occupancy right, have negated the right to a judicial partition as sought by plaintiff in this action.

The judgment is affirmed at appellant’s costs.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Ezell BRACKENS, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    No. 13029.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    Hal R. Henderson, Arcadia, and Baker, Culpepper & Brunson by Bobby L. Culpep-per, Jonesboro, for plaintiff-appellant.
    Nelson & Achee, Ltd., by Roland J. Achee, Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

Plaintiff sued Allstate Insurance Company under the medical payments coverage of an automobile insurance policy issued by Allstate to plaintiff for recovery of the amount established by a Veterans Administration hospital as the reasonable value of medical services rendered free of charge to plaintiff for treatment of injuries received in an automobile accident. The district court citing Irby v. Government Employees Insurance Co., 175 So.2d 9 (La.App. 4th Cir. 1965), as controlling, denied recovery. Plaintiff appealed. Agreeing that the decision in Irby is sound law and is controlling, we affirm.

Plaintiff was injured in an automobile accident while driving his automobile insured by Allstate. He was treated at the VA Hospital which established the reasonable value of its services at $2,131.72. As a veteran meeting certain qualifications, plaintiff was entitled under 38 U.S.C.A. § 610 to receive hospital services without payment therefor. No charge was made to plaintiff for the services and he never incurred any liability to the VA for the services.

Plaintiff brought suit against the insurer of the other vehicle involved in the accident seeking damages for his personal injuries, and “for the use and benefit of” the VA seeking recovery of the reasonable value of the services rendered by the VA. Recovery of the reasonable value of services by the VA from a third party tort-feasor is authorized by 42 U.S.C.A. § 2651. The suit was ultimately settled, with the tort-feasor’s insurer paying $19,000 by draft payable to plaintiff and the VA. Plaintiff and the VA released the tort-feasor and his insurer from further liability and the suit was dismissed on joint motion of plaintiff, the VA, and the defendants in that suit. Before the VA would join in dismissal of the suit, it required plaintiff’s attorney to guarantee payment to the VA of the VA’s claim in full. At the time of trial of the case before this Court, the attorneys were holding funds from the settlement sufficient to pay the VA, but had not actually paid the government agency.

Plaintiff also filed the instant suit against Allstate seeking recovery under the medical payments coverage of the Allstate policy. In pertinent part the policy provides:

“Allstate will pay all reasonable expenses, incurred within one year from the date of accident, for necessary medical, dental, surgical, X ray, ambulance, hospital, professional nursing and funeral services, pharmaceuticals, eyeglasses and prosthetic devices to or for an insured who sustains bodily injury caused by accident.”

Plaintiff contends that as a result of the claim made by the VA against the tort-fea-sor, plaintiff is now obligated to pay the VA out of the $19,000 settlement with the tort-feasor’s insurer and, therefore, he has incurred or become liable for the medical expense within the coverage of the Allstate policy.

Defendant Allstate contends that since the VA was required by law to render the services to plaintiff free of charge, plaintiff never incurred or became liable for any medical expense and is not entitled to recovery under the policy provisions.

The Irby case is squarely in point. In that case plaintiff was treated in a U.S. Public Health Service hospital for injuries received in an automobile accident while on active duty with the Coast Guard. Under a federal statute, 42 U.S.C.A. § 253, the government was required to render the services without charge and plaintiff was never obligated to pay for the services. A settlement was reached among plaintiff, the government agency, and the tort-feasor and his insurer. As in the instant case, the plaintiff’s attorney was authorized to prosecute and collect the government’s claim against the tort-feasor.

Plaintiff sued his automobile insurer under the medical payments provisions of the policy which were substantially similar to the provisions of the policy in the instant case.

The court held the word “incurred” as used in the policy emphasizes the idea of “liability” and that expense is incurred only when liability attaches. Since the plaintiff never was under any obligation to pay the hospital expense, he never incurred the expense and the defendant insurance company was not liable under the medical payments coverage. Cited as authority was Drearr v. Connecticut General Life Insurance Co., 119 So.2d 149 (La.App.Orl.Cir.1960), which reached a similar result under similar facts in a suit under a hospitalization policy. Also cited as authority was United States v. St. Paul Mercury Indemnity Co., 238 F.2d 594 (8th Cir. 1956), which denied recovery to the government under a poliomyelitis expense policy issued to the veteran which provided for payment of expenses “actually incurred by the insured.”

The court in Irby also rejected plaintiff’s argument that he became obligated to pay the government’s claim by reason of the settlement with the tort-feasor’s insurer, noting that the settlement was of two separate claims, one by plaintiff individually for his injuries and one by the government agency for its services rendered. Although plaintiff’s attorney, acting for the government, was obligated to pay to the government that part of the proceeds of the settlement collected for the government, plaintiff himself was never obligated to the government for anything.

The instant case is identical in all pertinent respects. Plaintiff here has never been liable or obligated for payment of the medical services rendered by the VA Hospital, either initially or by reason of the settlement with the tort-feasor’s insurer. He has never, therefore, “incurred” any medical expense for which payment is due under the medical payments provisions of the insurance contract.

Plaintiff cites Niles v. American Bankers Insurance Co., 229 So.2d 435 (La.App. 3d Cir. 1969), in which a plaintiff recovered under a hospitalization policy for services rendered by a private hospital, which services were paid by Medicare and for which, under the hospital’s agreement with the government, plaintiff was never responsible. The court in Niles distinguished Irby, noting that in Niles a charge was made by the hospital which was paid by the government’s Medicare program in plaintiff’s behalf, and likened Medicare to other hospitalization insurance. The distinction between the two cases is thin but valid.

Plaintiff also cites United States v. Automobile Club Insurance Co., 522 F.2d 1 (5th Cir. 1975). In that case the United States was allowed to recover from the veteran’s automobile insurer under the medical payments provisions of the policy as a third party beneficiary. The policy provided for payment of medical expenses incurred “by or for” the insured and provided for payment to the insured or to any organization rendering medical services to the insured. The policy in the instant case contains almost identical wording and, under Automobile Club, the VA presumably would be entitled to recover under the policy. However, the VA has not brought the instant action, nor is the action brought by the plaintiff in behalf of the VA. The court in Automobile Club also distinguished Irby, recognizing that underlying the Irby decision was the notion that the insured should not be allowed a “windfall” recovery under the policy for expenses never incurred by the insured.

Plaintiff incurred no medical expense by reason of his hospitalization at the VA Hospital and is not entitled to recover under the medical payments provisions of his automobile insurance policy.

For the reasons assigned, the judgment of the district court is affirmed at plaintiff-appellant’s costs.

Affirmed.


author: JONES, Judge.

text:
    Ronald Thomas MONSOUR, Sr., Plaintiff-Appellant, v. Roxie Ann Lewis MONSOUR, Defendant-Appellee.
    No. 13030.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Granted Feb. 11, 1977.

      Love, Rigby, Dehan & Love by Kenneth Rigby, Shreveport, for plaintiff-appellant.
    Mecom, Scott & Woods by B. J. Woods, Shreveport, for defendant-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

Ronald Thomas Monsour, Sr. instituted this action against his former wife to obtain custody of their child, Ronald Thomas, Jr. The lower court retained custody in the mother and plaintiff appeals.

The issue is whether the lower court erred in denying a change of custody for an 8 year old boy when the mother had admittedly been living in open concubinage for some four months when the change of custody suit was filed.

We reverse the lower court and award custody of the boy to his father.

The defendant became acquainted with one Hank Shelton some time in 1975 and permitted Shelton to spend the 1975 Labor day weekend and the Christmas week in her apartment with her and her son. The mother and Shelton slept together during these periods, and on January 18,1976 Shelton moved into the apartment with defendant and her son. They lived in open concubinage until this custody suit was instituted on April 6, 1976. Defendant married her paramour on April 12, 1976.

Our jurisprudence is clear in establishing the standard of moral conduct required of a mother in matters of determination of custody:

* * * Proof of one act of adultery, or even of several acts with the same paramour, does not necessarily render morally unfit a mother who is otherwise suited for custody, . . . . However, where the mother has recently lived in open and public adultery with her paramour for a substantial period of time, in total disregard for the moral principles of our society, the courts have generally held the mother is morally unfit for custody.
[Johnson v. Johnson, 268 So.2d 114, 118 (La.App., 3d Cir. 1972)]

See also Parks v. Parks, 331 So.2d 505 (La. App., 2d Cir. 1976); Denton v. Meshell, 335 So.2d 705 (La.App., 2d Cir. 1976).

