author: SARTAIN, Judge.

text:
    Clara Christine Green DONICA v. Glen I. DONICA.
    No. 10534.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 10, 1975.
    Rehearing Denied Dec. 3, 1975.

      Robert L. Raborn, Baton Rouge, for appellant.
    Patsy Jo McDowell, Baton Rouge, for appellee.
    Before LANDRY, SARTAIN and BLANCHE, JJ.
   SARTAIN, Judge.

This case comes before us on supervisory writs applied for by both parties to this divorce action and consolidated for determination.

The record before us shows that on October 24, 1974 plaintiff, Clara Donica, filed a petition for' divorce against defendant, Glen Donica, on the grounds of adultery and therein sought alimony pendente lite. Plaintiff submitted a motion, along with supporting affidavits, to proceed in forma pauperis on November 7, 1974. In judgment rendered December 2, 1974, motion to proceed in forma pauperis was denied, the trial judge finding plaintiff gainfully em-plyed earning $331.00 per month, and further, entitled to alimony pendente lite in the amount of $250.00 per month.

Plaintiff sought an increase in alimony pendente lite on January 16, 1975 alleging a change in her circumstances in that she was no longer employed. On that same date an amending and supplemental petition was filed seeking, inter alia, divorce on the basis of living separate and apart for a period of two years without reconciliation.

On January 27, 1975, judgment was rendered in favor of plaintiff granting an increase in alimony pendente lite to $500.00 per month, payable in installments of $250.00 each, on or before the 3rd and 17th of each month, beginning February 3, 1975.

Ultimately, trial on the merits of the divorce action was held and judgment was signed on April 18, 1975, granting to the parties a divorce “a vinculo matrimonii” and further decreeing that plaintiff, Clara Donica, was not without fault as envisioned by Article 160 of the Civil Code and therefore not entitled to permanent alimony. Custody of the minor child was granted to the father who was further prohibited from in any way disposing of any community property owned by him and plaintiff. The fees of the wife’s attorney were set at $750.00, to be paid out of the community.

Plaintiff’s attorney filed a motion for new trial on April 28, 1975 with the issue therein limited to attorney fees as determined by the trial judge in the divorce decree. This motion was denied and judgment to that effect signed on June 10, 1975. Plaintiff obtained an appeal order and subsequently posted a $2,000.00 bond on July 7, 1975, with plaintiff as principal and one Edwin H. White as surety.

On June 5, 1975, plaintiff filed a motion for contempt and to make alimony in ar-rearage executory alleging no alimony payments had been made since April 3, 1975. Defendant answered claiming no alimony was due based upon allegations that the judgment of April 18, 1975 was final, and even if not final, it was still the controlling judgment as it became executory on the date it was rendered under C.C.P. Art. 3943, thereby vacating the former judgment awarding alimony pendente lite.

After hearing on July 24, 1975 on the above matter, the trial judge granted the motion with respect to the alimony stating that the divorce decree itself had not yet become final and that the wife was entitled to continue receiving alimony pendente lite until final disposition of said judgment. It is to this determination that the husband now assigns error herein.

On the same date, a motion to test the appeal bond, previously filed by defendant, was heard, and after plaintiff’s own admission judgment was entered decreeing said bond inadequate and insufficient. At the same time, plaintiff requested to proceed in forma pauperis, which request was denied without an evidentiary hearing.

Plaintiff applied for writs to this court and the same were granted on July 29, 1975, claiming that unless she was allowed to proceed in forma pauperis she would be unable to pursue her appeal. Defendant’s writs were granted August 5, 1975.

We proceed first to the husband’s contention that the trial judge erred in finding that the judgment awarding alimony pendente lite remained in effect until the divorce judgment becomes final. The husband attacks this decision on two grounds. He first contends that the divorce judgment which was signed on April 18, 1975 has in fact become final insofar as all provisions contained therein except on the issue of plaintiff’s attorney’s fees. He contends that since a new trial by plaintiff’s attorney was requested and spé-cifically limited to the issue of attorney fees, then the delays for the appeal of all other issues in the judgment began to run from the date of the expiration of delays for seeking a new trial on these issues. In other words, he argues that only the issue of attorney fees was held in abeyance pending the court’s consideration of that issue. This same argument was confronted by the Louisiana Supreme Court in Thurman v. Star Electric Supply, Inc., 283 So.2d 212 (1973) wherein the court stated:

“It is true that the implication from reading C.C.P. 1971 alone seems to be that if a new trial is granted on one issue (for example, liability under C.C. art. 2315), the judgment on other issues (quantum, etc.) might become ‘final’ unless the judge orders ‘the judgment . held in abeyance . . .’ This implication of the literal provisions of C.C.P. 1971 is simply not workable— another example of the injury suffered by the practice and procedure of this State when provisions of the federal rules are wedged into the Code of Civil Procedure.”

Thus, under the circumstances of this case, the application for new trial on the issue of attorney fees prevented judgment on the other issues from becoming final.

Defendant’s second contention is that the divorce decree became executory pursuant to C.C.P. Art. 3943 which states:

Art. 3943. Appeal from judgment awarding custody or alimony
An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.

In the case of Derussy v. Derussy, 173 So.2d 544 (La.App. 4th Cir., 1965) it was held that the above article prevents suspensive appeals in cases awarding alimony but did not relate to appeals from alimony judgment which deny or terminate alimony. The court there noted that this was in line with the policy of preventing a wife from being deprived of necessary support during the pendency of an appeal.

The Louisiana Supreme Court, in Malone v. Malone, 282 So.2d 119 (1973) was faced with determining the applicable delay within which to appeal a judgment which did not award alimony, whether said delay should be thirty days (C.C.P. 3943) or ninety days (C.C.P. 2087). The court noted the varying results reached by the appellate courts citing Derussy, supra, as an example of one of those cases which found that judgments which either terminate or deny alimony are not governed by C.C.P. 3943. The court then stated:

“Such confusion could not have been intended by our legislature. The uniform treatment of judgments relating to alimony or custody seems to have been intended. Such treatment would not subvert the purpose of C.C.P. 3943, but would eliminate the unnecessary confusion caused by that article. Strong reason supports the policy of expediting appeals in alimony and custody matters.
“Therefore, we hold that appeals from judgments awarding, denying, modifying or terminating alimony or custody are governed by the provisions of C.C.P. 3943.”

Thus, we are compelled to conclude, even though the wife’s support pending appeal will be terminated, that the final divorce decree denying the wife permanent alimony is governed by C.C.P. 3943 and its effect as it “relates to” alimony “shall not” be suspended.

Argument could be made that the rule enunciated in Malone, supra, is limited only to the determination of applicable delays for appealing judgment relating to alimony and did not address itself to whether or not judgments denying alimony may actually be appealed in a manner so as to suspend their effects. However, since De-russy was noted with disapproval as a part of the jurisprudential confusion, and that case dealt only with the validity vel non of suspending the effect of a judgment denying alimony, we conclude the principal of Derussy is overruled.

Accordingly, the trial judge erred in ordering the defendant husband to continue paying alimony pending the wife’s appeal, as the divorce judgment insofar as it related to custody and alimony and which judgment terminated the wife’s alimony became executory at the time it was rendered.

We turn now to the wife’s contention that she be allowed by this court to proceed in forma pauperis.

The chronology of events pertinent to a resolution of this issue may be briefly stated to be: The judgment of divorce was signed on April 18, 1975. Plaintiff timely filed a motion for a new trial which was limited to the amount of attorney’s fees awarded to her counsel in the sum of $750.00, which was claimed to be grossly inadequate. Judgment denying her a new trial was signed on June 10, 1975. On June 19, 1975, she applied for and obtained an order for a devolutive appeal. On July 7, 1975 she posted bond in the amount of $2,000.00 listing herself as principal and one Edwin H. White as surety. On July 16, 1975, defendant filed a motion to test the inadequacy of the surety. This matter was heard on July 24, 1975, at which time plaintiff stipulated that Mr. White did not possess sufficient assets to satisfy the surety requirement of $2,000.00. No further explanation was given and Mr. White was not called to testify, though the burden rests with plaintiff-appellant to show that at the time Mr. White was listed as surety he was qualified to do so.

It was on this date (July 24, 1975) that plaintiff filed a motion to permit her to prosecute this appeal in forma pauperis. For reasons hereinafter stated we are of the opinion that this motion is untimely.

We must concur with the ruling of the trial judge that plaintiff-appellant had ample time in which to again petition the court for the privilege of proceeding under C.C.P. Art. 5181, which dispenses with the necessity of furnishing bond or advancing costs on the part of indigent persons.

The delays for perfecting an appeal from the judgment signed on April 18, 1975, commenced to run on June 11, 1975, the day following the date the application for a new trial was denied, and expired on July 10, 1975, C.C.P. Art. 3942. Plaintiff did not file a motion to proceed in forma pauperis until July 24, 1975 and therefore her request is untimely.

The timely filing of a bond or obtaining an order to proceed in forma pau-peris is essential to the perfection of an appeal and relate directly to the question of jurisdiction and must be strictly complied with.

Assuming, arguendo, that plaintiff’s circumstances were such that at any time between June 10, 1975 and July 10, 1975, the period afforded her to perfect an appeal, she was entitled to proceed in forma pau-peris, it behooved her to petition the court to do so. Having failed in this regard and having elected to perfect her appeal by the furnishing of security she must comply with the provisions of C.C.P. Art. 5124 which grants her an additional four days, exclusive of legal holidays, following the rendition of a judgment holding the bond insufficient or invalid to furnish new security.

