text:
    Fred HILL and Betty Hill v. COLEMAN OLDSMOBILE, INC. and General Motors Corporation.
    No. 82 CA 0131.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    Joseph R. Raggio, Baton Rouge, for plaintiffs-appellees Fred Hill and Betty Hill.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellant Coleman Oldsmobile, Inc.
    Henry D. Salassi, Baton Rouge, for defendant-appellee General Motors Corp.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

In this appeal by defendant, Coleman Oldsmobile, Inc., from the trial court judgment ordering a complete rescission of the sale, defendant assigns the following specifications of error:

I.The trial court erred in its finding that a redhibitory defect existed in the vehicle at the time of the sale to the plaintiffs-appellees.
II.The trial court erred in failing to find that the existence of any problem in the heads was an apparent defect, or one which had been disclosed to the plaintiffs-appellees.
III. The trial court erred in failing to consider the limitation of warranty provisions contained in the Act of Sale which were explained to the plaintiffs-appellees.
IV. The trial court erred in failing to find that the seller should be given an opportunity to repair the vehicle and that it was in fact repaired.
V.The trial court erred in ordering a complete rescission of the sale, inasmuch as the minor nature of the problem in the vehicle would warrant only a reduction of the price.

The trial judge’s written reasons, a copy of which is appended hereto, adequately set forth the facts of this case.

I

The trial judge concluded that the cracked engine heads existed at the time of the sale. In arriving at this factual conclusion, the trial judge apparently disbelieved the response of Robert Neal, a mechanic at Coleman Oldsmobile, to a test performed on the engine heads, when all Neal did as a result thereof was replace the head gaskets. The results of the test were excluded as hearsay. The trial judge had the opportunity to view the witness vis-a-vis a reading of a cold record, and given the great discretion a trial judge has in fact finding, we cannot say he is clearly wrong.

II

Mere knowledge that there is a water leak with subsequent information that the head gaskets had to be changed does not create in the buyer knowledge of an apparent defect with the engine heads.

III

The limitation of warranty provision appear in the act of sale, to wit:

“LIMITED WARRANTY
“This car has 30 days 50-50 warranty on transmission, engine, and differential, work to be done in our shop or 1,000 miles whichever comes first,”

is not sufficient to put a buyer on notice that he has either waived or limited his rights under La.Civ.C. art. 2520, et seq.

IV AND V

We are convinced that the trial judge was in error in declaring an avoidance of the sale rather than a reduction of the price. La.Civ.C. art. 2543. It is not apparent from the evidence in this record that plaintiffs would have refused to purchase this vehicle if they would have been originally informed that there were cracked engine heads, but same would be replaced. In fact plaintiffs’ own independent mechanic stated that once the heads would be changed, there should be no further problems.

The plaintiffs purchased a used vehicle with 18,483 miles on it. Though redhibition also applies to used vehicles, it is not unreasonable for a purchaser to expect some problems subsequent to the purchase. Thus we conclude that the defects and inconveniences were not sufficient to void the sale. The-sale price will be reduced by the bills from Woodway Gulf of Houston, Texas for $100.75 for radiator repairs and the Polk Chevrolet bill of $855.01. Inasmuch as plaintiffs took the vehicle to Adams Repair Works, Inc. without first giving Coleman an opportunity to repair, we cannot allow a reduction for this amount.

Therefore, for the above and foregoing reasons, the judgment of the trial court is amended and there is now judgment in favor of plaintiffs, Fred Hill and Betty Hill, against the defendant, Coleman Oldsmobile, Inc. in the full and true sum of $955.76 with legal interest from date of judicial demand until paid, and for all costs both in the trial court and in this court.

AMENDED AND AFFIRMED.

APPENDIX

WRITTEN REASONS FOR JUDGMENT

Fred Hill and Betty Hill filed this redhi-bitory action to rescind the sale of a 1979 Chevrolet pickup truck purchased from Coleman Oldsmobile, Inc. and manufactured by General Motors Corporation.

On Saturday, May 31, 1980, petitioners saw a black 1979 Chevrolet Silverado diesel pickup on the used car lot of Coleman Oldsmobile. Petitioners inquired of J. Bill Bullock, a salesman at Coleman Oldsmobile, Inc., about the pickup. After test driving the pickup, the petitioners decided to buy it. Mr. Hill left for work, leaving Mrs. Hill to sign the necessary documents. The purchase price was $7,500.00 with $360.00 for taxes and $15.00 for registration for a total price of $7,875.00. Petitioners traded a vehicle in for which they were allowed $1,500.00, leaving a balance of $6,375.00.

Mr. Hill testified that after test driving the pickup on Saturday, May 31, 1980, the salesman, Mr. Bullock, informed him that it appeared that water was leaking under the vehicle which needed to be checked. Monday, June 2,1980, was given as the delivery date of the pickup.

Robert Neal, a mechanic at Coleman Oldsmobile, testified that when the pickup was brought to him for repair, he was informed that it leaked water. Mr. Neal stated that he fixed a water hose, replaced the water pump and thermostat. He also noticed that there was a burned head gasket. The heads were sent to another concern to ascertain if the heads were cracked. No testimony was given as to this test. Mr. Neal placed a new head gasket on the pickup.

Mr. Hill testified that Mr. Bullock phoned him Monday, June 2,1980, informing him of the need of a head gasket and that delivery would be after the head gasket was replaced. The vehicle was subsequently delivered.

Approximately three weeks after the purchase, Mr. Hill noticed the temperature gauge rising. Upon checking he found the water level low. Water was added. Approximately three weeks later, the temperature gauge registered hot. The water was low and more was added.

Mr. Hill made two trips to Houston in the pickup. On the later trip the vehicle registered hot and the radiator was repaired at a cost of $100.75 (see Exhibit P-2).

Due to the frequency of running hot, Mr. Hill took the pickup to Adams Repair Works, Inc. on September 9, 1980, to have the vehicle repaired. Mr. J.C. Kelly, owner of Adams Repair Works, Inc., testified he removed the heads and after being magna flushed, it was discovered that the heads were cracked, which would be the source of causing the vehicle to overheat. Due to the cost of repair, Mr. Hill informed Mr. Kelly to reassemble the vehicle. The bill of Adams Repair Works, Inc. was $514.05 (Exhibit P-3).

Mr. Hill contacted Coleman Oldsmobile, Inc. concerning the cracked heads and was referred to a General Motors truck distributor, Polk Chevrolet. Mr. Hill contacted General Motors’ representatives about the cracked heads (Exhibits P-5, P-6, P-7) and was basically advised to take the vehicle to Polk Chevrolet for examination. Polk charged $855.81 and refused to release the pickup until its charge was paid. The truck remains at Polk Chevrolet. No one from Polk Chevrolet testified as to its findings, however, Mr. Hill testified that Polk Chevrolet told him they fixed a heater core and the truck was ready.

This Court finds that the pickup was overheating due to cracked heads. Were these heads cracked when sold by Coleman Oldsmobile, Inc.? Mr. Neal testified that the cracked head gasket he found would cause the pickup to run hot. Since Coleman Oldsmobile had just obtained the truck as a trade-in, it must have been overheating for the prior owner. Mr. Neal stated the test he performed in finding the cracked head gasket would also be the same test to determine if the heads were cracked. He was concerned enough about the heads that he sent them to be tested.

This Court believes that Mr. Kelly’s examination revealed cracked heads which were present when the pickup was sold to petitioners by Coleman Oldsmobile. Mr. Josephson, customer service representative for General Motors, in his letter of November 5, 1980, states:

“Also, diesel heads do occasionally crack between valve seats but in no way hinders the operation and performance of the engine.”

Mr. Neal disagreed with this statement.

Civil Code Article 2520 provides:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

To prevail in an action for redhibition, the purchaser must establish that the thing sold is absolutely useless for its intended purpose or that its use is so inconvenient that it must be supposed that the purchaser would not have made the purchase had he known of the defects. He must also prove that the defects existed at the time of the purchase, but were neither known nor apparent to him, and that the seller could not, or would not, correct the defects when given the opportunity to do so. Associates Financial Services Co. v. Ryan, 382 So.2d 215 (La.App. 3rd Cir.1980).

Although the cracked heads existed at the time of the sale, Mr. Hill did not know of such nor were the defects apparent to him. It was only after the purchase of the vehicle that he was informed of a cracked head gasket. The water leak mentioned by the salesman would not constitute sufficient notice to Mr. Hill of any defect in the heads.

This Court finds that the sale should be rescinded.

When a seller is in good faith, he must be given an opportunity to repair the thing before a redhibitory action can be brought. Civil Code Article 2531. This article further provides that if the seller is unable or fails to repair, remedy or correct the vice, then he must restore the purchase price and reimburse the reasonable expenses occasioned by the sale.