Defendant testified she saw nothing wrong with living with her boy friend in the presence of her son but admitted the arrangement was wrong in the eyes of society. The boy friend stated that it never really dawned on them that there was anything wrong with their relationship. There were some indefinite plans between defendant and Shelton that they would possibly marry each other at some future time. The mother frankly admitted she and Shelton entered into the marriage because she felt it would assist her in the defense of the custody suit.

The mother engaged in a lengthy, calculated and continuous public course of misconduct detrimental to the interest and welfare of her minor son. On one occasion the mother and her boy friend engaged in sexual intercourse under such circumstances that the 8 year old boy came into the room and observed them in the act. The court in Tuggle v. Tuggle, 235 So.2d 166 (La.App., 2d Cir. 1970), in discussing this type of conduct on the part of a mother, said:

“ * * * Such utter disregard for the rules of propriety can but have ill effect on the children involved.” Id. p. 168.

After such a total disregard of the welfare of her minor son and such a consistent pattern of immoral conduct in his presence, the convenient marriage to her paramour does not reflect a true change of mental attitude on the part of defendant, or evidence that she will in the future provide her son with proper moral guidance.

“Past misconduct forms an important consideration in determining the present suitability of a parent . . .
[Borras v. Falgoust, 285 So.2d 583, 588 (La.App., 4th Cir. 1973)]

We find that the best interest of the minor son will be served by his being placed in the custody of his father. The father can supply his son with proper moral guidance, comforts, necessities and conveniences of life. He has a lovely home; his present wife will assist him in providing his son with the love, care and supervision necessary to the best welfare of the child.

For the foregoing reasons, we find that the trial judge abused his discretion when he retained the custody of the minor child with his mother.

The judgment below is reversed and accordingly, IT IS ORDERED that the permanent custody of Ronald Thomas Mons-our, Jr. be awarded unto his father, Ronald Thomas Monsour, Sr., subject to the right of the child’s mother, Roxie Ann Monsour Shelton, to visit with him and have him visit with her at reasonable times, places and intervals.

Costs of this appeal, and costs below are assessed against appellee, Roxie Ann Mons-our Shelton.

Reversed and rendered.


author: MARVIN, Judge.

text:
    Robert SIMPSON et ux., Plaintiffs-Appellees, v. KELLY SERVICES, INC., Defendant-Appellant.
    No. 13031.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Refused Feb. 9, 1977.

      Hargrove, Guyton, Ramey & Barlow by Thomas J. Wyatt, Shreveport, Cedric A. Richner, Jr., Detroit, Mich., for defendant-appellant.
    Hamilton & Sermons by Joel M. Sermons, Shreveport, for plaintiffs-appellees.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

Kelly Services supplies temporary employees to various businesses across the nation. In 1974, it terminated the services of plaintiff, Mrs. Simpson, as its agent and manager of its Shreveport branch office. Mrs. Simpson, joined with her husband as co-plaintiff, brought suit on the contract she had with Kelly Services.

The contract contains provisions for liquidated damages in the event of Mrs. Simpson’s termination and a formula or schedule by which these damages are to be determined. It also contains an agreement not to compete and for liquidated damages which are applicable to Mrs. Simpson. The lower court resolved the contractual dispute in plaintiff’s favor. Kelly Services appeals. We reverse and remand.

The pertinent sections of the contract provide that Kelly Services may terminate its contract at any time,

“. . . but Kelly shall thereupon become obligated to pay to the Manager . a sum [determined by schedule or formula which follows]
“Payment of such sums to the Manager shall be contingent upon the Manager’s continued compliance with all of the provisions of paragraph 11 below and schedule A attached and shall be compensation for such compliance with the limited Agreement Not To Compete.
* :jc * * sjs ifc
“11. Kelly’s Rights Upon Termination. Upon termination of this agreement for any reason, the Manager agrees:
“(d) Not to compete with Kelly for a limited period of time after the effective date of termination of this agreement and in limited geographical areas as more specifically set forth on Schedule A attached hereto and incorporated by reference herein, which Schedule the Manager acknowledges he has read and signed.”

Schedule A, which follows, provides that:

“. . . the Manager shall not compete with Kelly after the effective date of termination for a period of six (6) months, within fifty (50) miles of any city in which Kelly is then doing business.
sfc $ ¡J: sfc sfc sfc
“4. The Manager further agrees that a violation by him of the terms hereof will result in damage to Kelly which will be difficult or impossible to determine exactly. Therefore, in addition to any equitable remedy Kelly may have, if the Manager violates the provisions of the terms hereof, the Manager agrees that Kelly shall be entitled to recover from the Manager as liquidated damages all profits earned or received by the Manager from the operation of such competitive business for a period of six (6) months. The Manager’s profits for this purpose shall be computed without deduction of any compensation paid to him.”

On October 8, 1974, Kelly Services informed plaintiffs in writing that Mrs. Simpson’s services as manager under the contract were being terminated effective October 11, 1974. When this notification was delivered by Kelly employees, a dispute arose as to the amount Mrs. Simpson would receive as termination or severance compensation under the contract. This dispute was resolved at the close of the evidence below when appellant’s counsel conceded the effective date of the contract, which in effect determined the amount of severance compensation due, if due at all, was as plaintiffs had originally contended.

After the dispute as to severance compensation arose on October 8, plaintiffs, beginning on Monday, October 14, continued in essentially the same business, at the same location and using the same office furnishings, but with a new telephone number and name, Jean Simpson Temporary Employment.

The lower court did not consider the effect of R.S. 23:921 finding it was not necessary to determine whether Mrs. Simpson was an employee or independent contractor of Kelly Services.

When Kelly Services gave notice of termination it agreed to pay severance compensation provided by the contract to Mrs. Simpson. Kelly Services contended the contract with Mrs. Simpson had been in effect less than five years and that the amount it would owe was less than Mrs. Simpson claimed on the contention that the contract had been in effect over five years. The phase of the dispute was eventually resolved by concessions of defendant and by the trial court before it rendered its decision.

In written reasons for judgment, the lower court found that Kelly Services breached the contract by its failure to pay the “proper” sum upon "Mrs. Simpson’s termination and was thereby barred from claiming damages against Mrs. Simpson because of her competing with Kelly Services, contrary to the non-competition and liquidated damage provisions of the contract. The lower court found that the actions of Kelly Services concerning the amount of severance compensation constituted an “anticipatory breach” of the type recognized in Marek v. McHardy, 234 La. 841, 101 So.2d 689 (1958). The lower court’s reliance on Marek is misplaced.

Dr. Marek there agreed that he would work 36 months on salary for the defendant doctors, at the end of which time he would be further compensated with a ten percent ownership in the medical group or partnership and its facilities. In the 34th month, the defendant doctors advised Dr. Marek that they had no intention of fulfilling the contract and that he would have to pay for the ten percent interest if he wanted it. Dr. Marek left the group, went to practice elsewhere and sued for his interest. Defendants resisted on several grounds, including the contention that Dr. Marek himself breached the contract when he did not continue to work for defendants the remaining two months of the 36 month period. The Supreme Court said Dr. Marek was legally justified in treating the contract as breached when defendants informed him they would not make the transfer to him as promised. The case was then remanded for trial on the merits.

In Marek, the court was not construing contractual provisions of the type at issue here which provide for the contingency of termination at will, with liquidated damages, and which stipulate against competition by the terminated party against the other for a six-months period after termination.

The contract at issue here is for an indefinite period. It provides that either Mrs. Simpson or Kelly Services may terminate the contract, with or without cause. It also provides in detail for the contingency of termination, final accounting between the parties and for payment after termination of commissions earned before termination.

In the written notice of termination, Kelly Services unequivocally said in part:

“We will pay you the commissions earned to the date of termination and a sum of money equal to net commissions earned in the three preceding months as provided in Paragraph 8(b). We direct your attention to the provisions in the Branch Manager Contract which state that the payments to you are contingent upon your compliance with the provisions of Paragraph 11 and the non-competition provisions of the Branch Manager Contract. We also direct your attention to other provisions of the Branch Manager Contract which by their nature survive termination.”

The three-month provision was according to the schedule and formula if the contract between them had been in effect for less than five years as Kelly Services originally contended. We do not construe the written notice as a repudiation by Kelly Services of its obligation to pay liquidated damages, but as a recognition of the obligation. What was immediately disputed was not the obligation, but the amount under the schedule as determined by the length of time the contract had been in effect.

