text:
    Julian Donald GREGORIE, Plaintiff-Appellee, v. The HARTFORD ACCIDENT AND INDEMNITY COMPANY et al., Defendants-Appellants.
    No. 6043.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearings Denied Aug. 1, 1977.
    Writs Refused Oct. 26, 1977.

      John A. Jeansonne, Lafayette, for defendant-appellant.
    Daniel J. McGee and J. Jake Fontenot, Mamou, for plaintiff-appellee.
    Richard R. Kennedy, Lafayette, for defendants-appellants.
    Yoorhies & Labbe by Richard D. Chap-puis, Jr., Lafayette, as one of counsel for defendants-appellants.
    Before DOMENGEAUX, GUIDRY, and ROGERS, JJ.
   DOMENGEAUX, Judge.

This is a tort action brought by Julian Donald Gregorie against Jerry Wayne Townsley, Cactus Pipe and Supply Company, Inc., and the Hartford Accident and Indemnity Company as the liability insurer of both Townsley and Cactus. Plaintiff Gregorie sued defendants for injuries sustained in a one-vehicle accident which occurred August 16, 1974. The vehicle was owned by Cactus Pipe and Supply Company and was driven by defendant Townsley. Both Townsley and Gregorie were employees of Cactus Pipe and Supply Company. The case was tried before a judge who found that the sole proximate cause of the accident was the negligence of Townsley. He awarded plaintiff the sum of $317,256.23 and held Townsley and Hartford solidarily liable. Hartford’s liability policy had limits of $1,000,000.00. We affirm the holding of the district judge.

The work of Cactus Pipe and Supply Company consisted partially of pulling casing from depleted oil and gas wells which had been abandoned. A drilling rig was used in this work. Such rigs were manned by a crew of four: an operator, a “top hand”, and two “floor hands”. On August 16, 1974, the plaintiff was the operator of one such Cactus rig; that is, the person in charge of the operation. Jerry W. Towns-ley was his “top hand” — Thomas J. Mooney and Jerry M. James were “floor hands” on the same rig.

Gregorie’s crew was sent by Cactus to a Texaco field near Sorrento, Louisiana, where they began to pull casings on abandoned wells. Gregorie and his crew resided in Eunice, Louisiana. In the late afternoon after completing their work for the day, the members of the crew were driving with Gregorie as driver, in a van type panel truck owned by Cactus Pipe and Supply Company, Inc., from Sorrento to Eunice. They stopped at a grocery store on the way to pick up some food and drinks. Upon returning to the vehicle, Townsley took the wheel so that plaintiff could complete the day’s checks. Townsley had no alcoholic beverage. During a rainstorm, the vehicle left the road, overturning and causing serious injury to Mr. Gregorie.

Defendants cite as error the following:

1. The finding that the negligence of Jerry Wayne Townsley was the sole cause of the injuries sustained by the plaintiff.

2. The failure to find that the accident proximately resulted from Gregorie’s contributory negligence.

3. The failure to find to be effective an exclusionary clause contained in the policy of insurance issued by Hartford which excluded from coverage drivers engaged in the business of their employer when a fellow employee is injured.

4. The failure to find that an exclusionary clause in the Hartford policy denied coverage to Townsley on the basis that Cactus Pipe and Supply Company was liable under the workmen’s compensation laws to plaintiff.

5. The alternative finding that the plaintiff would be entitled to uninsured motorist benefits under the terms of the Hartford policy in the facts of this case, in the event that judgment would not have been granted under the liability portion of the Hartford policy.

6. The finding that, should uninsured motorist coverage become an issue, the claimant would be entitled to “stack” 490 vehicles at $5,000.00 per vehicle in determining the uninsured motorist coverages afforded by Hartford to Gregorie.

7. The award in damages of $317,356.23 to the claimant.

Defendant Townsley did not appear to testify at trial. His only testimony in the record consists of an unsworn, unsigned statement given by him to counsel for plaintiff. This statement was entered into the record over objection from plaintiff’s counsel. Townsley stated that at the time of the accident he had encountered some inclement weather intermittently along the way when, suddenly, it began to pour down rain. There was water standing on the highway. He surmised that he hit a low spot on the highway that was filled with water, and this caused him to lose control of the vehicle.

The other three members of the crew were riding in the van with Townsley: Plaintiff Gregorie, Jerry M. James, and Thomas J. Mooney. Jerry M. James did not testify at trial. Mooney testified that he was lying back on the seat in the van when Townsley lost control of the vehicle. Mooney did not actually see what happened, but said he felt the truck seemed to hydroplane and Mooney said that is when the accident occurred. Plaintiff Gregorie testified at trial concerning Townsley’s driving ability and his alleged negligence but plaintiff’s subsequent injuries have resulted in brain damage and general amnesia. About the accident, Gregorie said he did not recall Townsley doing anything negligent or reckless, that it was raining, and that he was busy with paper work and not paying close attention when the accident happened.

The only other testimony concerning the negligence of Townsley was that of Louisiana State Trooper Mizzi who investigated the accident. He testified that there was indeed rainy weather and water standing on the road; nevertheless he issued a ticket to Townsley at the scene of the accident. The citation was for violation of La. R.S. 32:58. That statute reads:

“§ 58. Reasonable and proper control of vehicles
It shall be unlawful for the driver of any vehicle to negligently fail to maintain reasonable and proper control of said vehicle while operating the vehicle on the public roads of this state. Added by Acts 1972, No. 567, § 1.”

Trooper Mizzi also stated that he had estimated the speed at which Townsley was driving the vehicle at the time of the accident, and that estimated speed was 55 miles per hour (the posted speed limit).

We cannot say that the finding of negligence on the part of Townsley was erroneous. Townsley admitted his negligence in a plea of guilty to a charge that he violated R.S. 32:58, supra. This guilty plea is ad-missable as an admission against interest. See Davis v. Bankston, 192 So.2d 614 (La. App. 3rd Cir. 1966). The Court therein stated:

“Ordinarily, evidence is not admissible in a civil tort action to prove either that a party was charged with, Bertoli v. Flabiano, La.App. 1 Cir., 116 So.2d 76, or convicted of, Reid-Elliott Motors v. Lee, La. App. 1 Cir., 94 So.2d 160, a criminal offense arising out of the same accident. To the contrary, however, the usual rule is that in the absence of a prohibitory statute, a plea of guilty in a criminal case is considered an admission against interest which is competent evidence in a civil action involving the same subject matter. American Casualty Co. v. Lennox, La. App. 4 Cir., 169 So.2d 707; Smith v. Southern National Ins. Co., La.App. 4 Cir., 134 So.2d 337; 4 Wigmore on Evidence, Section 1066 (3d ed., 1940); 31 A C.J.S. Evidence § 300b; 20 AmJur., Evidence, Section 648.
The trial court thus erred in excluding evidence of this plea of guilty.
However, such an admission, while competent evidence, is not conclusive. Thus, in the Lennox case cited above the court in the civil proceedings accepted, as vitiating any admission of negligence, the party’s explanation that he had pleaded guilty solely for the sake of convenience and expediency, since it was easier and less expensive to pay the relatively small fine than to contest the charge.”

Contrary to the situation in Davis there is nothing in the testimony or the pleadings herein to vitiate the culpability of Jerry Townsley. Although this guilty plea is not conclusive evidence of negligence, it is nevertheless competent evidence of such negligence. Although the record is bare of any direct evidence of Townsley’s negligence the Trooper also stated that the vehicle was travelling at approximately 55 miles per hour, which is arguably too fast for the weather conditions which Townsley was encountering. Compare Wilson v. Pittman, 307 So.2d 804 (La.App. 1st Cir. 1975). We find that there was substantial factual evidence in the record, as noted above, upon which the trial judge could reasonably base his finding. Canter v. Koehring, 283 So.2d 716 (La.1978).

Looking at the record as a whole, we cannot say that the judge manifestly erred in his finding of negligence.

Defendant further claims that the plaintiff is prevented from making any recovery because of his contributory negligence. A guest passenger’s recovery for personal injury may be barred by both the doctrines of contributory negligence and assumption of risk. We find that plaintiff was not contributorily negligent. Towns-ley, the driver, was not known to be a careless driver, and Gregorie did not notice that he was going too fast or doing anything else wrong from the time the crew left the grocery store until the time of the accident, as noted before. Townsley was believed to be a good driver by his fellow workers. Prior to the accident there was nothing known to the other workers indicating any reason for concern, nor was there any known hazard to the safety of the occupants of the vehicle.