Under this article the purchaser is not entitled to attorney fees from the good faith seller. Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (La.App. 4th Cir.1981).

The pickup had 18,483 miles on the date petitioners purchased it and 24,078 miles when left at Polk Chevrolet, Inc., resulting in petitioners operating it 5,595 miles. Under Article 2531 the good faith seller is entitled to a credit for this use which the Court fixes at $839.25, representing an allowance of 15$ per mile. Davidson v. New Roads Motor Co., Inc., 385 So.2d 319 (La. App. 1st Cir.1980).

Petitioners financed the pickup with General Motors Acceptance Corporation (Exhibit P-12). Petitioners are entitled to recover the value of their trade-in, $1,500.00; the cash price of the vehicle, $6,360.00; $334.30 for credit life; $15.00 for recordation, title and license and finance charges of $2,843.18, making a total of $11,052.48.

Petitioners testified to and submitted bills from Woodway Gulf of Houston, Texas, for $100.75 and Adams Repair Works, Inc. for $514.05 for which he is entitled to recover. The Court will not allow recovery of the Polk Chevrolet bill of $855.01.

Therefore, petitioners are entitled to a judgment of $11,667.28, less the credit of $839.25 and less the amounts petitioners are entitled to from the cancellation of the credit life insurance and the prepayment of the loan. Further, petitioners are to surrender the pickup to Coleman free and clear of any liens and mortgages, including any claim that Polk Chevrolet might have.

Judgment will be signed accordingly.

Baton Rouge, Louisiana, this 8th day of December, 1981.

/s/ William H. Brown

JUDGE


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    Harold L. JOHNSTON, Plaintiff-Appellant, v. MOREHOUSE PARISH POLICE JURY, et al., Defendants-Appellees.
    No. 15076-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Writ Denied Jan. 28, 1983.

      McLeod, Verlander & Dollar by Robert P. McLeod, Monroe, for plaintiff-appellant.
    Rankin, Yeldell, Herring & Katz by James E. Yeldell, Bastrop, for defendants-appellees.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

Appellant Harold L. Johnston was prohibited from selling beer by an ordinance enacted by appellee Morehouse Parish Police Jury pursuant to a local option election. He now brings this appeal to challenge the lower court’s determination that both the ordinance and the election were legally valid and binding. We find that the local option election which was the predicate of the prohibitory ordinance was not authorized by law. We therefore reverse.

Appellant Harold L. Johnston is the owner and operator of Community Grocery, a small store located approximately sixteen miles north of Bastrop, Louisiana, in Ward Two of Morehouse Parish. Community Grocery has been the site of a rural store for over fifty years, although Mr. Johnston has been the proprietor of the establishment only since January 1, 1979. At the time he began his proprietorship there in 1979, Mr. Johnston did not own a license to sell liquor. On May 17, 1979, the More-house Parish Police Jury granted Mr. Johnston a license to sell beer containing not more than 3.2% alcohol by weight. Mr. Johnston renewed his license in December of 1979, 1980 and 1981.

Mr. Johnston’s store is the only beer outlet in Ward Two. Furthermore, the store is located two miles from the Louisiana-Arkansas border, directly opposite Ashley County, Arkansas, a so-called “dry” county in which alcoholic beverages are legally sold only in private clubs. Arkansans account for 98% of Mr. Johnston’s total beer sales.

The record reflects that Mr. Johnston was unable to make a profit during the initial five to six month period in which he operated his store without a license to sell liquor. Although Mr. Johnston also sells gasoline and a full line of groceries, he testified at trial that beer sales account for 90 to 95% of his total yearly gross of $570,000. Mr. Johnston asserted at trial that, if beer sales were to be outlawed, he would remain in business “just long enough to close the doors.”

On October 27,1979, a special option election was held in the Ward Two of More-house Parish. The following question was one of four propositions presented the electorate at that election:

“Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted?”

The voters responded negatively by a margin which is not stated in the record. On October 12,1981, the Morehouse Parish Police Jury enacted Ordinance 1053 pursuant to this election mandate. The ordinance prohibited the sale in Ward Two of alcoholic beverages of varying degrees of potency, including “any beverage containing more than one-half of one percent (Vfe of 1%) alcohol by volume but not more than three and two-tenths percent (3.2%) by weight.” The ordinance took effect on November 14, 1981, with law enforcement officials informing Johnston that they were ready to effectuate immediate enforcement.

Plaintiff originally sued to have Ward Two’s special election invalidated on the basis of alleged procedural irregularities. These claims were found by both the trial court and then the Second Circuit to be devoid of merit. See Johnston v. More-house Parish Police Jury, 401 So.2d 517 (La.App. 2d Cir.1981).

Harold Johnston subsequently filed this suit on November 10, 1981 alleging that Ordinance 1053 was unauthorized under state law; he prayed that the ordinance be declared invalid and that the police jury be permanently enjoined from enforcing its provisions. The trial court issued a temporary restraining order precluding the ordinance’s enforcement and ordered the More-house Parish Police Jury to show cause why injunctive relief should not issue. At that hearing, the trial court upheld the validity of Ordinance 1053 and denied appellant in-junctive relief.

The issue to be resolved here is whether Harold Johnston was legally prohibited from selling 3.2% beverages. In answering this question we focus not on the prohibitory ordinance enacted by the Morehouse Parish Police Jury, but on the local option election which was the legal predicate of the ordinance enacted. This is because the powers of political subdivisions to ban the sale of 3.2% intoxicants is only that which is statutorily delegated to them by the state. The sole authorization for parish police juries to prohibit such sales by ordinance is contained in LSA-R.S. 26:595 which permits police juries to enact such ordinances pursuant to “an election held under the provisions of this Chapter.” Thus, the power to pass prohibitory ordinances is dependent upon an election authorized by Title 26 of the Revised Statutes. If a valid election was conducted, then the ordinance is valid. Conversely, if the election was not authorized by Title 26, the Morehouse Parish Police Jury was not empowered to pass the ordinance. Consequently, our sole inquiry is: Was the Morehouse Parish Police Jury legally empowered by Title 26 to conduct the Ward Two option election which served as the legal predicate for the sales ban contained in Ordinance 1053? We find, for the following reasons, that Morehouse Parish Police Jury was not thus empowered.

The state has the ultimate power to regulate and prohibit the sale of intoxicants. The logical corollary of this premise is that political subdivisions of the state possess only such regulatory or prohibitory powers as are expressly delegated to them by the state through statutory enactment. See Harper v. State Dept. of Revenue, 328 So.2d 669 (La.1976); State v. Wright, 305 So.2d 406 (La.1974); State v. Sissons, 292 So.2d 523 (La.1974). Therefore, in the absence of an applicable statutory delegation, we must summarily conclude that the instant option was unauthorized and thus null and void.

The statute urged by appellees as the source of their authority to conduct an option election on prohibiting the sale of 3.2% beverages is LSA-R.S. 26:586.1. This statute provides that:

“A. In addition to the procedure for calling local option elections by petition of twenty-five percent of the qualified electors residing in any ward or incorporated municipality an election may be ordered to determine whether or not the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing and selling alcoholic beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight, shall be conducted and licensed therein. Notwithstanding the provisions of R.S. 26:588, the ballot, in addition to the propositions contained in R.S. 26:587, shall contain the following proposition:
‘Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted in ....
“B. This election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward. No such election shall be held on a parish-wide basis or for any subdivision other than the ones above mentioned.
“C. No such election shall be held for the same subdivision oftener than once in every two years.
“D. Any local option election called under the provisions of this Chapter shall only be called upon a petition of twenty-five percent of the registered voters living in the respective political subdivision.”

Morehouse Parish’s argument is that this statute constitutes a substantive grant of authority to every local subdivision in the state to prohibit the sale of 3.2% beverages pursuant to local option election. Appellant Harold Johnston’s argument is that this statute provides nothing more than a procedural apparatus by which a small number of enumerated parishes in the state — not including Morehouse — can exercise their already existing power to prohibit the sale of 3.2% intoxicants pursuant to local option. The substance of the dispute is thus: A grant of substantive power to all local subdivisions versus a procedural device made available to those few parishes already possessing that substantive power. We conclude, upon the basis of a contextual analysis of the pertinent statutes, that appellant’s view is correct.