We fully recognize that appeals are favored in law. However, we know of no procedure (and none has been cited) that permits a pauper order to be substituted in lieu of a surety bond after the delays for perfecting an appeal have expired. The privilege to proceed under C.C.P. Art. 5181 is one that all indigent litigants should have every reasonable opportunity to avail themselves. But it must be done within the appropriate delays and can not be used as a means to extend, either intentionally or by result, the delays for perfecting an appeal. There is but one exception that we know of whereby an insufficient bond may be corrected and those are the four days permitted under C.C.P. Arts. 5124 and 5126.

Accordingly, the writ on behalf of the defendant, Glen I. Donica, is made peremptory and that portion of the judgment of the trial court read, rendered and signed on the 19th day of June, 1975, condemning defendant to pay the plaintiff alimony during the pendency of plaintiff’s appeal is hereby recalled, vacated and set aside.

Further, for reasons hereinabove stated, the writ on behalf of the plaintiff, Clara Christine Green Donica, objecting to the order of the trial court dated July 24, 1975 denying her the privilege of proceeding in forma pauperis is recalled and vacated.

The costs of these writs are assessed against the plaintiff, Clara Christine Green Donica. This matter is remanded to the trial court to afford plaintiff the opportunity to furnish new security within the delays permitted under C.C.P. Art. 5124.

Writ on relation of Glen I. Donica made peremptory, writ on relation of Clara Christine Green Donica recalled and vacated and remanded.

      . Plaintiff has only two days remaining from the effective date of this judgment to furnish the new security as two days lapsed between the date of the judgment of the trial court and her application for and our granting of writs by this court.


source: Caselaw Access Project

author: HUMPHRIES, Judge.

license: Public Domain

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Jessie SMITH, Defendant-Appellant.
    No. 5289.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Richard N. Ware, Natchitoches, for defendant-appellant.
    Jack C. Frugé, Ville Platte, and D. Ross Banister, Wm. W. Irwin, Jr., Johnie E. Branch, Jr., Baton Rouge, for plaintiff-ap-pellee.
    Before MILLER, HUMPHRIES and PETERS, JJ.
   HUMPHRIES, Judge.

This is an action by the State of Louisiana through the Department of Highways to expropriate a piece of property located in a rural section of Natchitoches Parish. This action is brought under the provisions of R.S. 48:441 et seq. Suit was filed on April 9, 1974. Trial was held on January 15, 1975. Judgment was rendered by the trial judge on March 13, 1975 and a formal judgment was signed on April 18, 1975.

The trial judge found that the $1,800 deposited by the Department of Highways was adequate compensation to the landowner and denied an increase for the value of the land or any severance damage. We affirm.

The property is located on a rural state road designated as La. 480. This road runs in a northwest-southeast direction. The right of way for this road is 40 feet. The property is located approximately 3 miles northwest of Campti, Louisiana. Campti, Louisiana is located on U. S. Hwy. 71. The defendant-appellant acquired this property in two separate purchases of one-half interest each on October 6, 1971 and October 19, 1971. The total acreage of the property is just over 5 acres. This taking is 1.27 acres.

The subject property is triangular in shape. .The base of the triangle abuts the right of way of La. 480 a distance of 1,043 feet. The northern side of the triangle measures 739 feet and the eastern side measures 636 feet. The distance from the apex to the base is approximately 450 feet. The taking is a strip of land running from the apex of the triangle to its base. The width of the taking varies from 220 feet on Hwy. 480 to approximately 130 feet throughout a greater portion of the taking and then widening out at the apex. After the taking the landowner is left with two triangular shaped pieces of property. The triangle to the north of the taking is 2.1 acres and the triangle to the south of the taking is 1.7 acres.

While the trial judge did not hand down written reasons for judgment, it is obvious that he accepted the testimony of the appraiser called by the Department of Highways, Mr. P. E. Futrell, Jr., over the testimony of the two appraisers called by the landowner, Mr. T. J. Stevens and Mr. Frank Crippen, Jr.

Defendant argues two major points for reversal. He contends that the trial judge was in error in accepting the testimony of Mr. Futrell because Mr. Futrell was not located in Natchitoches Parish. He also contends that the value found by the trial judge was in error because directly across La. 480 and the railroad track that parallels it, is the paper mill of Western Kraft.

In some cases the testimony of a local appraiser may be entitled to more weight than one who does not live in the vicinity of the taking. We observe that in this case this property is in an extreme rural area of Natchitoches Parish and there was no showing that either of the appraisers for the landowner were active in real estate business in this particular area. We must also observe that Mr. Futrell is from Rapides Parish, which adjoins Natchitoch-es Parish. There was no attempt to show that Mr. Futrell was not familiar with land values in Natchitoches Parish, even though he didn’t engage in the real estate brokerage there. On the contrary, the evidence is that he is quite familiar with land values in Natchitoches Parish. At the commencement of the trial when the attorney for the Department of Highways sought to lay the foundation to qualify Mr. Futrell as an expert he was interrupted by the trial judge who stated:

“I don’t want to cut you short, but Mr. - Futrell has been qualified numerous times in this court and I would be willing to accept him on the basis of what I already know about him.”

With regard to the argument that the trial judge was in error because this subject property was located across the highway from a paper mill, we observe that apparently the trial judge did take this into consideration. Certainly the appraiser for the Department of Highways took it into consideration. The value placed on the property by the appraiser for the Department of Highways was $1,000 per acre. The landowner had acquired the property about 2 and years before the filing of this suit and paid $600 per acre.

It is understandable why the trial judge did not accept the testimony of Mr. Stevens as the other sales that he used were not truly comparables. He used three sales, one of which was in Campti, Louisiana and the other two were in Clarence, Louisiana. He valued the subject property on a front foot basis as it ran along La. 480. He computed the “comparables” on a front foot basis likewise. His sale number 1 sold for a price of $63.61 a front foot. He adjusted this comparable downward $13.61 per front foot and arrived at a $50.-00 front foot for the subject property. His sale number 2 sold in 1970 for $63.33 a front foot. Because of the time element he adjusted this comparable up to $75.00 a front foot and because of its superior location downgraded the subject property by $25.00 a front foot and again arrived at a figure of $50.00 a front foot for the subject property. The third sale was in 1972 and reflected a sales price of $95.00 a front foot. He downgraded the subject property by $45.00 “due to circumstances surrounding the sale, its location and superior desireability to subject property.” After this adjustment again he concluded that the subject property had a value of $50.00 a front foot. It should be noted that there is no explanation in the record as to how he arrived at these exact figures for adjustments. He merely stated that these adjustments were made because of time, surrounding circumstances or because of location.

This witness’ testimony reflects quite clearly that the sales that he used were not comparables. It was not explained why he went so far away from the subject property to seek for “comparables” when there were numerous sales in the area of the subject property.

The conclusions of the landowner’s other appraiser are just as difficult of understanding. He used three comparable sales to establish value. These sales were located in the vicinity of the subject property. The manipulations that this appraiser went through in converting acreage sales to front foot values can not be followed. On cross-examination this witness could not explain his adjustments because he had lost his file that contained his work up. Any expert is required to give reasons for his opinion. A lost file is not a valid substitute.

His comparable sale number 1 was on lyiarch 13, 1974 and was from Landford, et al to Western Kraft. It consisted of 14 acres and sold for $1,500 per acre. This land adjoined the land already owned by Western Kraft and is located across the highway from the subject property. If Western Kraft is to influence the market price of land certainly the greatest influence would be to land located nearest to its property. His comparable sale number 2 was on July 17, 1974. This was only 3 months after the filing of this suit. This land was similar in shape to the subject property, it was 5.87 acres of land, and in close proximity to the subject property and also fronted on Hwy. 480. This land sold for $766.61 per acre. This appraiser, in his brochure, stated that he gave more weight to this comparable because of its “similarity in shape and size to the subject property, and its close proximity, and the fact that it also fronts on Hwy. 480.” His comparable sale number 3 was on July 15, 1974. This sale was of 9 acres of land that sold for $400.00 per acre. In his brochure, he stated that this property was “reasonably close and bears a resemblance to the subject property.” This appraiser used the three above discussed sales and came to the conclusion that the subject property which consisted of 1.27 acres of land had a value of $11,443.50. As a matter of fact he placed a value of $900 on one acre of the property and $10,543.50 on the 0.27 acres.

Based upon the comparables used by Mr. Crippen the trial judge was more than fair in awarding $1,800 to the landowner.

Mr. Futrell discussed six comparables in his appraisal brochure and testimony. Two of his comparables were number 1 and number 2 of Mr. Crippen’s. Mr. Fu-trell found the value of the Smith property to be $1,000 per acre. For the amount of land taken this would give an award to the landowner of $1,270.00. Mr. Futrell allowed the sum of $30.00 for the little timber that was on the property taken as well as $30.00 for an old fence that was on the property. Also located on the property was an old, frame dilapidated house that was no longer being used. Mr. Crippen and Mr. Stevens saw this house and gave it no value at all. Mr. Futrell did not see the house as it had been removed by the time that he made his appraisal. Presumably, out of precaution, and in fairness to the landowner, he gave a value of $500 for the house. We find that the house had no value. The Highway Department did not appeal or answer the appeal and therefore the judgment can not be adjusted downward.

In addition to the two comparables mentioned above, Mr. Futrell used the sales whereby the defendant acquired the property. He also used a sale of property located about a mile from the subject property that was 40 acres in size and sold in 1973 at an average of $352.50 per acre. Another comparable that he used was a sale in May of 1973 of 16.51 acres of land at an average of $1,000 per acre. This property is located across the highway from the subject property and very near the subject property and is the property commonly referred to as the chip mill site. From the evidence, this chip mill was apparently erected to accommodate, compliment or be a source of supply for the Western Kraft paper mill.

