text:
    Mose L. LINDSAY et ux. v. CUMIS INSURANCE SOCIETY, INC., et al.
    No. 11362.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.
    Leo J. Berggreen, Baton Rouge, of counsel for plaintiff-appellant Mose L. Lindsay.
    Michael Dufilho, Baton Rouge, of counsel for defendant-appellee Cumis Ins. Soc., Inc.
    Frank A. Fertitta, Baton Rouge, of counsel for intervenor-appellee State Farm Mut. Auto. Ins. Co.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is a tort claim by husband and wife for personal injuries to the wife and also to their minor child and for property damage sustained by the husband, arising from an automobile accident in Baton Rouge, East Baton Rouge Parish, Louisiana, on January 30, 1975. The defendants named were Oswald J. Owens, the driver of the automobile which was allegedly negligently backed into plaintiff’s parked car, and Owens’ liability insurer, Cumis Insurance Society, Incorporated. State Farm Mutual Automobile Insurance Company, liability insurer of plaintiff, intervened for the medical payments it made under the terms of its policy. Subsequently, plaintiffs amended to plead, alternatively, that David Owens was the driver of the Owens vehicle, with the owner’s consent. At the trial, defendants stipulated to liability and the individual defendant, Owens, was let out of the suit.

The jury awarded Mose L. Lindsay the sum of $605.55 individually, and $100.00 as adminstrator of the estate of his minor daughter, Denise Lindsay; it also awarded Irma Lindsay, the wife of Mose L. Lindsay the sum of $500.00. The verdict of the jury was made the judgment of the trial court; further, as the result of certain stipulations, the court awarded the intervenor $473.05 as reimbursement of medical payments, said sum to be paid out of the award to Mose L. Lindsay.

The plaintiffs moved for additur or, alternatively, a new trial. Upon denial of the motions, the plaintiffs perfected a devolu-tive appeal. The sole issue before us is quantum. We affirm.

This action involves the alleged cervical strain, or “whiplash,” injuries sustained by Irma Lindsay and Denise Lindsay when the ear driven by David Owens backed into the parked Lindsay automobile, which was occupied by the mother and daughter. The testimony indicates that the damages to the vehicles were slight. There is also evidence that immediately after the collision none of the parties felt that they were injured. About five days after the accident, on February 4, 1975, Mrs. Lindsay went to Dr. James Fontenot. He had treated her previously for cephalgia (headaches) and hypertension. In the instant case, he treated her conservatively, and without hospitalization for cervical strain. The doctor’s prognosis was “good for complete recovery without any permanent residual” disability. By April 21, 1975, his physical examination of Mrs. Lindsay was negative. Dr. Fontenot also saw the daughter, Denise, on the same day that he treated Mrs. Lindsay. He observed mild muscle spasms on the right side of the neck. She was given mild analgesics and muscle relaxants. By March 24, 1975, the examination was negative. On February 7, 1975, she had also complained of low back pain, but her physician testified that “examination of the lumbar area was completely negative.” The last time Dr. Fon-tenot saw Miss Lindsay was on May 9,1975. She had no neck or back complaints; he treated her for bronchitis. Dr. James A. Poche, Jr., testified that he saw Mrs. Lindsay on July 14, 1975, and that she had no physical disability on that date. Dr. John Loupe, an orthopedic surgeon, saw Mrs. Lindsay on May 25, 1976, and August 5, 1976, and concluded that there was no significant orthopedic abnormality. Dr. Loupe was of the opinion that Mrs. Lindsay had no physical disability. There was thus ample evidence to support the jury’s award; it could reasonably conclude that the injuries sustained by the Lindsays were relatively minor strains.

We find no manifest error in the jury’s award. Considering the recent decision of our Supreme Court in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), wherein the Court stated:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence, (case citation omitted)
“Further we believe that, heretofore, courts of appeal have placed too much emphasis on their review of other reported decisions. Certainly no two cases are ever fully alike. And whether two cases are so similar as to produce like quantum judgments is hardly discernible by gleaning the facts of the comparable decision from simply a written opinion of an appellate tribunal. Of course, another factor bearing on this matter is that significant change has been, and is taking place in our society not the least of which are changes in economic conditions (particularly rampant inflation), fluctuating job categories, employment opportunities, and even lifestyles. Furthermore, it is impossible for an appellate court to judge what evidence in a particular case was given special weight by the finder of fact.”

The Supreme Court also set forth the rule of appellate review as it applies to awards of general damages in the case of Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974), as follows:

“The appellate review of awards for general damages is limited to determining whether the trial court abused its great discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review, having in regard also that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, including that of residual pain. The awards made in other cases provide no scale of uniformity; their use is limited to serving as an aid to determine, if the present award is greatly disproportionate to similar awards (if truly similar), whether an issue of abuse of discretion may exist in the present case. In any event, an abuse of trial-court discretion must be clearly demonstrated by the record before an appellate court will tamper with an award of general damages.”

We have considered the awards made in the instant case in light of the well established rule and find no abuse of the much discretion vested in the jury, the trier of fact; LSA-C.C. art. 1934(3). The awards were within the bounds of the jury’s discretion.

Accordingly, we affirm the judgment at appellants’ cost.

AFFIRMED.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Barbara Rankin MOUTZ v. Michael Benton MOUTZ.
    No. 11564.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Richard W. Langford, Baton Rouge, for appellant.
    A. J. Paul Fredrickson, Baton Rouge, for appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

Plaintiff-defendant in rule, Barbara Rankin Moutz, appealed an unfavorable judgment changing the award of custody of the minor child, Michael Benton Moutz, Jr., from Barbara Rankin Moutz to Michael Benton Moutz, the father of the child, and mover in rule. All pertinent dates occurred in 1977.

At the conclusion of the hearing on the rule on February 25, 1977, at which both parties and their respective attorneys were present, the trial judge ruled in favor of the mover in rule. In accordance therewith, judgment was signed on March 3, 1977. The defendant in rule had not requested notification pursuant to LSA-C.C.P. art. 1913. On March 10, 1977, she moved for and obtained an order of appeal as permitted by LSA-C.C.P. art. 3943 (which appeal does not suspend the execution of the judgment relating to custody), conditioned upon her filing a bond in the amount of $350.00. Thereafter, the bond was filed on April-22.

Under the express provisions of LSA-C.C.P. arts. 3942, 3943, the appeal must be perfected within thirty days. The delay for applying for a new trial began to run on March 4 and expired on March 14. Consequently, the bond was not timely filed and our jurisdiction did not attach.

The jurisdiction of our court does not attach unless the order of appeal and the bond are timely filed. See Wright v. Mark C. Smith & Sons, 283 So.2d 85 (La.1973); Kreshel v. Kreshel, 326 So.2d 887 (La.App. 2d Cir. 1976).

Therefore, the appeal is dismissed at the appellant’s cost.

DISMISSED.


author: LOTTINGER, Judge.

text:
    Ann Lea O’BRIEN v. James Charles O’BRIEN, Jr.
    No. 11343.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.

      Henry D. Salassi, Jr., Baton Rouge, of counsel for plaintiff-appellee Ann Lea O’Brien.
    Gerard E. Kiefer, Baton Rouge, of counsel for defendant-appellant James Charles O’Brien, Jr.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit to collect past due alimony. From a judgment in favor of plaintiff, Ann Lea O’Brien, and against the defendant, James Charles O’Brien, Jr., defendant has suspensively appealed.

The facts are not in dispute. Ann Lea O’Brien and James Charles O’Brien, Jr. were divorced on May 25, 1973, in which judgment plaintiff was awarded permanent alimony of $50.0.00 per month commencing June 1, 1973. By proceedings instituted by defendant, alimony was reduced on April 24, 1974, to $275.00 per month. Plaintiff appealed this reduction, and this Court on February 10, 1975 at 308 So.2d 333 reversed the judgment of the Trial Court, and the petition to reduce and/or terminate alimony filed by James Charles O’Brien, Jr. was dismissed. Further, this Court refused a rehearing on March 10, 1975, and writs were refused on April 25, 1975, at 311 So.2d 262 (La.1975). From May 1, 1974, through April 30, 1975, James Charles O’Brien, Jr. paid his former wife $275.00 per month permanent alimony. The instant suit is to collect the difference that was not paid, and judgment was prayed for and was rendered in the amount of $2,700.00.

Defendant-appellant contends that the Trial Judge erred in holding that the Court of Appeal reversal of the Trial Court reduction of alimony had the effect of reinstating alimony due in the period of April, 1974, through February, 1975, and thus awarding past due alimony. In support of this specification of error defendant-appellant argues that to give retroactive effect to the Court of Appeal judgment is the same as allowing a suspensive appeal from the judgment by the Trial Court reducing the alimony award, which suspensive appeals are prohibited. LSA-C.C.P. art. 3943.

A suspensive appeal cannot be taken from a judgment relating to alimony, regardless of whether the judgment grants, denies, reduces, increases, or terminates alimony. LSA-C.C.P. art. 3943: Malone v. Malone, 282 So.2d 119 (La.1973): and Donica v. Donica, 324 So.2d 847 (La.App. 1st Cir. 1975).

However, we reason that the intention of the legislature in denying suspensive appeals from judgments relating to alimony is aptly expressed in the comments to LSA-C.C.P. art. 3943 which states, “thus the wife will no longer be deprived of necessary support pending appeal.” To allow a husband to suspensively appeal an alimony award could deprive the wife of needed support during the appeal, and thus cause her to have reason to compromise her position.

It is true the courts in interpreting LSA-C.C.P. art. 3943 have applied the suspensive appeal prohibition to all aspects of alimony awards, however, we find no merit in the argument that the reversal of an alimony reduction award retroactively to the date of the reversal is likened to a suspensive appeal.

Generally “the effect of a general and unqualified reversal of a judgment, order, or decree is to nullify it completely and to leave the case standing as if such judgment, order, or decree had never been rendered, except as restricted by the opinion of the appellate court.” 5B C.J.S. Appeal and Error § 1950.