We reach our conclusion guided by venerable principles of civilian construction — primarily the rule that statutes pertaining to the same subject matter are to be read in pari materia. LSA-C.C. Art. 17. Thus statutory provisions referring to a common subject are to be construed in such a fashion as to infuse them all with efficacy and meaning and in such a manner as will produce a unified and coherent import. As a general rule, the legislature does not enact vain and useless legislation. Staton v. Hutchinson, 370 So.2d 106 (La.App. 1st Cir.1978). Judicial construction must aim to attribute reasonable meaning to an entire statutory framework and context. McGee v. Police Jury of Caddo Parish, 63 So.2d 153 (La.App. 2d Cir.1953). Thus, statutory provisions are to be given effect wherever possible and if statutes can be reconciled by fair and reasonable interpretation this should be done. Fakier v. Picou, 166 So.2d 257 (La.1964); Johnson v. Sewerage District No. 2 of Parish of Caddo, 120 So.2d 262 (La.1960). The construction of a particular statute which creates a statutory inconsistency should be avoided when an interpretation can be adopted which will not do violence to the plain words of an act. Legros v. Conner, 212 So.2d 177 (La.App. 3d Cir.1968). Any construction that engenders a statutory conflict should be eschewed in favor of a construction which produces logical harmony and preserves the meaning and effectiveness of each statutory provision. Johnson v. Collector of Revenue, 165 So.2d 466 (La.1964); Fruge v. Muffoletto, 137 So.2d 336 (La.1962); City of New Orleans v. Board of Supervisors of Elections for Parish of Orleans, 43 So.2d 237 (La.1949).

Under the aforementioned rules of statutory construction, we are compelled to assess LSA-R.S. 26:586.1 in the context of LSA-R.S. 26:588 and LSA-R.S. 26:581.1 which address the same issue which is central to LSA-R.S. 26:586.1. We furthermore presume that the legislature intended that LSA-R.S. 26:586.1, LSA-R.S. 26:588, and LSA-R.S. 26:581.1 interact in a rational fashion and not render each other inoperative, superfluous and meaningless.

LSA-R.S. 26:588 provides a general rule which bans all parishes from prohibiting the sale of 3.2% alcoholic beverages. It provides, more particularly, that:

“Prohibition of the sale of any or all alcoholic beverages by a local option election held pursuant to this chapter shall not operate as a prohibition of the manufacturing, producing, using, distributing, storing, or selling of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight.”

LSA-R.S. 26:581.1 provides a very specific exception to the general rule of LSA-R.S. 26:588 that political subdivisions cannot prohibit the sale of 3.2% intoxicants. LSA-R.S. 26:581.1 expressly provides a list of those parishes which, contrary to the general rule, may ban the sale of 3.2% intoxicants pursuant to local option. The text of that statute provides as follows:

“A. The provisions of this Chapter authorizing the prohibition of alcoholic beverages on a parishwide basis and the prohibition of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight shall not apply and shall not be available for use in the parishes of or the wards or municipalities in any of the parishes of the state except Beauregard, Washington, Rapides, Natchitoches, Red River, Grant, LaSalle, East Carroll, West Carroll, Bienville, Jackson and Winn Parishes.
“B. In the exercise of local option pursuant to the provisions of this Chapter in the wards and incorporated municipalities located in all parishes except Beauregard, Washington, Rapides, Natchitoches, Red River, Grant, LaSalle, East Carroll, West Carroll, Bienville, Jackson and Winn as provided in Subsection A of this Section, three propositions and no others shall appear on the petition provided for in R.S. 26:583 and on the ballot provided for in R.S. 26:587, which propositions shall be limited to propositions 1, 3, and 4 contained in R.S. 26:583 and R.S. 26:587, respectively.”

Appellee’s contention, to reiterate, is that LSA-R.S. 26:586.1 authorizes local subdivisions in all parishes of the state — including Morehouse Parish — to ban the sale of 3.2% intoxicants pursuant to local option. In assessing appellee’s suggested construction of LSA-R.S. 26:586.1 we must refer to LSA-R.S. 26:581.1 and LSA-R.S. 26:588 which were contemporaneously effective with LSA-R.S. 26:586.1. Having conducted this analysis, we are constrained by a single compelling and irresistable observation to reject appellee’s contention and invalidate the instant prohibition. Under the construction of LSA-R.S. 26:586.1 urged by appellee, LSA-R.S. 26:586.1 would implicitly repeal LSA-R.S. 26:588 and render LSA-R.S. 26:581.1 meaningless.

LSA-R.S. 26:586.1, as construed by appel-lees, is directly contrary to LSA-R.S. 26:588. Appellees contend that LSA-R.S. 26:586.1 authorizes local options to prohibit the sale of 3.2% intoxicants in all parishes of the state; LSA-R.S. 26:588 expressly and absolutely bans such prohibitory local options in all parishes. LSA-R.S. 26:586.1, as construed by appellees, transforms LSA-R.S. 26:581.1 into inoperative surplusage. LSA-R.S. 26:581.1 enumerates with painstaking specificity the 12 parishes in which such elections can be conducted. It is manifest, of course, that this detailed enumeration in LSA-R.S. 26:581.1 is needless sur-plusage if the legislature intended that local options on 3.2% intoxicants could be held in all parishes.

In addition to rendering LSA-R.S. 26:588 and LSA-R.S. 26:581.1 inoperative individually, appellee’s suggested construction of LSA-R.S. 26:586.1 also disrupts the legislative scheme formed by the interaction of these two statutes. LSA-R.S. 26:588 provides the general rule that this type of local option in not allowed in any parish of the state, and LSA-R.S. 26:581.1 delineates the specific exceptions to this general ban, permitting this type of option in 12 enumerated parishes. Thus, the legislative rule formed by the interaction of these statutes is that local options may prohibit the sale of 3.2% intoxicants solely in the 12 parishes enumerated in LSA-R.S. 26:581.1. LSA-R.S. 26:586.1 as construed by appellees, would of course thwart the legislative rule formed by the interaction of LSA-R.S. 26:588 and LSA-R.S. 26:581.1 by stating that local options may ban the sale of 3.2% intoxicants in all parishes.

In summary, we reject the contention that LSA-R.S. 26:586.1 was intended to be a grant of substantive authority to all parishes in the state to prohibit the sale of 3.2% intoxicants by local option. We find it more plausible that LSA-R.S. 26:586.1 was a procedural apparatus. It was intended not to implicitly repeal LSA-R.S. 26:588 and render LSA-R.S. 26:586.1 superfluous but to implement the substantive power to conduct prohibitory local options — in those parishes which already possessed that substantive power pursuant to LSA-RS. 26:581.1.

We are aware that the Third Circuit in Wyatt v. Vernon Parish Police Jury, 341 So.2d 468 (La.App. 3d Cir.1977), reached a contrary conclusion with respect to the applicability of LSA-R.S. 26:586.1. In our view Wyatt fails to adequately answer the problems raised in our analysis. Furthermore, it does' not consider the issue — essential to our evaluation of the ease — of whether LSA-R.S. 26:586.1 was intended to nullify both LSA-R.S. 26:581.1 and LSA-R.S. 26:588.

Likewise in Ward v. West Carroll Parish Police Jury, 347 So.2d 68 (La.App. 2d Cir.1977), this court followed Wyatt in upholding a 3.2% sales ban in West Carroll Parish. Of course, Wyatt dealt with a parish not listed in LSA-R.S. 26:581.1 and Ward did. But both decisions are subsequent to Nomey v. State, 315 So.2d 709 (La.1975), and thus must rely on LSA-R.S. 26:586.1 as authority for the ban. Therefore these decisions hold that LSA-R.S. 26:586.1 is a grant of substantive authority to prohibit the sale of 3.2% beverages state wide.

Thus Ward and Wyatt, while not addressing the issue, tacitly hold that LSA-R.S. 26:586.1 implicitly repeals LSA-R.S. 26:588, a result which we have demonstrated was clearly not intended by the legislature in passing LSA-R.S. 26:586.1. Therefore, we decline to follow Wyatt and are now of the view that Ward should be overruled insofar as it is inconsistent herewith.

We parenthetically note Smith v. Lincoln Parish Police Jury, 327 So.2d 641 (La.App. 2d Cir.1976), is not applicable to this decision as that case did not involve the question of the validity of a 3.2% sales ban. In fact, that case upheld the validity of an option election in which a sales ban on 3.2% beverages was expressly omitted from the option ballot.

Accordingly, we reverse the trial court and declare invalid the 1979 option election conducted in Ward Two of Morehouse Parish insofar as it prohibits the sale of 3.2% beverages and likewise declare that Section 4 of Ordinance 1053 of 1981 enacted pursuant thereto is void; and further permanently enjoin the defendant from enforcing Section 4 of Ordinance 1053 of 1981.

REVERSED AND RENDERED, at ap-pellee’s costs.

      . LSA-R.S. 26:588 was legislatively repealed by Act 1980, No. 663, § 1. However it was still effective in 1979 when the Morehouse Parish Police Jury conducted the local option which is the subject of this proceeding.