A review of the history of the sales to Western Kraft will reveal that the value placed on the subject property by the trial judge takes into consideration this industrial improvement. The first purchase of land by Western Kraft was in November of 1972. It bought 205 acres of land at a price of $375 per acre. In August of 1973 it bought 55 more acres of land at a price of $375 per acre. In March of 1974 it purchased 14 acres and paid $1,500 an acre. This sale was discussed above. Pre-termitting any consideration of the old house but including the value given by Mr. Futrell of the small bit of timber and the old fence (neither of which do we consider to have any additional value) the award made to the landowner for his property is equal to $1,370 per acre.

Mr. Futrell considered, but did not find that any severance damage resulted. Mr. Crippen did not give any consideration to any severance damage. Mr. Stevens found severance damage but because of the rejection by the trial judge and this court of his opinion, we must find that the landowner has failed to prove that he suffered any severance damage.

If there is evidence in the record to support the judgment of the trial judge then the Court of Appeal must affirm that judgment. Canter v. Koehring Company, 283 So.2d 716 (La., Sup.Ct.1973). Not only is there some evidence to support the judgment of the lower court but the preponderance of the evidence supports his judgment.

For the above reasons, the judgment appealed from is affirmed. Defendant-appellant is cast for all costs in both courts.

Affirmed.


author: LEMMON, Judge. PER CURIAM.

text:
    Dianne Terrance Casimere, widow of Thomas CASIMERE v. RYDER TRUCK RENTAL, INC., et al.
    No. 7088.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearings Denied Jan. 13, 1976.
    Writ Refused March 12, 1976.

      See also La.App., 324 So.2d 865.

      Wiedemann & Fransen, Lawrence D. Wiedemann, Matthew Belin, New Orleans, for plaintiff-appellee, Dianne Terrance Casimere, Widow of Thomas Casimere.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, HI, New Orleans, for defendant-appellant Coca-Cola Bottling Co. of Louisiana, Ltd.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

Coca-Cola Bottling Company of Louisiana, Ltd. has appealed from judgments following a jury verdict in these two consolidated cases arising from a vehicular accident. The plaintiff in each case answered the appeal, seeking an increase in the award.

LIABILITY

The collision between an automobile and a left-turning tractor-trailer unit occurred about 7:30 p. m. on November 10, 1970 at the intersection of Claiborne Avenue and Earhart Boulevard in the City of New Orleans. Mrs. Walterine Jasper (plaintiff in Suit No. 7089) La.App., 324 So.2d 865 and Thomas Casimere (whose widow is the plaintiff in Suit No. 7088) were passengers in the automobile driven by Obry Henderson. Casimere, Henderson and others were killed in the crash, which Mrs. Jasper survived. Coca-Cola’s employee was driving the truck in the course of his employment.

Prior to the collision the automobile was .traveling east and the truck was traveling west on Earhart Boulevard. The collision occurred when the truck attempted a left turn onto Claiborne Avenue. The configuration of the intersection and the position of the vehicles after impact are shown ,on the following scale diagram (which exhibit is annotated with information established by other evidence in the record):

The five-axle truck unit was 52 feet in overall length. The 40-foot trailer was 12i/¿ fet high, weighed 25,000 pounds and was carrying an additional 46,000 pounds of cargo. The car ran under the trailer at impact.

In answering special interrogatories, the jury found that the accident was caused by the combined negligence of the truck driver and of Henderson and that neither Casi-mere nor Mrs. Jasper assumed the risk. We discuss separately the issues as to negligence of Coca-Cola’s driver, negligence of Henderson, and assumption of risk by Casimere and Mrs. Jasper.

Negligence of Coca-Cola’s Driver

A motorist is prohibited from executing a left turn at an intersection until the movement can be made with reasonable safety. R.S. 32:104, 122; New Orleans City Code, 1956, § 38-76. Since the movement involves crossing the flow of right of way traffic, a high standard of care is required of the left-turning motorist.

The truck driver testified: He brought his unit to a complete stop in order to allow oncoming traffic to clear. He then commenced his turn because the nearest additional oncoming traffic consisted of three cars traveling at a normal rate of speed about two blocks or 800 feet away. He had attained a speed of five or six miles per hour when struck. He admitted that Earhart Boulevard in the area of the approaching traffic was straight and very well lighted and that the weather was clear and dry.

An off-duty deputy sheriff witnessed the accident from a position behind the truck and testified that the truck, without stopping or braking, made the turn between five and ten miles per hour by cutting the corner and rolling over the curb. The screeching of brakes called his attention to the car, whose speed he estimated between 55 and 70 miles per hour. The posted speed limit was 35 miles per hour.

Other evidence established that the left rear tire of the car left a skid mark for 286 feet before the point of impact, beginning just on the neutral ground side of the dashed line which divided the two traffic lanes and continuing gradually to the left in a relatively straight line until the car reached the position shown at impact.

Three experts in accident; reconstruction, after observing the accident location and being supplied with photographs and certain facts, related their conclusions as to the events leading up to the accident. A consensus of their opinions, based primarily on physical factors, established that the Henderson vehicle was traveling about 35 miles per hour at the time of impact. The experts then worked backward from the assumed impact speed to determine the car’s speed at various points prior to impact.

All experts agreed that Henderson’s braking system malfunctioned and that the left rear wheel locked. Since a locked wheel produces 100% braking efficiency, the overall efficiency of the four wheels was at least 25%. While the experts disagreed as to the efficiency of the other wheels, the most credible testimony based on logical physics is that since the caí did not yaw or spin abruptly to the left on the locked left rear wheel, the right rear wheel brake must have performed at relatively high efficiency and produced some balance in the braking process. Furthermore, some minimum efficiency must be assigned to the metal on metal friction developed in the two front wheels. Therefore, we consider the 50% minimum braking efficiency factor used by two experts to be reasonable in the light of the evidence.

A rounded drag factor of 0.8 for the surface of Earhart Boulevard represents a’ consensus of expert opinion.

By use of these estimated factors (impact speed of 35, braking efficiency of 50%, and drag factor of 0.8) and the known length of skid marks (286 feet), one can calculate that the car was traveling at 68 miles per hour just before the wheel began to leave marks on the road. One can further calculate that the car was approximately 343 feet from the point of impact at the earliest point the driver recognized the need to apply his brakes (286 feet of braking, plus 75 feet traveled at 68 miles per hour, or 100 feet per second, during the minimum reaction time of of 2 second). Of course, these calculations do not reflect whether the driver recognized danger as soon as it was observable, but since the car’s speed presumably was steady for some period prior to braking, one can calculate the location of the car at various points in time for several seconds before the collision.

To recreate the relative positions of both vehicles at these various points in time prior to impact, the two experts presented by defendants also estimated the turning speed of the tractor from various physical factors, including the limitations of a vehicle that size in executing a 90-degree turn in that particular intersection. Both experts assumed the truck slowed, but did not stop, to execute the turn. We deem acceptable these experts’ estimate of a turning speed of five to ten miles per hour, the same speed range estimated by the eyewitness.

Both of these experts calculated the total turning distance,.required for that particular truck, between the beginning point of the turn and the point of impact, and further calculated the time required for the truck to travel between those two points at an assumed speed. Then, working backward, they calculated the position of the car at the point in time when the truck began its turn. Using an assumed average turning speed of five miles per hour, one expert calculated that the car was 906 feet from the intersection when the truck began its turn.

Coca-Cola argues that if the car was over 900 feet from the intersection when the truck driver began his turn, its driver was reasonable (and therefore not negligent) in commencing his turn when he did, particularly since a car traveling at or below the speed limit of 35 would require at least 18 seconds to reach the intersection at that speed. However, that argument fails because the experts’ calculations were based on a false premise.

Both experts used the following position of the truck as the beginning point of the turn:

Obviously, a truck reaching the point shown above can still stop before interfering with the right of way of eastbound traffic. It is not until the point at which a left-turning vehicle enters the path of crossing traffic that danger attaches to the maneuver, and therefore it is the instant before this point is reached that the reasonableness of the maneuver must be measured.

We conclude that the pertinent distance of the car from the intersection should have been calculated when the truck was at or slightly past the following position in its turn:

This is also the approximate position at which oncoming traffic would be alerted that the truck was not going to yield the right of way.

The distance between the point marked “X” and the point where the front of the truck was located at time of impact is 40 feet. A vehicle will travel 40 feet in 5.7 seconds at five miles per hour. As will be seen by the calculations discussed earlier (using certain reasonably estimated factors), the car skidded for 3.8 seconds, and the distance traveled in another two seconds at 68 miles per hour would be 200 feet. Thus, if the truck traveled the distance between the two points at five miles per hour, the car was only 468 feet from the intersection when the truck was located at point “X”. Furthermore, since the position shown in Figure III is approximately six feet (in a straight line) before point “X”, one can calculate that the car at its initial speed of 68 miles per hour was 548 feet from the intersection when the truck traveling at five miles per hour was located in the position shown.

Plaintiff’s reconstruction expert conducted visibility tests at the intersection on an overcast night and testified that he could readily identify even an unlighted car at 750 feet and could judge speeds of lighted cars at approximately the same distance. Inasmuch as the record overwhelmingly established the area was well lit on the clear night of the accident, we conclude that Coca-Cola’s driver should have seen the oncoming car and recognized the danger of entering the road in its path. We note in this regard the testimony of one of Coca-Cola’s experts that when the truck was in the position shown in Figure III (if traveling at seven miles per hour), the driver of the car was just beginning to react to a stimulus he understood to require some action.