If the Trial Court judgment would have increased alimony with the wife receiving the increase until that judgment was reversed on appeal, the husband after the reversal became final would be entitled to recover, in a separate action, the overage paid the wife. The wife certainly could not argue that the retroactive application of the reversal effected a suspensive appeal of the Trial Court increase. State, Department of Highways v. Busch, 254 La. 541, 225 So.2d 208 (1969) and Henry Waters Truck & Tractor Company, Inc. v. Relan, 277 So.2d 463 (La.App. 1st Cir. 1973), writ refused, 279 So.2d 206 (La.1973).

In Whitt v. Vauthier, 295 So.2d 235 (La.App. 4th Cir. 1974), writ refused, 299 So.2d 793 (La.1974), wherein the husband was granted a divorce and the wife was found at fault thus denying her permanent alimony, the appellate court reversed the finding of fault and awarded alimony retroactively to the date of the divorce judgment.

Thus, we reason that the reversal by the Court of the reduction of alimony places the parties in the same position as if no reduction had ever been decreed, and the retroactive application of the reversal does not operate as a suspensive appeal.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by defendant-appellant.

AFFIRMED.


text:
    Allie BREAUX and Rita Breaux v. LOUISIANA DEPARTMENT OF HIGHWAYS, an Agent of the State of Louisiana, and Southern Farm Bureau Casualty Insurance Company, et al.
    No. 11346.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.
    See also 347 So.2d 1295.

      William C. Dupont, Dupont, Dupont & Dupont, Plaquemine, for plaintiffs, appel-lees.
    William J. Doran, Jr., Baton Rouge, for defendant, appellant, Louisiana Dept, of Highways.
    Robert J. Vandaworker, Baton Rouge, for defendant, appellees, Southern Farm Bureau Casualty Ins. Co.
    William N. Faller, Baton Rouge, for third party, appellees, Dixie Sales & Service, Inc.
    Joseph W. Rausch, Dermot S. McGlin-chey, New Orleans, for defendant, appellee, appellant, Chrysler Corp.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto arising out of a one car collision filed by Allie Breaux and wife, Rita, against the Louisiana Department of Highways, Southern Farm Bureau Casualty Insurance Company (Southern Farm), liability insurer of Fabien Callegan, the owner of the vehicle being operated by Mrs. Rita Breaux, Dixie Sales & Service, Inc. (Dixie) and Chrysler Corporation (Chrysler). Southern Farm third partied Dixie and Chrysler as well as filing an intervention for the amount of the medicals paid under its policy. A third party demand was also filed by the Department of Highways against Chrysler.

A separate suit was filed by Southern Farm against the Department of Highways, Chrysler and Dixie for the amount of the property damages paid under its policy to Callegan. Both suits were consolidated for purposes of trial and appeal, and will be handled in this opinion, however, separate judgments will be rendered.

In the Breaux suit, the trial court awarded judgment in favor of Allie Breaux and against Chrysler and the Department of Highways, in solido, for the payment of the past medical expenses in the amount of $12,671.89; in favor of the intervenor, Southern Farm and against Chrysler and the Department of Highways, in solido, for $2,000.00; in favor of Allie Breaux and against Chrysler and the Department of Highways, in solido, in the amount of $15,-000.00 for the loss of the services of his wife, Rita Breaux; in favor of Allie Breaux and against Chrysler and the Department of Highways, in solido, in the amount of $9,000.00 for future medical expenses; in favor of Mrs. Rita Breaux and against Chrysler and the Department of Highways, in solido, in the amount of $100,000.00, general damages; plus interest, costs, and expert witness fees.

In the Southern Farm suit, judgment was rendered in favor of Southern Farm and against Chrysler and the Department of Highways, in solido, for the amount of $3,145.00 with interest, and costs.

From both judgments the Department of Highways and Chrysler have taken suspen-sive appeals, and Allie Breaux and wife, Rita, have answered the appeals seeking an increase in quantum.

These consolidated cases were tried without a jury, and though the Trial Judge did not file written reasons for judgment, the record points out that on July 1, 1974, at approximately 7:45 A.M., Mrs. Rita Breaux was driving a 1973 Dodge Polara automobile owned by her brother-in-law, Fabien Callegan, along Louisiana Highway 404 in Iberville Parish when she struck a pothole in the roadway causing her to lose control of the vehicle, running off the road and striking head-on a large tree. After the accident it was discovered that the rear axle as well as the housing were broken.

Dr. Wylie Poole, an expert in mechanical engineering, who had designed axles and housings for motor vehicles, testified after examining the axle and housing that there was conclusive proof that the axle tube had not been assembled to specifications. He found that the male portion of the axle tube was not inserted the required depth into the female portion of the housing, thus causing a greater stress on the metal. He further concluded that the vehicle left the factory with a basically good design, but it was not properly assembled, and that the only way this housing could break under normal use would be because of some defect in the metal. He testified that if a vehicle with a cracked differential housing were to encounter an unusually big bump in the road, this would likely precipitate the remaining cracking and fracture of the differential housing. This could make it difficult to steer the car and probably attributed to Mrs. Breaux losing control. He lastly concluded that he found no evidence to show that the vehicle had been misused or put through any abnormal conditions.

Dr. Gary A. Paulson, the only metallurgist to testify, ran extensive tests and by the use of a scanning electron microscope found conclusive proof that a crack had existed in the axle housing for a substantial period of time prior to this accident, and that this crack was caused by metal fatigue. He concluded that the housing and axle tube left the factory defective, containing fatigued metal causing a crack to form either before plaintiff struck the hole, or at the time she struck the hole, and this caused the housing to break and the axle tube to come out of the housing.

Trooper James W. Major, the investigating officer, testified that the road conditions were very poor, containing many holes and ruts. He further stated that some of these holes were in such positions so as to make it almost impossible to see them until it was too late to avoid them. He concluded that Mrs. Breaux struck a hole approximately 6 to 8 inches or even 10 inches deep.

Mrs. Breaux testified she was traveling between 30 and 35 miles per hour, that she had dodged three holes before, and that as she came to a curve, she decided to get back into her own lane of travel when she hit the hole in question. She had been driving on the wrong side of the highway to avoid the holes. When she hit the hole, she heard a “big noise” and she could not control her automobile.

Earl Quatrevingt, maintenance superintendent with the Highway Department, testified that the roadway was one of the worst in the parish, and that they had been working on it for many months prior to the accident. He testified that there were no permanent signs on this highway warning the public of the conditions of the road and further testified that the deteriorated condition of the road is caused because of the fact that the road is built through a swamp area and the base of the road is continuously giving trouble.

In appealing, the Highway Department contends the Trial Judge erred (1) in finding the defect in the roadway was a proximate cause of the accident and that the Department had either actual or constructive knowledge of the defect; (2) in failing to find that the defective axle housing was an intervening proximate cause; (3) in failing to find that Mrs. Breaux was contribu-torily negligent; and (4) in awarding excessive damages. Southern Farm in appealing contends that the Trial Court erred (1) in finding Chrysler liable; (2) awarding damages to Mr. Breaux for the loss of services of his wife; and (3) in awarding an excessive amount of general damages including medical specials and expert witness fees.

It is generally accepted that “the Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The Department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the Department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it.” Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3rd Cir. 1974), writ refused 303 So.2d 182 (La.1974).

Every case, however, must be decided on its own facts. The investigating officer who had traveled this road before testified that the road contained many holes and ruts, and that some were impossible to see until it was too late to avoid them. Seeing some holes too late places them in the category of a trap. Earl Quatrevingt, the maintenance superintendent, stated that the Department had been working on this road for some time, and that it was in bad shape, in fact, the worst in the parish.

Under the facts as obviously found by the Trial Court, the road was a hazard, and the Highway Department knew of its condition. Though repair work was being performed, obviously the hole in question was a defect. The Highway Department contends that the particular hole in question was caused by a heavy truck pushing out repair material from a preexisting hole, and that- the Department would not have had sufficient time to relearn of this defect. However, the state trooper testified that it did not seem to him that this was a recent patch job that had been pushed out. We find no error in the ruling the Trial Court in finding the condition of the roadway was a hazard and the Department had either actual or constructive knowledge of it, and failed within a reasonable time to correct it.

As to the contention by the Highway Department that the Trial Court erred in failing to find Mrs. Breaux contributorily negligent, we disagree. From the facts found in the record, and under the circumstances, we feel as did the Trial Judge that Mrs. Breaux was not operating her vehicle in a negligent manner.

Chrysler in appealing on the question of its liability argues that the destruction of the rear axle assembly was a result of and not a cause of the accident and even if a cause, there is no proof that the defect is attributable to Chrysler. From the testimony of both Drs. Poole and Paulson, we believe the Trial Judge was correct in concluding that a defect existed in the axle housing when it left the Chrysler factory, and that this defect was a contributing cause in fact of the accident.

We do not find the defect in the automobile to be such an intervening cause so as to absolve the Department of Highways of liability. The Trial Judge was not in error in concluding that the force of the impact when the automobile hit the hole in question was sufficient to cause the failure to the weakened axle housing, thus causing Mrs. Breaux to lose control of the car.

The Trial Court awarded Allie Breaux $15,000.00 for the loss of services of his wife. This record is completely devoid of any evidence showing any loss of services except loss of consortium which is not recoverable in this state. Johnston v. Fidelity National Bank of Baton Rouge, 152 So.2d 327 (La.App. 1st Cir. 1963). Therefore, this portion of the Trial Court judgment is reversed.

Lastly, we come to the question of damages in general as well as medical expenses and expert witness fees. Except for an expert witness fee for a Dr. Fisher for testifying by deposition, where there is no deposition in the record, we find no abuse of discretion on the part of the Trial Judge in the fixing of expert witness fees.

It is argued by appellants that the Trial Judge allowed a medical bill for an operation to correct a fallen bladder when the operating surgeon testified that this condition was not connected with the accident. There was, however, a conflict in medical testimony as to whether this condition was or was not connected to the accident, and because of this, we do not find any error on the part of the Trial Judge.