Defendant also claims that the negligence of Townsley is imputable to plaintiff because of a joint enterprise between plaintiff and Townsley. Defendant urges that plaintiff’s right to have his wishes respected concerning the manner in which the vehicle was driven was equal to that of the driver, Townsley. Therefore, defendant argues that this created a joint venture between Gregorie and Townsley.

We find no evidence in the record tending to prove a joint venture in this instance. Plaintiff at the time of the accident was busy with the books and records of his employer, and was not directing Townsley in any manner whatsoever. Gre-gorie did not have any actual control over the actions of Townsley nor did he claim to have any. Therefore we find no contributory negligence or assumption of risk on the part of Gregorie.

The trial judge held that Townsley was the omnibus insured of the defendant Hartford, and that no exclusionary clause applied to exclude Townsley from that coverage. The policy defined an ‘insured’ as follows:

(c) Any other person while using an owned automobile or a hired automobile with the permission of the named insured .
(1) A lessee or borrower of the automobile, or
(2) An employee of the named insured

Also the policy excludes certain persons from the insured status:

“None of the following is an insured:
(i) Any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment . . . ”

Defendant argues that the case of Manuel v. Liberty Mutual Insurance Company, 256 La. 480, 236 So.2d 807 (1970) is the controlling case in this instance. The Louisiana Supreme Court in Spain v. Travelers Insurance Company, 332 So.2d 827, 830 (1976) sets forth the rule in Manuel:

“In Manuel v. Liberty Mutual Insurance Company, 256 La. 480, 236 So.2d 807 (1970), we held that the test to be applied in determining whether an employee’s injuries were sustained in the course and scope of his employment within the terms of an exclusionary clause similar to the one involved here is the same test which is applied in determining whether the employee was injured in the course of his employment so as to entitle him to workmen’s compensation.”

We hold that the Manuel case is not controlling in this instance. The language in the policy in the Manuel case was substantially different from the language in the instant policy. The policy in Manuel stated:

“. . . The insurance with respect to any person or organization other than the named insured does not apply: i * *
‘(c) to any employee with respect to injury * * * of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of an automobile in the business of such employer.’ (Italics ours)”

It can be easily seen that there are two different standards in the two policies. The Manuel policy tracks the workmen’s compensation statute’s language. The language in the instant policy is more restrictive language. To be “engaged in the business of his employer” connotes an active participation in the employer’s work. Language in the case of B & H Passmore M & R Company v. New Amsterdam Casualty Co., 10 Cir., 147 F.2d 536 (1945) is quite pertinent here:

“Moreover, the exclusion clause ‘engaged in the business, * * * of the insured’ differs materially from the clause ‘arising out of and in the course of his employment.’ The word ‘engaged’ connotes action.”

Also, 14A Words and Phrases, p. 188 (West, St. Paul, Minn., 1952) give several definitions of the word “engaged”:

“The word ‘engage’ connotes more than a single act or a single transaction; it involves some continuity of action. Day v. Equitable Life Assur. Soc. of United States, C.C.A. Colo., 83 F.2d 147, 148.
The word ‘engage’ means ‘to take a part; to devote attention and effort; to employ one’s self; to enlist; to carry on; to conduct; be busied; to occupy one’s self’. Graves v. Knights of the Maccabees of the World, 112 N.Y.S. 948, 950, 128 App.Div. 660.”

Therefore, we find that the Manuel case is not controlling in this instance because of the substantially different language.

The Supreme Court has consistently confirmed the rule of interpretation of an insurance policy as follows:

“Words used in an insurance contract are to be understood in the usual and common signification. C.C. 1946; Harmon v. Lumbermens Mutual Casualty Com., 247 La. 263, 170 So.2d 646 (1965); Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So. 72 (1939). Ambiguous coverage provisions in a policy are construed most favorably to the insured and against the insurer. Schonberg v. New York Life Ins. Co., 235 La. 461, 104 So.2d 171 (1958); Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111 (1954); Mutual Life Ins. Co. of New York v. New, 125 La. 41, 51 So. 61 (1910). And,1. . . if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.’ C.C. 1958.” Jennings v. Louisiana & Southern Life Insurance Company (La.1974), 290 So.2d 811, at 813/814.

Exclusionary clauses in insurance policies will be even more stringently interpreted. In Rushing v. American Home Insurance Company, 274 So.2d 458, at 460 (La.App. 3rd Cir. 1973) this court stated:

“Under LSA C.C. Art. 1957 and the well settled jurisprudence of this State, ambiguous causes in policies of insurance are to be construed against the insurer, who prepared the contract, and SUCH IS PARTICULARLY TRUE OF CLAUSES THAT EXCLUDE COVERAGE. Berry v. Aetna Casualty & Surety Company, La.App., 240 So.2d 243, writ refused, 256 La. 914, 240 So.2d 374, appeal dismissed, certiorari denied, 401 U.S. 1005, 91 S.Ct. 1255, 28 L.Ed.2d 541; Rankin v. New York Life Insurance Company, La.App., 240 So.2d 758, writ refused 257 La. 276, 242 So.2d 247; Simmons v. American National Insurance Company, La.App., 199 So.2d 421; Wilks v. Allstate Insurance Company et a 1, La.App., 195 So.2d 390.”

When there is an ambiguity in a clause of an insurance contract the policy provisions are construed most favorably to the insured and against the insurer. Snell v. Stein, 261 La. 358, 259 So.2d 876 at 878 (1972). Therefore we will construe this exclusionary clause most favorably to the insured.

We must consider whether Jerry Townsley was actively “engaged in the business of his employer” according to the preceding rules of construction. We find that he was not. Townsley was proceeding home from his work when the accident occurred. He was not given any pay for the time after he had finished his job until he got home to Eunice. He was not doing anything in relation to the business of his employer while he was driving the vehicle. Although he was not prevented from driving, he was not required to do so in his employment. He was merely proceeding home. On the contrary, Gregorie was actively pursuing the business of his employer, as was required by his employer to provide the truck to the other employees as transportation home, but the standard for Gregorie is different. The standard in the policy is: Was Gregorie within the course of his employment when he was injured? Obviously, Gregorie was within the broad course of his employment when he was injured. But the exclusionary clause does not take effect unless Townsley can be found to be engaged within the business of his employer. Therefore the exclusionary clause does not take effect and Townsley is indeed the omnibus insured in this case.

The trial court in its reasons for judgment mentions that there were uninsured motorist benefits under the terms of the policy and that he thought that these benefits were applicable upon the facts of this case. However, the trial judge did not make an award based on the uninsured motorist coverage but upon the basic liability portion of the policy. Appellant takes issue with the trial judge’s statement. Because we have already decided coverage under the liability portion of the policy, it is not necessary that we reach the uninsured motorist benefits issue.

QUANTUM

Counsel stipulated at the outset of the trial that there would be no prejudice attached to the failure to call as witnesses the many doctors involved in this case. Instead, the deposition, statements, and evaluations of the following doctors were introduced into evidence: Dr. Robert Rivet, a Lafayette, Louisiana, neurological surgeon who operated on Gregorie’s brain; Dr. William Cloyd, a Lafayette, Louisiana, doctor with a neuropsychiatric clinic; Dr. Ronald S. Pryer, a Pineville, Louisiana, clinical psychologist; Dr. William Black, a neuropsy-chologist with Louisiana State University; and Dr. William A. Ward, a Mamou, Louisiana, dentist.

Their uncontradicted reports indicate that plaintiff lost his senses of taste and smell, suffers from double vision, and sustained a hearing impairment as a result of his severe brain injury. He also lost all of his teeth as a result of the accident, and one side of his face is paralyzed, which caused a serious speech impediment. He lost his right ear, which compounds his disfigurement.

The paralysis causes difficulty in eating and reduces the effectiveness of his dentures. Due to his memory loss, and other serious disabilities, rehabilitation is virtually impossible. In addition, he has an impaired sexual drive and is unable to engage in any sort of physical activity because of his frequent headaches, dizzy spells, blackouts, and equilibrium loss which prevent him from walking for even a short distance. The psychological and psychiatric evidence indicates that he is psychotic and deeply depressed because of the trauma and his condition. He has undoubtedly suffered and will continue to suffer greatly, and will continue to experience humiliation and frustration because of his condition and appearance.