Coca-Cola further argues that its driver was entitled to believe Henderson was traveling within the legal speed limit and that an automobile traveling at 35 miles per hour can be stopped with normal brakes and normal reaction time in less than 100 feet. The argument as to stopping distance is more pertinent to .the determination of Henderson’s negligence. The pertinent inquiry in determining Coca-Cola’s driver’s negligence is not whether Henderson could have executed an emergency stop if he had been driving safely, but whether Coca-Cola’s driver could safely negotiate the turn when he did without causing observable motorists (approaching with the right of way) to execute an emergency stop.

As to any right to assume other motorists will obey the law, this right flows to right of way motorists and lessens their duty of lookout at intersections. On the contrary, a greater duty of look-out is imposed on left-turning motorists.

The Coca-Cola’s driver’s conduct must be judged by the actual circumstances surrounding the execution of the turn, including obvious substandard behavior by other motorists. A driver cannot execute a left turn across oncoming right of way traffic and then absolve himself from liability on the grounds that the readily observable motorist (approaching with the right of way) was exceeding the speed limit, or was inattentive, or had defective brakes. The pertinent determination is whether it was reasonable for the left-turning driver to proceed in the light of circumstances he should have observed in exercising the high degree of care required for this maneuver. We conclude on this record that Coca-Cola’s driver should have observed Henderson’s speeding vehicle approaching and should not have commenced the turn when it obviously was unsafe to do so.

Henderson’s Negligence

The record clearly supports the jury’s finding that Henderson’s negligence was a legal cause of the accident. While plaintiff asserts error in allowing evidence as to legal presumptions of intoxication under R.S. 32:662 (which by its terms is inadmissible in civil proceedings), and in reading that statute as part of the jury charge, we conclude (without considering intoxication or its effect on reaction) that Henderson could certainly have prevented the accident if he had been traveling at the legal speed and had maintained his braking system in a safe condition. Since there was no evidence to support a contrary conclusion, we would have been compelled to reverse the jury finding if that body had absolved Henderson of negligence. Therefore, irrespective of evidentiary error, we hold Henderson’s negligence was a legal cause of the accident.

Assumption of Risk

Blood alcohol tests performed by the coroner’s staff yielded results of 0.13 and 0.07 for Henderson and Casimere respectively. Testimony by a pathologist further established that a man of Henderson’s size would have to consume seven to nine ounces of 85 proof whiskey (or equivalent beverage) within an hour before his death in order to obtain a level of 0.13. However, the pathologist pointed out that because of differing reactions between individuals to that amount of alcohol, “it would be a difficult judgment to make as to whether or not he had or had not been drinking just by casual observation.”

Henderson’s mother and brother testified that Henderson and Casimere were at the Henderson home from 3:15 to 6:00 p. m., had no alcohol to drink, and in fact had a meatball and spaghetti supper just before leaving. Mrs. Jasper testified she met Henderson, Casimere and two other men at a barbershop around the corner from Henderson’s home (which was also near her mother’s home), and that none of the men seemed to be intoxicated, although she did see one of the other men throw away a wine bottle. Those two men were to help her move the next day, and she left that location with them in Henderson's car to make arrangements for a truck. She remembered nothing thereafter. Her mother testified that the group left her home about a half hour before she learned of the accident.

A passenger assumes the risk of accidents resulting from drunk driving if the passenger knew or should have known that the driver’s ability was materially impaired by the intoxicants and nevertheless voluntarily rode with him, and if the alcohol-induced impairment substantially contributed to the driver’s negligence. Marcotte v. Travelers Ins. Co., 258 La. 989, 249 So.2d 105 (1971).

The party relying on assumption of risk has the burden of proving the defense. In this case the bare evidence as to Henderson’s blood alcohol level established only that he may have given indications of alcohol-induced impairment. All witnesses denied he gave such indications. And the evidence accepted by us as to time, speed and distances, pertaining to reconstruction of the accident, indicates that Henderson’s reaction time was satisfactory.

A contrary conclusion by the jury would perhaps be supportable by reasonable inferences from the evidence in this record, but we cannot say that the conclusion the jury did reach was manifestly erroneous. Accordingly, we affirm the judgment as to liability in each of the consolidated cases.

QUANTUM

At the time of his death on November 10, 1970, Casimere was 23 years old. At the time of trial three years later, his life expectancy would have been 44 years and his work-life expectancy, 36 years.

Mr. and Mrs. Casimere were high school sweethearts in 1967, became engaged in 1968, and were married in June, 1969, several months after Casimere entered military service. He left for Viet Nam shortly after their marriage, but returned to Fort Polk, Louisiana later that year after being wounded. Mrs. Casimere joined her husband at Fort Polk in November, 1969 and stayed there until late September, 1970, when she stated she returned to New Orleans to find an apartment and to seek employment in anticipation of her husband’s discharge from the service the following January. She further testified that her husband thereafter visited her - on every weekend that he wasn’t on duty.

Mrs. Casimere’s grandmother (with whom Mrs. Casimere lived all her life and upon returning to New Orleans from Fort Polk) verified the happy relationship enjoyed by the couple.

As to loss of support, an expert in actuarial science computed a loss of earnings between the date of Casimere’s death and the date of trial to be $14,290.00 based on his military earnings as of the time he died. Using the military earnings of a serviceman of equivalent rank, computed as of time of trial, and using an interest factor of 5% and an inflation factor of 2%, the expert calculated that a fund of $186,400.00 would be required to yield that amount of monthly earnings over 36 years, at which time the fund would be entirely exhausted.

On the other , hand, Coca-Cola attempted to show that the Casimeres were somewhat estranged, by implication from evidence that Casimere had been in New Orleans from at least 3:15 until his death at 7:30 p. m. without seeing or calling his wife, that he was in the company of two young women when killed and had drunk some alcohol that evening, and that Mrs. Casimere had not actively searched for an apartment or a job during the six weeks after she had returned to New Orleans allegedly for that purpose.

The jury award of $100,000.00 appears on its face to be meager in consideration of a reasonably anticipated loss of 44 years of marital happiness and 36 years of financial support. Nevertheless, much discretion is left to the judge or jury in assessing tort damages. C.C. art. 1934(3). We are simply unable to say that the jury abused its discretion if it accepted Coca-Cola’s circumstantial evidence bearing on the relationship between the spouses at time of death and the reasonableness of Mrs. Casimere’s expectations over the indicated period of time.

We also reject Coca-Cola’s contention that the award was excessive.

CREDIT

Coca-Cola seeks credit against the judgment in the amount each plaintiff received in the interpleader action filed by Henderson’s insurer.

Henderson’s liability technically was not before the court in this case. Nevertheless, the Federal court order, authorizing both plaintiffs (represented by counsel) to withdraw a specified amount of the deposited funds, was introduced into the record prior to the dismissal of Henderson and his insurer, as of non-suit. Those funds were made available to plaintiffs in partial payment of their damages sustained in the accident which this record shows was caused by joint tortfeasors. Since any claim by Coca-Cola against Henderson for contribution would be subject to a credit for these funds, and since plaintiffs received certain amounts of these funds, justice and judicial efficiency require that the amounts received by each plaintiff be credited against the total liability of Coca-Cola.

The judgment in Suit No. 7088 is amended to allow a credit of $2,000.00 against the total amount of the judgment. As amended, the judgment is affirmed.

Amended and affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing Coca-Cola argues persuasively that the low awards indicate the jury rendered a compromise verdict and that it is unfair for us to rely on the jury’s verdict as to liability while setting aside the verdict as to quantum. Coca-Cola therefore contends that when a jury has abused its discretion in some respect, the entire verdict should be set aside.

Perhaps the jury did apply comparative negligence in order to achieve fairness. The low awards, however, only suggest, but do not establish, this conclusion. Often a jury returns low (or high) verdicts when liability is stipulated.

It is necessary for an appellate court in tort cases to review liability and quantum separately (at least until comparative negligence is adopted in the state). The reviewing court may therefore affirm a judgment as to liability by according substantial weight to the jury’s apparent findings of fact, while setting aside the same jury’s findings as to quantum (if the record justifies the latter result).

The application is denied.

Denied.

      . Obry Henderson and his insurer were named defendants in Suit No. 7088. Prior to trial, these defendants were dismissed as of non-suit, pursuant to an order issued by the United States District Court in an interpleader action filed by the insurer. '
      Henderson and his insurer were not named as either defendants or third party defendants in Suit No. 7089, La.App., 324 So.2d 865.

      . Two estimated 35 to 40 miles per hour; the third estimated between 30 and 50 miles per hour.

      . A slower reaction time would have increased the distance traveled during reaction.

      .Because the evidence indicates the truck driver did not stop before turning, we disregard his statement as to the six mile per hour maximum speed in the low gear he claimed he shifted to after stopping.

      . The turning time for the truck (more than 80 feet at 5 miles per hour) was 10 seconds. During the same 10 seconds the car skidded for 3.8 seconds (286 feet at 52 miles per hour, the average between the impact speed of 35 and the traveling speed before braking of 68). During the remaining 6.2 seconds (10-3.8), the car traveled an additional 620 feet at 68 miles per hour, or 100 feet per second. The figure of 906 feet is the sum of 286 and 620.

      . We note, but place little emphasis on, the fact that Coca-Cola’s driver was nearsighted and restricted to driving with corrective glasses and that plaintiff’s expert (who assisted in the police investigation) looked for and did not find glasses on the driver’s person or in his truck, thus somewhat contradicting the driver’s claim he was wearing his glasses while driving. Whether or. not the driver was wearing glasses, he should have clearly seen the car approaching at the distance indicated.

      . This expert (who prepared the diagrams) assigned a two-second reaction time because of a motorist’s slowness in comprehending at night the situation of lights turning in front of him and because of other evidence that Henderson had consumed some alcohol, which decreases perception.