As regards the general damages awarded Mrs. Breaux, the record discloses that she was taken from the scene of the accident to Rhodes Spedale General Hospital, in Plaquemines, Louisiana, in an unconscious condition. She had four major problems: a brain concussion, fracture of the neck of the left femur, fracture of the lower margin of the left femur and a fracture of the right wrist at the radius, in addition to lacerations and abrasions. X-rays were taken and she was administered IV’s. She was operated on the same day at which time the lacerations were sutured, and a pin was placed in her hip. Again on July 17, 1974, she was operated on and an artificial prosthetic replacement of the neck and head of the femur, that is an artificial ball and socket joint of the hip, was done. A pin was placed in the distal area of the femur because of a comminuted compound fracture.

The fracture to her right wrist is what is called a Colies fracture, and she will have a deformity in her right wrist that will not be corrected. She was released on August 15, 1974, from the hospital, thus completing a six week stay.

In January of 1975, she was readmitted for eight days with a complaint of constant pelvic pain, urinary stress, and constant pelvic pressure. Again in July of 1975, she was admitted for three or four days with a complaint of swelling of the legs. Further, in January of 1976, she was again admitted for two weeks for a diabetes flare-up. Mrs. Breaux’s disability has been rated at 100 percent in her right leg and 60 percent in her right arm and hand.

In arguing that the Trial Court abused its discretion in awarding Mrs. Breaux the sum of $100,000.00 for past, present and future pains suffering and disability, the defendants-appellants cite to this Court Hicks v. Phoenix Insurance Company, 220 So.2d 726 (La.App. 2nd Cir. 1969), writ refused (1969), whereas the plaintiff in answering the appeal and asking for an increase in quantum has cited Gordon v. General Motors Corporation, 323 So.2d 496 (La.App. 3rd Cir. 1975). We have studied both the cases cited, as well as reviewed completely in detail the medical testimony and exhibits in the record, and must conclude that the Trial Judge has not abused his discretion in the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Therefore, for the above and foregoing reasons the judgment of the Trial Court insofar as it awarded to Allie Breaux the sum of $15,000.00 for loss of services of his wife, and the fixing of an expert witness fee for and on behalf of Dr. Fisher in the amount of $60.00 is reversed, in all other respects the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by defendants-appellants.

REVERSED IN PART AND AFFIRMED.


text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE CO. v. CHRYSLER CORPORATION et al.
    No. 11347.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.
    Robert J. Vandaworker, Baton Rouge, for plaintiffs, appellees.
    Joseph W. Rausch, Dermot S. McGlin-chey, New Orleans, for defendant, appellee-appellant Chrysler Corp.
    William J. Doran, Jr., Baton Rouge, for defendant, appellant Louisiana Dept, of Highways.
    William N. Faller, Baton Rouge, for defendants, appellees Dixie Sales & Service, Inc.
    William C. Dupont, Plaquemine, for defendants, appellees Allie and Rita Breaux.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit by Southern Farm Bureau Casualty Insurance Company to recover sums paid to its insurer as a result of a one motor vehicle accident. The defendants are Chrysler Corporation, the manufacturer, Dixie Auto Sales the seller of the vehicle in question and the State of Louisiana, through the Department of Highways. The Trial Court rendered judgment in favor of plaintiff and against defendants and defendants have taken this appeal.

This matter was consolidated for purposes of trial with another suit entitled, “Allie Breaux et als v. Louisiana Department of Highways, et al" Number 11346, on the Docket of this Court, 347 So.2d 1290. For the reasons given in the opinion this day rendered in Suit No. 11346,. the judgment of the Trial Court is, affirmed, all costs of this appeal to be paid by defendants-appellants.

AFFIRMED.


text:
    Madalin GAUTREAU, Melvin Gautreau, Robert Gautreau, and Maxwell Gautreau, Jr. v. SECURITY INDUSTRIAL INSURANCE COMPANY and Ourso Funeral Home, Inc.
    No. 11353.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      John A. Lieux, Gonzales, for plaintiff and appellee.
    Frank S. Normann, New Orleans, for defendant-appellant Security Inds. Ins. Co.
    Vincent J. Sotile, Donaldsonville, A. G. Seale, Baton Rouge, Glynn A. Long, Don-aldsonville, for defendant-appellant Ourso Funeral Home.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit by Madalin Gautreau, widow of, and three sons of the deceased, Maxwell Gautreau, on a burial insurance policy, against Security Industrial Insurance (Security), insurer, and Ourso Funeral Home (Ourso) servicing funeral home named in the policy. From a judgment in favor of plaintiff and against Ourso, this appeal was taken.

Security and Ourso entered into a contract whereby Ourso would service all merchandise policies issued by Security in the area normally serviced by Ourso. The casket, referred to as merchandise in the industry, was normally purchased by Security in large lots and furnished to Ourso and other funeral homes acting as funeral directors under Security policies. The Security-Ourso contract contained a mutual cancellation clause which was effective one year after the notice of cancellation. After servicing the contract for some time, Ourso notified Security that it was cancelling, and within a few days after the expiration of the one year period, Gautreau died and his family called on Ourso for burial services. Ourso refused on the basis that it had can-celled and was therefore relieved of the obligations under its contract with Security. Ourso, at the request of the Gautreau family, did conduct the funeral services giving credit against the cost of the funeral for the amount provided in the insurance policy issued by Security. Ourso did not furnish the metal casket which was to be furnished under the terms of the burial policy.

The Trial Court found that the contract entered into between Security and Ourso contained a provision for the benefit of others, a stipulation pour autri, that the deceased was one of the third party beneficiaries of the contract, and thus rendered judgment against Ourso in favor of Mrs. Maxwell Gautreau, Sr. for $300.00 the difference in the price of a metal casket and the wooden one that was used, $1,000.00 for general damages, and in favor of Maxwell Gautreau, Jr., Melvin Gautreau and Robert Gautreau, general damages at $350.00 each.

In appealing, the defendant, Ourso, contends that the Trial Judge erred in (1) finding the contract between Security and Ourso contained a stipulation pour autri, (2) finding sole liability on Ourso, and (3) not allowing the names of Security policy holders to be disclosed so that Ourso could inform them of their policy status.

Our statutory law on contracts containing benefits for third persons is for the most part contained in LSA-C.C. arts. 1890 and 1902 which provides:

“Art. 1890. A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked.
“Art. 1902. But a contract, in which anything is stipulated for the benefit of a third person, who has signified his assent to accept it, cannot be revoked as to the advantage stipulated in his favor without his consent.”

LSA-C.C. art. 1890 does not require a particular type of acceptance by the third party beneficiary, but merely provides that if such third person “consents to avail himself” of the advantage stipulated in his favor, the contract cannot be revoked. The Trial Court found that the decedent accepted the benefits conferred upon him as a Security policy holder under the Security-Ourso contract long before one year prior to his death. By becoming a policy holder and paying the premium charge, the decedent expressed his assent to except the benefits of the contract entered into between Security and Ourso.

Ourso argues that neither it nor Security intended the establishment of a stipulation pour autri in favor of Security policy holders by the contract they entered into. If the purpose of the contract was not to provide a benefit for a third party, i. e., providing funeral services through an insurance policy with a local funeral home, then it is difficult to ascertain a purpose for the contract at all.

Ourso also contends that it was the intention of itself and Security to create a method of revoking the contract between them, and that once revoked, Ourso had no obligation thereunder. While admittedly the contract contained a provision for revocation, Ourso’s argument ignores the presence of the stipulation pour autri, which once accepted by the beneficiary cannot be revoked without his assent. We must conclude that the effect of the revocation of the contract was only to release Ourso from the responsibility of servicing any Security policies issued after the revocation.

Ourso next argues that the Trial Court erred in finding it solely liable for the damages sustained by the Gautreau family and absolving Security from indemnity. There seems to be no argument but that Security was ready, willing and able to perform its obligations under the contract, even to the extent of furnishing Ourso with the requisite metal casket. It was only Ourso that refused to satisfy the terms of the policy and the Security-Ourso contract. We therefore find no fault on the part of the Trial Judge in holding Ourso entirely liable.

Lastly, Ourso contends that it was error for the Trial Judge to disallow its request for the names of those other Security policy holders that would be covered under similar circumstances. The Trial Court was correct in holding that the only policy holder involved in this suit was Maxwell Gautreau, Sr., and that as regards the merits of this suit, the names of other policy holders were irrelevant and thus nonad-missible as evidence. We find no error.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Mr. and Mrs. Ronald RICHARD, Individually and as natural Tutors of their minor son, D’Wayne Richard v. Edward BOUDREAUX and the Travelers Insurance Company.
    No. 11357.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    William C. Dupont, Plaquemine, for plaintiffs appellees.

      Frank M. Coates, Jr., Baton Rouge, for defendants Edward Boudreaux and The Travelers Ins. Co., appellants.
    Kenneth E. Barnette, Baton Rouge, for defendants Mrs. George Latiolais & St. Paul Fire Ins. Co.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto by Ronald Richard and wife, individually and as natural tutors for their minor son D’Wayne Richard, against Edward Boudreaux and his insurer, The Travelers Insurance Company, and Mr. and Mrs. George Latiolais and their insurer, St. Paul Fire and Marine Insurance Company. All defendants pleaded contributory negligence and reconvened for contribution. The Trial Court rendered judgment in favor of plaintiff, Ronald Richard as natural tutor and against Boudreaux and Travelers for $6,500.00, in favor of Bou-dreaux and Travelers on their reconventional demand against Richard individually for $3,250.00 by way of contribution, in favor of Latiolais and St. Paul and against Richard, Travelers and Boudreaux, and in favor of Mrs. Richard dismissing the reconventional demand of Boudreaux and Travelers. Bou-dreaux and Travelers appealed, and plaintiff answered the appeal.