      . This statute was held unconstitutional in its entirety by Nomey v. State, 315 So.2d 709 (La.1975), but is important to our analysis of legislative intent as it was enacted earlier in the same legislative session as LSA-R.S. 26:586.1 in 1974. Also note that LSA-R.S. 26:588 was previously enacted in 1972.
      A consideration of Nomey is not necessary in this analysis even though we are involved with a factual situation which is obviously post -Nomey. Our sole purpose here is to determine the legislative intent in 1974 when LSA-R.S. 26:581.1 and LSA-R.S. 26:586.1 were enacted. Thus a discussion of Nomey, a 1975 decision, would add nothing to the question.


author: FRED W. JONES, Jr., Judge.

text:
    PETROL INDUSTRIES, INC., Plaintiff-Appellant, v. GEARHART-OWEN INDUSTRIES, INC.; Appalachian Insurance Company and Employers Casualty Company, Defendants-Appellants-Appellees.
    No. 15093-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.

      Bodenheimer, Jones, Klotz & Simmons by J.W. Jones, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Benjamin C. King, Shreveport, for defendants-appellants-appellees Gearhart-Owen and Appalachian Ins. Co.
    Mayer, Smith & Roberts by Paul R. Mayer, Shreveport, for defendant-appellant-ap-pellee Employers Cas. Co.
    Wiener, Weiss, Madison & Howell by James Fleet Howell, Shreveport, for defendant-appellee, Scogin Well Service, Inc.
    Before HALL, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

In this suit for damages for the destruction of an oil well due to an explosion which occurred during an attempt to patch a hole in the casing, the issues presented on appeal are:

(1) Did the trial judge make an inadequate damage award?
(2) Did the comprehensive general liability insurance policy issued by Employers Casualty Company to Gearhart-Owen Industries, Inc. afford coverage for the accident and damages in question?

For the reasons hereinafter explained, we answer both questions in the affirmative, but amend the district court judgment in the particulars described.

In 1975 Petrol Industries, Inc. (“Petrol”) orally contracted with Gearhart-Owen Industries, Inc. (“Gearhart-Owen”) to patch a hole in the casing of a Caddo Parish oil well (owned and operated by Petrol), at about the 2500 to 2700 foot subsurface level. Pursuant to this agreement, Gearhart-Owen sent its employee, Gaston, to the well site. Acting under Gaston’s supervision and direction, one of his helpers and personnel from Scogin Well Service (hired by Gear-hart-Owen to assist in the repair operation with a workover rig) assembled a patching tool and ran it into the well bore.

When the patching tool was activated in an attempt to patch the well casing in place, at the described subsurface level, an explosion occurred which resulted in the loss of the patching tool and damage of such severity to the casing that the well was plugged and abandoned.

As a result of this accident, in June 1976 Petrol filed this damage suit against Gear-hart-Owen and its insurer, Appalachian Insurance Company (“Appalachian”). Subsequently, in an amended petition Petrol joined as a defendant Employers Casualty Company (“Employers”), another alleged insurer of Gearhart-Owen, together with other parties not involved in this appeal.

Gearhart-Owen and Appalachian filed a third party demand against Employers, asserting that Appalachian was Gearhart-Owen’s excess insurer; that Employers’ insurance policy afforded primary coverage to Gearhart-Owen for this accident; and that Employers was obligated to defend this claim against Gearhart-Owen and pay any judgment rendered against that defendant up to the $100,000 policy limits.

Employers filed a motion for summary judgment, denying that the comprehensive general liability insurance policy issued by it to Gearhart-Owen covered this particular accident. Initially, the motion was sustained and the suit dismissed as to Employers. However, the trial judge granted a motion for a new trial filed by Géarhart-Owen and Appalachian, reconsidered his ruling on the motion for summary judgment, decided that Employers’ policy did afford insurance coverage, and denied the motion for summary judgment. Employers continued in its denial of coverage, resisting the claims of Petrol and the third party demands of Gearhart-Owen and Appalachian.

After trial on the merits, in written reasons for judgment the trial judge, applying the doctrine of res ipso loquitur, concluded that the loss of the oil well was due to the negligence of Gearhart-Owen and that, as damages, Petrol was entitled to recover the cost of drilling a new well less a depreciation factor of 30%. Declining to reconsider its previous ruling on insurance coverage, the trial court held that Employers had breached its legal duty to defend Gearhart-Owen in the proceeding and was liable to third party plaintiffs for attorney fees in the sum of $10,000.

Petrol appealed, asking for an increase in the damage award.

Employers appealed for itself alone, again raising the defense of lack of insurance coverage.

Gearhart-Owen also appealed. Further, Gearhart-Owen and Appalachian answered Employers’ appeal, asking for an increase in the attorney fee award to cover legal services rendered in connection with the appeal and for reimbursement of the premium paid for the suspensive appeal bond.

Measure of Damages

Petrol argues that, since the oil well was destroyed, it should have been awarded the value of the well — calculated on the basis of future profits anticipated over the production lifespan, amounting to $348,859. Alternatively, Petrol asserted that the trial court should not have deducted any depreciation from the cost of the new well since this depreciation had been taken care of by depletion of the reservoir itself.

Where property has been damaged through the fault of another and legal recourse is sought, the primary objective of the judicial process is to restore the owner of the damaged property, as nearly as feasible, to his status immediately prior to the damaging incident. Consequently, where the thing damaged can be adequately repaired, the proper measure of damages is the cost of restoration. If it is not practical to repair the damaged property, the objective of restoring the injured party to his prior position may be achieved by awarding him the difference in the value of the property before the damage was inflicted and immediately afterwards. If this figure cannot be determined with a reasonable degree of certainty, the damage award should be based upon the cost to replace the damaged property less a depreciation factor. Since the aim in each suit of this nature is to do substantial justice, the particular facts of each case will determine which of the foregoing tests is appropriate to apply. See Schexneider v. United Geophysical Corp., 385 So.2d 533 (La.App. 3rd Cir.1980); Mayer v. McNair Transport, Inc., 384 So.2d 525 (La.App. 2d Cir.1980); Gullatt v. Ashland Oil & Refining Co., 243 So.2d 820 (La.App. 2d Cir.1971).

Here, the oil well could not be repaired since it had been destroyed. Estimates of the difference in value of the well before the accident and afterwards were too speculative to serve as a basis for the damage award. Therefore, the trial judge correctly ruled:

“In this case Petrol is entitled to be placed where it was when the accident occurred. At that time Petrol had a producing oil well with oil reserves in the ground. It no longer has the well but the reserves are still there. Therefore Petrol is entitled to the cost of drilling a new well, less depreciation.”

The trial judge’s selection of $135,000 as the cost of a new well in 1975 is not contested by any of the parties on appeal. We conclude, however, that he erred in depreciating this entire figure, including drilling costs, rather than just depreciating the physical equipment which was to be installed in connection with the new well. After all, the proper measure of damages would have been the entire cost of the new well except for the fact that, with new equipment, Petrol would be in a better position than before the accident — particularly in view of the obvious fact that before the explosion it had casing which needed repairing.

To achieve the goal of placing Petrol, as nearly as possible, in the same position as before the accident, we have determined that only the items of physical equipment included in the cost of the new well should be depreciated. Our examination of the exhibit filed in the record detailing the new well cost reveals that approximately 45% of the total consists of cost of new equipment. Of the total cost of $135,000, this amounts to $60,750, which we depreciate by 30% (percentage used by the trial judge, which we consider reasonable), or the sum of $18,-225. Using these figures, our computation of damages is as follows:

Insurance Coverage

At the time of the accident there was in force a comprehensive general liability insurance policy issued by Employers to Gear-hart-Owen including, together with other coverage, a limit of $100,000 per occurrence for property damage liability.

Coverage originally extended to all property damage arising out of blasting or explosion, except for Gearhart-Owen’s ammunition manufacturing operation. Endorsement No. 8 eliminated that exclusion.

Employers contends that its policy does not cover this property damage because: (1) Endorsement No. 3 excludes underground operations by the insured in connection with servicing oil wells and (2) Part l(k) of the policy excludes damage to property in the care, custody and control of the insured, which was allegedly the case here.

Endorsement No. 3 provides in pertinent part:

EXCLUSION

(Underground Resources and Equipment)

It is agreed that with respect to operations performed by or on behalf of the named insured and described in this endorsement:

1. The insurance does not apply to

(a) property damage included within the underground resources and equipment hazard;
(b) the cost of reducing any property included within the underground resources and equipment hazard to physical possession above the surface of the earth or above the surface of any body of water, or to the expense incurred or rendered necessary to prevent or minimize property damage to other property resulting from acts or omissions causing property damage included within the underground resources and equipment hazard.