      . Because Henderson was dismissed as of non-suit, this issue was not precisely before the court. Nevertheless, in order to make the holdings to be discussed later, we here discuss that express jury finding.

      .The preponderance of the evidence established that the sampling and testing were properly performed, despite plaintiff’s argument to the contrary.

      . Mrs. Jasper’s sister accompanied them on the trip and was killed in the accident. Her blood alcohol test result was negative.

      . This calculation did not consider the fact that income taxes must be paid on these earnings or the fact that the earnings supported both husband and wife.

      . Evidence as to a widow’s pension and as to Mrs. Casimere’s dating after her husband’s death were properly excluded from jury consideration.


text:
    Walterine Pilart JASPER and Rose Marie Pilart v. COCA-COLA BOTTLING COMPANY OF LOUISIANA, LTD., et al.
    No. 7089.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied Jan. 13, 1976.
    Writ Refused March 12, 1976.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., New Orleans, for plaintiff-appellee, Walterine Pilart Jasper.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for defendant-appellant, Coca-Cola Bottling Company of Louisiana, Ltd.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

For the reasons assigned in No. 7088, Casimere v. Ryder Truck Rental, Inc., 324 So.2d 855, decided this date, we affirm the judgment of trial court as to liability.

QUANTUM

Mrs. Jasper, 20 years old at the time of the November 10, 1970 accident, sustained an open compound fracture of the tibia, a fracture of the humerus, a large laceration of the scalp, and general lacerations and contusions. Principally because of the seriousness of the leg fracture and the circumferential laceration (% of the way around her leg), she was kept in the hospital until December 14, at which time she was discharged to outpatient status with instructions to avoid weight bearing. She testified that she remained in a wheelchair for one additional month and then walked on crutches for two months thereafter. She was discharged on March 16, 1971, but she testified that she attended Charity Hospital’s outpatient clinic many times thereafter.

She returned to work as a tomato packer in June or July, 1971 but complained that her leg swelled and became painful upon prolonged standing.

Just prior to trial three years after the accident, Mrs. Jasper was examined by an orthopedic surgeon. Her arm fracture had healed, although with some angulation, and had caused her no further problems. She also displayed several scars, the principal ones being on the scalp and in the area of the leg fracture.

The doctor found the leg fracture had healed completely with good alignment. He opined, however, that the laceration of the superficial blood vessels caused pools in the leg, since less blood was returned from the heart because the veins were clotted and cut off, and ascribed this condition as the cause of her complaint of swelling and pain upon prolonged standing. He assigned a 15% permanent disability of the leg, noting that the leg was more susceptible to further injury. He also found chon-dromalacia in the knee, which he stated was likely to cause problems in later life.

The doctor recommended use of an elastic stocking and limitation of intermittent standing to two hours. He stated she could expect discomfort for the rest of her life upon prolonged standing, but not at rest. He opined that she could hold any job which did not require prolonged standing.

The hospital bill was $1,401.20. Although she claimed to be earning $50.00 per week at the time of the accident, the record only supports earnings of $30.00. The record also established that she missed at least 18 weeks of work after the accident because of the injury, and thus lost at least $540.00 in wages, without any consideration of impairment of earning capacity because of the permanent disability.

We hold that the jury abused its discretion in awarding only $10,000.00 on the basis of this record, and we set the award aside. Considering the excruciating pain of the initial injury, the substantial period of painful convalesence, the disfiguring scars, the permanent disability, the persistent condition of pain and swelling upon prolonged standing, and the effect of this permanent condition upon this woman’s ability to earn wages over her 39 years of work-life expectancy, we set the award at $22,500.00. This amount is subject to a credit of $2,500.00, for the reasons assigned in Suit No. 7088.

Accordingly, the judgment of the trial court is amended to increase the award to $22,500.00, subject to a credit of $2,500.00. As amended, the judgment is affirmed.

Amended and affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing Coca-Cola argues persuasively that the low awards indicate the jury rendered a compromise verdict and that it is unfair for us to rely on the jury’s verdict as to liability while setting aside the verdict as to quantum. Coca-Cola therefore' contends that when a jury has abused its discretion in some respect, the entire verdict should be set aside.

Perhaps the jury did apply comparative negligence in order to achieve fairness. The low awards, however, only suggest, but do not establish, this conclusion. Often a jury returns low (or high) verdicts when liability is stipulated.

It is necessary for an appellate court in tort cases to review liability and quantum separately (at least until comparative negligence is adopted in the state). The reviewing court may therefore affirm a judgment as to liability by according substantial weight to the jury’s apparent findings of fact, while setting aside the same jury’s findings as to quantum (if the record justifies the latter result).

The application is denied.

Denied.


author: CUTRER, Judge. WATSON, Judge

text:
    STATE of Louisiana, Plaintiff and Appellant, v. Ivory RONE, Defendant and Appellee.
    No. 5283.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    L. Paul Gianfalo, Asst. Dist. Atty., Alexandria, for plaintiff-appellant.
    James C. Downs, Alexandria, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

Plaintiff, State of Louisiana, appeals from the dismissal of its action filed under the Motor Vehicle Habitual Offender Law, LSA-R.S. 32:1471 et seq., which action was filed to rule into court the defendant, Ivory Rone, to show cause why he should not be adjudged an habitual offender and, accordingly, barred from operating a motor vehicle on the highways of this State. We reverse the judgment of the trial court dismissing the action, and remand the case for further proceedings in compliance with this decision and LSA-R.S. 32:1471 et seq.

These proceedings were instituted as a result of defendant having been convicted three times of driving while intoxicated under LSA-R.S. 14:98. Pursuant to the provisions of the Motor Vehicle Offender Law, the District Attorney for the Ninth Judicial District filed a petition seeking to have the defendant ruled into court to show cause why he should not be adjudged an habitual offender. If so adjudged, the District Attorney sought to have the defendant barred from operating a motor vehicle on the highways of this State. Under the provisions of the applicable statute a certified abstract of conviction, provided by the Department of Public Safety, was attached to the petition. It showed that the defendant had been convicted and sentenced on three separate occasions within a five-year period of driving while intoxicated. An order was issued by the District Court requiring the defendant to appear and show cause why he should not be adjudged an habitual offender. Exceptions of- no cause and/or no right of action were filed by the defendant.

The basis for these exceptions is two points in LSA-R.S. 32:1472(A) (1) (b), a portion of the law under which the surrender of defendant’s driver’s license was sought. The statute defines habitual offenders as persons who, within a five-year period, have accumulated three or more convictions of certain stated offenses, including :

“Operating or attempting to operate while under the influence of intoxicating liquor or drugs, operating or attempting to operate while impaired by the use of intoxicating liquor or drugs or operating or attempting to operate while intoxicated by the use of intoxicating liquor or drugs

Defendant contends that the section does not refer to operating a motor vehicle while intoxicated, since those words do not appear. In addition, he contends that he was convicted of operating a motor vehicle while under the influence of intoxicating beverages (LSA-R.S. 14:98), not of intoxicating liquor, as required, by the above quoted section. The trial judge sustained the peremptory exception of no cause of action. He found that the matter was civil in nature but that the statute should be strictly construed. Since the language of the statute did not track the language contained in the driving-while-intoxicated statute, he dismissed plaintiff’s action.

This court in State of Louisiana v. Free, 321 So.2d 50 (La.App. 3rd Cir. 1975) has determined that the language, which is the subject of controversy in the present case, should be liberally construed. We have carefully studied the language contained in the Motor Vehicle Habitual Offender Law and find that it is divided into two parts, one providing for the civil remedy barring a defendant from Operating a motor vehicle while on the highways of the State and the other providing criminal penalties. In the Free case, as in the present action, we were concerned only with the civil remedy provided by the statute. We found that for purposes of interpreting the language in connection with the civil aspects of the statute, LSA-R.S. 32:1472(A)(l)(b) should be liberally construed so that the words motor vehicle could be inserted in their proper place. We also found that the words intoxicating liquor were sufficient to refer to the convictions which were the relevant facts upon which a determination could be made under the civil provisions of the statute. Accordingly, we find that the trial judge in the present case erred in dismissing the plaintiff’s suit.

As mentioned above and more thoroughly in our opinion in the Free case, we are concerned at the present time only with the civil aspects of the Motor Vehicle Habitual Offender Law. Application of the criminal sanctions provided by the statute would surely require a strict reading of LSA-R.S. 32:1472(A)(l)(b). But the imposition of those criminal sanctions is not sought by plaintiff in this case nor in Free. The court is only asked to bar the defendant from operating a motor vehicle on the highways of this State. We will give the statute a liberal construction in order to effectuate the civil provisions of the statute according to the “Declaration of policy” contained within the statute:

“. . . To provide maximum safety for all persons who travel or otherwise use the public highways of this state
. . . To deny the privilege of operating motor vehicles on such highways to persons who by their conduct and record have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws of this state, the orders of its courts, and the statutorily required acts of its administrative agencies .
“ . . .To discourage repetition of criminal acts by individuals against the peace and dignity of this state and her political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual offenders who have been convicted repeatedly of violations of the traffic laws.” LSA-R.S. 32:1471.

For the reasons assigned, the judgment of the trial court is reversed and the case remanded for further proceedings in accordance with this opinion and LSA-R.S. 32:1471 et seq. Costs of this appeal are assessed against defendant-appellee.

Reversed and remanded.

WATSON, J., concurs and assigns reasons.