The record points out that the Richards and Boudreauxes were next door neighbors, and that the children of the two families played together. On November 25, 1974, several children were playing in the Bou-dreaux’s back yard in and on an old Volkswagen shell which was overturned. The motor, chassis and various parts had been removed and on the day in question, parts of the motor were on the overturned shell, on the ground, as well as around the yard.

Young D’Wayne Richard, IV2 years of age, was with several other children inside the overturned shell, while Ronnie Richard, D’Wayne’s older brother, was seated on the top of the overturned shell holding a part of the motor in his hands. It is unclear, but some of the children started rocking the overturned shell back and forth, eventually causing Ronnie to lose control of the motor part and drop it, striking young D’Wayne.

The Trial Judge found that on several previous occasions children had played around or on the overturned shell, that Mr. Boudreaux had to turn the shell right side up several times, and Mrs. Boudreaux had on several occasions picked up motor parts in various parts of the yard, thus indicating prior knowledge that children played with the parts and turned the shell over when they were told to do otherwise.

The Trial Judge concluded that the collection of motor parts with the Volkswagen shell that was apparently easily overturned constituted an attractive nuisance to the children in the neighborhood, citing Duxworth v. Pat Caffey Contractors, Inc., 209 So.2d 497 (La.App. 4th Cir. 1968), writ refused 252 La. 258, 210 So.2d 505 (1968). We find no error and agree.

Appellant argues against the attractive nuisance finding contending that a heavy object could have been dropped on D’Wayne from any platform, such as a swing set or a slide, and this alone would not have made these objects attractive nuisances. That perhaps is true, but here it is a combination of motor parts with an overturned rockable Volkswagen shell that caused the injury.

Appellants further argued that the Trial Judge erred when he failed to find liability on the part of the Latiolaises, the parents of Tracey, who was baby-sitting with the children. The record points out that immediately prior to the accident Tracey told the children to play on the carport while she went inside to prepare their lunch. The children apparently did not obey her directions, and within 15 minutes the accident happened. The Trial Judge found no fault on the part of Tracey, and we agree.

Plaintiff has answered this appeal contending that the Trial Court erred in finding liability on the part of Mr. Richard and awarding contribution on behalf of Boudreaux and Travelers without finding that the actions of young Ronnie Richard were negligent. Plaintiff contends that the Trial Judge misinterpreted the case of Turner v. Bucher, 308 So.2d 270 (La.1975) which holds “that although a child of tender years may be incapable of committing a legal delict because of his lack of capacity to discern the consequences of his act, nevertheless, if the act of a child would be delictual except for this disability, the parent with whom he resides is legally at fault and, therefore, liable for the damage occasioned by the child’s act.” We conclude after closely reading the Trial Judge’s oral reasons for judgment that he did not misapply Turner v. Bucher, supra, and found, though not specifically stating as such, that the actions of young Ronnie Richard in being seated on top an overturned Volkswagen shell, holding a heavy motor part with young children seated beneath him, while the overturned shell was being rocked would have been negligent if he was of discernable age. Thus, under Turner v. Bucher, supra, his parents are liable for his actions.

Plaintiff also contends the Trial Judge was inadequate in his award of $6,500.00 for the injuries suffered by young D’Wayne Richard. D’Wayne received a depressed skull fracture with a small penetration in the brain matter from this accident. Bone fragments were removed as well as a very small amount of brain tissue, leaving an area of approximately the size of a 50 cent piece in the defect of the skull. He made an unremarkable recovery from surgery, and the expert testimony was that he should have no residual effects other than a one chance in fifty of possible seizures. We do not find the award of $6,500.00 to be an abuse of discretion on the part of the Trial Judge.

Therefore for the above and foregoing reasons the judgment of the Trial Court is affirmed at appellants’ costs. AFFIRMED.


text:
    Hamilton B. WILLIS v. TUNICA HARDWOOD CO., INC., et al.
    No. 11360.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      Harold J. Brouillette, Marksville, for plaintiff-appellant.
    William J. Daly and Tom L. Hollis, New Orleans, for defendant-appellee, Tunica Hardwood.
    Patrick A. McDonough, III, Vidalia, and M. O’Neal Walsh, Baton Rouge, for defendant-appellee, Otis Brewer.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

Plaintiff-appellant, Hamilton B. Willis, appeals herein from judgment in his favor and against Tunica Hardwood Co., Inc., hereinafter Tunica, in the amount of $3,000.00 for damages caused by breach of a timber cutting contract. Willis contends that the amount of damages should be increased and that Otis Brewer should be bound in solido with Tunica for the amount of the judgment.

In 1971 Willis entered into a short written contract with Tunica for the purpose of selling timber from a tract of land which he owned in West Feliciana Parish. It was the desire of Willis that a certain logging contractor, Chris Metz, conduct the logging operations for Tunica, and the contract so stated. The contract also contained the following paragraph:

“Mr. Metz should be cutting occasional logs down to a tree size of 22" Diameter measured 12" from the ground but his primary task will be to remove over mature stock so as to release the younger timber for growth.”

The evidence establishes that Metz did the logging in 1971 before high water came, and then in 1972 when the water receded but Metz was not available, Otis Brewer was engaged by Tunica to do the logging.

The complaint of Willis is that Tunica violated the conditions of the sale of the timber in two main aspects; namely, engaging Brewer to cut and log the timber whereas Metz was specified to do so and in cutting timber less than 22 inches in diameter. Willis’ objection to Brewer was based on the type of equipment he used which involved rubber tires as opposed to crawler type equipment used by Metz. Willis stated that he believed that the type of equipment used by Metz did less damage to the top soil and young growing timber and that he knew Metz and believed he could be trusted not to damage the land or cut undersized timber.

It appears that the main point of this appeal by Willis is that defendants not only breached the timber cutting contract but that their cutting was a trespass so reckless and willful that it made them guilty of moral bad faith entitling him under the jurisprudence to the converted value of the timber without allowance or deduction for cost and expenses. Alternatively, if Tuni-ca’s actions constituted merely a breach of contract, as found by the Trial Court, Willis believes that the damages should be increased.

On the issue of the bad faith of Tunica, the Trial Court, in its written reasons for judgment, stated as follows:

“As to the issue of bad faith on the part of Tunica so vigorously pressed by plaintiff, this Court finds no merit. A violation of a contract provision such as here involved, howsoever damaging it may be to the timber owner, does not render void the contract of timber sale nor make the buyer a trespasser so as to entitle the timber owner (plaintiff) to the manufactured value of the lumber milled from the logs. The cases cited by plaintiff in brief are not apropos to the facts of the instant case. Tunica was not in bad faith. It logically explains why Brewer was used instead of Metz. This reason was that Metz was not available after the water went down.”

After reading the record in its entirety, we agree entirely with the above conclusion of the Trial Judge.

On the question of damages to the top soil and young growing timber, plaintiff’s unsupported estimate of damages was $7.00 to $8.00 per acre per year over the next two to twenty-five years, which the Trial Court found to be exaggerated. However, the Trial Court did find damage caused by Tunica’s operation and awarded $1,500.00 therefor. The Trial Court also found that about 20 per cent of the approximate 3,000 logs were undersize but that there was no proof of projected monetary loss in this respect. It awarded present loss of $2.50 per log for 600 undersize logs for total damage in this regard of $1,500.00. There is certainly adequate evidence in the record on which the Trial Court based these two items of damage, and this award will not be disturbed.

As to the question of Brewer’s liability for the breach of contract, the Trial Court found that he was not a party to the contract and could not be liable for the breach thereof. We find no error in this regard.

For the above and foregoing reasons, the judgment of the Trial Court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Luther W. ZUBER and Gail Anderson Zuber v. LAFOURCHE PARISH SCHOOL BOARD and United States Fidelity and Guaranty Company.
    No. 11383.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.
    See also, La.App., 325 So.2d 764.

      Larry P. Boudreaux, Thibodaux, for plaintiffs and appellants.
    Robert D. Morvant, Thibodaux, Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendants and ap-pellees.
    Before SARTAIN, CONVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto by Luther W. Zuber and his wife, Gail Anderson Zuber, for damages for the death of their four years old son, Luther Antoine Zuber, when he was run over by a school bus. Named defendants are the Lafourche Parish School Board and its insurer, United States Fidelity and Guaranty Company. From a judgment in favor of the defendants, plaintiffs have appealed.

The record points out that this most unfortunate accident happened on December 7, 1973, at approximately 4:15 P.M. on East 16th Street in the vicinity of Cutoff-Larose, Lafourche Parish, Louisiana. East 16th Street is located on the La. 308 or east side of Bayou Lafourche, runs in a generally east-west direction and is a narrow blacktop street with no parking area off the driving surface. La. 308 runs in a generally north-south direction and intersects with East 16th Street.

On the date of the accident, a water meter had been broken loose in a residential yard on East 16th Street causing water to erupt. This was reported and a two and one-half ton service truck belonging to the Lafourche Parish Fresh Water District was parked partially in the road on the left hand side of East 16th Street facing away from La. 308. Between this truck and La. 308 there was a car parked on the opposite side of the street but a little closer to La. 308.

Immediately prior to the accident, a school bus operated by Morris P. Arceneaux proceeded from La. 308 east on East 16th Street to the end of the street to turn around and then headed back. Mr. Arcen-eaux had apparently finished his route for the day and was heading home. He lived on East 16th Street between the scene of the accident and La. 308.

The only eyewitness to the accident to testify was Mr. Landry Rivet who stated that he and others in the neighborhood, including young children, were observing the repair work to the water meter, and he was standing to the back of the truck close to the street. The disrupted water meter was in a yard on the left side of the street facing away from 308 so his back was to the street. He further testified that on his left was the Zuber child who suddenly started across the street when the front of the bus was approximately even with the rear of the service truck. According to Mr. Rivet the young child ran in front of the bus and slipped to the roadway. The boy fell in front of the bus and while the front portion passed over him he was not touched by the front wheels but was killed by one of the rear wheels. There seems to be no dispute but that the bus was traveling only approximately 5 miles per hour at the time of the accident. Mr. Rivet further testified that after the child fell other neighbors started yelling and shouting “STOP!” to the driver. Apparently at the time of the accident the school bus driver was attempting to maneuver at an angle to pass the school bus between the service truck and the car. The Trial Judge concluded the the school bus driver apparently had no warning that the child was preparing to run across the street or any reason to anticipate that he was there, even though there were other children in the immediate vicinity. The investigating state trooper testified that Mr. Ar-ceneaux stated he did not see the child.