The district court awarded plaintiff $317,256.23 for loss of wages, general damages, and medical expenses. Plaintiff was a relatively young man, being 38 years of age at the time of the accident, earning $9,500.00 per year for the several years preceding the accident. An actuarial evaluation was presented by Dr. John Chisolm, who offered several different figures as estimates of loss of future wages ranging between $90,000.00 to $180,000.00, depending on inflation and other factors.

In the recent landmark case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976), the Court stated that: “The record must clearly reveal that the trier of fact abused its discretion in making its award” before an appellate court can disturb the award. We find no such abuse of discretion here, taking into consideration the magnitude of the injuries and their resulting effect upon plaintiff.

For the above and foregoing reasons we affirm the judgment of the district court. Costs to be assessed against defendants-appellants, Townsley and Hartford.

AFFIRMED.

GUIDRY, J., concurs in the result and assigns written reasons.

GUIDRY, Judge,

concurring.

I concur in the result.

In my opinion the exclusionary clause in the Hartford policy operates to exclude defendant, Jerry Wayne Townsley, as an omnibus insured under the Hartford policy.

The vehicle involved in the accident giving rise to this litigation was furnished by the employer of plaintiff and defendant, Townsley, for the specific purpose of affording transportation for its employees to and from work. Townsley was operating this vehicle at the time of accident and while he and other employees, including Gregorie, were returning from work. Townsley was therefore actively engaged in the business of his employer. Gregorie, a guest passenger, was clearly in the course of his employment. The policy in question excludes the following from insured status:

“Any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment. . . . ”

I do not necessarily agree that the phraseology “while engaged in the business of his employer” and “course of his employment” create different standards, however, even under the meaning attributed to such clauses by the majority I would find that the Hartford policy excludes Townsley from insured status.

In Written v. Travelers Indemnity Company, 304 So.2d 715 (La.App. 3rd Cir. 1974), a different panel of this court when presented a similar factual situation found the exact exclusionary clause effective to exclude insured status and stated:

“Travelers did not issue a liability policy to Solar, the driver of the vehicle involved in the accident. And, the policy which it issued to Garber Brothers specifically excluded coverage of ‘any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment.’ Solar was engaged in the business of his employer, Garber Brothers, when this accident occurred, and all of the other occupants of the car were his fellow employees who were injured in the course of their employment. Solar thus was not an insured under the policy when the accident occurred. See Jagneaux v. American Automobile Insurance Company, 136 So.2d 91 (La.App. 3 Cir. 1961).”

I would decide this issue as did my brethren in Written, supra. Contrary to my esteemed brethren on this panel I find Written persuasive and convincing. See also Manuel v. Liberty Mutual Insurance Company, 256 La. 480, 236 So.2d 807 (1970).

I would reach the same result as the other members of the panel however, finding that plaintiff is entitled to recover under the uninsured motorist provisions of the Hartford policy. Plaintiff was an insured under the uninsured motorist coverage of the policy and he was injured through the negligence of Townsley who is an uninsured motorist. The exclusionary provisions of the Hartford policy, insofar as uninsured motorist coverage is concerned, are in derogation of the provisions of LSA-R.S. 22:1406(D)(l)(a) and (2)(b) and therefore invalid and inoperative. Guillot v. Travelers Indemnity Company, 338 So.2d 334 (La.App. 3rd Cir. 1976) writ dismissed La., 341 So.2d 408. The uninsured motorist coverage under this policy, which insured some 300 plus vehicles, when “stacked” would be sufficient to cover the quantum of damages found to be due by the trial court.

For the above and foregoing reasons I concur in the result reached by the majority-

      . The suit against Charlie Snow, Gregorie’s supervisor, was dismissed without prejudice.

      . Plaintiff argues in favor of a presumption of negligence which should follow from the mere fact that the vehicle left the road, citing King v. King, 210 So.2d 917 (La.App. 1st Cir. 1968). We disagree, in light of the Supreme Court decision in that same case, 253 La. 270, 217 So.2d 395 (1968). Also, the presumption in the Court of Appeal decision was in conjunction with res ipsa loquitur, which does not apply in this case.

      . Plaintiff charges as spurious defendant’s argument that the finding of negligence on the part of Townsley was erroneous.' > • Plaintiff notes that defendant failed to depose Townsley ' during the entire two year period following the accident and preceding trial, at which time Townsley was still in the employ of Cactus. Townsley has since moved out-of-state and cannot be located.

      . Defendant also cites Written v. Travelers Indemnity Company, 304 So.2d 715 (La.App. 3rd Cir. 1975) which case had facts very similar to the instant case. The Court found there that the driver was ‘engaged in the business of his employer’, but it is not clear what circumstances lead the Court to so hold. Therefore, we do not find Written persuasive under the facts of this case.

      . Intervenor, Hartford Accident and Indemnity Company, received a credit of $24,846.00 for reimbursement of previously paid medical and workmen’s compensation benefits to plaintiff Gregorie. (Coincidentally, Hartford was also the workmen’s compensation insurer of Cactus Pipe and Supply Company, Inc.). It filed a brief contesting the plaintiffs right to demand uninsured motorist benefits in the alternative to receiving liability benefits. Because as aforesaid, we do not reach this issue, interve-nor’s argument need not be discussed further.


source: Caselaw Access Project

author: ROGERS, Judge.

license: Public Domain

text:
    CAMERON MEADOWS LAND COMPANY, Plaintiff-Appellant, v. Daniel R. BULLARD et al., Defendants-Appellees.
    No. 6044.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearings Denied Aug. 1, 1977.

      Stockwell, Sievert, Viccellio, Clements & Shaddock by Oliver P. Stockwell, Lake Charles, for plaintiff-appellant.
    Liskow & Lewis by William R. Pitts, New Orleans, for Mobil Oil Corp.
    H. Ward Fontenot, Cameron, Farris Mitchell, Houston, Tex., John F. Reid, New Orleans, Camp, Carmouche, Palmer, Car-wile & Barsh by A. J. Gray, III, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

This is an appeal by plaintiff, Cameron Meadows Land Company, hereinafter referred to as Cameron Meadows, from a Declaratory Judgment which decreed substantially as follows:

1) that this suit is a class action;

2) that certain partial releases of an oil, gas and mineral lease executed by Mobil Oil Corporation, Humble Oil & Refining Company and Exxon Corporation on certain lands of plaintiff are effective insofar as their interests are concerned, and that they no longer have any interest in the lands released by them;

3) that the released lands referred to above are free of any overriding royalty reserved in the conveyance by H. M. Hen-shaw to Vacuum (the predecessor of Mobil Oil Corporation) on April 1, 1927, of the lease granted by Cameron Meadows to H. M. Henshaw, dated March 21, 1927, including the overriding royalty owned by the two sole heirs of H. M. Henshaw, namely Harold M. Henshaw and Ashbel Henshaw, and certain other overriding royalty owners;

4) that the lands released by Mobil Oil Corporation, Humble Oil and Refining Company and Exxon Corporation are still subject to the oil, gas and mineral lease dated March 21, 1927, granted by Cameron Meadows to H. M. Henshaw, and is presently owned by the two children and sole heirs of H. M. Henshaw in equal proportion.

The defendants are Harold M. Henshaw, Ashbel B. Henshaw, heirs of H. M. Hen-shaw, Mobil Oil Corporation, hereinafter referred to as Mobil, Exxon Corporation, hereinafter referred to as Exxon, and numerous overriding royalty owners.

A motion was made by the Henshaw group to dismiss the appeal of Mobil, urging Mobil had no interest in the property involved in this litigation and further was not aggrieved by the judgment of the district court. We find no merit to the Henshaw argument as a reversal of the district court’s judgment eliminates the possibility of future litigation between Cameron Meadows and Mobil, and accordingly, we dismiss this action.