WATSON, Judge

(concurring) :

I concur with the result reached by the majority but I want to emphasize the fact that the decision extends only to the civil result; any criminal aspects or any criminal procedure based on the civil proceeding would be, in my opinion, violative of the Louisiana and United States constitutions.


text:
    STATE of Louisiana, Plaintiff and Appellant, v. Donald J. YOUNG, Defendant and Appellee.
    No. 5284.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    L. Paul Gian falo, Asst. Dist. Atty., Alexandria, for plaintiff-appellant.
    Garrett & Ryland, by B. Dexter Ryland, Alexandria, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

Plaintiff, State of Louisiana, appeals from the dismissal of its action filed under the Motor Vehicle Habitual Offender Law, LSA-R.S. 32:1471 et seq., which action was filed to rule into court the defendant, Donald J. Young, to show cause why he should not be adjudged an habitual offender and, accordingly, barred from operating a motor vehicle on the highways of this State. This suit was consolidated with State of Louisiana v. Ivory Rone, 324 So.2d 867 (La.App. 3rd Cir. 1975) for hearing at the trial level and on appeal.

For the reasons assigned in State of Louisiana v. Ivory Rone, supra, the judgment of the trial court is reversed and the case remanded for further proceedings in accordance with the opinion in State of Louisiana v. Ivory Rone, supra, and LSA-R.S. 32:1471 et seq. Costs of this appeal are assessed against defendant-appellee.

Reversed and remanded.

WATSON, J., concurred for reasons assigned in State v. Rone.

WATSON, Judge

(concurring):

For the reasons assigned in State of Louisiana v. Ivory Rone, 324 So.2d 867 (La.App. 3 Cir. 1975), I respectfully concur.


author: HOOD, Judge.

text:
    SCURLOCK OIL COMPANY, Plaintiff-Appellee, v. GETTY OIL COMPANY, Defendant-Appellee, and Robert L. Waterbury, Defendant-Appellant.
    No. 5258.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 29, 1975.
    Rehearing Denied Jan. 28, 1976.

      Henican, James & Cleveland by Carl W. Cleveland, New Orleans, for defendant-appellant.
    Bailey & Hollier by W. C. Hollier, Lafayette, for plaintiff-appellee.
    Duncan M. Smith, Jr., Liskow & Lewis by James L. Pelletier, Lafayette, Jones, Walker, Waechter, Poitevent & Carrere by Lucius F. Suthon, New Orleans, Robert M. Brinkman, Opelousas, for defendant-appel-lee.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HOOD, Judge.

This action was instituted originally as a concursus proceeding by Scurlock Oil Company, the purchaser of condensate from a unit well in St. Landry Parish. A claim for a part of the proceeds due for condensate was made by defendant Robert L. Waterbury, and a conflicting claim for the same proceeds was made by a group of defendants referred to as the “Bauman Group.”

We held when this case was before us earlier that the Bauman Group was entitled to the proceeds which were in dispute. Scurlock Oil Company v. Getty Oil Company, 278 So.2d 851 (La.App. 3 Cir. 1973). The Supreme Court reversed, holding in effect that Waterbury was entitled to those proceeds, and that judgment is now final. The Supreme Court, however, remanded the case to the trial court solely for the purpose of terminating “all controversies over well costs and operating expenses.” 294 So.2d 810 (La.1974).

After the case was remanded pleadings were filed by the Bauman Group and by Getty Oil Company claiming reimbursement for drilling costs and operating expenses. By stipulation of interested parties, the claim of Getty was paid from the accumulated proceeds. The claim of the Bauman Group for reimbursement of well costs and operating expenses was opposed by Waterbury, and after trial judgment was rendered by the district court in favor of the Bauman Group, directing that it be paid the sum of $18,725.58, with interest, from the above proceeds, and casting Waterbury for costs. Waterbury appealed. The case is before us now on that appeal.

A companion concursus proceeding was filed by Louisiana Intrastate Gas Corporation, the purchaser of gas produced from the above units, and that suit was consolidated for trial and appeal with the instant case. The same issues are presented in the companion suit as are presented here, and substantially the same judgment was rendered in that case as was rendered in this one. Waterbury appealed in both cases. We are rendering judgment in the companion suit on this date. See Louisiana Intrastate Gas Corporation v. Waterbury, 324 So.2d 880.

The following questions are presented: (1) Has R. L. Bauman, one of the claimants in the Bauman Group, forfeited his right to recover well costs and operating expenses because of his alleged failure to comply with LSA-R.S. 30:103.1 and 103.-2? (2) Does the evidence support the award made to the Bauman Group by the trial court for drilling costs and operating expenses? (3) Are parties other than R. L. Bauman, the “Unit Operator,” entitled to recover well costs?

Some of the facts pertinent to the issues presented here were set out in judgments heretofore rendered by this court and by the Supreme Court, and we refer to those judgments for a more detailed recitation of the facts. See the cases already cited, and also House v. Tidewater Oil Company, 219 So.2d 616 (La.App. 3 Cir. 1969), and Louisiana Intrastate Gas Corporation v. Waterbury, 278 So.2d 863 (La.App. 3 Cir. 1973).

On July 29, 1954, Burice C. Bihm executed a mineral lease in favor of F. J. Muller, covering a six acre tract of land in St. Landry Parish. On the next day, July 30, 1954, Adler V. LeDoux and James Pitre executed a mineral lease in favor of Muller covering an adjoining 152 acre tract in that parish. Shortly thereafter Muller assigned both of those leases to Tidewater Oil Company (now Getty Oil Company). These leases are referred to sometimes as the “Waterbury leases.”

Effective March 1, 1959, the Commissioner of Conservation created a 320-acre drilling unit, known as the “Cockfield 2 Sand Unit No. 21-2,” which included a part of the surface acreage covered by both of the above leases, as well as part of the surface of an adjacent tract owned by Robert L. Waterbury. The unit controlled production from only one sand, called the Cockfield No. 2 Sand.

Early in 1960 Tidewater drilled and completed the R. L. Waterbury Unit 21-2 well on property owned by Waterbury and located in the above unit. The well produced until August 6, I960, when it was abandoned. Waterbury, an experienced oil operator, undertook to rework the well, and he restored production from it on November 25, 1960, which was 111 days after the well had been ' abandoned. A dispute arose between Waterbury and other landowners as to whether the “Waterbury leases” had been forfeited because of the failure of the lessees, or their assignees, to commence reworking operations within 90 days of the cessation of production, as provided in those leases.

On June 5, 1961, Tidewater executed an instrument releasing from the above mentioned leases, all of the property affected' by those leases, other than the acreage included within the boundaries of the Cock-field No. 2 Sand Unit.

On June 23, 1961, Burice C. Bihm executed a mineral lease in favor of Vernon J. Main, Jr., affecting the same six acre tract which he previously had leased to Muller. And, on the same date Adler V. LeDoux and James Pitre executed a lease in favor of Main affecting the 152 acre tract they had leased to Muller. Shortly thereafter, Main transferred both of those leases to the “Bauman Group”. All parties concede that the Bauman leases were “top leases,” and that they would become effective only if and when the Waterbury leases were cancelled or terminated. There, of course, was a serious controversy at the time those leases were executed as to whether the Waterbury leases had been terminated by the lessee’s failure to conduct reworking operations timely. The Bauman Group took the position that the Waterbury leases had been forfeited, and that the later Bauman leases thus were the only valid leases affecting the property in dispute.

After the Bauman Group acquired the above mentioned “top leases,” they drilled a well on a part of the 152 acre tract which was included in the above unit. That well, known as the “Adler V. Le-Doux No. 1 Well,” was completed in November, 1961, and condensate and gas have been produced from that well since that time.

On November 20, 1961, Tidewater transferred the “Waterbury leases,” which it had acquired from Muller, to Aladdin Oil Company, Inc., and shortly thereafter Aladdin transferred both of those leases to defendant Waterbury, insofar as they covered property in the 320-acre unit, and insofar as those leases affected the Cockfield No. 2 Sand.

On September 6, 1962, the lessors in the Waterbury leases sued Tidewater, Waterbury and Aladdin, to cancel the leases which Waterbury acquired from Tidewater on the ground that reworking operations had not been started within 90 days after the wells ceased to produce on August 6, 1960. That case was not decided finally until several years later. While it was pending a serious question existed as to whether the Bauman Group or Waterbury had valid leases affecting the land on which the well was drilled.

The Louisiana Department of Conservation, after having created “Cockfield 2 Sand Unit No. 21-2,” effective March 1, 1959, issued the following additional orders relating to drilling and production units affecting the property in dispute here:

(1) Order No. 257-A-4, effective January 1, 1962, dissolving Unit 21-2 and creating Cockfield 2 Sand Unit 23-2, specifying that the Adler V. LeDoux Well No. 1 is the unit well, and appointing R. L. Bauman as operator of Unit 23-2. This unit was dissolved effective January 1, 1963.
(2) Order No. 257-A-7, dissolving Unit 23-2 effective January 1, 1963, and creating instead, effective the same date, Cockfield 2 Sand Unit “W,” and designating R. L. Bauman as operator of the unit. That unit was dissolved effective as of March 1, 1966.
(3) Orders 257-A-15 and 257-A-16, dissolving the unit created by the last mentioned order, effective March 1, 1966, creating instead Cockfield 2 (Reservoir “A”) Fieldwide Unit, effective the same date, and designating Getty Oil Company as operator of the unit. This unit is still in effect.