2. “Underground resources and equipment hazard” includes property damage to any of the following:

(a) oil, gas, water or mineral substances which have not been reduced to physical possession above the surface of the earth or above the surface of any body of water;
(b) any well, hole, formation, strata or area in or through which exploration for or production of any substance is carried on;
(c) any casing, pipe, bit, tool, pump or other drilling or well servicing machinery or equipment located beneath the surface of the earth in any such well or hole or beneath the surface of any body of water.
Description of Operations
Gasoline Recovery — from casing head or natural gas
Oil or Gas Well Shooting
Oil or Gas Wells — cleaning or swabbing— by contractors
Oil or Gas Wells — servicing—by contractors
Oil or Gas Wells — drilling or redrilling, installation or recovery of casing
Oil Lease Operators or Gas Lease Operators — natural gas

Gearhart-Owen argues that this exclusion refers only to oil well servicing operations by contractors. Employers asserts, to the contrary, that the exclusion encompasses oil well servicing work both by the insured and its contractors.

The ambiguity of the language of the exclusion set forth in Endorsement No. 3 is patent on its face. The first sentence alludes to “operations performed by or on behalf of the named insured and described in this endorsement.” (emphasis added) Yet, the pertinent operation subsequently described in the endorsement is “Oil or Gas Wells — servicing—by contractors.” (emphasis added)

Recognizing that insurance policies are prepared by the issuing insurance company, the general rule is that, in case of ambiguity, the construction of the policy will be adopted which is most favorable to the insured. Corporation of Roman Catholic Church v. Royal Insurance Co., 158 La. 601, 104 So. 383 (1925); Finn v. Employers Liability Assurance Corporation, 141 So.2d 852 (La.App. 2d Cir.1962). This rule applies with particular force to the interpretation of exclusion provisions in a comprehensive insurance policy. Benton Casing Service, Inc. v. Avemco Insurance Co., 379 So.2d 225 (La.1979).

Acting within the ambit of these rules of construction, we resolve the apparent ambiguity in this insurance policy in favor of the insured, Gearhart-Owen, and conclude that Endorsement No. 3 under the facts of this case excludes only oil well servicing operations by a contractor for the insured. Since Gearhart-Owen was in this instance performing the work itself, the particular exclusion does not apply.

Another exclusion to coverage under the policy is found in Part l(k), which provides in pertinent part:

“This insurance does not apply:
(k) to property damage to:
$ * * * * sjc
(3) property in the care, custody or control of the insured, or as to which the insured is for any purpose exercising physical control; ...”

Employers argues that this well was lost because of damage 4to the casing upon which Gearhart-Owen was working at the time of the explosion and which was in the insured’s custody and under its control.

When employed in insurance policies, “care and custody” is an ambiguous term that is subject to differing interpretations according to the circumstances. 70th Street Food Store, Inc. v. Northeastern Fire Ins. Co. of Pa., 408 So.2d 958 (La.App. 2d Cir.1981).

Dealing with a similar exclusionary clause in Hendrix Electric Co., Inc. v. Casualty Reciprocal Exchange, 297 So.2d 470 (La.App. 2d Cir.1974), we observed:

“[I]t is noted that there is a greater moral hazard as far as the insurance company is concerned in insuring property under the care, custody or control of the insured in the sense of being owned, rented or used by the insured and where there might be some advantage to the insured in falsifying or exaggerating a loss. This reason for the exclusion does not apply with reference to property belonging solely and unconditionally to others as in the instant case.”

There is no question but that Gearhart-Owen was in charge of the patching operation. Whether it had custody and control of the casing, within the meaning of the pertinent policy exclusion, is doubtful. However, assuming that it did, we do not agree with the implication of Employers’ argument that the damaged property consisted solely of the casing. The damaged property here was Petrol’s oil well which was destroyed by the explosion.

There seems to be no serious contention that the oil well itself was in the custody, care or control of Gearhart-Owen at the time of the accident. In fact, the record shows that, although he issued no instructions in connection with the patching operation, Petrol’s field superintendent, Dunagin, was present and acting for his employer during the entire time.

Finding that the damaged oil well was not in the care, custody or control of the insured at the time of the accident, this exclusion is deemed to be inapplicable.

In summary, we agree with the trial judge that the general comprehensive liability insurance policy issued by Employers to Gearhart-Owen covered this accident. Under the terms of that contract of insurance, Employers owed Gearhart-Owen a duty to defend this lawsuit and, by failing to defend, breached the contract. As a general rule the insured is entitled to recover from the insurer as damages the expenses, including attorney fees, incurred by him in defending the suit which the insurer unjustifiably refused to defend. Bodi v. Government Employers Insurance Co., 349 So.2d 1327 (La.App. 1st Cir.1977); Pendleton v. Ricca, 232 So.2d 803 (La.App. 4th Cir.1970).

We note, however, that since this suit was for a sum in excess of $100,000, Appalachian also had a duty as Gearhart-Owen’s excess or secondary insurer to defend and did, in fact, furnish legal defense services. In view of that fact, Gearhart-Owen would not be entitled to recover the full attorney fee of $10,000 since, presumably, Appalachian bore its fair share of that expense. Further, contrary to the trial court judgment, Appalachian had no right to recover any portion of this legal expense since Employers did not owe the excess insurer a duty to defend. Consequently, we eliminate Appalachian from the lower court judgment awarding attorney fees and reduce the amount from $10,000 to $5,000.

Employers’ duty to defend Gear-hart-Owen encompassed the legal representation of the insured on appeal. Since Employers refused to furnish this service, we conclude that Gearhart-Owen is entitled to an additional award of $1,000 for legal services rendered in connection with this appeal, together with the sum of $3,740 representing the premium paid for the suspensive appeal bond.

Conclusion

For the reasons set forth hereinabove, we amend the district court judgment in the following respects:

(1) The second paragraph is recast to provide that “there be judgment in favor of plaintiff, Petrol Industries, Inc., and against the defendants, Gearhart-Owen Industries, Inc. and Employers Casualty Company, in solido, for the sum of $100,000 together with legal interest thereon of 7% per annum from June 7,1976 until paid, and all costs of these proceedings.”

(2) A paragraph is added to provide that “there be judgment in favor of plaintiff, Petrol Industries, Inc., and against the defendants, Gearhart-Owen Industries, Inc. and Appalachian Insurance Company, in solido, for the sum of $17,959, together with legal interest thereon of 7% per annum from June 7, 1976 until paid.”

(3) The third paragraph is recast to provide that “there be judgment in favor of third party plaintiff, Gearhart-Owen Industries, Inc. and against third party defendant, Employers Casualty Company, for the sum of $9,740.”

As thus amended, the trial court judgment is affirmed, with costs of appeal assessed equally to Gearhart-Owen Industries, Inc. and Employers Casualty Company.

      . Judgment was originally rendered in favor of plaintiff, Petrol, and against the defendants, Gearhart-Owen and Employers, in solido, for $85,971.92, together with legal interest of 7% from June 30, 1976 until paid. After it was pointed out to the trial judge in a motion for a new trial that he had erroneously computed the damage award, an amended judgment was signed which increased the award to $97,-075.67, with legal interest of 7% from June 7, 1976 until paid.

      . Gearhart-Owen asserts in its brief on appeal that it appealed simply to prevent execution of the judgment against it. Since it has presented no specification of error directed at the trial court judgment, Gearhart-Owen apparently does not complain of the finding of liability on its part.

      . Even though the excess insurer rendered a defense under its policy obligation, that does not relieve Employers from liability for damages for breach of its “duty to defend.” See annotation Defense by Insurer—Coinsurer’s Duty, 90 A.L.R.3d 1199.

      . According to the record, the same attorney represented both Gearhart-Owen and Appalachian.

      . The insurance policy issued by Appalachian to Gearhart-Owen provided coverage in excess of the primary policy issued by Employers.


author: MARVIN, Judge.

text:
    Nat LITTLE, Plaintiff-Appellee, v. KALO LABORATORIES, INC., et al., Ivan O. Morris, Jr., Third Party Plaintiff-Appellee, Southern Farm Bureau Casualty Insurance Company, Third Party Defendant-Appellant.
    No. 15103-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Rehearing Denied Jan. 14, 1983.

      Cotton, Bolton, Roberts & Hoychick by John Hoychick, Jr., Rayville, for third party defendant-appellant, Southern Farm Bureau Cas. Ins. Co.
    Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for third party plaintiff-appellee, Ivan 0. Morris, Jr.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

Morris, a rice farmer, who with other defendants was sued for damages to a neighboring cotton crop allegedly caused by the application of a chemical herbicide to Morris’ rice crop, was awarded judgment in a third party action against his general liability insurer for attorney fees, costs and expenses incurred by Morris in the litigation.