Moreover, Mrs. Simpson contended that she was due her earned commissions and liquidated damages in a lump sum when she was given the notice of termination. The contract, however, does not provide Mrs. Simpson with this privilege. It says in paragraph 8(b):

“. . . Payment of the commissions earned . . . shall be made on the commission payment date set forth in paragraph 5 and payment of the balance of Kelly’s liability [which we interpret to mean the severance compensation also provided in paragraph 8(b)] shall then be made in equal monthly installments on the six (6) commission payment dates commencing on the first commission payment date occurring (90) days following termination under this sub-paragraph. At Kelly’s option, such payments may be made earlier than required.”

Thus, it is apparent that each party misinterpreted the provisions of the contract which were respectively applicable. Misinterpretation in this instance, is not synonymous with repudiation as in Marek, which we find inapposite. Suit and reconventional demands were filed by the parties four-five months after the dispute arose.

The contract will be enforced against each party as written, unless Mrs. Simpson’s status be such that R.S. 23:921 is applicable, or unless the agreement not to compete is found unreasonable in some respect. See Gold & Suckle, Inc. v. Suckle et al., 335 So.2d 713 (La.App.2d Cir. 1976).

The agreement not to compete is reasonable as to time (six months) and as to area (within 50 miles of any city in which Kelly is then doing business).

MRS. SIMPSON’S STATUS

Kelly Services operates through two types of branch offices. In company owned branches, the personnel are salaried employees of Kelly Services who work at the direction of supervisory employees. In branches such as the Shreveport office, the branch managers work under contract on a commission basis and furnish, at their own expense, the facilities necessary for the operation of the business. The so-called Kelly girls who serve as temporary employees for the clients (businesses) doing business with a particular branch office, are employees of Kelly Services and are paid by Kelly Services. Kelly Services bills the clients for the temporary help on an hourly or periodic basis which is a greater amount than actually paid to the temporary help. From the difference in the amount paid the temporary employees by Kelly Services and the amount collected from the business client comes the commissions to the branch manager under contract and profits to Kelly Services. In branch offices under contract, the' branch managers are not paid a salary by Kelly Services.

The contract in this respect provides:

“1. Purpose and Scope. This agreement establishes the Manager as Kelly’s agent to furnish through Kelly’s temporary personnel the following temporary business services: office and clerical, marketing, technical (but not services constituting the practice of any licensed profession) and labor. These services and the business of conducting such services are collectively referred to in this agreement as ‘Kelly Services.’ These services may be furnished under the following individual names: office and clerical — Kelly Girl; marketing — Kelly Marketing; technical — Kelly Technical; industrial or labor — Kelly Labor. This agreement covers only the temporary business services listed above.
“15. Manager Not Employee. Neither the Manager nor any individual whose compensation for services is paid by the Manager is in any way, directly or indirectly, expressly or by implication, to be construed to be an employee of Kelly for any purpose, and particularly with respect to any tax or contribution or requirement of withholding levied by federal, state or local laws with respect to employment or compensation for employment; and the Manager hereby accepts exclusive liability for any payroll taxes, for contributions imposed by any such statutes with respect to the Manager and to the individuals whose compensation for services is paid by the Manager, it being the intent of the parties that the Manager, as agent, be an independent contractor. Any other businesses which the Manager currently operates shall be set forth by name and nature of business on Schedule B attached and Kelly shall be informed immediately of any new business with which the Manager becomes associated.”

During the time the contract was effective, Mr. and Mrs. Simpson followed some, but not all, of the suggestions and recommendations of Kelly Services for conducting the business.

“It is well settled by our jurisprudence that besides other factors, the most important test in determining ‘whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer.’ It is also well settled that whether the employer ‘actually exercises control or supervision’ over the movements and the services rendered by the employee, such a fact is of no great moment, the ‘important question is whether, from the nature of the relationship, he had the right to do so’. * * *
“In the case of Hartwig Moss Ins. Agency, Limited, v. Board of Com’rs of Port of New Orleans, 206 La. 395, 19 So.2d 178, 184, we said:
“ ‘An independent contractor is one who renders service in the course of an occupation representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.’ See ‘Independent Contractor’ in 21 Words and Phrases, Perm.Ed. p. 100.’ ” Amyx v. Henry & Hall, 227 La. 364, 79 So.2d 483, 486. (footnotes omitted).

While Mrs. Simpson was subject to some degree of control by Kelly in the procedures she followed in the operation of the branch office (billing and reporting procedures, use and advertisement of the company name, utilization of company forms), we do not find that this degree of control was sufficient in this type operation to make Mrs. Simpson an employee of Kelly Services. Fine v. Property Damage Appraisers, Inc., 393 F.Supp. 1304 (E.D.La.1975) does not persuade us otherwise.

According to our interpretation, R.S. 23:921 applies only to persons in employee-employer relationships and will not be extended to other relationships by judicial construction or interpretation.

CONCLUSION

The provisions of this contract are to be read together and enforced respectively against each party as applicable. Each party is entitled to liquidated damages as the contract provides against the other. We remand for further proceedings, primarily on the reconventional demand of Kelly Services as against original plaintiffs for liquidated damages to be determined as the contract provides and consistent with this opinion.

Costs of this appeal are assessed equally to each party.

Reversed and Remanded.

      . “No employer shall require or direct any employee to enter into any contract whereby the employee agrees not to engage in any competing business for himself, or as the employee of another, upon the termination of his contract of employment with such employer, and all such contracts, or provisions thereof containing such agreement shall be null and unenforceable in any court, provided that in those cases where the employer incurs an expense in the training of the employee or incurs an expense in the advertisement of the business that the employer is engaged in, then in that event it shall be permissible for the employer and employee to enter into a voluntary contract and agreement whereby the employee is permitted to agree and bind himself that at the termination of his or her employment that said-employee will not enter into the same business that employer is engaged over the same route or in the same territory for a period of two years'.”

      . The managerial contract was dated September 8, 1969, but was not signed by Kelly Services as “accepted” until October 24, 1969. The termination notice of October 8, 1974, was between the respective fifth anniversary of these dates.


text:
    Jack D. BARNETT, Plaintiff-Appellant, v. Margaret Dell Collins BARNETT, Defendant-Appellee.
    No. 13032.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Refused Feb. 11, 1977.

      Jack D. Barnett, in Pro. Per.
    Love, Rigby, Dehan & Love by Truly W. McDaniel, Shreveport, for defendant-appel-lee.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

Appellant, an ex-husband in contest with his former wife, seeks (1) to have this court disregard the absence of the traditional “double declaration” in deeds whereby he acquired certain real estate or interests therein for a recited consideration during the existence of the community estate, and (2) to reverse the lower court’s judgment rejecting his demand that the property be declared his separate property.

The double declaration requirement, “well established” in our law, makes it necessary that conveyances of immovable property, to the husband for a recited consideration during the existence of the community, contain recitations that the property is acquired (1) with his separate funds and (2) for his separate use and administration, as a prerequisite to his later proving that the property is not community, but separate. In the absence of the double declaration, property so acquired by the husband is conclusively presumed to be community.

During the existence of the community, the three tracts in question were conveyed to the husband in whole or in part, either directly by his father or by other vendors for a recited monetary consideration. At a much later time, appellant and his wife were legally separated. The consideration to the other vendors was allegedly paid by appellant’s father. Appellant contends he paid nothing to any vendor, that each acquisition was a donation in disguise from his father and is his separate property under C.C. Art. 2334. The ex-wife, however, does not admit this in her answers to interrogatories on facts and articles.

The answers of a defendant to interrogatories on facts and articles are not considered parol, and may be used in lieu of a counter letter for the purpose of assailing an authentic sale of real estate. Wise v. Johnson, 229 So.2d 197 (La.App.2d Cir. 1969). When so employed by a plaintiff, the plaintiff becomes bound by defendant’s answers and cannot contradict them by pa-rol to further assail the authentic sale. C.C. Arts. 2236 and 2276. Godwin v. Neustadt, 42 La.Ann. 735, 7 So. 744 (La.1890).

Appellant astutely and vigorously argues that the double declaration requirement is a jurisprudential creation and was legislatively overruled by Act 170 of the 1912 Legislature; that no reason exists today for the continued recognition of the requirement, and that the requirement applicable only to the husband and not the wife, is unconstitutionally discriminatory and as applied, constitutes a denial of the equal protection guarantee.