On October 12, 1962, while the above suit was pending, Robert L. Waterbury wrote to R. L. Bauman, the unit operator named in two of the above orders and one of the claimants in the Bauman Group, as follows:

“I am an interest owner of record in the above captioned unit more completely described as Louisiana Department of Conservation order number 257-A-4, as amended by letter dated January 8, 1962, signed by Honorable James H. Gill, Commissioner. You have been designated Operator of the unit so created, effective January 1, 1962.
“It has come to my attention that you are producing gas and/or condensate from this unit well, and I assume that you have negotiated a Gas Sales Agreement with a gas purchaser as to your pro-rata of the gas you are producing and selling.
“To date, you have not filed a plat of survey of this unit with the Louisiana Department of Conservation as directed by the above stated order.
“To date, you have not rendered me an accounting with regard to my interest.
“In view of the above I herewith make formal demand, in accordance with the laws of the State of Louisiana, with particular reference to Title 30 of the Revised Statutes, as amended, for an itemized, detailed accounting of all funds expended on the drilling, completing, and operating of the subject well, together with a statement showing all production from the initial date thereof to the present time.”

That letter was sent by registered mail. Bauman has never responded to it, and he did not submit a sworn, detailed, itemized statement of the costs of drilling operations on the unit well until several years later, as hereinafter shown.

The above.suit attacking the validity of the Waterbury leases was tried in the district court, and the trial judge found that Waterbury had begun reworking operations timely. Judgment thus was rendered by the trial court decreeing that the “Waterbury leases,” that is the oil, gas and mineral leases which Waterbury acquired from Tidewater, were still in effect and were valid. We affirmed that judgment on January 29, 1969. 219 So.2d 616 (La.App. 3 Cir. 1969).

The present concursus suit was instituted on September 4, 1970. An answer was filed by the Bauman Group on October IS, 1971, alleging primarily that the leases held by that group of defendants were valid, and that the Waterbury leases had been terminated by cancellation executed by Tidewater Oil Company. The Bauman Group also prayed specifically for reimbursement, out of the funds on deposit, of the costs they incurred in drilling, testing, completing and equipping the LeDoux No. 1 Well, and the expenses they incurred in operating the unit from January 1, 1962, until March 1, 1966. Getty Oil Company also filed an answer in the concursus proceeding on October 15, 1971, claiming operating expenses from March 1, 1966, until August 31, 1971, and the expenses which would be incurred after the last mentioned date.

The district court decided the issues relating to the validity of the “Waterbury leases,” and as already noted, the Supreme Court ultimately decided that those leases were still in effect and that defendant Waterbury had valid leases affecting the property in dispute. Pursuant to a stipulation of the parties, however, the Supreme Court pretermitted a decision as to the well costs and operating expenses, and it ordered that no distribution of the funds held in the registry of the court would be made until all controversies over well costs and operating expenses were terminated. The Supreme Court then remanded the case to the trial court for that purpose. A rehearing was denied by that court on June 7, 1974.

On July 12, 1974, or 35 days after that judgment of the Supreme Court became final, defendant Waterbury filed a motion in this proceeding praying “for an order setting a time limit within which claims for well cost can be filed by parties to these proceedings.” Pursuant to that motion by Waterbury, the following order was issued by the trial court on the day the motion was filed:

“IT IS HEREBY ORDERED that all parties to these proceedings claiming that they are entitled to recover well costs from any other party to these proceedings out of the fund on deposit herein or otherwise shall file pleadings setting forth the amount of well costs claimed, the party against whom such claim is asserted, and the basis for such claim, whether such claims for well costs pertain to unpaid well costs or to well costs that have been wrongfully paid or deducted from the fund on deposit herein, on or before the 3rd day of September, 1974, in default of which such claims for well costs will be forfeited.”

In compliance with that order, the Bau-man Group timely filed pleadings setting forth the amount of well costs claimed, the fund from which those costs were to be paid, and the basis for Such claim. Waterbury filed exceptions of vagueness, and a formal “Motion to Set Exceptions for Hearing.” In response to the last motion, the trial judge issued an order on September 11, 1974, fixing the exceptions for hearing on September 20, 1974. On the last mentioned date, stipulations were entered into by all interested parties before the trial judge that $58,000.00 would be retained in the registry of the court to take care of any drilling or operating expenses which may be due. The parties, including Water bury, also stipulated that:

“It is stipulated by and between counsel that the Bauman et al group will file detailed schedules of well costs and operating expenses on or before November 4, 1974 at 10:00 o’clock A.M. or thereafter be precluded from asserting any claims therefor.”

Despite the above quoted stipulation, Waterbury filed a supplemental answer on November 1, 1974, in which he denied the claim of the Bauman Group, and specially pleaded for the first time that R. L. Bau-man, and every other claimant included in the Bauman Group, had forfeited their right to claim drilling costs because of their' failure to comply with LSA-R.S. 30:103.1 and 103.2.

The Bauman Group then filed a “Motion to Withdraw Funds,” and pursuant to that motion a rule was issued directing any interested parties to show cause why an order should not be issued authorizing that group of defendants to withdraw from the funds on deposit the amount claimed by the movers, with interest. That motion was tried, and following that trial judgment was rendered by the trial court in favor of the Bauman Group, awarding them the amount which they sought.

The principal issue presented on this appeal is whether R. L. Bauman, one of the defendants included in the Bauman Group, has forfeited his right to claim drilling costs. We have decided that his right to recover those costs has not been forfeited.

LSA-R.S. 30:103.1 and 103.2 provide:

§ 103.1 “Whenever there is included within a drilling unit, as authorized by the commissioner of conservation, lands producing oil or gas, or both, upon which the operator or producer has no valid oil, gas or mineral lease, said operator or producer shall report to the owners of said interests, by a sworn, detailed, itemized statement, the costs of the drilling operations of said unit within ninety calendar days from the completion of the well. Reports shall be sent by registered mail to each owner of an unleased oil or gas interest who has requested such report and furnished his name and address to the operator or producer.”
§ 103.2 “Whenever the operator or producer permits (1) ninety calendar days to elapse from completion of the well and (2) fifteen additional calendar days to elapse from date of receipt of written notice by registered mail from the owner or owners of unleased oil and gas interests calling attention to failure to comply with the provisions of R.S. 30:103.1, such operator or producer shall forfeit his right to demand contribution from the owner or owners of the un-leased oil and gas interests for the costs of the drilling operations of the well.”

Waterbury argues that since R. L. Bau-man, the operator of Unit 23-2 and Unit “W,” failed to file a sworn, detailed, itemized statement of the costs of drilling the unit well, the LeDoux No. 1 Well, within 90 days after completion of that well, or within 15 days after receipt of the written notice which was sent by Waterbury to R. L. Bauman on October 12, 1962, Bauman has forfeited his right to demand contribution from Waterbury of a proportionate part of the drilling costs.

It is significant, we think, that at the time the above letter was sent, a suit was pending against Waterbury and others attacking the validity of the leases which Waterbury claimed to own affecting parts of the property included in the units.. The plaintiffs in that suit included Bihm, Le-Doux and Pitre, the lessors in both the “Waterbury" leases” and in the “Bauman leases.” Although the Bauman Group were not plaintiffs, they had a direct interest in the outcome of that suit because the judgment rendered in it would determine whether Waterbury had valid leases on a part of the property included in the above units, or whether the Baumans had valid leases on that property. If the Waterbury leases were found to have been terminated and the Bauman top leases to be effective and valid, then R. L. Bauman, the operator, would not be required by the above sections of the Revised Statutes to file a statement of drilling costs as to the owners of that property.

We held in White v. Phillips Petroleum Company, 232 So.2d 83 (La.App. 3 Cir. 1970), that LSA-R.S. 30:103.2 is a penal statute, and that it thus must be strictly construed. See also Genmar Oil & Gas, Inc. v. Storm, 297 So.2d 722 (La.App. 4 Cir. 1974; writ granted, La., 302 So.2d 13; action dismissed, La., 309 So.2d 657).

In White, supra, we refused to apply the penal provisions of that statute, because the written notice which plaintiff sent by registered mail to defendant did not clearly show that plaintiff was requesting a statement of costs, and that it did not point out to the operator that it had failed to comply with the above section of the Revised Statutes.

In Genmar, supra, our brothers of the Fourth Circuit Court of Appeal refused to apply the penal provisions of LSA-R.S. 30:103.1 and 103.2, although a proper notice was sent and the operator failed to submit a statement of drilling costs within 90 days after the drilling was completed, or within 15 days after that notice was sent, because the well was drilled before the property was unitized, and the required information was furnished within 90 days after the unitization order was issued. The court said in that case that LSA-R.S. 30:103.1 “creates a hardship on those persons who drill on leased property that is not within a unit at the time of completion of a well,” and that:

“Article 21 of the Louisiana Civil Code gives the Court, in the absence of express law, authority to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent. The legislature has made no express law to cover the issue we have at hand.”

The purpose of LSA-R.S. 30:103.1 and 103.2 obviously was to provide a procedure by which the owner of unleased lands in a drilling or production unit could have the amount of drilling costs fixed, so that the remaining proceeds of the sale of production could be released and he could obtain his proportionate part of those proceeds without too great a delay. That purpose would not have been served in this case by requiring R. L. Bauman to file a statement of drilling costs within 15 days after the October 12, 1962, notice was sent, because the proceeds of the sale of oil and gas from the unit well would have been retained in the registry of the court, despite the filing of such a statement, until the validity of the Waterbury leases was determined.

We do not believe that the Legislature intended for LSA-R.S. 30:103.1 and 103.2 .to be applied under the circumstances presented here, where its application would serve no useful purpose. In view of that conclusion, and our feeling that the statutes are penal and should be construed strictly against the party seeking to impose the penalty, we conclude that LSA-R.S. 30:103.1 and 103.2 were not applicable while the suit contesting the validity of the Waterbury leases was pending.