The insurer, Southern Farm Bureau Casualty Insurance Company, appeals, contending that we should reconsider our earlier opinion that liability coverage could exist and contending that, in any event, the judgment against it should be limited to the attorney fees, costs, and expenses incurred by Morris in the principal action as distinguished from those incurred in the prosecution of his third party coverage demand against the insurer. We affirm the incidental judgment, with slight amendment.

We shall summarize the facts which were given in more detail in Little v. Kalo Laboratories, Inc., 406 So.2d 678 (La.App. 2d Cir.1981). We there held that summary judgment was inappropriate to determine the third party coverage issue because under some circumstances, yet to be proved, coverage could exist, a holding which appellant now urges that we should reconsider.

Kalo manufactured the herbicide, Defy, which Morris applied to his rice crop. The application was made aerially by Morris Flying Service, Inc., a corporation partially owned by Morris. Little, the principal plaintiff, claimed that the herbicide encroached on his cotton crop and caused damage. Kalo, one of the principal defendants, brought a third party demand against Morris, who in turn sued his insurer in the alternative for any amounts he might be cast for, and who sought a judgment for attorney fees and expenses that he might incur because of the alleged arbitrary and capricious action of the insurer in not providing him with a defense.

In its answer to the demands of Morris, the insurer denied coverage on the basis of an aircraft exclusionary provision in the policy and sought a summary judgment to this effect. The trial court granted the summary judgment and Morris appealed. We reversed and remanded. Little, supra.

The several litigants in the principal action and incidental actions settled out of court. Neither Morris nor Farm Bureau, whose coverage litigation was then still pending, contributed to those settlements, although they were released along with other principal and third party defendants. The settlement occurred sometime before we rendered our opinion in Little remanding the case for trial.

On remand, the trial court found that the attorney fees and expenses which Morris had incurred would not be apportioned between the principal demand and the coverage demand because the issues were essentially related, intertwined and merged. The judgment, totaling $13,698.75, was for $6,456 attorney fees, $6,462.75 court costs, and $780 in related expenses.

Farm Bureau urged below and urges here that an apportionment or division of attorney fees and costs between the two demands should be attempted, and suggests that only $1,476 in fees and $1,475.75 in costs, attributable to the defense of the main demand, should have been allowed. Morris correctly argues that as the successful litigant on the summary judgment coverage issue and in the defense of the main demand, he is entitled to recover court costs. Johnson v. Marshall, 202 So.2d 465 (La.App. 1st Cir.1967). The issue then concerns whether an insured, whose insurer denied him coverage and who fails in its obligation to provide him with a defense to the principal demand, can recover the attorney fees and expenses he incurs in defending the principal demand, and as well, those he incurs in the incidental action to resolve the coverage issue under the circumstances of this litigation.

We have reconsidered our opinion in Little, supra, that coverage could exist under certain circumstances notwithstanding the aircraft exclusion provision in the policy. We are satisfied that our opinion reversing summary judgment in favor of the insurer was then and is now correct.

We are referred to several cases for and against Farm Bureau’s argument that Morris is not entitled to attorney fees for services related to the coverage issue. Clemmons and Perrin, fn. 2, recognized that the winning party in an action on a contract ordinarily is not entitled to recover attorney fees in the absence of contractual or statutory language authorizing the imposition of such fees. See also dicta in Breitenbach, cited in fn. 2. Clemmons, however, interpreted Breitenbach as holding that

“[A]n insured who hires an attorney to litigate the issue of coverage alone is not entitled to recover for attorney fees.” 230 So.2d at p. 895. Our emphasis.

On the other hand, Cooling, cited in fn. 2, and Sparkman v. Highway Insurance Company, 266 F.Supp. 197 (W.D.La.1967), allowed recovery to the insured of attorney fees he incurred on the coverage litigation as well as in the defense of the original demand. Neither Cooling nor Sparkman discussed such cases as Perrin and Clemmons. At this juncture, we must observe that our research has not produced a Louisiana case which has squarely considered the issue under the precise circumstances here presented.

Those cases where attorney fees have not been allowed for services rendered on the coverage issue have been criticized by Ap-pleman in this language:

“Where an insured failed to defend until after an adverse decision in a declaratory judgment action instituted by it, such insurer was held not liable to pay the attorneys’ fees and expenses incurred by the insured in the declaratory judgment action, in the absence of fraud, bad faith, or stubborn litigiousness on the part of the insurer. Some courts have qualified this rule on the assumption that the expenses were incurred at ‘the request of the insurer’ and therefore came within the policy provision for reimbursement of the insured for reasonable expenses, or on the theory that since suit was brought by a third party, the insurer owes a duty to defend. But, despite the qualifications placed upon this rule by the court, it still appears to be unfair to the insured. After all, the insurer had contracted to defend the insured, and it failed to do so. It guessed wrong as to its duty, and should be compelled to bear the consequences thereof. If the rule laid down by these courts should be followed by other authorities, it would actually amount to permitting the insurer to do by indirection that which it could not do directly. That is, the insured has a contract right to have actions against him defended by the insurer, at its expense. If the insurer can force him into a declaratory judgment proceeding and, even though it loses in such action, compel him to bear the expense of such litigation, the insured is actually no better off financially than if he had never had the contract right mentioned above. Other courts have refused to impose such a burden upon the insured.” Vol. 7C: Appleman, Insurance Law and Practice (Berdal ed.), § 4691, pp. 281-283.

The policy here provides that Farm Bureau shall defend its insured “even if the principal action is groundless, false, or fraudulent ...” This obligation to provide a defense arises and is determined, not by the insurer’s interpretation of what liability may be covered by the policy, but by the allegations of the petition in the principal action. Benoit v. Fuselier, 195 So.2d 679, 682-683 (La.App. 3d Cir.1967). We also note that this policy contains the provision which Appleman mentions and which is relied on by courts of other jurisdictions to allow attorney fees to the insured [the insurer shall reimburse the insured for all reasonable expenses incurred at the request of the insurer].

The policy obligation to defend is broader than the liability insurer’s obligation to pay a judgment rendered against its insured. The insurer is obligated to pay the insured’s expenses in defending a principal action where the pleadings allege that there could be coverage, even though in fact there was no coverage. Benoit, supra.

Additionally, we note that LRS 22:658, while literally directed at the insurer’s failure to timely pay “losses”, suggests legislative condemnation of a liability insurer who breaches its policy obligation to defend its insured. Parks Equipment Co. v. Travelers Insurance Co., 293 F.Supp. 1206 (E.D.La.1968). There, in a separate action, the insurer was found arbitrary in refusing to defend its insured under LRS 22:658 and was cast for the insured’s expenses of defending the principal demand in the state court, for 12 percent penalties on those expenses, and for $2,000 attorney fees in the federal court coverage action. See also Heimbaugh v. Federal Insurance Company, 281 So.2d 839 (La.App. 1st Cir.1973).

As we emphasized in Little, supra, the pleadings in the action included two ways that the herbicide could have “moved” on the cotton of the principal plaintiff, under either of which, coverage under the Farm Bureau policy would have existed. Farm Bureau’s policy obligation to provide a defense to Morris, even against groundless actions, arose because of those allegations, notwithstanding Farm Bureau’s interpretation of no coverage. Benoit, supra. Farm Bureau was privileged to deny coverage but was not privileged, under the allegations made against Morris, to deny Morris a defense to the action. Farm Bureau made a conscious and arbitrary decision not to honor its policy obligation and caused Morris to incur the expense of defending the principal action and of asserting against Farm Bureau that there could be coverage under the allegations of the petition of the principal plaintiff. LRS 22:658.

Under these circumstances, the trial court was not in error in assessing against Farm Bureau, the costs and expenses Morris incurred in both actions. Appleman, Benoit, Parks Equipment Co., Sparkman, Cooling, and authorities cited supra. See also Hurney v. Mattson, 59 A.D.2d 934, 399 N.Y.S.2d 449 (1977).

While asserting that we should apportion the fees and expenses between the two actions, Farm Bureau does not complain that the fees and expenses incurred by Morris were unreasonable. We find them reasonable and will affirm that portion of the judgment.

LEGAL INTEREST

Farm Bureau lastly contends that legal interest on the judgment should not have been awarded from the date of the insured’s judicial demand, but only from the date of the judgment. This contention is correct. Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978); Brummerloh v. Firemen’s Ins. Co. of Newark, 377 So.2d 1301 (La.App. 3d Cir.1979). Accordingly, we amend the judgment to allow legal interest only from the date of the judgment.

At appellant’s cost, the judgment, as amended, is AFFIRMED.