The case is somewhat complicated and since the trial judge summarized the facts and the issues of the case concisely, we adopt that portion of his Reasons for Judgment as follows:

“Plaintiff-landowner, Cameron Meadows Land Company, (“Cameron Meadows”), seeks judgment declaring that a portion of its land is no longer burdened by a mineral lease and certain overriding royalties.
By instrument dated March 21, 1927, Cameron Meadows Land Company, as landowner, granted a mineral lease, (“Cameron Meadows lease”), to H. M. Henshaw covering 11,540 acres in Cameron Parish, Louisiana.
As compared to modern leases, the Cameron Meadows lease is simple in its terms. It provided for a royalty of 7/64 for oil, 1/8 for casinghead gas, $200.00 per year for each natural gas well, and .50 cents per long ton of sulphur. The lease gave Henshaw the exclusive right to develop the minerals on the properties and included the right of assignment. The lease also provided that production of minerals in paying quantities from the property would maintain the lease in its entirety for as long as the minerals were so produced. The lease did not include a release clause, nor did it include the retention of any fixed acreage around a producing well in the event the lease was terminated.
On April 1,1927, Henshaw executed an instrument purporting to “grant, sell, transfer, and assign,” unto Vacuum Oil Company the Cameron Meadows lease for the entirety of the lands covered thereby. The instrument contained an obligation on the part of Vacuum to pay Henshaw an overriding royalty on oil or gas produced from the lease premises. The instrument required Vacuum to perform the terms of the original Cameron Meadows lease. This instrument did not authorize Vacuum to release any portion of the leased premises.
Oil and Gas were discovered on the leased premises by Vacuum in October of 1931, and have been continuously produced from the leased premises ever since.
By mesne conveyances Mobil and Exxon succeeded to the interest of Vacuum in the leased premises in the proportion of one-half each with Mobil being the operator.
Two of the Defendants, Harold M. Henshaw and Ashbel B. Henshaw, acquired the leasehold interest of H. M. Henshaw by inheritance. All other Defendants, with the exceptions of Mobil and Exxon, are owners of overriding royalty interests which were acquired through mesne conveyances.
By instrument dated April 5, 1951, by and between Mobil, (then Magnolia Petroleum Company), Exxon (then Humble Oil and Refinery (sic) Company), and Cameron Meadows, it was agreed that the royalty payable on gas produced from the leased premises would be 7/64 of the gas sold as opposed to the $200.00 per year per well provided in the original Cameron Meadows lease. Neither Hen-shaw, as lessee, nor any of the Defendants herein signed this agreement. Similarly, by instrument dated January 5, 1952, between Cameron Meadows, Magnolia and Humble, it was agreed that the royalty payable to sulphur should be $2.00 per ton as opposed to .50 cents per ton provided in the original Cameron Meadows lease. Again, neither Henshaw nor any of the Defendants herein executed that instrument. In both of the instruments Cameron Meadows acknowledged that the original Cameron Meadows lease was in full force and effect according to its terms.
By instrument executed in various counterparts during 1957 and 1958, the parties having an interest in the leased premises authorized Magnolia as operator to measure and allocate production from wells on the leased premises by use of “well test” in lieu of “gauge tanks”. Cameron Meadows asserts that the instrument contains an acknowledgment of “ownership” of the Cameron Meadows lease in Magnolia and Humble. The purpose of the instrument was to authorize a different method of measuring production (as required by state-wide order 29-d of the Department of Conservation).
Cameron Meadows at various times since 1935 made demands upon Mobil and Exxon for further development of the leased premises. No demand has ever been made upon Henshaw or any other defendants for development of the property.
From 1971 through 1973 Mobil and Exxon executed three releases covering the leased premises:
1.By instrument dated January 22, 1971, Mobil executed a release of the following described properties:
‘All of Sections 19 and 20; all of Section 22 below the depth of 8,341 feet; all of Section 23; the West Half of Sections 24, 25, and 26; all of Sections 29, 30, 31 and 32, Township 14 South, Range 13 West, La. Mer., Cameron Parish, Louisiana.’
This release executed by Mobil does not purport to release the Cameron Meadows lease itself, but rather releases only the right, title and interest of Mobil in the Cameron Meadows lease. The language of the instrument specifically provides as follows:
‘All it’s (Mobil’s) right, title and interest in and to that certain oil and gas mining lease dated March 21,1927, executed by the said Cameron Meadows Land Company as lessors to H. M. Hen-, shaw as lessee, of record in Conveyance Book 9, page 122, records of Cameron Parish, Louisiana, insofar as said lease covers and includes its interest in an to the following described lands . . ’
2. By instrument dated March 26, 1971, Humble similarly surrendered its interest in part of the disputed acreage under the Cameron Meadows lease. The pertinent language of the Humble release is as follows:
‘KNOW ALL MEN BY THESE PRESENTS, that Humble Oil & Refining Company does hereby release, relinquish, surrender, and abandon all of its right, title and interest in and to that certain oil, gas and mineral lease dated the 21st day of March, 1927, executed by Cameron Meadows Land Company, as lessor, to H. M. Henshaw, as lessee,
The properties covered by the Humble release were described as follows:
‘All of Sections 19, 20 and 23; West Half of Sections 24, 25 and 26; all of Sections 29, 30, 31 and 32, in Township 14 South, Range 13 West, La. Mer., Cameron Parish, Louisiana. Fractional North Half of Section 5; NE/4, E/2 of NW/4 and NW/4 of NW/4 of Section 6, Township 15 South, Range 13 West, La. Mer., Cameron Parish, Louisiana, containing 6024 acres.’
3. Finally, by instrument executed February 23, 1973, Exxon released its interest in the Cameron Meadows lease insofar as the lease covered Section 22, Township 14 South, Range 13 West below the depth of 8,341 feet.
The properties described in these three releases are the properties in dispute.
Prior to execution of the releases by Mobil and Exxon, Defendant Harold Henshaw, through his attorney, James A. Smith, wrote Mobil concerning the transaction. By letter dated January 13,1971, James wrote Mobil concerning the proposed releases and received a response from Mobil dated January 21, 1971, in which Mobil stated that the proposed release of Mobil ‘will only cover Mobil’s undivided half interest’ and that Mobil understood that Humble would also be releasing its interest. By letter dated February 27, 1972, Harold Henshaw personally wrote Humble concerning the Cameron Meadows lease and his desire to protect his royalty interest. Humble did not respond to Mr. Henshaw’s letter. Harold M. Henshaw, again on February 13, 1975, wrote a letter to Mobil concerning the acreage Mobil had released and referred therein to his ‘losing royalty on some 6,600 acres, when this was turned back to Cameron Meadows Company.’
Since the releases of the acreage involved in this suit, Cameron Meadows Land Company has executed nine leases covering portions of the released acreage. Each of these leases has expired, and there has never been any production on the released acreage, the property in dispute.”

We also think it important to include as specific facts of this case, pertinent quoted language of the transfer of April 1, 1927 from Henshaw to Vacuum Oil Company, as follows:

“NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS: That I, H. M. Henshaw of Calcasieu Parish, Louisiana, in consideration of the sum of $17,-310.00 cash to me in hand paid by Vacuum Oil Company, receipt of which is hereby acknowledged, have granted, sold, transferred and assigned, and do hereby grant, sell, transfer and assign unto said VACUUM OIL COMPANY, a corporation, the oil and mineral lease above mentioned, together with all leasehold and other rights, titles and interest that I have in and to said land by virtue of said lease and all rights, titles and interest purported to be created thereby, and so far as it covers all of the lands above described.
TO HAVE AND TO HOLD unto the said VACUUM OIL COMPANY, its successors and assigns, forever, in accordance with the terms and provisions of said lease. And I do hereby authorize Vacuum Oil Company, its successors and assigns, should they at their election choose to do so, to pay all rentals provided for in the lease above mentioned, and I for myself, my heirs and assigns, agree to reimburse the party so paying for rentals paid by him proportioned to the interest now retained by me, with interest amounts to acres hereby granting unto him a lien on the interest now retained by me to secure his reimbursement for rental so paid.
Grantee shall never be under any obligation to drill wells for petroleum oil or gas on any of the property covered by said leases, except as required by the terms thereof, but should it drill on any portion of said described premises hereby assigned and produce therefrom petroleum oil or gas in paying quantities, it shall deliver as royalty, to grantor the proportion of oil or gas saved from that produced, as hereinafter provided, such delivery to be made into tanks by grantor provided, with connections by grantor provided, or into any pipe line connected with the well, after first having deducted oil or gas used as provided in said leases.” (Emphasis added)

We specifically note at this point that the transfer by its terms conveys all interest of the transferor in the lease save his retention of an overriding royalty interest. Additionally, we note that the transferor did not retain a right of reversion; no control whatever over the manner in which the transferee was to conduct operations under the lease; and, the transferee was under no obligation whatever to maintain the lease in force and effect by the payment of rentals or by conducting operations in search of minerals.