This case has once before been before this Court when the plaintiff appealed from an interlocutory decree of the Trial Judge denying plaintiff trial by jury. This Court affirmed that ruling at 325 So.2d 764 (La.App. 1st Cir. 1976).

Plaintiff contends that the Trial Court was in error (1) in failing to find that Morris P. Arceneaux, the driver of the school bus in question, was negligent in that his negligence was the sole proximate cause of the death of Luther Zuber; and (2) in failing to permit trial by jury of all the issues raised by this case.

It is well settled that the highest of care is placed on a person operating a vehicle where he sees a child or children near the roadside. The driver must anticipate that the very young have limited judgment and may take sudden, unpredictable, and often foolish actions, and this responsibility is not relieved by merely blowing a horn.

However, each case must be decided on its own facts, and thus where a child darts from behind a large truck into the path of an oncoming vehicle, even with the presence of children across the street and of the victim’s mother with another child in her arms nearby, Wicker v. Southern Farm Bureau Cas. Ins. Co., 337 So.2d 1233 (La.App. 1st Cir. 1976), or where a child darted into the path of an automobile between two parked cars and was struck, Fontenot v. United States Fid. & Guar. Co., 336 So.2d 979 (La.App. 3rd Cir. 1976), or where a child ran from behind a hedge into the path of an automobile and was struck, Payne v. State Farm Mut. Auto Ins. Co., 299 So.2d 532 (La.App. 4th Cir. 1974) writ refused 302 So.2d 309 (La.1974), the driver has not been found at fault.

Under the facts as above found by the Trial Judge, we find as did the Trial Judge that there was no negligence on the part of the driver of the school bus.

Plaintiffs-appellants argue that since the recent case of Jones v. City of Kenner, 338 So.2d 606 (La.App.1976) allows a jury trial as against the insurer of a public body and that since the Trial Court decision in this case was not final until after the Supreme Court decision in Jones, that they should be allowed a new trial before a jury. The plaintiffs-appellants concede that there is a question as to their previous appeal to this Court on that issue alone.

At the time that this Court heard the first appeal in this case which is reported at 325 So.2d 764, the position of the First Circuit was that an interlocutory decree denying trial by jury caused irreparable injury and thus was appealable. See Hernandez v. Sartain, 297 So.2d 740 (La.App. 1st Cir. 1974). However, subsequent to our initial decision in Zuber, this Court in Guidroz v. State Farm Fire and Casualty Co., 334 So.2d 535 (La.App. 1st Cir. 1976) changed its position stating:

“Thus, we are of the opinion that the mere denial of a jury trial, without more, does not, upon its face result in irreparable injury such that it warrants a separate appeal, thereby disrupting orderly legal process and causing a commitment to the delays inherent in normal appellate procedure. We feel appellant’s appropriate remedy in these instances is either the application for supervisory writs or appeal after a final judgment.”

Plaintiffs-appellants in their motion in the Trial Court fixing this case for trial said:

“NOW INTO COURT, through undersigned counsel, comes the plaintiffs, Luther W. Zuber and Gail Anderson Zuber who suggest to the Court that the Court of Appeal, First Circuit, State of Louisiana has ruled on plaintiff’s appeal and plaintiffs have no intention of applying for a re-hearing or pursuing an application for review by the Louisiana Supreme Court; that the above case should be fixed for trial on its merits.”

We must assume that by the placement of this language in its motion fixing this case for trial the plaintiffs accepted the decision of this Court in affirming the denial of a jury trial.

Regardless of whether our decision in affirming the denial of a jury trial is-correct or not in light of Jones v. City of Kenner, that decision is the “law of the case” in this proceeding, and same will not be disturbed.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by plaintiffs-appellants.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    BUNKIE BANK & TRUST COMPANY, Plaintiff and Appellant, v. AVOYELLES PARISH POLICE JURY and Central Louisiana Bank & Trust Company, Defendants and Appellees.
    No. 6018.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1977.

      John A. Boatner, Jr., Bunkie, for plaintiff-appellant.
    Gravel, Roy & Burnes by Dan E. Meli-char, Alexandria, Knoll & Knoll by Eddie Knoll, Marksville, for defendant-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   CULPEPPER, Judge.

The plaintiff, Bunkie Bank & Trust Company, filed this suit against the defendants, Avoyelles Parish Police Jury and Central Louisiana Bank & Trust Company, to annul a fiscal agency contract entered into between the defendants. Plaintiff alleges it submitted the lowest and best bid to serve as fiscal agent for the police jury, but that the jury illegally awarded the contract to Cenia Bank.

The defendant bank filed an answer and obtained an order for trial by jury. Plaintiff bank then filed a motion to recall the order for trial by jury on the grounds that since one of the defendants, Avoyelles Parish Police Jury, is a political subdivision of the state, as to which there can be no jury trial, there should also be no jury trial as to the defendant bank. The district judge denied the motion to recall the order for a jury trial. He ordered that the issues between the plaintiff bank and the defendant bank be tried by jury, and the issues between the plaintiff bank and the police jury be tried by the judge. From this order, plaintiff appealed.

The decisive issue is whether we should, on our own motion, dismiss the appeal on the grounds that the judgment complained of is an interlocutory judgment which will not cause the appellant irreparable injury.

An appellate court may dismiss an appeal on its own motion where there is no right to appeal. LSA-C.C.P. Article 2162. Under LSA-C.C.P. Article 2083, an appeal may be taken from an interlocutory judgment which may cause irreparable injury. The judgment in the present case denying the motion to recall the order for trial by jury is clearly interlocutory. The only question is whether it may cause the appellant irreparable injury.

Pursuant to a request by this court during oral argument, the plaintiff bank filed a supplemental brief addressed to the issue of irreparable injury. Plaintiff argues the single issue in the case is whether the police jury illegally awarded the contract to the defendant bank, and that this is the same issue as between the plaintiff and the defendant bank and as between the plaintiff and the policy jury. Appellant contends that in a bifurcated trial, as ordered by the district court, if the jury and the judge reach opposite conclusions on this single issue, the only course of action open to the trial judge would be to set aside the jury verdict and grant a new trial. Plaintiff argues that if in the new trial the judge and the jury still reach opposite conclusions, successive new trials will be ordered by the judge until the jury agrees with him. Because of these possible delays, plaintiff says the fiscal agency contract in question, which is for a term of two years ending December 31, 1978, could terminate before plaintiff’s rights could be adjudicated. Thus, plaintiff contends it may suffer irreparable injury.

In answer to these contentions, we find at the outset that the trial judge correctly ordered a bifurcated trial of the present case. Although there are previous decisions from our Supreme Court to the contrary, the latest decisions from that court hold that where one defendant is a political subdivision, as to which LSA-R.S. 13:5105 prohibits a trial by jury, and there is another non-governmental defendant who requests a jury trial, the proper procedure is to have one trial, LSA-C.C.P. Article 1735, with the jury deciding issues as to the non-governmental defendant and the judge deciding the issues as to the governmental defendant. See Jones v. City of Kenner, 338 So.2d 606 (La.1976); Champagne v. American Southern Insurance Company, 295 So.2d 437 (La.1974) and the cases cited therein.

As to plaintiff’s argument that if the jury and the judge reach opposite conclusions this may cause plaintiff irreparable injury, because the trial judge may grant successive new trials until the contract in question has terminated, we conclude it is so highly speculative that the judge and jury will reach opposite decisions and that the judge will grant a rehearing that it is unreasonable to predict at this time that the plaintiff may be irreparably injured.

On the question of whether it would be necessary for the trial judge to grant a rehearing, we note the recent case of Thornton v. Moran, 341 So.2d 1136 (La.App. 1st Cir. 1976), writ granted and case remanded to the Court of Appeal with instructions, 343 So.2d 1065 (La.1977), decided on remand, 348 So.2d 79 (La.App. 1st Cir. 1977). In its original decision in Thornton, the Court of Appeal held that although the jury and the judge reached opposite results, each result was supported by a reasonable evidentiary basis and had to be affirmed under the rule enunciated in Canter v. Koehring, 283 So.2d 716 (La.1973). In a four to three decision, our Supreme Court granted writs and issued an ex parte order as follows:

“Judgment of court of appeal reversed; case remanded to court of appeal to resolve the difference in the factual findings between the jury and the judge in these consolidated cases and to render a single opinion based upon the record. La. Const. Art. 5, § 10(B); Rights of parties to reapply for writs in accordance with law after court of appeal renders decision in accordance with views herein expressed are reserved.”

On remand, 348 So.2d 79 (La.App. 1st Cir. 1977), the Court of Appeal, pursuant to the above quoted instructions from the Supreme Court, found the judge’s decision more reasonable than that of the jury and rendered judgment accordingly.

The above quoted order by our Supreme Court in Thornton clearly contemplates that where, in a bifurcated trial, the jury and the judge reach opposite conclusions of fact and there is an appeal, the Court of Appeal should resolve these differences and render a single decision based upon the record us a whole. As noted by the Court of Appeal decision on remand, our Supreme Court did not expressly rule on the question of whether the trial judge is also required to resolve conflicting decisions by the jury and the judge, but we think it must be inferred from the Supreme Court ruling in Thornton that the trial judge is not required to harmonize conflicting judgments in a bifurcated trial. We say this because in Thornton the Supreme Court did not remand the ease to the trial court with instructions to harmonize. Instead, it remanded the case to the Court of Appeal with instructions to harmonize. Thus, in the present case, if the judge and the jury reach conflicting decisions it would not be necessary for the trial judge to grant a new trial in an effort to seek a jury verdict which would be in harmony with the judge’s view of the case. The preferable procedure, under Thornton, is that the court of appeal harmonize any conflict in decisions by the jury and the judge.