Before 1912, C.C. Art. 2334 provided that property acquired during marriage (1) by inheritance, or (2) by donation, was separate. Act 170 of that year amended the article to provide a third means (“with separate funds”) of acquiring separate property during the community existence. Appellant’s argument is buttressed by law review comments concerning the source of the pertinent codal articles and the double declaration requirement. See 30 La.L.R. 223; 35 La.L.R. 125; 36 La.L.R. 413; 49 T.L.R. 577; 34 T.L.R. 3, and 26 T.L.R. 427. Our consideration of the issue leads us to conclude that the question is essentially one of policy: Generally, whether to allow the ownership of property to be traced to establish its legal character, or on the other hand, to limit the separate estate of a spouse to a claim against the community for reimbursement or restitution.

One scholar has made these observations on the subject:

“In Texas and most of the other American community property states the ownership tracing principle has been widely extended. In all of them except Louisiana it is possible to rebut the presumption of community and establish separate ownership of property bought during the marriage merely by proving that it was paid for with separate funds .
“Louisiana, on the other hand, adhering more closely to the civil law, has confined ownership tracing within relatively narrow limits. A claim for reimbursement or restitution from community assets, rather than a claim to ownership of specific property, is more likely to be the form in which the separate estate of a spouse is preserved.
“It is believed that those who have studied the problems that arise in Texas and those that arise in Louisiana will be convinced of the wisdom of the Louisiana approach. Lawyers in Texas are well aware of the complex and difficult problems that arise under the Texas community property rules, but perhaps not many have stopped to consider the extent to which the difficulties and complexities have resulted from the extension of the ownership tracing principle . . .
26 T.L.R. 428, 429. (footnotes omitted and emphasis supplied).

One of the “relatively narrow” exceptions allowing ownership tracing in Louisiana to establish as separate property of the husband is under circumstances where the property is acquired by him in an exchange for separate property, even though the act of exchange contains no recital of separateness as to the property acquired. Kittredge v. Grau, 158 La. 154, 103 So. 723 (1925). The consideration must be accurately recited in the exchange for the exception to apply. Otherwise, and especially where the exchange is consummated in the form of two “cash” sales, the property will be considered community. Succession of Andrus, 131 La. 940, 60 So. 623 (1913).

An exception also is recognized in cases where a sale occurs to an heir to effect a partition of an estate. Troxler v. Colley, 33 La.Ann. 425 (1881). The circumstances in McElwee v. McElwee, 255 So.2d 883 (La. App.2d Cir. 1971) were similar and Troxler, supra, was cited as authority for holding the property in question to be separate.

Act 186 of 1920 expressly repealed Act 170 of 1912 and reenacted C.C. Art. 2334. Cases before and since these dates have not changes their approach with respect to the policy requiring the declarations of separateness by the husband. The policy is long standing and we do not question its wisdom of requiring the declaration of the husband and not of the wife. In McGee v. Harris, 333 So.2d 440 (La.App.3d Cir. 1976), the court found it unnecessary to pass on what it called the “persuasive” argument as made by appellant here. The issue is squarely presented here, and while we recognize the argument may be called persuasive, we do not find it convincing.

In Primeaux v. Libersat, 307 So.2d 740 (La.App.3d Cir. 1975), the separateness of property was at issue in two areas: real estate and stock certificates. The Supreme Court eventually passed on the stock certificates 322 So.2d 147 (1975) on a writ application. We are here concerned with the decision relating to the real estate. There the court said:

“The Supreme Court has previously addressed itself to this exact point in Lewis v. Clay, 221 La. 663, 60 So.2d 78 (1952). Therein a mother tried to prove by parole that a former property sale by deed to her son during his marriage, was not a sale, but in fact a donation. The court held that without the ‘double declaration’ by the son, a presumption ‘juris et de jure’ was created and parole testimony indicating that no consideration passed between the parties (contradicting the terms of the cash deed) was inadmissible. This principle has been consistently followed.” 307 So.2d 743. (citations omitted).

Constitutional arguments were also considered,

“Defendant also contends that the foregoing jurisprudential application of Civil Code Articles 2402 and 2276, (to the effect that the husband must make the double declaration, while the wife need not, the latter being permitted to come in and prove that property purchased is her separate property by use of parole testimony) is patently discriminatory and a violation of Art. 7, §§ 2 and 10 of the Louisiana Constitution and the equal protection and due process clauses of the 14th amendment of our U. S. Constitution.”, 307 So.2d 744. (footnote omitted).

and rejected on well recognized authority.

In Gulf Oil Corp. v. State Mineral Board, 317 So.2d 576, 591 (La.1975), the court commented:

“. . . Stability in the law and constancy of jurisprudence are undoubtedly objects to be constantly sought. However, when it is necessary to overrule a short line of clearly erroneous jurisprudence in order to reinstate the longstanding law and public policy of this State, that course is clearly the one that must be followed.” 317 So.2d 591.

In this instance, we are not confronted with a short line of clearly erroneous cases. We are confronted with policy underlying our civilian community property system, established and stably maintained with un-waivering constancy by the judiciary and by the legislature during the entirety of our existence as a state. While sound reasons may be given for allowing proof of separateness by the husband of his acquisitions, equally with the wife, of real estate during the community regime, this province lies with authority other than this court.

The trial court properly followed the well-established Louisiana policy and recognized in its judgment, appellant’s right to assert a claim for reimbursement against the community in partition proceedings pending between him and his ex-wife.

At appellant’s cost, judgment rejecting his demands is

AFFIRMED.

      . Young v. Young, 5 La.Ann. 611 (1850); Joffrion v. Bordelon, 14 La.Ann. 618 (1859); Durham v. Williams, 32 La.Ann. 162 (1880); Heirs of Murphy v. Jurey & Gillis, 39 La.Ann. 785, 2 So. 575 (1887); Hero v. Bloch, 44 La.Ann. 1032, 11 So. 821 (1892); Sharp v. Zeller, 110 La. 61, 34 So. 129 (1902); McWilliams v. Stair, 128 La. 752, 55 So. 343 (1911); Succession of Watkins, 156 La. 1000, 101 So. 395 (1924); Schoeffner v. Schoeffner, 163 La. 142, 111 So. 655 (1927); Sanderson v. Frost, 198 La. 295, 3 So.2d 626 (1941); Lewis v. Clay, 221 La. 663, 60 So.2d 78 (1952); Pearlstine v. Mattes, 223 La. 1032, 67 So.2d 582 (1953). See Primeaux v. Libersat, cited infra.

      . The double declaration was required in France, but not in Spain. In Louisiana the courts early recognized Spanish sources (34 T.L.R. 3, 7) but adopted the French approach requiring the double declaration, (See cases cited in footnote one) notwithstanding that C.C. Art. 2334 had no counterpart in the French code sources of our civil code. (See also 30 La.L.R. 1).

      . We omit lengthy recitation to avoid overly burdening the reporter system.


author: PRICE, Judge. MARVIN, Judge

text:
    Mrs. Verna M. Davis GANSLOSER, Plaintiff-Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY et al., Defendants-Appellees.
    No. 13036.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Refused Feb. 14, 1977.

      Skeels, Baker & Coleman by Donald L. Baker, Shreveport, for plaintiff-appellant.
    Wilkinson, Carmody & Peatross by Samuel W. Caverlee, Shreveport, for defendant-appellee Kansas City Southern Ry. Co.
    Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for defendant-appellee Trinity Universal Ins. Co.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

This is a tort action brought by the owner of property adjoining a railroad track to recover damages caused by a train derailment after application of emergency brakes to avoid a motorist.

The principal question on appeal is whether the railroad is solidarily liable with the motorist’s insurer for the damages to plaintiff’s property under the application of the doctrine of strict liability of La.C.C. Article 667.

Verna M. Davis Gansloser is the owner of the residential property at 2916 Southern Avenue on the east side of the Kansas City Southern Railway Company’s right-of-way north of its intersection with Ockley Drive in Shreveport. The railroad maintains two mainline tracks and a spur track on its right-of-way in this area. On August 17, 1975, Thelma S. Tyler was operating her automobile in an easterly direction on Ock-ley and stopped at the railroad track for a northbound train to pass on the east mainline track. Immediately after it cleared the intersection, she started across the west main track on which a southbound freight was approaching some 250 feet north of the crossing. On seeing the approaching train, Mrs. Tyler stopped the automobile on the track, jumped out, and ran to the passenger side in an apparent attempt to assist a guest passenger from the car. The engineer on the train made a emergency application of brakes to avoid a collision with the Tyler vehicle. The sudden braking caused the rear cars of the 168 car train to collide with cars nearer the front resulting in a derailment of several cars and a collision with the Tyler vehicle. The derailed cars collided with cars of the northbound train on the parallel track causing several of these cars to derail, leave the right-of-way, and cause substantial damage to the residence of Mrs. Gansloser.