In considering the issues presented the trial court first considered the nature or character of the instrument dated April 1, 1927, and concluded that the transfer was a “Sublease” as opposed to an “Assignment”. In so concluding, he stated as follows:

“This question is of primary importance because if the instrument was an ‘assignment’, Mobil and Exxon would have owned the lease, and the instruments executed by them would have resulted in the effective release to Cameron Meadows of the lease over the acreage described therein.
The decisions of the Louisiana Supreme Court beginning in 1928 firmly establish that a conveyance by the lessee of a mineral lease containing an obligation to pay such lessee an excess royalty or overriding royalty is a sublease and not an assignment. This position holds true regardless of the language employed and has even been applied to circumstances where the reservation of the overriding royalty was contained in a separate instrument. The principle is recognized by law review commentators and by the redactors of the Louisiana Mineral Code.”

We have no quarrel with the trial judge in his finding that the transfer was a sublease. He followed the jurisprudence on this subject beginning with Smith v. Sun Oil Company, 165 La. 907, 116 So. 379 (1928). See also Johnson v. Moody, 168 La. 799, 123 So. 330 (1929); Roberson v. Pioneer Gas Co., 173 La. 313, 137 So. 46 (1931); Bond v. Midstates Oil Corporation, 219 La. 415, 53 So.2d 149 (1951); Prestridge v. Humble Oil & Refining Co., 131 So.2d 810 (La.App., 1961); Broussard v. Hassie Hunt Trust, 231 La. 474, 91 So.2d 762 (1956); Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810 (La., 1974); Parten v. Webb, 205 La. 799, 18 So.2d 198 (1944); Tomlinson v. Thurmon, 189 La. 959, 181 So. 458 (1938); Serio v. Chadwick, 66 So.2d 9 (La.App.2nd Cir. 1953); and Pepper v. Pyramid Oil & Gas Corporation, 287 So.2d 620 (La.App.3rd Cir. 1973); Iberian Oil Corporation v. Texas Crude Oil Company, 212 F.Supp. 941 (W.D.La.1963) and the pertinent comment under Louisiana R.S. 31:127:

“It is not required, however, that there be a retention of any right of reversion or of any right of control on the part of the transferor over the operations of the transferee. It is necessary only that the lessee retain some interest which runs for the life of the lease, such as an overriding royalty or a perpetual or unlimited net profits interest. . . . ”

By mere definition taken from the jurisprudence the transfer from Henshaw to Vacuum was clearly a sublease and we therefore agree with the trial judge in this respect. Be that as it may, it should be remembered that this decision took place prior to the Smith v. Sun Oil Company decision at a time when neither party to the instrument could have anticipated the vexing problems which might arise as a result of the instrument of transfer being characterized as a sublease as opposed to an assignment.

The trial court next considered the effect of the releases executed by Mobil and Exxon in favor of Cameron Meadows in light of his previous conclusion that the April 1927 transfer was one of sublease and determined that the Sublessees were without right to grant such releases and therefore such releases were of no force and effect except insofar as they operated to re-invest the ownership of the lease in the heirs of H. M. Henshaw. In this conclusion we think the trial court erred as we construe the 1927 sublease as impliedly granting to the Sub-lessee the right, power and authority to release all or any part of the leased acreage.

H. M. Henshaw granted, sold, transferred and assigned unto Vacuum Oil Company, the lease, together with all leasehold and other rights, titles and interests that he had in and to said land by virtue of said lease and all rights, titles and interest purported to be created thereby, insofar as it covered all of the lands therein described. Hen-•shaw retained no rights whatever under said lease except the right to participate in production from said land to the extent of ll/192nd if and when production was had from all or some part of the leased acreage.

As previously indicated, there was no obligation on the part of Vacuum, its successors or assigns, to pay rentals or to develop the leased acreage. Henshaw retained no right to control the manner in which the Sub-lessee would conduct operations under the lease. Most important the Sub-lessor did not reserve any right to a re-assignment of the lease in the event the Sub-lessee determined not to continue the lease in effect as to all or any part of the leased acreage. Additionally, the record clearly reflects that H. M. Henshaw and his heirs from April of 1927 until January of 1971, a period of over 43 years, took no active interest in the lease or the operations being conducted on the leased acreage by the Sub-lessees but rather were content to sit back and merely collect the royalties accruing under the sublease agreement. During this 43 year period the original lessor dealt directly with the Sub-lessees, without objection from Henshaw. Numerous demands were made by the lessor on Mobil and Exxon for further development which resulted in the drilling of additional wells, some of which were productive and some of which were dry. It was only after formal demand by Cameron Meadows that Mobil and Exxon develop further, release or suffer a suit for cancellation, that the releases were executed, the execution of which releases removed the threat of cancellation as to the leased acreage which had been previously developed. Only at this point did the Hen-shaws resume an active interest in the lease contending that the releases were ineffective and served simply to re-invest them with all leasehold rights.

Considering all of the above; the plain and explicit provisions of thé sublease agreement; and, the fact that it was executed prior to the decision of our Supreme Court in Smith v. Sun Oil Company, supra, we conclude that it was clearly the intention of the parties to the sublease agreement that the Sub-lessee, and its successors or assigns, had the right to grant an effective release of said lease covering all or any part of the acreage covered thereby.

We acknowledge the force of the trial court’s conclusion that under ordinary circumstances a Sub-lessee has no authority to grant a release of the original lease, such right being reserved to the original lessee. However, this proposition does not and should not hold true in instances where the sublease agreement grants such right to release either expressly or impliedly to the Sub-lessee. We construe the 1927 sublease agreement, in light of its provisions and the actions of the parties thereunder for a period in excess of 43 years, and conclude that it was clearly the intention of the parties thereto that the Sub-lessee, its successors or assigns, was granted the right thereunder to effectively release all or any part of the leased acreage. Scurlock Oil Corporation v. Getty Oil Company, 294 So.2d 810 (La.1974). To decide otherwise would lead to an absurd result which the original parties to the sublease agreement obviously never intended. As aptly noted in an article appearing at 35 Louisiana Law Review, Volume 2, page 347:

“To imagine that a lease brokerage firm which had retained a small override, thus making an ‘assignment’ a sublease, had thereby retained the power to destroy the sub-lessee’s investment, is to imagine unconscionable results ordinary people could never understand . . . ”

For the foregoing reasons we conclude that the releases executed by Mobil and Exxon, as successors of Vacuum, were valid and effectively operated to cancel the March 1927 lease insofar as said lease covers and affects the acreage described in such partial releases. Able counsel for ap-pellees argue that the language of the instruments of partial release is such that the instruments do not purport to release the lease itself or the rights of others thereunder but only the interest of Mobil and Exxon. The trial court so found. We disagree. On the date the acts of partial release were executed the Sub-lessees owned the entire lease, with all attendant rights, duties and obligations subject only to the payment of an overriding royalty to Henshaw, his heirs or assigns. As we previously concluded, one of the rights owned by Mobil-Exxon was the sole right and authority to grant a release of all or any part of the leased acreage. Obviously it was the clear intention on the part of Mobil-Exxon to grant and that of Cameron Meadows to accept a full release of the leased acreage therein described. The intention of the parties to a contract should be determined from the contract as a whole and not from the literal use of one particular word in the contract. R.C.C. Article 1950; Molero v. California Company, 145 So.2d 602 (La.App. 4th Cir. 1962); Dockson Gas Company v. S. & W. Construction Co., 12 So.2d 847 (La.App.2nd Cir. 1943).

Having concluded that the releases executed by Mobil and Exxon effectively terminated the March 1927 Cameron Meadows lease as to the acreage described therein it necessarily follows that the overriding royalty interests, insofar as this acreage is concerned, owned by the Henshaw heirs and the other defendants likewise terminated. An overriding royalty interest is an appendage of the working interest and dependent upon it. Fontenot v. Sun Oil Co., 257 La. 642, 243 So.2d 783 (La. 1971); Arkansas Fuel Oil Co. v. Gary, 227 La. 524, 79 So.2d 869 (La.1955); LSA-R.S. 31:126.

Because of our holding as set out above, we do not reach the alternative contentions advanced by Cameron Meadows and Mobil.

For the above and foregoing reasons, we affirm that part of the judgment of the trial court declaring this suit a class action and awarding H. Ward Fontenot $500.00 as attorney’s fees for representing certain absentee defendants. In all other respects the judgment of the trial court is reversed and accordingly, it is ordered, adjudged and decreed that all defendants herein have no rights, title or interest in the Cameron Meadow lease to H. M. Henshaw, dated March 21, 1927, or any overriding royalties thereunder in the acreage released which is described as follows, to-wit:

“All of Sections 19, 20 and 23; all of Section 22 below the depth of 8,341 feet; W/2 of Sections 24, 25 and 26, and all of Sections 29, 30, 31 and 32, Township 14 South, Range 13 West, La. Mer. Fractional N/2 of Section 5; NE/4, E/2 of NW/4 and NW/4 of NW/4 of Section 6, Township 15 South, Range 13 West, La. Mer. Cameron Parish, Louisiana.”