For the reasons assigned, the appeal is dismissed. All costs of this appeal are assessed against the plaintiff-appellant. Costs in the trial court must be assessed after final judgment there.

APPEAL DISMISSED.


author: REDMANN, Judge.

text:
    Cleo Allen BUTLER et al. v. FLINT-GOODRIDGE HOSPITAL OF DILLARD UNIVERSITY et al.
    No. 8739.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 1, 1977.
    See also La.App., 346 So.2d 1131.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Donald Ensenat, Asst. Atty. Gen., for applicants.
    Before REDMANN, STOULIG and MORIAL, JJ.
   REDMANN, Judge.

This action is a demand for $4,000,000 against physicians and a hospital for alleged medical malpractice. To defendants’ plea of prematurity for failure first to present the claim to the medical panel provided by La.R.S. 40:1299.47 plaintiff filed an opposition asserting the unconstitutionality of that aspect of the statute under La.Const. art. 5, § 1, and of the statute’s damage limitation under art. 1, § 3 (as well as of a third, more complicated aspect). From judgment maintaining the exception plaintiff appealed.

The Attorney General then moved to be made a party, citing La.C.C.P. 1880, “inasmuch as this ease involves the constitutionality or unconstitutionality of a Louisiana statute.” That motion was denied by the presiding judge of this panel (sitting as the court for the month of June) by ordering that mover “may file a brief amicus curiae if he desires. C.C.P. 1880 only applies to declaratory judgment actions.”

Mover now moves reconsideration of that order and the presiding judge refers this motion to the panel.

We conclude, as did another panel of this court in Cross v. Waguespack, La.App. 4 Cir. 1975, 308 So.2d 321, 323, n. 3, that the “argument that petitioner could not attack the constitutionality of the statute without first citing the state attorney general overlooks C.C.P. art. 1880’s self-limitation to actions for declaratory judgments. Only in declaratory judgment actions seeking a declaration of unconstitutionality is there a requirement for citation of the attorney general.”

Osborn Funeral H., Inc. v. Louisiana State Bd. E., La.App. 2 Cir. 1967, 194 So.2d 185, 189, writ refused 250 La. 373, 374, 195 So.2d 645, 646, ignores the wording of C.C.P. 1880 to which Cross refers: “When declaratory relief is sought . . ..”

Mover’s assertion that plaintiff seeks “declaratory relief” is a recognition of C.C.P. 1880’s self-limitation. The fact, however, is that plaintiff seeks a money judgment for $4,000,000.

C.C.P. 1880 is not applicable. Our prior order correctly refused to order that the attorney general be made a party.

The prior order by the presiding judge is made the order of the court.

New Orleans, June 30, 1977.

      . Found in the chapter “Declaratory Judgments”, arts. 1871-1883, art. 1880 provides: “When declaratory relief is sought, all persons shall be made parties who have or claim any interest . .. If the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.”


author: GILLESPIE, Chief Justice,

text:
    BIGLANE OPERATING COMPANY and the State Oil and Gas Board of Mississippi v. R. H. BROWN et al.
    Nos. 49424, 49426.
    Supreme Court of Mississippi.
    June 22, 1977.
    As Modified On Denial of Rehearing July 27, 1977.
    Heidelberg, Woodliff & Franks, Kenneth I. Franks, Luther M. Thompson, A. F. Summer, Atty. Gen., by P. L. Douglas, Asst. Atty. Gen., Jackson, for appellants.
    Roach & McMillan, John Gordon Roach, Jr., McComb, for appellees.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice,

for the Court:

After a contested hearing in June, 1973, before the State Oil and Gas Board, the Board ordered, as requested by Biglane Operating Company’s petition, that temporary special field rules be adopted authorizing 80-acre spacing in the Johnston Station Field located in Lincoln and Pike Counties. In a separate order, the Board directed as requested by Biglane, appellant, that the drilling unit of the Gall-Brown well be reformed to comply with the 80-acre spacing as required by the special field rules. Mineral and royalty owners, appellees, appealed both orders to the Circuit Court of the First Judicial District of Hinds County. The circuit court issued two separate orders which were appealed to this Court. In Biglane Operating Company v. Brown, 322 So.2d 470 (Miss.1975), we remanded to the circuit court to decide all justiciable issues including but not limited to (1) whether special field rules were within the authority of the Oil and Gas Board to make, thereby amending Statewide Rule 7 on spacing; (2) whether special field rules created island acreage in violation of Statewide Rule 7(b); and (3) whether the evidence supported the ordering of the special field rules.

In March, 1974, the temporary special field rules were extended by order of the Board for a period of one year. In March, 1975, Biglane Operating Company petitioned for an additional extension of the special field rules. Although contested by the appellees, the Board ordered that the temporary special field rules be extended for an additional period of one year. This order was appealed to the circuit court by appellees. The circuit court consolidated the cause remanded by this Court and the temporary special field rules extension cause and held in two identical orders that (1) the Board had no authority to amend Statewide Rule 7; (2) the special field rules created island acreage; and (3) the evidence did not support the promulgation of the special rules. The present appeal by Big-lane Operating Company and others (hereinafter Biglane) raises several questions.

Biglane drilled a well known as the Gall-Brown well in the SWV4 of the SW!4 of Section 36, Township 5 North, Range 7 East, of Lincoln County. This well was successfully completed as a producing oil well at a depth of about 11,000 feet. This field was designated the Johnston Station Field. Thereafter Biglane petitioned the Board requesting the Board to reform the Gall-Brown drilling unit under which Big-lane was then operating on a 40-acre drilling unit into an 80-acre drilling unit, consisting of the 40 acres already in the drilling unit and the SV2 of the quarter-quarter section immediately to the north, and the N V2 of the quarter-quarter section immediately to the south. Contests were filed by the royalty owners of the minerals under the original 40-acre drilling unit. A well was drilled by other parties in the SV2 of the quarter-quarter section immediately to the south of the Gall-Brown quarter-quarter section. It produced about 18,000 barrels of oil and was abandoned.

In support of its petition Biglane offered in evidence a report by O’Malley Laboratories, Inc., of a core analysis of the Gall-Brown well, based on all the factors, including permeability, porosity, residual saturation values, and the thickness of the sand, which was sixteen feet.

Biglane also offered into evidence the testimony of J. W. West, a petroleum geologist, who stated that the producing zone was classified as the lower Tuscaloosa sand. West was of the opinion that the proposed 80-acre drilling unit would be drained by the Gall-Brown well. He stated that the permeabilities and the porosities in the Gall-Brown well were superior to most of the wells in the Gillsburg Field that was drilled on 80-acre spacing, and that the Gall-Brown well would efficiently drain the 80 acres and that if 80-acre spacing was not approved by the Board, economic waste would occur and unnecessary wells would be drilled.

The protestants offered the testimony of Frederick F. Mellen, a professional consulting geologist, and Leo Hines, a professional petroleum engineer. Both of these witnesses testified at length and were of a contrary opinion from that of Biglane’s witness West.

On the hearing to extend the special field rules held on March 19, 1975, West again testified in some detail showing that although a summary of the O’Malley report had shown maximum recovery from the Gall-Brown unit on 40 acres would be 219.6 barrels per acre foot, it had at that time produced 299 barrels per acre foot, which was proof that the well was adequately draining the 80-acre drilling unit because it had already produced far more oil than the recoverable oil underlying the Gall-Brown unit on 40 acres.

Witness Hines also testified for the contestants at the 1975 hearing and stated that Biglane had drilled four additional wells on 80-acre units to the east, north and west of the Gall-Brown well, resulting in four dry holes. He again stated that 80-acre spacing would cause waste.

Although the testimony on Biglane’s petition was contested, there was substantial agreement that the productive pool in question consisted of most or all of the 80 acres included in the reformed Gall-Brown drilling unit. In other words, on an 80-acre spacing it is a one well pool, or a three well pool if the units contain 40 acres. As previously stated, several wells were drilled surrounding the land just above described and all were dry holes.

I.

Did the special spacing rule create island acreage?

The Oil and Gas Board’s Statewide Rule 7 provides that “no unit shall be permitted which will create island acreage.” No case is cited defining island acreage.

Island acreage means acreage surrounded by drilling units so that the island acreage cannot be produced. Protestants contend that the 20-acre tract lying immediately to the south of the Gall-Brown unit, as reformed, would be island acreage because the limits of the field run along its southern boundary. The tract in question contended to be island acreage has already been drilled insofar as the lower Tuscaloosa pool is concerned and has been abandoned. This 20-acre tract is not surrounded by other units, and we find nothing in the rules to prevent the extension of the boundaries of the field as necessary and appropriate to form a unit including the acreage claimed to be “island acreage.” We are of the opinion that no island acreage was created.

II.

Was it within the power of the Board to adopt the special field rules providing for 80-acre spacing, and was the order based on substantial evidence?

The power of the Board to regulate the spacing of wells and establish drilling units is given by statute. Miss. Code Ann. § 53-1-17 (Supp.1976). Special rules may be adopted, not inconsistent with statutory provisions, to particular areas or subject matters and such special rules prevail over statewide rules. Oil & Gas Board’s Statewide Rule 1; State Oil & Gas Board v. Mississippi Mineral & Royalty Owners Association, 258 So.2d 767 (Miss.1971).