We also feel that Waterbury has waived his right to enforce the penalty provided in those sections of the Revised Statutes. As already noted, shortly after the Supreme Court remanded the case to the trial court, an order was issued by the trial court specifying a time limit within which “claims for well costs can be filed by parties to these proceedings.” That order was issued in response to a motion filed by Waterbury seeking such a decree, and the Bauman Group filed their claim within the time specified in the order. Waterbury also entered into a stipulation with other interested parties, before the trial judge, that “the Bauman et al group” could file detailed schedules of well costs and operating expenses “on or before November 4, 1974.” Those schedules were filed by the Bau-mans within the time set out in that stipulation.

After Waterbury sought and obtained the above order and entered into a stipulation specifically permitting the Bauman Group to file claims for well costs and operating expenses, he then filed an amended answer in which he took a totally inconsistent position. He alleged in that pleading, and he contends now, that R. L. Bau-man, and all other members of the Bauman Group, forfeited their right to claim well costs in 1962, long before he stipulated that they now could file such a claim. He also argues on this appeal, inconsistent with his previous actions, that all members of the Bauman Group, other than R. L. Bauman, are precluded from claiming well costs, primarily because they were not designated as operators of either of the units involved here.

We believe that Waterbury, by seeking and obtaining the above court order, and by stipulating that the Bauman Group could file a claim for well costs and operating expenses within a specified time, waived any right he may have had previously to enforce the penalty provided in LSA-R.S. 30:103.1 and 103.2.

Our conclusion is that R. L. Bau-man has not forfeited his right to recover well costs and operating expenses. Waterbury did not send a notice to any other claimant included in the Bauman Group, so the above statutes are not applicable to the claims being asserted by them.

We turn now to the question of whether the evidence supports the conclusions reached by the trial court as to the amount of well costs and operating expenses which were incurred.

The Bauman Group did not introduce in evidence the statement of costs and expenses which they previously had filed in the record pursuant to court orders authorizing them to do so, and they offered no evidence at the trial as to the amount of the well costs and operating expenses they incurred. Waterbury testified in his own behalf, and his testimony constituted the only evidence which was offered at the trial. He testified that he made several demands on R. L. Bauman for a statement of the well costs prior to October 12, 1962, but that no such statement was furnished to him. He said nothing, however, about the well costs or operating expenses which may have been incurred by the Bauman Group, and there is nothing in his testimony which in any way tends to question or contradict the statement of such costs or expenses which was furnished by the Bau-man Group.

Waterbury argues that we cannot consider the sworn statement of costs and expenses which is in the record, because it was not formally introduced in evidence. The only authorities cited to support that argument are four cases which hold that plaintiff bears the burden of proving his case by a preponderance of the evidence. Counsel states in a brief filed on this appeal that “it is incredible that the plaintiff was able to obtain a judgment without offering any evidence at all.” We have decided that the above statement can be considered, and that it constitutes prima facie proof of the facts set out in it.

The statement or schedule at issue here is a detailed, itemized statement of the well costs and operating expenses incurred by the Baumans. It was prepared by Louis D. Gibbons, a public accountant, and attached to it is an affidavit of the accountant to the effect that he prepared the statement, and that it reflects the direct costs of leasing, drilling, and equipping the unit well, the costs of operating said well through April, 1962, and the operating expenses incurred by the Bauman Group from May, 1962, through March, 1966.

The verified statement was filed in the record on November 13, 1974, pursuant to a stipulation entered into by all parties, including Waterbury, on September 20, 1974, and pursuant to three separate court orders specifically ordering or authorizing the filing of such a statement. The court orders were issued on July 12, November 4 and November 13, 1974, respectively.

Prior to the filing of the certified statement, the Bauman Group filed pleadings setting out the amount of their claim and an unverified schedule of well costs and operating expenses. The verified statement was attached to and made a part of a “Motion to Substitute Verified Statement of Louis D. Gibbons,” which was filed by the Bauman Group on November 13, 1974. The movers alleged in that pleading that they are entitled to be reimbursed $18,725.-58, as the proportionate share of the disputed acreage of the well costs and operating expenses. A court order was signed in response to that motion on November 13, authorizing the verified schedule to be substituted in lieu of the statement previously filed in the record.

On May 28, 1975, upon motion of the Bauman Group, a rule was issued directing any interested party to show cause why an order should not be issued authorizing the Bauman Group to withdraw $18,725.58, with interest, from funds on deposit, as shown on the above mentioned verified statement.

Waterbury filed no pleadings opposing the verified statement after it was filed or after the above rule was issued on May 28, 1975. And, as already noted, he did not question the figures set out in that statement at the trial. Nothing, in fact, was said by anyone who participated in the trial about the. amount being claimed by the Baumans as reimbursement of drilling costs and operating expenses. The question thus was not presented to the trial court as to whether the verified statement could be considered.

In Burckett v. Hopson, 19 La.Ann. 489 (1867), a question was presented as to whether answers of a- party interrogated on facts and articles could be considered, although not introduced in evidence. Our Supreme Court in holding that the answers could be considered, said:

“ . . . The answers of a party interrogated on facts and articles form a part of the pleadings, and make a part of the record, and either party may use them without formally introducing them in evidence.”

The First Circuit Court of Appeal noted in Greer v. Sumney, 41 So.2d 526 (La.App. 1 Cir. 1949), that a survey which had been offered in evidence and then withdrawn could be considered. The court said :

“It is annexed to plaintiff’s petition and made a part thereof and is therefore a part of the record without the necessity of being specially offered.”

In the instant suit we conclude that the verified statement submitted by the Bauman Group constituted a part of the record, and that it could and should be considered by the court in resolving the issues presented here, even though it was not formally introduced in evidence at the trial. See also Powell & Hopkins v. Hopson, 14 La.Ann. 666 (1859).

The burden of proof rests on plaintiff-in-rule, the Bauman Group, to establish the amounts they are entitled to withdraw from the fund on deposit. LSA-C.C.P. art. 963; McMahon, Summary Procedures : A Comparative Study, 31 Tul.L.Rev. 573, 586, n. 50 (1957).

In the instant suit, we think the verified statement submitted by the Bauman Group constituted prima facie proof of the well costs and operating expenses incurred by that group. Since Waterbury has not opposed or contradicted the figures shown in that statement, we find that the statement must be accepted as proof of the facts therein set out, and that it constitutes adequate evidence to support the judgment of the trial court.

Finally, Waterbury contends that reimbursement of well costs is limited solely to R. L. Bauman, the unit operator, and that the other members of the Bauman Group are not entitled to recover from him or from his part of the proceeds of the production. His argument is that he had no contract with any of those parties and no evidence was offered to indicate that they were subrogated to the rights of anyone who had a claim against Waterbury. In the absence of a contractual agreement, or proof of subrogation to the unit operator’s rights, he argues, parties other than the unit operator have no right to recover from Waterbury.

We find no merit to that argument. Since there is nothing in the record tending to show that any of the Baumans were in bad faith in drilling the LeDoux No. 1 Well, we conclude that they were in good faith. They incurred drilling costs and operating expenses, and Waterbury has enjoyed the profits resulting from their efforts and expenditures, without participating in the costs or expenses incurred by them.

Article 21 of the Louisiana Civil Code provides that in civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. That article was applied by our Supreme Court in Huckabay v. Texas Company, 227 La. 191, 78 So.2d 829 (1955), a case similar to the instant suit, where the court said:

“ . . .on several occasions this Court has applied the equitable rule that where one co-owner (or co-lessee) has explored and developed a field without the concurrence or assistance of the other, the former is bound to account to that other for his proportionate share of the proceeds less a proportionate share of the expenses. Martel v. Jennings-Heywood Oil Syndicate, 114 La. 351, 38 So. 253; Allies Oil Co. v. Ayers, 152 La. 19, 92 So. 720; Connette v. Wright, 154 La. 1081, 98 So. 674. While the right of an owner to refrain from exercising his right of ownership, if so minded, is absolute, LSA-Civil Code, Articles 491, 496, he nevertheless may not enjoy the profits without participating in the expenses incurred in producing those profits, since to permit him to do so would violate the moral maxim of the law that no one ought to enrich himself at the expense of another.”

We hold that the members of the Bauman Group who incurred well costs and operating expenses in connection with the well and the units involved here are entitled to reimbursement, even though some of them were not designated as operators of the units.

Our ultimate conclusion is that the judgment rendered by the trial court is correct, and that it should be affirmed.

For the reasons assigned, the judgment appealed from is affirmed. , The costs of this appeal are assessed to defendant, Robert L. Waterbury.

Affirmed.


text:
    LOUISIANA INTRASTATE GAS CORPORATION, Plaintiff-Appellee, v. Robert L. WATERBURY et al., Defendants-Appellants.
    No. 5259.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 29, 1975.
    Rehearing Denied Jan. 28, 1976.
    Henican, James & Cleveland by Carl W. Cleveland, New Orleans, for defendants-appellants.
    Bailey & Hollier by W. C. Hollier, Lafayette, for plaintiff-appellee.
    Duncan M. Smith, Jr., Liskow & Lewis by James L. Pelletier, Lafayette, Jones, Walker, Waechter, Poitevent-Carrere by Lucius F. Suthon, New Orleans, Robert M. Brinkman, Opelousas, for defendant-appel-lee.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HOOD, Judge.

This case was consolidated for trial and appeal with a companion suit, Scurlock Oil Company v. Getty Oil Company et al., 324 So.2d 870, (No. 5258 on our docket), which is being decided on this date.

For the reasons which we assigned in Scurlock Oil Company v. Getty Oil Company et al., supra, the judgment appealed from in the instant suit is affirmed. The costs of this appeal are assessed to defendant-appellant, Robert L. Waterbury.

Affirmed.