All costs are assessed to the heirs of H. M. Henshaw.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . The other defendant overriding royalty owners acquired their interest from H. M. Hen-shaw.


author: FORET, Judge.

text:
    Gayla SMITH, Plaintiff-Appellant, v. Irby HEBERT, Clerk of Court and Piggly-Wiggly Bunkie Co., Inc., Defendants-Appellees.
    No. 6045.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Nov. 4, 1977.

      J. Minos Simon and Edward J. Milligan, Lafayette, for plaintiff-appellant.
    Gravel, Roy & Burnes by T. Gerald Henderson, Alexandria, for defendants-appel-lees.
    Before HOOD, FORET and HEARD, JJ.
   FORET, Judge.

This case involves a dispute over the characterization of a certain sum of money, to-wit, $12,300. By Judgment of the Fifteenth Judicial District Court dated September 4, 1973, this particular sum of money was recognized as part of the community of acquets and gains existing between Gay-la Smith and James David Smith. The sum of $12,300 was paid to Mr. Smith as a bonus payment by his employer, Piggly-Wiggly Company of Bunkie, Inc. After much litigation contesting the community property designation of other items in the September 4, 1973, judgment, the Piggly-Wiggly Bunkie Company, Inc., filed a claim in the amount of $9,249.12 with the notary effecting the partition, Mr. Marcus Broussard, Jr. This claim represented an alleged expenditure of corporate funds belonging to Pig-gly-Wiggly Bunkie Co., Inc. to purchase certain community property items for Gayla Smith and James David Smith. The claim was listed in the proces verbal by the notary and in the Judgment of the Fifteenth Judicial District Court dated May 6, 1976, which Judgment states in pertinent part:

“. . . IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the NINE THOUSAND TWO HUNDRED FORTY-NINE AND 12/100 ($9,249.12) DOLLARS listed as a claim by Piggly-Wiggly Bunkie Co., Inc. be deposited into the Registry of Court . . .”

Despite the wording of the judgment, plaintiff filed a motion for a “Writ of Mandamus” directed to Irby Hebert, Clerk of Court, Fifteenth Judicial District Court, for issuance of one-half the amount previously ordered deposited into the Registry of Court by the May 6, 1976, judgment, representing said sum in the motion as “a portion of the hereinabove mentioned bonus payment”. Believing the allegations to be correct, the trial judge signed an ex parte order directing the payment of one-half the proceeds to the plaintiff, Gayla Smith. Despite the interest of Piggly-Wiggly Bunkie Co., Inc. in the matter, plaintiff gave no notice to Piggly-Wiggly Bunkie Co., Inc. nor to James David Smith. Upon learning of the plaintiff’s action, Piggly-Wiggly Bunkie Co., Inc., on July 7, 1976, filed a “Motion to Recall the Writ of Mandamus”, which set forth the status of Piggly-Wiggly Bunkie Co., Inc. as a community creditor and certain pertinent facts surrounding the amount in dispute. On September 7, 1976, a hearing was held in the Fifteenth Judicial District Court, at which time all parties presented arguments concerning the nature of the $9,249.12. After the hearing, the trial court took the matter under advisement and rendered judgment on September 16, 1976, recalling the Writ of Mandamus and ordering the return of the proceeds to the Registry of the Court. Plaintiff appeals, and has filed an exception of no cause of action with this Court.

Appellant Smith contends that the proceeding employed by Piggly-Wiggly herein constitutes a collateral attack upon the judgment of partition dated September 4, 1973, inasmuch as the bonus was a community asset and as appellant was a partner of that community, she was automatically and immediately entitled to one-half thereof; and further, that as Piggly-Wiggly was neither a judgment creditor nor a lien or mortgage holder, it had no right to seize the assets of the community.

The issue in this case is not whether Piggly-Wiggly is mounting a collateral attack on a partition judgment, but whether a community creditor has a right to be recognized and protected in a judgment homolo-gating a partition of community property.

Unquestionably, a community creditor has a right to be paid out of the community funds. Louisiana Civil Code Article 2403 reads as follows:

“Article 2403. In the same manner, the debts contracted during the marriage enter into the partnership or community of gains, and must be acquitted out of the common fund, whilst the debts of both husband and wife, anterior to the marriage, must be acquitted out of their own personal and individual effects.”

In Tooley v. Pennison, 250 La. 303, 195 So.2d 276 (1967), the community creditor who was not a judgment creditor or a lien-holder was recognized in the trial court as a community creditor, but was relegated by order of the trial court to pursue an individual spouse for collection of his claim. In remanding the case for payment of the claim from general assets of the community, the Louisiana Supreme Court stated:

“Debts contracted during the marriage enter into the partnership or community of gains and must be acquitted out of the community funds. La.Civil Code art. 2403. The court may not, therefore, relegate a creditor of the community to the collection of his claim against one of the spouses alone and free the community estate from the claims of community creditors. La.Civil Code art. 2409. For the same reason the Court in a judicial partition may not, as was done here, order assets of the community delivered to one of the divorced spouses free of the claims of community creditors. See Pen-nison v. Pennison, 249 La. 587, 187 So.2d 747, 751 (1966).”

Pennison v. Pennison, supra, stated:

“The wife's claim to one-half of the community is subordinate to the claims of community creditors. The creditors must be satisfied before final distribution of the assets. Fundamentally, the existence of community gains is determinable only after the community debts have been paid. LSA-C.C. Arts. 2403, 2409; Daigre v. Daigre, 230 La. 472, 89 So.2d 41; De-moruelle v. Allen, 218 La. 603, 50 So.2d 208; Tomme v. Tomme, 174 La. 123, 139 So. 901; 25 Louisiana Law Review 224-226.”

There is no indication, in the record before us, that the claim of Piggly-Wiggly has been paid, settled, dismissed, or otherwise ruled upon by a court of law. Until the claim of Piggly-Wiggly is disposed of, it remains a potential obligation of the community of acquets and gains existing between the parties. Therefore, the amount which Piggly-Wiggly claims should remain in the Registry of the Court pending final disposition thereof. See also Thompson v. Vance, 110 La. 26, 34 So. 112 (1903).

We find no merit to appellant’s argument that the proceedings filed by Piggly-Wiggly are a collateral attack upon the judgment of partition of September 4, 1973. There were two orders by which the assets of this community were partitioned, one by partition in kind and the other by partition by licitation. Each of these orders of partition involved different items of community property and are not in conflict with each other, and we conclude that the trial court properly ordered the deposit of the amount claimed by Piggly-Wiggly into the Registry of the Court, and further that the trial court was correct in recalling the writ of mandamus which it had previously issued.

The exception of no cause of action filed in this Court by plaintiff-appellant is dismissed for reasons stated above.

For the foregoing reasons, the judgment appealed from is affirmed, and all costs of this appeal are assessed against plaintiff-appellant, Gayla Smith.

AFFIRMED.

      . See Smith v. State, 311 So.2d 514 (La.App. 3Cir. 1975).


author: HOOD, Judge.

text:
    Joseph K. MESHELL, Plaintiff-Appellant, v. Phillip RIVERS and Southern Casualty Insurance Co., Defendants-Appellees.
    No. 6049.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.
    Mitchell M. Evans, Evans & Bradley, DeRidder, for plaintiff-appellant.
    H. O. Lestage, III, DeRidder, for defendants-appellees.
    Before HOOD, FORET and HEARD, JJ.
   HOOD, Judge.

This is a workmen’s compensation suit instituted by Joseph K. Meshell against Phillip Rivers and his insurer, Southern Casualty Insurance Company. The trial court rendered judgment in favor of defendants, and plaintiff appealed.

The issue presented is whether plaintiff has been disabled since the date on which the payment of workmen’s compensation benefits was discontinued.