Reference is made to the testimony already referred to which clearly made a factual issue for the Board. In Ohio Oil Company v. Porter & Skelton, 225 Miss. 55, 82 So.2d 636, 639 (1955), and numerous other cases, this Court has held that the circuit court was in error in reversing the orders of the Board when there was a conflict in the evidence on the ground that the orders were against the overwhelming weight of the evidence and not supported by substantial evidence. We refer again to California Company v. State Oil & Gas Board, 200 Miss. 824, 27 So.2d 542 (1946). It was a landmark case holding that in adopting rules and regulations the Board is acting in a legislative capacity and,

[Therefore, the Circuit Court would be without constitutional power on appeal to substitute its own opinion as to what are proper oil conservation measures for that of the State Oil and Gas Board, on a legislative or administrative question, since the separation of executive, legislative and judicial powers, provided for by Sections 1, 2, 33, 144 and 156 of the State Constitution, forbid. 200 Miss. at 841, 27 So.2d at 545.

In the present case the Board specifically found that the proposed 80-acre unit “will promote conservation and eliminate waste and prevent the drilling of unnecessary wells and will fully protect the co-equal or correlative rights of all parties in interest.”

We are of the opinion that the order reforming the Gall-Brown unit to provide for 80-acre spacing was supported by substantial evidence, was consistent with the statutes, and did not violate the constitutional rights of any parties. Therefore, the orders were not arbitrary or capricious.

III.

Was the Board’s order extending the special field rules to the entire 1680 acre Johnston Station Field valid?

Mississippi Code Annotated section 53-1-3 (1972) defines “pool” and “field” as follows:

(e) “Pool” shall mean an underground reservoir containing a common accumulation of oil or gas or both. Each zone of a general structure which is completely separated from any other zone in the structure is included in the term “pool” as used herein.
(f) “Field” shall mean the general area which is underlaid or appears to be un-derlaid by at least one pool; and “field” shall include the underground reservoir or reservoirs containing oil or gas or both. The words “field” and “pool” mean the same thing when only one underground reservoir is involved; however, “field,” unlike “pool,” may relate to two or more pools.

The Johnston Station Field to which the rules apply comprises approximately 1680 acres. Between the time of the first hearing before the Board in which the special field rules were adopted and 1975 rules extension hearing, Biglane drilled four dry wells. Two dry holes were drilled adjacent to the Gall-Brown unit on the east and one adjacent to that unit on the west. The fourth dry well was drilled approximately one mile to the north of the Gall-Brown well. Based on this new information, West and Hines introduced isopachous maps which were virtually identical. These iso-pachous maps indicate that the area comprising the reformed Gall-Brown unit is substantially the same as the area comprising the underlying pool.

We find no indication beyond mere speculation that the lower Tuscaloosa pool from which the Gall-Brown well is producing extends beyond the area comprising the Gall-Brown reformed unit. Therefore, the order extending the special field rules to the entire 1680-acre Johnston Station Field is without evidentiary basis and the circuit court correctly reversed the State Oil and Gas in this respect, but it erred in reversing the extension of time as to the Gall-Brown 80-acre unit.

The order of the circuit court in Case No. 49,426 providing for reformation of the Gall-Brown unit and establishing special field rules is reversed and the order of the Board reinstated. The order of the circuit court in case No. 49,424 reversing the Board’s order extending the field rules is affirmed in part, but is reversed as to that part of the order extending the special field rules to the Gall-Brown 80-acre unit and the said order is reinstated thereasto.

CAUSE NO. 49,426 REVERSED AND RENDERED;

CAUSE NO. 49,424 AFFIRMED IN PART AND REVERSED IN PART.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur


author: SUGG, Justice,

text:
    Doris Elizabeth PACE and James C. Walker v. James Lamar CULPEPPER and wife, Louise Shirley Culpepper.
    No. 49403.
    Supreme Court of Mississippi.
    July 6, 1977.

      Warner, Ray & Cobb, Harvey B. Ray, Meridian, for appellant.
    Witherspoon, Compton & Mason, William B. Compton, Meridian, for appellees.
    Before PATTERSON, SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

The appeal and cross appeal in this case are from a decree of the Chancery Court of Lauderdale County. The primary question is whether the rule against perpetuities applies to an option to purchase land.

On March 28, 1970 Mr. and Mrs. C. B. Walker conveyed by warranty deed 2.54 acres to James L. and Louise S. Culpepper for the consideration of $1,000 per acre. On the same date the Walkers and Culpeppers signed an option giving the Culpeppers the first option to purchase an additional .6 of an acre owned by the Walkers at $1,000 per acre.

On March 28, 1973, following the death of his wife, C. B. Walker conveyed by quitclaim deed the .6 of an acre covered by the option to his daughter, Doris Elizabeth Pace, who then conveyed an undivided one-half interest to her brother, James C. Walker on June 21, 1973. C. B. Walker died on June 30, 1973.

Doris Elizabeth Pace and James C. Walker filed suit in the Chancery Court against James Lamar Culpepper and wife, Louise Shirley Culpepper, seeking to set aside the option and warranty deed on the grounds that (1) the consideration was so inadequate as to shock the conscience, (2) the option was void because it violated the rule against perpetuities; (3) the option is void as a restraint upon the alienation of property, and (4) the option and the deed together form a single integral transaction and if the option is void and set aside the deed must also be set aside. The Culpeppers answered and denied the essential allegations of appellants’ lawsuit and the matter was submitted to the chancery court without testimony based upon the pleadings and documents involved.

No proof was offered on the question of inadequacy of consideration so this question was not before the trial court and is not before this Court on appeal.

The chancery court held that the deed was valid but the option was void and should be cancelled. Complainants appealed from the holding that the warranty deed was valid and defendants cross appealed from the holding that the option was void.

At the outset the difference between an ordinary option and a pre-emptive right should be noted. In a typical option the optionee has the absolute right to purchase for a definite consideration. A preemptive right involves the creation of the privilege to purchase only on the formulation of a desire on the part of the owner to sell.

In considering whether the option violated the rule against perpetuities two questions are presented: (1) was the pre-emp-tive right granted the Culpeppers personal; namely, would it die with them and therefore not violate the rule against perpetuiti-es; and (2) even if the pre-emptive right was not personal, did it violate the rule against perpetuities?

In considering the first question, we do not experience difficulty in concluding that the right was not personal because the option grants to the Culpeppers and “their heirs, executors, administrators and/or assigns the first option to purchase said .6 of an acre at the rate of $1,000 per acre.” By the express terms of the option, the preemptive right to purchase extends not only to the Culpeppers but to their heirs, executors, administrators or assigns without limit as to time.

We have never decided whether the rule against perpetuities applies to options to purchase real estate; however, the Court has been confronted with the rule in other contexts. In Magee v. Magee’s Estate, 236 Miss. 572, 111 So.2d 394 (1959), we held that a testamentary trust was not in violation of the rule against perpetuities and in so holding the following definition of the rule was given:

‘The rule against perpetuities prohibits the creation of future interests or estates which by possibility may not become vested within a life or lives in being at the time of the testator’s death or the effective date of the instrument creating the future interest, and twenty-one years thereafter, . . .’ (236 Miss. at 591, 111 So.2d at 402).

In Carter v. Berry, 243 Miss. 321, 136 So.2d 871, Sugg. of Error, 140 So.2d 843 (1962), this Court stated:

The rule against perpetuities is the law limiting the time within which future interests can be created. Gray, The Rule Against Perpetuities, Fourth Edition, Sec. 4, p. 4. It is stated as follows: ‘No interest subject to a condition precedent is good, unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest.’ And also: ‘No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.’ Sec. 201, p. 191, ibid. But, a true vested interest is never obnoxious to that Rule, while a contingent interest not only may be, but often is, violative of the Rule. Sec. 99, p. 88, ibid. And again, ‘A vested interest is not subject to the Rule against Perpetuities.’ Sec. 205, p. 194, ibid. See also 70 C.J.S. Perpetuities § 10, p. 585. (243 Miss. at 343, 136 So.2d at 875-876).
The rule against perpetuities is a rule invalidating interests which vest too remotely. It is not a rule against suspension of the power of alienation of property through the creation of interests in unborn or unascertained persons. It is not satisfied by the fact that there are persons in being who can together give a complete title to a purchaser. However, both principles stem from the general policy against withdrawal of property from commerce. Leach and Tudor,'The Rule Against Perpetuities (1957), Sec. 24.-3. In other words, an interest violating the rule against perpetuities fails because it. vests too remotely; it may be, and usually is, freely alienable at all times. We are not concerned here with the ‘succession of donees’ statute. Miss.Code 1942, Rec., Sec. 838; see Custy and Brand, Future Interests — The Mississippi Two Donee Statute and the Common Law Rule Against Perpetuities, 30 Miss. L.J. 221 (1959). (243 Miss. at 357-358, 140 So.2d at 846).

Applying our decisions to this case, it is readily apparent that the option violates the rule. At the time of its inception the option vested no immediate interest in the Culpeppers. To the contrary there was a mere possibility that the Culpeppers would ever acquire an interest to the .6 of an acre. This possibility depended on whether the Walkers, or their heirs, ever decided to sell the property. Magee and Carter are but two of our many cases holding that the rule does not apply to vested interests but does apply to future interests or estates which by possibility may not become vested within the time required.

It is not necessary for us to rely solely on the general rules announced by this Court to determine whether the option is void because there is an abundance of authority in other jurisdictions supporting the view that the rule against perpetuities is applicable to options to purchase real estate. Skeen v. Clinchfield Coal Corp., 137 Va. 397, 119 S.E. 89 (1923); Turner v. Peacock et al., 153 Ga. 870, 113 S.E. 585 (1922); Barton v. Thaw, 246 Pa. 348, 92 A. 312 (1914).

In 61 Am.Jur.2d, Perpetuities § 50 at 51 (1972), the rule is stated as follows:

Options given to purchase real estate are regarded as having the effect of creating future interests depending on the contingency of the exercise of the option. Hence if there is a possibility that the option may not be exercised within the limits of time allowed by the rule against perpetuities, the option is void as a violation of this rule. Such is held to be the case where no time is fixed within which the option must be accepted. So, according to the generally prevailing view, an option to purchase real property, unlimited as to the time for its exercise, or extending beyond the period limited by the rule against perpetuities, violates such rule and is invalid.