      . These amounts are based on Farm Bureau’s determination that only 24.6 hours were attributable to the principal demand (at $60 per hour, $1,476) and on these costs:
      Filing answer and third party demand _$900.00
      Fees paid Clerk of Court for Appeal_$550.75
      Filing fees paid Court of Appeal_$ 25.00
      TOTAL___$1,475.75
      Morris itemized and claimed that more than $15,000 attorney fee and expenses were incurred in the Little v. Kalo litigation. Morris also incurred additional attorney fees and expenses in defending other actions pending at the same time. Morris’ attorney explained how the coverage demand and the principal demand were interrelated:
      “During the course of the entire litigation in the defense for Morris, our position was vis a’ vis the other defendants that -uh and the plaintiff, of course, the defendants were trying to put together a settlement package. Our position of the plaintiffs and the other defendants was we would not enter into any settlement agreement by paying any funds because Morris was insured, we believed, and Morris would not contribute that and we took that as our defense to all claims throughout the entire course of the litigation.”
      For example, Morris was billed for 2.1 hours for a pre-trial conference on May 15, 1981, while the principal and the coverage demands were pending for trial. Farm Bureau attributes ‘A of this time (1.1 hours) to the principal demand. Morris’ attorney simply billed Morris for the pre-trial conference time. The transcript of this trial is replete with questions by Farm Bureau seeking to have Morris’ attorney apportion the time charged between the principal demand and the coverage demand.

      . Farm Bureau and Morris cite these cases:

        Breitenbach v. Green, 186 So.2d 712 (4th Cir.1966); Clemmons v. Zurich General Accident & Liabil. Ins. Co., 230 So.2d 887 (La.App. 1st Cir.1969); Standard Sur. & Cas. Co. of New York v. Perrin, 19 So.2d 783 (Orl.La.App.1944); Cooling v. United States Fidelity & Guaranty Co., 269 So.2d 294 (La.App. 3d Cir.1972).
      In addition, other cases are cited and discussed at:
      Volume 7C: Appleman, Insurance Law and Practice (Berdal ed.), § 4691; 49 A.L.R.2d 694 and later case service; 50 A.L.R.2d 458 and later case service; Couch on Insurance 2d (Rev. ed), § 5154 et seq.


author:
BYRNES, Judge. REDMANN, Chief Judge, REDMANN, Chief Judge,
      BARRY, Judge,

text:
    Diana M. PARKER v. Leonard O. PARKER, Jr.
    No. 13322.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Rehearing Denied Jan. 24, 1983.
    Writ Denied Feb. 4, 1983.

      Zelden & Zelden, Rainer Lorenz, New Orleans, for plaintiff-appellee.
    Leonard O. Parker, Jr., in pro. per.
    Before REDMANN, C.J., and BARRY and BYRNES, JJ.
   BYRNES, Judge.

This is an appeal from a trial court ruling transferring custody of two minor children from the father to the mother. For the reasons assigned below, we reverse that decision.

The parties were married in April of 1972. This marriage ended in divorce in April of 1975. The couple re-married in December of 1978, but divorced again in December of 1980. This final divorce was obtained in Missouri, where the parties then resided. Neither of the parties now reside in Missouri. Permanent custody of the two minor children was granted to the father as part of the Missouri divorce proceedings. One and one-half years later, the Orleans Parish custody proceeding which is the subject of this appeal was instituted by the mother. The mother presently lives in Whitefish Bay, Wisconsin, a suburb of Milwaukee and is a practicing physician. The father and the two minor children have been domiciled in Orleans Parish since June of 1981. The trial judge, after conducting a hearing on the merits, ordered the custody of the children to be changed to the mother. It is from this judgment that the father appeals.

Appellant assigns what amounts to two specifications of error. The first specification of error urges that the Orleans Parish Court was without jurisdiction to change the custody of the children. The second specification of error urges that, even if the Orleans Parish Court did have jurisdiction, it erred in awarding the children to the mother absent a showing of some change in circumstances such as would make a change of custody in the best interest of the children.

Appellee argues that the custody award was made pendente lite, and therefore an appeal of this award does not properly lie before this court. This contention is without merit. Although the judgment ostensibly awarded custody “pendente Hte” to the mother, a careful reading of the entire judgment makes it clear that the inclusion of the term pendente lite was inadvertent. The judgment entered by the lower court gave the appellee the right to remove the children permanently to Wisconsin, subject only to the visitation rights granted to the appellant. This is not custody pendente Hte, but an award of permanent custody. There was no other action pending between the parties when the judgment appealed from was entered. Thus, it is not possible for the judgment to be one pendente Hte.

Accordingly, we find the trial court’s ruling is a proper subject for appeal to this court.

JURISDICTION:

La.R.S. 13:1700 et seq., is this State’s enactment of the Uniform Child Custody Act. Under the Act, the courts of this state have jurisdiction in child custody matters if Louisiana is “... the home state of the child at the time of the commencement of the proceedings... ”. La.R.S. 13:1701(5) defines home state as, “the state in which the child, immediately proceeding the time involved, lived with his parents or parent or a person acting as parent for at least six consecutive months, ... ”. Since the record indicated that the father and his two minor children have lived in Orleans Parish for at least seven months prior to the institution of this suit, it is clear that Louisiana is recognized as the home state of the two children and thus jurisdiction vested in the Orleans Parish Court.

CUSTODY:

The sole criterion in any change of custody case is the best interest of the child. Bordelon v. Bordelon, 390 So.2d 1325 (La.1980), Ohman v. Ohman, 405 So.2d 883 (La.App. 4th Cir.1981), C.C. 157. In determining what the best interest of the child is, courts must examine all relevant factors. These factors include, but are not limited to, stability of environment, the standard of living each parent can provide, and the pri- or history of the child’s custody. A mere change in the circumstances of the non-custodial parent is not sufficient to justify a change in custody. It must appear from the totality of circumstances that whatever change has occurred makes a modification of custody in the best interest of the child. An award of custody is not a tool to regulate or reward human behavior. The only subject of a custody award is the best interest of the child. See Bordelon, supra, Ohman, supra and Cleeton v. Cleeton, 383 So.2d 1231 (La.1979).

The standard of review in child custody cases requires that great weight be given to the determination of the trial court. Such determinations are overturned only when there is clear abuse of discretion. Bordelon, supra, Ohman, supra, Cleeton, supra and Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (La.1971). Having reviewed the record in this case, we find that the trial judge abused his discretion by changing the custody of these children from the appellant to the appellee. The children had lived with their father from December, 1980, when the Missouri court originally granted him custody, until the lower court of this state ordered that custody changed in February of 1982. The evidence indicated that during this time the father had provided a stable home environment for his two children and that the children were happy and well-adjusted. The only evidence presented which indicated any change in circumstances related to the mother’s completion of her residency and her pending entry into private practice in Wisconsin. While such a change may be indicative of the mother’s ability to provide a potentially higher standard of living for her children this fact does not, in and of itself, prove that a change of custody would be in the best interest of th< children.

The trial judge in Reasons for Judgment stated that “both of them (the parents) seem to take care of the children.” He further concluded that “they (the children) seem to be pretty well-adjusted children from what the testimony has been.” In light of these findings, we feel that it was an abuse of discretion for the trial judge to order custody changed to the mother. If the children were happy and well-adjusted, and both parents were found to provide a suitable environment for them, there seems to be no reason for the trial judge’s conclusion that the best interest of the children would be served by changing custody.

Stability of environment is one of the primary concerns in child custody matters. La.R.S. 13:1700(A)(4). We cannot see how, based upon the record before him, the trial judge could disturb what he admitted was a stable environment, based solely on the improved financial situation of their mother. The record simply does not provide an adequate factual basis for a conclusion that a custody change would be in the best interest of these children.

Accordingly, the judgment of the lower court is hereby set aside and the custody of the two minor children Dana and Lana is ordered returned to their father Leonard O. Parker, Jr. effective immediately. All costs of this appeal are to be borne by the appel-lee.

REDMANN, C.J., concurs.

REDMANN, Chief Judge,

concurring.

I concur in the final result of dismissing this action, but I would prefer to reverse the award of custody pendente lite as not available in an action to change custody, and I would dismiss the petition for the change in custody for failure to state a cause of action.

REDMANN, Chief Judge,

concurring in refusal of rehearings.

The Louisiana supreme court, having first granted a stay order in this matter, has now granted writs, with the stay order “modified to permit the Court of Appeal to act on the application for rehearing” that has been pending. Those actions suggest a response, more than simple denial, to the application for rehearing.

As this writer’s prior concurrence in result indicated, the trial court expressly (and correctly) described its judgment as one on rule for custody pendente lite, and expressly (but incorrectly) awarded “custody pen-dente lite.” The basic procedural incorrectness of that judgment is that, when (as here) permanent custody has already been awarded to one parent by a valid judgment, there is no authority for giving “pendente lite” custody to the other parent, as if custody had never been decided. The other parent must obtain a change in permanent custody, by final judgment in an ordinary action (except in dire circumstances, such as might justify police or welfare department intervention).