A tree fell on plaintiff on August 6,1973, while he was working as a log cutter for defendant Phillips. As a result of that accident, he sustained injuries consisting of fractures of the left ankle, fracture of the left tibia and fibula, open fracture of the right tibia, and comminuted fracture of the right fibula. He was treated promptly by Dr. Carson R. Reed, Jr., an orthopedic surgeon, and he remained under the treatment of that doctor for a period of about one year. The treatment administered included surgery on both lower legs and hospitalization for about two weeks. Dr. Reed discharged plaintiff on August 8, 1974, as being able to return to his regular employment.

Defendants paid all of plaintiffs medical expenses, and they also paid workmen’s compensation benefits to him at the maximum rate from the date of the accident until December 14, 1975. No benefits have been paid to Meshell since the last mentioned date, however, and this suit was instituted on February 20, 1976.

The trial judge concluded that plaintiff has not been disabled since December 14, 1975, the date on which the payment of compensation benefits was discontinued, and he rendered judgment rejecting plaintiff’s demands. Plaintiff appealed, and that appeal is before us now.

Meshell was 23 years of age when the accident occurred. He had been working as a timber cutter and pulpwood hauler for about three years before he sustained the above injuries. His work required him to perform heavy manual labor. He testified that his legal now are stiff when he gets up in the mornings, and that he has to walk around a while to get relief from that stiffness. He also said that his legs pain him occasionally, and that he is not as agile as he was before the accident. He has not worked since he was discharged by Dr. Reed. He indicated, however, as we understand his testimony, that his primary reason for not working is that he can’t find a job. He stated that if he was financially able to do so he would purchase a truck now and would return to the pulpwood business. When asked if he could perform the duties of a pulpwood worker, he stated “I might could do it,’’ although he felt that it would be dangerous because he wouldn’t be able to run in the event a tree started to fall on him.

Dr. Reed, plaintiff’s treating physician, estimated that Meshell has a five percent permanent disability in his right leg, and a 10 to 15 percent disability of the left ankle. He assigned the above disability to his left ankle, however, not because of any loss of function, but solely because of the “possibility” that arthritis might develop in that ankle. He feels that the above conditions do not disable plaintiff from returning to work, and he is firm in his opinion that Meshell was able to return to heavy manual labor as a wood cutter as early as August 8, 1974, more than a year before the payment of compensation benefits were discontinued.

Dr. Heinz K. Faludi, a neurosurgeon, examined Meshell at the request of his own counsel on August 17, 1974, shortly after Dr. Reed had discharged him and while compensation benefits were being paid. The neurological examination he performed was negative as to injury or disability, but he nevertheless estimated that plaintiff had a 25 percent permanent disability of his left leg and a 20 percent disability of the right leg. He felt that plaintiff could return to heavy manual labor at that time, however, although he recommended that he not resume work as a log cutter. He stated, for instance, that:

“I thought he could do heavy type of work but I felt that we have to consider that his ankles have some loss of the springiness the ankle should have, a little limitation of the range of the ankle joint, and anything that would need running away from a falling tree would not be the best choice for him to use as a profession.”

. Dr. Faludi conceded that plaintiff’s problems were basically orthopedic in nature, and that he would “probably defer to an orthopedic opinion.”

Dr. Albert E. Dean, an orthopedic surgeon, examined plaintiff on February 5, 1975, at the suggestion of latter’s counsel, and he again examined him on May 21, 1976, at the request of defendants. He felt that plaintiff had a minimal amount of disability, his estimate being that he had a 5 to 10 percent permanent disability of the left ankle, and about a 2 to 3 percent disability of the right lower extremity. He concluded, however, that plaintiff was able to return to work as a wood cutter at the time he initially examined him, which was at least 10 months before the payment of compensation benefits was discontinued.

Finally, Dr. Ruth Jackson, an orthopedic surgeon, examined plaintiff on March 25, 1976. She concluded that Meshell had a 35 percent permanent disability of his left leg and ankle, and a 25 percent permanent disability of his right leg and ankle. She felt that plaintiff “would have difficulty performing any type of work which required a great deal of walking or that might require running.” In her opinion plaintiff is not able to return to work as a timber cutter.

We agree with the trial judge that the preponderance of the medical evidence is that plaintiff has not been disabled since December 14, 1975, when the payment of compensation benefits was discontinued.

Plaintiff argues, however, that since there is a conflict in the medical testimony, the court should consider the lay testimony in determining whether plaintiff is disabled. We agree that the lay testimony may be considered in this case. See Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975). Here, however, the lay evidence consisted of the testimony of plaintiff and his two sisters, and the trial judge did not feel that it was sufficient to overcome the preponderance of the medical evidence. We also are not impressed with the lay evidence, and find that it does not establish that plaintiff is disabled.

Applicable here is the rule that in establishing disability in a workmen’s compensation case, the testimony of a treating physician, who has had the benefit of repeated examinations and sustained observation of the injured person, is accorded greater weight than that of an equally qualified physician who has seen the claimant but once, and then solely for the purpose of litigation. Moulard v. Massman Construction Company, 209 So.2d 742 (La. App. 3 Cir. 1968).

The factual findings of the trial court are entitled to great weight, and they will not be disturbed unless found to be clearly erroneous. Cooper v. Harris, 315 So.2d 331 (La.App. 3 Cir. 1975).

Applying the above rules to the instant suit, we conclude that there is no error in the judgment of the trial court which rejects plaintiff’s demands.

The judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Anna K. TRAHAN, Individually and as Administratrix of the Succession of Harry Trahan, et al., Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 6054.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 14, 1977.

      Jerry G. Jones, Jones, Jones & Alexander, Cameron, for plaintiffs-appellants.
    Onebane, Donohoe, Bernard, Gorian, Diaz, McNamara & Abell by John G. Tori-an, II, and Robert W. Daigle, Lafayette, Plauche, Smith, Hebert & Nieset, by A. Lane Plauche, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

Harry Trahan, an employee of Evangeline Refinery Company, Inc. (Evangeline) was injured in an explosion which occurred on Evangeline’s premises on May 12, 1974. He expired a few days later as a consequence thereof.

The plaintiffs-appellants are Mr. Tra-han’s widow and major children and they filed this suit in tort for the wrongful death of Mr. Trahan against: Evangeline Refinery Company, Inc. and its liability insurer, Reliance Insurance Company; Douglas-Guardian Warehouse Corporation, alleged to be the “lessee-sub-lessee” of Evangeline’s premises upon which the decedent was working at the time of the explosion, and its liability insurer, Liberty Mutual Insurance Company; and XYZ Insurance Com--pany, alleged to be the excess insurer for the executive officers and employees of Evangeline.

Evangeline moved for summary judgment alleging that there was no genuine issue of material fact between plaintiffs and it because at the time of the accident the decedent was working in the scope and course of his employment with Evangeline, and consequently any remedies which his widow and children had was exclusively under the provisions of the Louisiana Workmen’s Compensation Act.

Subsequently the widow and minor children of the decedent entered into a compromise settlement with Evangeline and Reliance which resulted in the dismissal of this tort suit, with prejudice, against Evangeline and Reliance. The compromise agreement and the resulting dismissal reserved however to plaintiffs all rights which they may have against Douglas-Guardian and Liberty, and also reserving all rights against Evangeline and Reliance under the Louisiana Workmen’s Compensation Act.

Douglas-Guardian and Liberty then filed a motion for summary judgment based on the pleadings, answers to interrogatories, affidavits, and deposition in the record. The trial court granted summary judgment and ordered the dismissal of plaintiff’s suit against Douglas-Guardian and Liberty.

Plaintiffs have appealed the latter judgment. A review of these summary judgment documents discloses the following:

Evangeline Refining Company, Inc. is engaged in the refining of oil and various products as well as the retail distribution of gasoline. Its operation is located in Acadia Parish, Louisiana. Its premises are divided by a highway. South of the highway is located Evangeline’s tank farm. The multiple tanks at that site are used primarily for the storage of such items as crude oil, condensate, diesel fuel and jet fuel. In early 1974, in order to meet certain government specifications, Evangeline installed a filtration system on the tank farm premises. It was installed to refine J.P.-4 jet fuel. The filtration system process consisted primarily of the pumping of jet fuel from the bottom of a large tank through a filtering unit and then into the top of the same tank. A diesel tractor with a roper pump is the device used to circulate the jet fuel. The pump operates on the engine power supplied by the engine from the tractor. The entire filtration system was installed, maintained, and operated by Evangeline.

The decedent, Harry Trahan, was employed by Evangeline as a truck driver. Shortly after midnight on or about May 12, 1974, Trahan, while operating a pickup truck ran into the mechanisms at or near the filtration system pump situated on the trailer-tractor, while the filtration system was in operation. An explosion ensued, resulting in flames which engulfed Trahan and caused his ultimate demise.