The rationale behind this rule is explained in Morris and Leach, The Rule Against Perpetuities, Ch. 8, at 213 (1956):

But it has been held both in England and the United States that an option to purchase land is too remote if it can be exercised beyond the perpetuity period. The reasoning by which this result was reached was as follows. An option to purchase land is specifically enforceable. This gives the option-holder an equitable interest in the land; this interest is contingent upon his election to exercise the option. Contingent interests in land are void unless they must vest (if at all) within the perpetuity period. Therefore an option to purchase which may be exercised beyond the perpetuity period is void to the extent that it creates an interest in land.

Accord, Gray, The Rule Against Perpetuities, 4th Ed. § 330, at 362 (1942); and Leach, Perpetuities in Perspective, 65 Harv.L.R. 721, 737 (1952), 162 A.L.R. 581 (1946).

Pre-emptive rights to purchase real estate are subject to the rule against perpe-tuities. 61 Am.Jur.2d Perpetuities § 54 at 55 (1972), states the rule as follows:

A pre-emptive right to purchase real estate, which right involves the creation of a privilege to buy only on the formulation of a desire by the owner to sell, as distinguished from an ordinary option giving the optionee the absolute right to buy for a definite consideration, is held to be subject to the rule against perpetuiti-es. Thus it has been ruled that a contractual right, granted to A and his heirs and assigns, unlimited as to time, to purchase real estate upon the same terms as the owner could and would sell to a third person, is void. However, where a preemptive right option is personal to the parties and is not binding upon their heirs or assigns, it has been held not to violate the rule against perpetuities.

It has been said that, “A pre-emption of unlimited duration, requiring offer to the pre-emptioner for a specified sum of money, is the most objectionable type of pre-emption, and is void by the weight of authority.” American Law of Property, Vol. VI, § 26.67, p. 510.

The option in the case before us created in the Culpeppers, the optionees, a pre-emp-tive right to purchase unlimited as to time and indefinite in duration. The option was not personal to the optionees, but created a future equitable interest in the .6 of an acre which was susceptible of inheritance. It violated the rule against perpetuities because there is a possibility that it may not become vested within the time required by the rule.

Option contracts such as the one involved in this case cannot be upheld because such contracts take property out of commerce and prevent land from answering to the needs of growing communities. No improvements can be made on land so encumbered because the land always remains subject to being taken under the option. It is not a matter which affects the rights of individuals only, but the welfare of the public is at stake. It was for the express purpose of destroying such hinderances to progress that the rule against perpetuities was brought forth.

The Culpeppers argue that we should apply the doctrine of equitable approximation and hold invalid that portion of the option which could extend beyond the lives of the Walkers. The rule of equitable approximation was defined by this Court in National Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 649 (1933) as follows:

“ ‘At this point it should be observed that the cy pres practice is not to be confused with the equitable doctrine of approximation which has grown up in the judicial administration (as distinguished from judicial creation) of charitable trusts. The ecclesiastical rule of cy pres is one thing, and the equitable rule of approximation is distinctly another. Their purpose, and their application are entirely different. As said by the Alabama court (Lovelace v. Marion Institute et al., 215 Ala. 271, 110 So. 381), ‘The appeal in this case is not to any cy pres power of the court, but to the equitable doctrine of approximation, in virtue of which the court of chancery exercises jurisdiction merely to vary the details of administration, in order to preserve the trust, and carry out the general purpose of the donor.’ ” (167 Miss. at 593, 148 So. at 654).

The equitable rule of approximation was applied in Carter v. Berry, supra, and In Re Estate of Kelly, 193 So.2d 575 (Miss.1967). In its final analysis the equitable rule of approximation is a rule of judicial construction, designed to aid the Court to ascertain and carry out, as nearly as may be, the intent of a donor or testator. It has been applied in this state to trusts and wills but has never been applied to options. In trusts and wills there is a vesting of property and the rule is applied to vary the details of administration to preserve the trust and to carry out the intention of the donor or testator, whereas in an option there is no vesting of property.

The complainants in their direct appeal argue that the deed executed by the Walkers to the Culpeppers, together with the option, constituted a single transaction and if the option fails the deed must also fail. They urge, under the holding of Carter v. Berry, supra, that the total plan of the parties to the deed and to the option is a part of a single transaction with each instrument inextricably tied to the other.

We reject this contention because the deed is valid and complete on its face. Full consideration was paid for the 2.54 acres conveyed by the deed. The deed does not contain any restriction or limitation. It was not dependent upon the validity of the option and the Culpeppers by the option did not bind themselves to purchase the additional .6 of an acre. Cancellation of the option does not affect the validity of the deed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.

      .
      OPTION
      THIS AGREEMENT is made and entered into between C. V. WALKER and wife, MRS. BERTHA JOHNS WALKER, Parties of the First Part, and JAMES LAMAR CULPEPPER and wife, LOUISE SHIRLEY CULPEPPER, Parties of the Second Part, as follows, to-wit:
      In consideration of the fact that the Parties of the Second Part are today purchasing from the Parties of the First Part 2.54 acres of land at the rate of $1,000.00 per acre; that the Parties of the Second Part desire to purchase all the property of the Parties of the First Part that lies between U. S. Highway No. 45 and the Springhill Public Road in Lauderdale County, Mississippi; that the Parties of the First Part desire to retain approximately six-tenths (6/io) of an acre; however, both Parties of the First Part and Parties of the Second Part are agreeable to going ahead with the sale and purchase of the 2.54 acres, exclusive of the 6/io of an acre being retained, provided the Parties of the First Part will give the Parties of the Second Part an option to purchase said e/io of an acre.
      NOW THEREFORE, in consideration of the premises and the agreement of the Parties of the Second Part to proceed with the purchase of the 2.54 acres of land at the rate of $1,000.00 per acre, the Parties of the First Part do hereby contract and agree with the Parties of the Second Part as follows:
      1. That if and when the approximately 6/io of an acre of land being retained by the Parties of the First Part in the triangle formed by the intersection of U. S. Highway No. 45 and the Springhill Public Road (being all the land that Parties of the First Part will have left lying between U. S. Highway No. 45 and the Spring-hill Public Road) is desired to be sold the Parties of the First Part and their heirs, executors, administrators and/or assigns will give the Parties of the Second Part and their heirs, executors, administrators and/or assigns the first option to purchase said 6/io of an acre at the rate of $1,000.00 per acre.
      2. The Parties of the First Part will give Parties of the Second Part at least thirty (30) days within which to complete the exercise of this option after Parties of the First Part, their heirs, executors, administrators and/or assigns have notified the Parties of the Second Part, their heirs, executors, administrators and/or assigns of their intent to sell said 6/io of an acre.
      3. Upon tender of the purchase price at the rate of $1,000.00 per acre the Parties of the First Part, their heirs, executors, administrators and/or assigns contract and obligate themselves to sell, convey and warrant generally unto the Parties of the Second Part, their heirs, executors, administrators and/or assigns the approximately 6/io of an acre free and clear of all liens; and, to make and deliver a good and sufficient deed of conveyance unto said Parties of the Second Part, etc.
      4. This option is intended to be a continuing, lasting and binding option upon the Parties of the First Part, their heirs, executors, administrators and/or assigns because the Parties of the Second Part do not desire to purchase the other 2.54 acres unless they have the first option to purchase the approximately 6/io of an acre being retained by the Parties of the First Part.


author: SMITH, Justice,

text:
    Greg E. MILSTID v. STATE of Mississippi.
    No. 49792.
    Supreme Court of Mississippi.
    July 13, 1977.
    Alfred Lee Felder, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SMITH and BROOM, JJ.
   SMITH, Justice,

for the Court:

Greg E. Milstid was convicted in the Circuit Court of Harrison County of the sale of a controlled substance and was sentenced to five years in the penitentiary. On appeal he assigns and argues as having constituted reversible error the fact that, on cross-examination, information was elicited from him that he had previously been convicted of burglary. It is conceded that the credibility of a defendant testifying as a witness in a criminal case may be impeached by showing that he previously had been convicted of a felony. Milstid, however, argues that this was improper here because, at the time of his trial in the present case, Milstid’s appeal to the Mississippi Supreme Court from his burglary conviction had not been acted upon and was then pending. This contention has been specifically rejected by this Court in Nicholson v. State, 254 So.2d 881 (Miss.1971). In Nicholson this Court said:

We find no merit in the appellant’s assignment relative to allowing the district attorney to cross examine him in regard to his recent conviction of the crime of manslaughter. ... A majority of the jurisdictions hold a defendant may be impeached by the use of a previous conviction which is on appeal. The basis for so holding is that unless and until the judgment of the trial court is reversed, the defendant stands convicted, is no longer presumed to be innocent of the crime for which he was convicted, and may be impeached by that conviction. Of course, after the conviction has been reversed it cannot be used for impeachment purposes until the defendant is again convicted. When a jury in circuit court returns a verdict of guilty, it is a conviction of the crime charged, and unless and until it is reversed by this Court, the conviction stands, and may be used for impeachment purposes. Bucklew v. State, 192 So.2d 275 (Miss.1966).

(254 So.2d at 883-884).

Appellant next asserts that he was improperly sentenced to the Mississippi State Penitentiary. It is pointed out that he was 18 years of age at the time of his trial and sentence and that he had no previous record of convictions of drug related offenses. He contends that in view of his age and of the fact that he had not been previously convicted of any drug related offense that he should have been sentenced as provided under Mississippi Code Annotated sections 41-29-149 and 41-29-150 (Supp.1976) rather than to the penitentiary. The attorney general concedes this point. The conviction will be affirmed and the case will be remanded to the trial court for imposition of sentence as provided by Mississippi Code Annotated sections 41-29-150(c) and 41-29-150(d). Since we find no reversible error in Milstid’s trial the conviction will be affirmed. The case is remanded to the trial court for imposition of a proper sentence under the statutes referred to.

CONVICTION AFFIRMED. CASE REMANDED TO THE TRIAL COURT FOR THE IMPOSITION OF THE PROPER SENTENCE.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.