Mrs. Gansloser filed this suit against the insurer of the Tyler vehicle, Trinity Universal Insurance Company, and the Kansas City Southern Railway Company for damages to her property.

The railroad denied liability contending the damage to the Gansloser property was caused solely by the negligence of Mrs. Tyler.

In a separate action which was consolidated with this suit for trial, the railroad seeks to recover from Trinity Universal the damages to its train equipment resulting from the negligence of Mrs. Tyler, who was killed in the accident.

Aetna Casualty and Surety Company, the insurance carrier on the Gansloser property, intervened to enforce its subrogation rights against any recovery by Mrs. Gansloser for the amount it paid under its policy.

Prior to trial of the cases, Trinity Universal deposited the policy limits of $5,000 plus interest and accrued court costs in the registry of the court.

Following trial of the merits, the court rejected Mrs. Gansloser’s demand against the railroad, and rendered judgment in favor of each party against Trinity Universal. The court prorated the deposited money between Mrs. Gansloser and Kansas City Southern Railway Company according to the damage each suffered. Mrs. Gansloser sustained damages of $13,990 and was awarded $401.57. The railroad suffered damages of $166,412 and received a $4,776.73 award.

Mrs. Gansloser has appealed from the judgment rejecting her demands against the railroad contending that the trial court was in error in finding that the sole cause of the damage to her property was the negligence of Mrs. Tyler, and in failing to properly apply Article 667 to the circumstances of this case. She concedes in brief that the evidence presented on trial did not show that the train derailment resulted from any specific act of negligence on the part of the train crew, but was caused by the normal operation of the braking system. She contends the railroad is liable without proof of negligence as under Article 667 strict liability results from its activities which caused harm to her as a neighbor of the railroad right-of-way.

The railroad contends this article has no application to the operation of a railroad where the intervening negligence of a third party has caused damage. It relies on the case of Town of Jackson v. Mounger Motors, 98 So.2d 697 (La.App. 1st Cir. 1957), and a later federal case following its holding, Bianchini v. Humble Pipe Line Company, 480 F.2d 251 (5th Cir. 1973). These cases were cited by the trial judge in his reasons for refusing to subject the railroad to the rule of strict liability.

The Mounger decision stemmed from the taking of a used car without permission from a car lot adjacent to the City Hall in Jackson. The unauthorized driver backed into the fire hall causing damages. The appellate court found the strict liability of Article 667 inapplicable because the use of the car lot was not inherently dangerous, nor was there a reasonably foreseeable chance of harm. The opinion further indicated the doctrine was inappropriate when the damage resulted from an unforeseen intervening agency.

Bianchini was concerned with a break in an oil pipe line caused by an unknown ship running aground in an unofficial channel resulting in damage to oyster farmers. The federal circuit court, citing Mounger, refused to hold the owner of the pipe line liable in the absence of a finding of negligence, holding that strict liability is inapplicable when there is an unforeseeable intervening cause. Appellant argues the intervening cause in this case (Mrs. Tyler’s negligence) was foreseeable by the railroad, and therefore, strict liability should apply even under the Mounger decision. This argument is based on the theory that there is a reasonable danger that a motorist will stall on a rail crossing causing the emergency application of brakes which poses a foreseeable possibility of derailment.

The fallacy of appellant’s argument lies in the fact that these are only possibilities and not probabilities of occurrences. Motorists do sometimes stall on a railroad track. However, this is an unusual event. The possibility of a derailment being caused by emergency braking is shown by the evidence to be less than one per cent when a train is placed in emergency. This rate of occurrence does not render such an event reasonably foreseeable.

There is no showing the railroad could have done anything to have prevented this type of an accident from occurring. There was no defective track. The train was traveling at a speed of approximately 16 miles per hour at the time it was thrown in emergency. The engineer was alert and acted promptly. Except for the forward movement of the rear cars, he would have avoided a collision and the loss of Mrs. Tyler’s life.

The sole justification for applying strict liability to the facts of this case would be to shift the economic burden of loss from a completely innocent abutting property owner to the railroad company who may possibly be in the position to pass on such losses to the public in increased freight rates. There is no present authority on which we may rely to reach such a result.

The trial judge was correct in rejecting the demands of appellant and intervenor against the railroad and the judgment appealed is affirmed at appellant’s costs.

MARVIN, J., dissents and assigns written reasons.

MARVIN, Judge

(dissents).

I respectfully dissent, not only as to the result but as to the approach of the majority in reaching that result.

The majority has accurately stated the critical factual structure, but there are pertinent details which should not have been pruned away and which, in my humble mind, enlighten and may change the ultimate result.

This diagram reasonably depicts the crossing in question:

When the late Mrs. Tyler, proceeding easterly on Ockley Drive, stopped at the crossing a KCS train was proceeding northbound on the north mainline track (Track (1) on diagram). We are not informed of the speed of this train, but can easily deduce it was probably going faster than 16 mph, the speed of the southbound KCS train. The northbound train contained 150 cars.

Plaintiff’s residence was more than one-half mile north of the crossing. Six miles north of the crossing was the KCS yards where, shortly before the derailment, the southbound train was made up, containing 168 cars. On the “head end” (next to the locomotive) the southbound train had 128 “empties” (unloaded cars). Most of the remaining ears were loaded with grain.

The two mainline tracks ((1) and (2) on the diagram) parallel each other from KCS yards for several miles through the City until they merge into one track about a mile south of the Ockley Drive crossing.

When the northbound train cleared the crossing the southbound train was several hundred feet away from the crossing. Mrs. Tyler then drove onto the crossing, panicked and stopped her automobile on the southbound track. The engineer saw what occurred and went into the emergency stop. The train traveled 250 feet in emergency and had almost stopped when it collided with the car. The “slack action” of the train only one or two seconds later and after the initial collision was over, caused the train to “lunge” forward approximately 25 feet.

This slack action force caused the derailment of several cars about 60 car lengths or 3,000 feet behind the locomotive. The derailment of these cars on Track (2) caused the derailment of northbound cars on Track (1) which crashed into plaintiff’s residence.

.Prom several of the railroad witnesses (Road Foreman of Engines, Roadmaster, Engineer, fireman, conductor, all of several years experience) we learn about this phenomena.

The slack action effect is well known to railroaders. When cars are connected to make up a train, there is three or four inches of slack in each connection. When the train gets underway, the locomotive is pulling the cars. This “stretches out” the train or the “slack" so to speak. When the engineer puts a train into an emergency stop, the locomotive and the cars immediately behind are the first ones which are braked. In an emergency stop, the air brake system of the train actually releases its air from car to car with the end of the train being braked several seconds after brakes are applied on the front of the train. In this case, the Road Foreman of Engines (Supervisory Engineer), expert witness, estimated on this train of 168 ears it took 9.65 seconds for the “emergency to reach the end of the train” (the air to exhaust and brake the cars). This time was reached by dividing the speed or velocity of the exhausting air (900 feet per second) into the length of the train (8,683 feet). The slack action produced 9,000 tons of impact to the locomotive and caused it to lunge 25 feet forward after it had collided with the automobile and had then stopped. This slack action impact, and not the collision with the automobile, caused the derailment of the southbound train. All railroad witnesses agree to or assert this.

But as the majority observes, a derailment does not always occur in an emergency when a train is placed into an emergency stop. The railroad witnesses generally agreed that they experience five or six emergency stops each month (approximately 50-60 a year) from ruptured hoses and other mechanical failures and one or two emergency stops a year intentionally done by the engineer. In all of these stops, they experience a derailment about once a year. One derailment in 50 emergency stops would be a two percent occurrence factor.

We also learn that a derailment is more likely to occur when the emergency (broken air hose or intentional application of emergency stop) occurs at the front of the the train. A derailment is also more likely to occur when the front of the train is going uphill and the rear is going downhill and when a string of empty cars is placed ahead of loaded cars. The length of the train is a greater factor than is speed.

In the instant case, the southbound train was in three positions, according to the Road Foreman of Engines. Its front end was going slightly uphill. Its rear end was going slightly downhill and some of the cars in between were relatively on level terrain.