One of the decedent’s duties was that of a “standby hand” to oversee the filtration operation on the night in question.

On March 16, 1965, Evangeline, in order to qualify for the purchase of crude oil from the U. S. Government, entered into two agreements with Douglas Guardian Warehouse Corporation, the purpose of which was to afford Evangeline a bonded warehouseman in the event their services were needed in issuing warehouse receipts. The first agreement, which specifically encompasses the aforementioned Evangeline tank farm, was a lease agreement pursuant to which Evangeline leased to Douglas-Guardian the specified tanks and “all pipelines, valves, compressors, motors, pumps and any and all other appurtenances to said tanks required for the filling, emptying, or maintenance thereof.” In addition, the parties entered into a warehousing agreement in connection with the so-called lease. The lease agreement specifically provided that Evangeline (lessor) was responsible for the repair and good order of the premises at its own cost and that Douglas-Guardian was not to be called on to make any repairs to the premises nor under any circumstances to be liable for any loss or damage to any goods stored in the premises.

Whenever the need arose for the issuance of bonded warehouse receipts, Kent Mitchell, an employee of Evangline, would prepare the necessary documents and certification. Presumably to protect the integrity of the warehousing agreement, Mr. Mitchell’s salary was paid by Douglas-Guardian; however, Douglas-Guardian was reimbursed by Evangeline for all salary and benefits paid to Mitchell.

Douglas-Guardian had not furnished any warehousing services or issued any warehousing receipts on the premises of Evangeline since December of 1968, nor did it have an interest or participation in the activities being conducted at the time of Mr. Trahan’s death. Douglas-Guardian did not own, was not leasing, and exercised no custody or control over the filtration system. The aforementioned lease agreement did not apply in any respect to the filtration system. Douglas-Guardian did not operate or have any part in the operations being conducted on the tank farm hereinabove referred to preceding or at the time of the death of Harry Trahan. Furthermore, Douglas-Guardian did not participate in, supervise, or control or have any financial interest in any manner in the operations being conducted by Evangeline on May 12, 1974, at the time of the death of Harry Trahan. Specifically, Kent Mitchell had no duties in connection with the tank farm at which Harry Trahan met his death, at the time of the demise or at any time immediately prior thereto, nor did he have any connection with the operations being performed at the time of Trahan’s death. Kent Mitchell’s regular employment was with Evangeline’s refining operations which are not located adjacent to or contiguous to or in any manner directly related to the tank farm. Finally, neither Douglas-Guardian nor any of its employees have entered upon Evangeline’s tank farm premises subsequent to the installation of the filtration system which was more than a month prior to the aforementioned accident date.

OPINION

Appellants suggest that the responsibility of Douglas-Guardian for the death of Harry Trahan is based:

1. On negligence under Articles 2315 and 2316 of the Louisiana Civil Code; and

2. Strict liability under Article 2317 of the Louisiana Civil Code.

Motions for summary judgment are governed by Articles 966 and 967 of our Code of Civil Procedure. Under Article 966 the summary judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. Under Article 967, when a motion for summary judgment is made and supported by the pleadings, depositions, etc., an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in the Articles, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be rendered against him.

In this summary judgment matter, the facts recited herein were established by the pleadings, affidavits, and depositions filed on behalf of Douglas-Guardian.

These facts have not been contradicted. Plaintiffs have filed nothing tending to show that there is a genuine issue for trial. In the absence of any counter affidavits it must be assumed that there is no dispute with regard to the facts set forth in the mover’s affidavits. Johnson v. Combined Insurance Company of America, 158 So.2d 63 (La.App. 1st Cir. 1963); Joiner v. Lenee, 213 So.2d 136 (La.App. 3rd Cir. 1968), writs refused, 252 La. 960, 215 So.2d 129 (1968).

It appears that appellant contends that Douglas-Guardian’s liability based on its negligence arose from its status as lessee. Liability based on negligence must be tested under Articles 2315 and 2316 of the Louisiana Civil Code. To establish a prima facie case of negligence plaintiff must prove the existence of a duty on the part of defendant and a breach of that duty. Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Hill v. Lun-din & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

Statutes are guidelines to which a court may resort to establish the proper standard of care for assigning civil liability. Wei-land v. King, 281 So.2d 688 (La.1973).

The Louisiana Civil Code Articles defining the respective rights and obligations of lessors and lessees, although not conclusive in regard to the duties of said parties to third persons, nevertheless are relevant to a determination of what those duties are.

Articles 2710, et seq. of the Louisiana Civil Code set out the obligations and rights of lessees and a review of these articles indicate that the only possible codal obligation of a lessee which would be relevant to the instant case is that of making repairs. The obligation comes under C.C. Article 2716. However, it is rather limited as indicated therein. It is difficult to perceive from the Civil Code Articles that Douglas-Guardian had a duty to the decedent that was breached.

Appellant suggests that Douglas-Guardian’s responsibility is based upon its negligence in the maintenance of the leased premises. In effect, it is urging that Douglas-Guardian breached its duty to maintain the premises. However, it is elementary that before one can be said to have breached the duty there must in fact be a duty owed by said party. The duty to maintain and keep the premises in good repair is a duty imposed on the lessor by the Civil Code. See Article 2693-2699. Furthermore, tort responsibility for losses resulting from vices and defects in the property leased is imposed on the lessor, not the lessee. See Article 2695.

Additionally, the obligations of Evangeline, as lessor, and Douglas-Guardian as lessee are further defined by the aforementioned lease agreement which, as indicated hereinabove, specifically provides that Evangeline, the lessor, was to be responsible for the repair and good order of the premises at its own cost and that Douglas-Guardian was not to be called on to make any repairs to the premises nor under any circumstances to be liable for any loss or damage to any goods stored in the premises.

Appellants suggest that the obligations and duties that exist between lessor and lessee, i.e. Evangeline and Douglas-Guardian, cannot be used to avoid liability to plaintiffs. This is not completely correct. In Weiland v. King, supra, our Supreme Court found that the obligations of a lessor under the lease in that case were very relevant in determining the duty owed by the parties to the lease to third persons. The court’s conclusion that defendant-lessor was responsible for the losses suffered by a third party was buttressed by the provisions of the lease which were cited in the court’s opinion.

Douglas-Guardian had no duty to maintain the premises. Additionally, a review of the summary judgment materials filed on behalf of Douglas-Guardian conclusively shows that Douglas-Guardian was not guilty of any fault that contributed to the accident herein. These materials indicate that no services were performed by Douglas-Guardian on the premises since December of 1968; that no employee of Douglas-Guardian took part in the installation or construction of the filtration system, that no employee of Douglas-Guardian performed any duties whatsoever on the tank farm premises subsequent to the installation of the filtration system; Douglas-Guardian had no duty to maintain the premises and had no responsibility for any defects found in the premises and absolute and total control of the tank farm premises was exercised solely and completely by Evangeline.

The relation of Douglas-Guardian to the accident is tenuous, and arises only from a “convenience” lease which allowed Evangeline, the lessor, accessibility to a bonded warehouse. As indicated above, Douglas-Guardian had no control over the operation causing the injury, and thus no duty was breached which would impose liability on it.

Concerning strict liability, appellant suggests that under Article 2317 of the Louisiana Civil Code, as interpreted by our Supreme Court in the case of Loescher v. Parr, 324 So.2d 441 (La.1975) that strict liability is applicable to the facts of this case as set out in the summary judgment. Under Loescher, one of the requirements necessary before strict liability under C.C. Article 2317 can be imposed is “that the thing that causes the damage was in the care or custody of the defendant”. Liability under C.C. Article 2317 does not depend upon ownership of the thing but rather depends upon custody at the time of the damage. Here, in the lease agreement between Evangeline and Douglas-Guardian it specifically provided that Evangeline was obligated to maintain the leased premises. Furthermore, the summary judgment materials conclusively show that Douglas-Guardian had no connection whatsoever with the leased premises at the time of the decedent’s death. And additionally the affidavits herein unequivocally show that Douglas-Guardian exercised no custody or control over the allegedly defective thing.

In view of the foregoing we affirm the judgment of the district court which granted summary judgment in favor of Douglas-Guardian and Liberty ordering plaintiffs’ suit dismissed as to them. All costs at trial and on appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . No issue is made herein of the propriety of the agreement to reimburse.