This testimony of the southbound engineer is important:

“. . .we had orders to meet another train and we stopped at St. Vincent [street north of the Ockley Drive crossing] and waited there not to block any crossing . . . waiting on [the northbound train] to show up. * * * We had a train order to wait at Hollywood Avenue which is at the end of the double track [60 car lengths or 3,000 feet south of the Ockley crossing], but we have to wait back to keep from blocking crossings while we wait.”

A “wait” of only a few seconds or minutes longer at St. Vincent Street, only a few blocks from Ockley Drive, would have allowed the northbound train to have clearly passed while the southbound train was stopped.

We have then these factors in this case:

(1) Intentional emergency stops are not uncommon, but expected and are more likely to occur in the city than in rural areas.

Derailments are more likely to occur:

(2) When the train is lengthy;

(3) When empties are in front of loaded cars;

(4) When the terrain which is being traversed is of a concave configuration; and

(5) A derailment of one train of 168 cars is more than likely to cause a more damaging and widespread derailment of a passing train of 150 cars on parallel tracks in close proximity. When one train is stopped, the risk of a damaging and widespread derailment is considerably lessened.

The majority says this plaintiff “abandoned” her contention as to the doctrine of res ipsa loquitur and her allegations that the railroad was negligent in failing to maintain its equipment in such condition so that an emergency stop could be made without a derailment. The plaintiff’s first specification of error reads, however:

“(1) The Court erred in finding as a fact that the sole cause of the damage to plaintiff’s residence was the act of the motorist in stopping her vehicle in the path of the train, when the evidence shows that the train is so constructed that upon an emergency application of its brakes, it is likely to derail.”

While the specification does relate to “fact,” its effect is legal because the issue is causation which is both a factual and a legal inquiry. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298, and Malone, Ruminations [thereon], 30 La.L.R. 363 (1970); Laird v. Travelers Ins. Co., 263 La. 199, 267 So.2d 714, 720 (1972).

“Foreseeability” as such, should neither be the approach nor the exclusive test of determining whether the railroad was negligent or determining the extent of the railroad’s liability in this case. Since the majority, however, has considered this case in that light, I must respectfully disagree with the majority’s statement that the “rate of occurrence [‘possibility v. probability’] does not render such an event [a derailment] reasonably foreseeable.” This record clearly establishes that one or two derailments from the slack action effect in every 50 or 60 emergency stops are expected to occur. In a case in this court which employed a proximate cause approach to facts which were characterized as “imponderable overwhelmingly against the laws of probability . . unusual . [and] stranger than fiction . . . , it was stated:

“ ‘ “The fact is, that the consequences of negligence are almost invariably surprises. A man may be negligent in a particular matter a thousand times without mischief; yet, though the chance of mischief is only one in a thousand, we would continue to hold that the mischief, when it occurs, is imputable to the negligence.” ’
******
“We do not believe that the theory of foreseeability is applicable to the facts of this case. Referring again to the Restatement of the Law of Torts, we find in Section 435 a plain and unambiguous statement of the principle which refutes the requirement of foreseeability: ‘If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.’ ” Lynch v. Fisher, La.App., 34 So.2d 513, 518 & 519.

The trial court made these observations:

“. . . [Plaintiff’s contention of foreseeability] stems from the testimony herein that in emergency stops, intentional or instrumental, there always exists the possibility of a derailment and that this was thus a computable hazard of loss that a railroad property owner should bear as any other cost of doing business.* “ * This was a foreseeable accident, but such are inevitable in railroading according to this record and, if attributable solely to the negligence of third persons, it is nonpreventable so far as the railroad is concerned. If the burden of such an accident is to be imposed on the railroad (or any property owner in a proper case), it involves a matter of policy that should be declared only by an Appellate Court.”

Recognizing, and I hope avoiding, the temptation of the privilege afforded me to dissect and argue against each sentence of the majority opinion with which I may have some disagreement, I choose instead to proceed to what I believe is the more proper approach and the more pertinent inquiry into this case.

It is clear that more than one cause can, and frequently does, contribute to a particular injury. See Dixie, supra, at page 302. I believe the factors mentioned, length of trains, positioning of the cars, etc. constituted negligent conduct on the part of the railroad which created an unreasonable risk of harm to the plaintiff houseowner in this case.

“Negligent conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm.” Ibid. The two trains were lengthy. Empty cars were placed ahead of loaded cars. The terrain was conducive to a derailment in the event an emergency stop did arise at the Ockley Drive crossing. The combined speed and passing movement of two trains enhanced the consequences or made more likely the departure of a derailed car from the right of way onto the plaintiff’s residence. The cumulative effect of these factors — each of which was exclusively controlled by the railroad — in my opinion was negligence within the concept of our civil code.

In this respect and employing the duty-risk approach, these questions are pertinent:

Was the conduct complained of a cause-in-fact?

Was the railroad under a legal duty imposed to protect against the risk of injury from derailment to adjoining property owners?

Was the railroad’s conduct negligent, substantial, blameworthy? Or, if not, is some concept of strict liability applicable where an innocent third party is injured?

The latter inquiry leads into the “fault” scheme of our civil code. This scheme was well explained by Mr. Justice Tate in Loescher v. Parr, 324 So.2d 441, 445 ff. (La.1975) in these words:

“Articles 2315 through 2324 of the Louisiana Civil Code comprise the code’s entire chapter of legal principle regulating offenses and quasi-offenses.
“The underlying principle is provided by Article 2315: ‘Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. * * * ’ The remaining articles constitute amplifications as to what constitutes ‘fault’ and under what circumstances a defendant may be held liable for his act or that of a person or thing for which he is responsible.
“Article 2316 provides for delictual (tort) responsibility for negligent acts or omissions: ‘Every person is responsible for the damage he occasions not merely by his act, but his negligence, his imprudence, or his want of skill.’ However, negligence is not necessarily a basis for the obligation to respond in damages for harm caused by persons or things for which we are responsible as provided by the subsequent Articles 2317 through 2322.
* * * * * *
“To summarize the principle of legal fault thus already recognized in favor of an injured person himself without fault: “ When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others. “The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.
“This jurisprudence recognizes that the injured person must prove the vice (i. e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice. Once this is proved, the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.
“The legal fault thus arising from our code provisions has sometimes been referred to as strict liability.
sis * * *
“Article 2317 provides: ‘We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of things which we have in our custody. This however, is to be understood with the following modifications.’
“Articles 2315 through 2322 express the same concepts and represent the same scheme as French Civil Code Articles 1382 through 1386, of which they are to a large part verbatim translations. See Articles 2315-17 La.C.C.Comp.Ed. in 17 West’s LSA-C.C. pp. 14-21 (1972). In this context, in applying the French verbatim counterpart code provision, the liability of the guardian of a thing for damages caused through the vice or defect of the thing has been interpreted as providing for liability of the guardian without personal negligence on his part, his legal fault (as also in the case of the owner of a building or of an animal) being based upon the breach of his legal obligation to keep his thing in such condition or in such control that it does no damage to others. These interpretations have been reached not only in France but also in Belgium and in Quebec, which like Louisiana adopted a civil code scheme of articles and concepts based almost verbatim on the articles of the Frénch Civil Code.
******
“ We find no reason why Civil Code Article 2317 should not be interpreted as incorporating a similar concept of legal fault. As with the French, Canadian, and Belgian- counterparts — each found in the same code scheme of delictual liability — , the code provision for the liability of the owner of a thing for damages caused by its vice would be unnecessary if the basis of code liability thus expressly provided were only for negligence, a basis already provided by the preceding Article 2316 (and its preceding counterparts in the French, Canadian, and Belgian codes).
“The interpretation of Article 2317 we reach today is more in accord with jurisprudence interpreting companion code articles and with the functional intent of Article 2317 within our Civil Code’s general scheme of fault liability.” (Emphasis Ours).

The factual circumstances here should be considered in the' light of the foregoing principles, with these conclusions or results:

(1) The train had collided (and rather gently) with the automobile and had stopped. The slack action force seconds later, caused the derailment which’ was made more likely by the actions and omissions of the railroad. In this respect, the make up and the operation of the train created an unreasonable risk of harm to adjoining property owners and was a substantial factor in bringing about that harm.

(2) The railroad is under a legal duty imposed to protect against the risk of injury from derailment of its cars crashing into adjoining property.

(3) The railroad’s conduct was negligent but if not, the C.C. Art. 2317 [We are responsible ... for the damage . caused by things which we have in our custody] concept of strict liability applies where an innocent third party such as this plaintiff suffers damage, unless the railroad can show the harm was caused solely by the fault of the automobile driver (a third person).

The testimony of the railroad employees was in general agreement that

1. The slack action force caused the derailment.

2. A derailment is more than likely to occur in an emergency stop when the train is long; or when empties are placed in front of loaded cars; or when the terrain is of the configuration as it was .here.

A cause of plaintiff’s injury was the negligence of the automobile driver, but she was not the sole cause in my opinion.

There is unanimity of opinion in this record that the railroad could have done several things to minimize the risk of harm to the plaintiff property owner in this case. There is also unanimity of opinion that for the railroad to do so would be economically impractical because of switching and schedule time.

The majority says there is no present authority which would justify applying strict liability to the facts of this case. I have attempted to point it out.

The majority questions whether the economic burden of loss in these type cases should be shifted from a completely innocent abutting property owner to the railroad who may possibly be in a better position to pass on such losses in increased freight rates. If the rate of occurrence is as miniscule as the majority finds, the burden of the loss being “shifted” is not great or threatening to the continued existence or welfare of the railroad industry.

The risk of harm to an adjoining property owner from a derailment is within the scope of protection of a rule of law which would prohibit a railroad from making a derailment more likely by operating trains of such length, positioning of cars, at such speed and in such locales, where it can be reasonably anticipated that an emergency stop (which would cause a derailment) might become necessary because of the wrongful act of a third party stopping on a crossing within the municipal limits of a city of 200,000 people.

The preferable rule of law in my opinion is negligence, concurrent in this case with the automobile driver. If not negligence, the rule of law derives from the 2317 concept of fault. In any event, the rule should be recognized and applied.

I respectfully dissent.

      . In her original pleadings, Mrs. Gansloser alleged negligence against the railroad in failing to maintain its train equipment in such condition that an emergency application of brakes could be made without a train derailment, and pled the doctrine of res ipsa loquitur. These allegations have been abandoned prior to this appeal.

      . The conductor, at the rear of a train, may also intentionally place the train into emergency stop.

      . See distinction and explanation by J. (now Mr. Justice) Tate in Bergeron v. Houston-American Ins. Co., 98 So.2d 723, 725 (La.App. 1st Cir. 1957) writ refused; Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972), and particularly Dialogues on Hill v. Lundin & Associates, Inc., 34 L.L.R. 1.
      “Foreseeability is not always a reliable guide, and certainly it is not the only criterion for determining whether there is a duty-risk relationship. Just because a risk may foresee-ably arise by reason of conduct, it is not necessarily within the scope of the duty owed because of that conduct. Neither are all risks excluded from the scope of duty simply because they are unforeseeable. The ease of association of the injury with the rule relied upon, however, is always a proper inquiry.” Hill, supra, 256 So.2d 622 (footnotes omitted).

      . The unusual facts were (1) a truck is negligently parked on a dark highway; (2) a negligent motorist violently collides with the truck, and (3) plaintiff, in an attempt to aid the passenger (the motorist’s wife with fatal injuries), finds a pistol in the car and gives the pistol to the motorist who then shoots the plaintiff rescuer!!!

      . See Robertsons, Dialogues on Hill v. Lundin & Associates, Inc., 34 L.L.R. 1.


text:
    Edwin L. LYNCH et al., Plaintiff-Appellant, v. John E. DERRYBERRY, Defendant-Appellant.
    No. 13039.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Granted Feb. 3, 1977.
    Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for defendant-appellant, John E. Derryberry.
    David A. Rothell, Mansfield, for plaintiff-appellant, Edwin L. Lynch and for plaintiffs-appellees, Edwin Bryan Lynch and Doris Lynch.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

A jury verdict awarded damages to the wife and son of Edwin L. Lynch resulting from a two-car collision of vehicles driven by Lynch and defendant, John Derryberry. The demand of Lynch for his individual damages was rejected apparently on a finding he was contributorily negligent. The reconventional demand of Derryberry for his personal injuries was also rejected.

Derryberry has perfected an appeal limited to a review of the amount awarded for personal injuries to the minor, Edwin Bryan Lynch, and his mother, Doris Lynch, who were guest passengers in the Lynch automobile. Edwin Lynch answered this appeal praying only for frivolous appeal damages. Lynch also obtained an order for a devolutive appeal. However, the security required by Article 2124 of the Code of Civil Procedure was not furnished within the ninety-day period allowed for taking a devolutive appeal and is untimely. Judgment was signed on May 3, 1976. The bond was not filed until August 11,1976. Lynch argues than an extension of the return date by the trial court to August 13th also extended the period for furnishing the security. This position is unsound, and the appeal must be dismissed. Guidry v. Canal Insurance Co. et al., 313 So.2d 858 (La.App. 1st Cir. 1974); Orrell v. Southern Farm Bureau Casualty Insurance Company, 248 La. 576, 180 So.2d 710 (La.1965).

The only issue, therefore, for review is the amount of damages awarded to Doris Lynch and Edwin Bryan Lynch under the appeal taken by Derryberry, and whether the appeal is frivolous as raised by Lynch’s answer to that appeal.

The trial jury awarded to each of these plaintiffs $5,000 for general damages. Mrs. Lynch was slightly injured in the accident. She testified she had a small cut in her hairline which required three stitches. Edwin Bryan Lynch testified he was thrown about twenty feet from the car and was temporarily knocked unconscious. He received a small cut on the head, abrasions on his back, and a few particles of glass became imbedded in his scalp. Seven or eight stitches were required for the cut on his head. He testified he has suffered intermittent headaches since the accident.

There was no testimony offered to show either of these parties received any further medical treatment after being attended to in the emergency room on the night of the accident.

In ruling on a motion for a remittitur or a new trial, the trial judge observed that in the absence of the jury, his award for Mrs. Lynch would not have exceeded $1,000, and for Edwin Bryan Lynch, $1,500. The motion was denied to alleviate the possibility of a new trial should a remittitur be refused.

We are in accord with the view expressed by the trial judge that the amount awarded by the jury was excessive and abused the discretion accorded to a jury in determining the amount of damages for personal injuries.

The sum of $1,500 is fully adequate for the minor injury received by Mrs. Lynch. The sum of $2,000 is sufficient for the injuries of Edwin Bryan Lynch.

As the appellant, Derryberry, has been accorded a part of the relief requested on this appeal, there is no merit in Lynch’s demand for damages for frivolous appeal.

The judgment is amended to reduce the award in favor of Edwin L. Lynch as administrator of the estate of Edwin Bryan Lynch to the sum of $2,000, and to reduce the sum awarded to Doris Lynch to the amount of $1,500.

The judgment as amended is affirmed. Costs of this appeal are taxed to appellees.


author: BOLIN, Judge.

text:
    George TIMS et al., Plaintiffs-Appellees, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al., Defendants-Appellant-Appellee.
    No. 13043.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Refused Feb. 9, 1977.

      Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendant-appellant, United Pac. Ins. Co.
    Cook, Clark, Egan, Yancey & King by Edwin L. Blewer, Jr., Shreveport, for defendants-appellees, Government Emp. Ins. Co. and Stanley E. France.
    Henry Newton Brown, Jr., Bossier City, for plaintiffs-appellees.
    Before BOLIN, PRICE and JONES, JJ.
   BOLIN, Judge.

By this action a 12-year-old girl seeks damages for personal injuries she received while a passenger in an automobile driven by her brother. The brother was driving the family car on a four-lane highway in a residential area within the corporate limits of a municipality when the right front of his car struck the left rear of an unattended vehicle parked on the right side of the road next to the curb in front of a residence. Defendants are the insurer of the automobile in which the girl was riding and the insurer of the parked automobile. In a well-written opinion the lower court found the accident was caused entirely by the negligence of the driver in failing to observe the parked automobile. From judgment awarding the minor $9,000 for her personal injuries plus costs, including the fees of the expert witnesses, the driver’s insurer appeals. Plaintiff answers the appeal seeking an increase in the award. We affirm.

The primary issue is whether the accident was caused solely by the negligence of the driver of the moving car or by the combined negligence of the driver and the owner of the unattended parked vehicle.

The accident occurred during daylight hours. Visibility was good, the road was straight and traffic was light. The driver testified he was traveling about 45 miles an hour when he noticed the parked vehicle which he mistakenly thought was moving. The driver’s attention was momentarily diverted to another car parked in an adjacent driveway. By the time he returned his attention to the road he was unable to avoid striking the parked vehicle. Based upon this evidence the lower court correctly found the driver guilty of negligence which was a proximate cause of his sister’s injuries.

The insurer of the driver’s automobile contends the owner of the parked vehicle was guilty of actionable negligence in leaving the automobile parked and unattended on a highway contrary to Louisiana Revised Statutes 32:141(A), which provides in part:

Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway . . . (Emphasis supplied)

The appellant argues the area where this accident occurred is not a “residence district” as contemplated by the statute, because the houses were not located near the traveled portion of the road. To the contrary, we find the area was a well-developed residential district inside the corporate limits of Bossier City. There were no signs indicating that parking was prohibited in this residential area, nor was parking prohibited by municipal ordinance.

Appellant cites and relies on Odom v. Texas Farm Products Co., 229 So.2d 118 (La.App.2d Cir., 1969). Odom is factually distinguishable from this case. There the accident occurred in an area found to be “semi-residential”. There were other distinguishing facts which it is not necessary for us to recite.

The insurer contends the award of $9,000 for personal injuries was excessive, while the injured party claims it was inadequate. The young girl received painful injuries which were temporary in nature. She remained in the hospital only four days. Because of injuries to a knee some of her physical activities were limited for several months. The only residual injury is a three-inch scar on her knee which will undoubtedly cause her some humiliation.

On the question of quantum our review is limited to determining whether the trial judge abused his discretion. Louisiana Civil Code Article 1934(3); Revon v. American Guarantee & Liability Insurance Co., 296 So.2d 257 (La.1974). We find the lower court did not abuse its discretion in fixing the award for the personal injuries or the fees of the experts.

The judgment is affirmed at appellant’s cost.


text:
    Osee B. HERRING, Plaintiff-Appellant, v. Betty Tillie POLLOCK et al., Defendants-Appellees.
    No. 13045.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.

      Wilson & Armstrong by Glen F. Armstrong, Bossier City, for Osee B. Herring.
    Rothell, Lawson & Robinson by David A.' Rothell, Mansfield, for defendants-appel-lees, Evans Calvert, Betty Tillie Pollock and Ruth Lane Pollock.
    Colvin, Hunter, Brown & Plummer by D. Scott Brown, Mansfield, for defendants-ap-pellees Betty Tillie Pollock and Ruth Lane Pollock.
    Charles E. Tooke, Jr., Shreveport, for defendants-appellees, Ellis Samuel Roe, Sr., and Ellis S. Roe, Jr.
    Before BOLIN, PRICE and JONES, JJ.
   JONES, Judge.

Osee B. Herring leased 16.5 acres from the ancestor in title of the defendants, Betty Tillie and Ruth Lane Pollock. The lease was duly recorded in the Conveyance Records of DeSoto Parish, and contained the following provision:

“If lessor during the terms of this lease decides to sell the property herein leased then in that event lessee is to be given refusal of the property.”

During the term of the lease the Pollocks sold the property subject to the lease to defendant, Evans Calvert, who immediately sold it to defendant Ellis Samuel Roe.

Herring was given no notice of these transactions. He filed this suit alleging that under the terms of the lease he had an option to purchase the property, and was given no opportunity to exercise the option because he was not offered the property by the Pollocks prior to its sale to Calvert. Herring alleges if he had been given an opportunity he would have been willing to purchase the property for the same consideration paid by Calvert but not to exceed $200 per acre. He prayed for annulment of the deed from the Pollocks to Calvert, and the deed from Calvert to Roe. He further prayed that the Pollocks be ordered to sell him the property for the consideration paid by Calvert not to exceed $200 per acre.

Defendants filed an answer in the nature of a general denial.

After plaintiff rested his case, exceptions of no cause of action were filed on behalf of defendants Pollock and Calvert. All defendants thereafter rested without offering any evidence. The trial court with written reasons sustained the exceptions of no cause of action, giving as its reasons that the provision contained in plaintiffs lease did not provide for a price and terms for the sale and therefore there could be no valid option. Suit was dismissed. Plaintiff appealed. We affirm.

Since the exception of no cause of action was not ruled upon by the court until the case had been tried and submitted on its merits, the lower court could have decided the case on the merits rather than upon the exception.

We shall proceed to decide the case on its merits. This we are entitled to do under C.C.P. Art. 2164. Ford v. Baird Bros., 161 So. 45 (La.App. 2d Cir. 1935); Parr v. D. H. Holmes Co., Ltd., 311 So.2d 463 (La.App., 4th Cir. 1975).

Defendants assert there is no provision contained in the lease agreement for determining the price plaintiff would pay nor terms of the payment, and therefore no valid option could come into being which, when accepted, would be a valid contract to buy and sell subject to specific performance. C.C. Art. 2462.

Plaintiff contends the right of refusal contained in the lease adequately complies with the option requirements of Art. 2462 for the reason the price and terms of the option are unequivocally implied under the concept of refusal, to be identical to the price and terms negotiated between the property owner and a bonafide potential purchaser. In the event he accepts the price and terms so determined, an enforceable contract to buy and sell shall come into being. Accepting plaintiff’s contention as to the proper interpretation of the refusal language in his lease without deciding the correctness thereof, we find plaintiff failed to prove his case.

In order for plaintiff to be entitled to purchase the property under his interpretation of the provisions of the lease, he must allege and prove the price paid for the property subject to the lease agreement, and must prove that if he had been given an opportunity he would have paid the same consideration.

The record contains no copy of the deed from the Pollocks to Calvert. Plaintiff’s only reference in his petition to the amount of consideration paid is:

“Your petitioner is willing to purchase said property subject to an attorney’s opinion as to the title thereof, for the same consideration paid for it by Evans Calvert, but not to exceed TWO HUNDRED and NO/lOO DOLLARS ($200.00) per acre.”

This indicates plaintiff would pay $3,300 for the 16.5 acres.

On trial of the case plaintiff offered the following evidence and no other with regard to the price and terms of the transaction between the Pollocks and Calvert and with regard to his willingness to pay the same consideration for the property as of the date of trial:

“Q. Mr. Herring, are you at this time willing to pay the price that was shown as consideration for the property on the deeds that were recorded from Pollock to Calvert?
“A. Well, I believe that deed read $5,000.00 and other considerations, other valuable considerations; I would be willing to pay $5,000.00 for it; I don’t know what their other considerations might be.”

This proof falls far short of clearly evidencing the consideration paid the Pollocks by Calvert. Assuming there was $5,000 cash paid as may be inferred from this testimony, the record is totally barren of what Pollocks received which fell into the category “of other valuable considerations”. In the absence of plaintiff establishing what the bonafide potential purchaser was willing to pay for the property [which in this case was what the purchaser paid for it], he clearly has not established the price which is an essential element of a valid option. Not only has plaintiff failed to establish the price Calvert paid for the property but he has not stated unequivocally that he would pay the same price.

In McMikle v. O’Neal, 207 So.2d 922 (La. App., 2d Cir. 1968) plaintiffs were denied the right to specific performance on an option accepted by them which contained the following terms:

“ * * * Grantor may reserve the right to accept only 30 percent down payment and the balance secured by Vendor’s Lien, all this to be agreed upon by the Parties, with interest not to exceed 6% per annum.” Id. at p. 923.

The court in McMikle recognized that an option is an offer, which, upon acceptance, ripens into a binding contract to buy and sell, and that such a contract must be specific as to the thing, price and terms to be subject to specific performance.

The reason for the court’s denial of specific performance in McMikle was that the option agreement failed to provide specific provisions with reference to the method of paying the credit portion of the price and this was an essential element of the sale.

Since plaintiff failed to establish the essentials of the option and his acceptance thereof, elements necessary for a contract to buy and sell to come into being, there is no basis for ordering specific performance. Since plaintiff has failed to establish his right to purchase the subject property, there is no basis for annulling and setting aside the deeds between the Pollocks and Calvert and the deed between Evans and Roe.

For the reasons herein assigned, plaintiff’s demands are rejected at his cost.

      . “Art. 2462. Specific performance of options and promises to sell
      “Art. 2462. A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.
      “One may purchase the right, or option to accept or reject, within a stipulated time, an offer or promise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise can not be withdrawn before the time agreed upon; and should it be accepted within the time stipulated, the contract or agreement to sell, evidenced by such promise and acceptance, may be specifically enforced by either party.”