Accepting the plenary power of the courts to protect children, or even merely to do what is best for them, a reviewing court in this case must decide whether the noncustodial parent’s showing justifies summarily removing (even if only temporarily, “pendente lite”) custody from the parent to whom permanent custody was awarded by consent judgment. The only showing by the non-custodial parent was that she had an opportunity for employment at $60,000 a year beginning three months after the hearing on the rule for custody pendente lite. The basic substantive error, is the holding that an increase in the non-custodial parent’s earnings entitles that now-wealthier parent to a change in custody. That basic substantive error is aggravated in this case, because the evidence is not that the non-custodial parent is wealthier at the time of the hearing, but that she will be wealthier three months thereafter.

Even as an award of custody “pendente lite,” the judgment appealed from should be reversed as procedurally and substantively unfounded.

The majority treated the judgment appealed from as if it were a change of permanent custody because a full hearing was had and because, for example, although the judgment was dated March 1, 1982, it fixed visitation rights through December 1983, a year and ten months after its date. Nevertheless, to treat the judgment as a final judgment is doubtful because the father had not answered the petition for change in custody, nor was judgment by default taken against him, and therefore no valid final judgment could have been rendered. Any final judgment under those circumstances is annullable at any time, C.C.P. 2002, and, if the judgment in question is deemed a final judgment because of its content, it would be preferable to annul the judgment rather than review its merits.

Nevertheless the majority’s view on the merits is correct. Unless the non-custodial parent shows something akin to unfitness or inability on the part of the custodial parent, the mere fact that the non-custodial parent will (three months after the hearing!) be earning more money than the custodial parent is not grounds for changing permanent custody.

This writer therefore would have solved the ultimate procedural problem (no answer filed, yet a full hearing had) by dismissing the petition on the basis that it did not state a cause of action (not even as amended by all the evidence at the full hearing had).

Finally, restoration of the father’s permanent custody “effective immediately” was, in our judgment, the appropriate remedy, C.C.P. 2164, on this record.

BARRY, Judge,

joins in denial.

I agree that rehearing should be denied for the reasons assigned by Judge RED-MANN.

      . Immediate effectiveness, although unusual, of an appellate court’s reversal of a trial court’s judgment has been ordered in a variety of cases. Shell Oil Co. v. Moore, 260 La. 855, 257 So.2d 432 (1972) (allowing lessor summary procedure); Coleman v. Marzullo, 296 So.2d 437 (La.App. 4 Cir.1974), writ refused 297 So.2d 206 (recognizing corporate directors); In the Matter of Schindler, 336 So.2d 978 (La.App. 4 Cir.1976) (discharging coroner’s commitment); Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4 Cir.1979) (recognizing wife’s freedom from fault and consequent entitlement to alimony).


author: CULPEPPER, Judge.

text:
    A. Jerry SLOCUM, et al., Plaintiffs & Appellants, v. Louis J. DAIGRE, et al., Defendants & Appellees.
    No. 82-244.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Writ Denied Feb. 11, 1983.

      Guste, Barnett, Shushan, Sidney L. Shushan, New Orleans, for plaintiffs & appellants.
    Leithead, Soctt, Boudreau, Myrick & Richard, Everett R. Scott, Jr., and William A. Fogleman, Lake Charles, Gold, Little, Simon, Weems & Bruser, Donald Sharp, Alexandria, for defendants & appellees.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   CULPEPPER, Judge.

Plaintiffs seek recovery for unjust enrichment, indemnification or contribution. They appeal from a judgment granting defendants’ motion for summary judgment and also sustaining defendants’ peremptory exceptions of no right of action, no cause of action, res judicata and prescription.

The issues on appeal are: (1) Does plaintiffs’ petition state a cause of action for either (a) unjust enrichment, (b) indemnification or (c) contribution? (2) Did the trial court err in granting defendants’ motion for summary judgment? (3) Did the trial court err in sustaining defendants’ exceptions of no right of action, res judicata and prescription?

FACTS

This case arises from a prior suit entitled “Collins v. Slocum,” 304 So.2d 675 (La.App. 3rd Cir.1974), decision on appeal after remand, 317 So.2d 672 (La.App. 3rd Cir.1975). This was a suit against the plaintiffs-appellants herein for recission of a sale of land by them to Mr. Collins. The plaintiffs in the instant case, A. Jerry Slocum, Gwin LeBlanc, and J. Harrison Henderson, III, had purchased from Morgan Walker, Jr. 256 acres of land. A survey and title examination of this property did not show any servi-tudes burdening the land. The plaintiffs subdivided the property and sold a residential lot to Mr. Collins, who borrowed money from defendant-appellee, Louisiana Savings Association (formerly Rapides Savings & Loan Association) for construction of a house on his lot. During construction of the house, Mr. Collins was informed by Humble Oil Company that he was building directly over a pipeline, in contravention of the terms of a pipeline servitude granted to Humble by Walker’s predecessor in title, Morgan Walker, Sr.

Collins had to remove all improvements located over the pipeline. He subsequently sued the plaintiffs for return of the purchase price of the lot plus damages. Louisiana Savings Association intervened in that suit to recover the money it had loaned to Mr. Collins for construction of his house.

Judgment was rendered by the district court and affirmed by this Court, Collins v. Slocum, 317 So.2d 672 (La.App. 3rd Cir.1975), in favor of Collins, granting rescission of the sale, return of the purchase price of $4,000 and damages totaling $19,065 incurred in construction. In the Association’s intervention, it was awarded the amount due on its loan to Collins, together with insurance expenses and interest, a total of $11,676, payable out of the amount awarded to Collins. The judgment in favor of the Association was not appealed and became final in due course.

Plaintiffs then filed this suit for damages against Louis J. Daigre, their surveyor, for negligence in failing to locate the pipeline, and later added as defendants their predecessors in title, Morgan W. Walker, Jr. and Morgan W. Walker, Sr. Louisiana Savings Association was made a defendant by a third supplemental and amending petition. The actions against the defendants other than the Association were subsequently severed, leaving the Association as the only defendant in this suit.

The Association filed peremptory exceptions of no cause and/or right of action, res judicata, and prescription, as well as a motion for summary judgment. The trial court rendered judgment in favor of the defendant granting its motion for summary judgment and maintaining its peremptory exceptions. The plaintiffs appeal.

EXCEPTION OF NO CAUSE OF ACTION

The plaintiffs-appellants contend the trial court erred in sustaining the exception of no cause of action because their petition alleges facts to support an action for unjust enrichment, indemnity or contribution.

The peremptory exception of no cause of action tests the legal sufficiency of the petition, and is triable on the face thereof. For the purpose of determining the validity of the exception, all well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the exceptions must be overruled. Haskins v. Clary, 346 So.2d 193 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976).

The petition in the instant case alleges the Association was unjustly enriched by the judgment in the prior suit against the plaintiffs, and that plaintiffs are entitled to indemnification or alternatively contribution. They allege the damages to Collins were caused by the fault of the surveyor and the title examiner employed by the Association in failing to discover the pipeline, and therefore the Association was not entitled to the judgment on its intervention and payment of that judgment was payment of a debt not due.

UNJUST ENRICHMENT

The theoretical basis for unjust enrichment was explained by the Louisiana Supreme Court in Edmonston v. A-Second Mortgage Company of Slidell, Inc., 289 So.2d 116 (La.1974):

“This restitutionary remedy is founded upon principles of unjust enrichment embodied in Civil Code articles 21 and 1965.1 The action derives from the maxim that natural justice requires that no one should be enriched at the expense of another. It is used to fill a gap in the law where no express remedy is provided.”

The court in Edmonston held that in order to state a cause of action for unjust enrichment, the plaintiff must allege in his petition the following:

“To deter courts from turning to equity to remedy every unjust displacement of wealth with unregulated discretion, certain limitations are applicable to the actio de in rem verso. The Minyard decision set forth five prerequisites which must be satisfied to successfully invoke the action: 1) There must be an enrichment; 2) there must be an impoverishment; 3) there must be a connection between the enrichment and the impoverishment; 4) there must be an absence of “justification” or “.cause” for the enrichment and impoverishment; and 5) the action will only be allowed when there is no other remedy at law, i.e., the action is subsidiary or corrective in nature.”

It is conceded that the allegations of payment to the Association by the plaintiffs satisfy the first three requirements. There must also, however, be an absence of justification for the enrichment or impoverishment. The petition alleges a debt owed to the Association by Donald Collins, plaintiffs’ judgment creditor. The plaintiffs were required to pay the debt as an element of damages they owed to Collins. Therein lies the legal justification or cause for the plaintiffs’ impoverishment. Thus the fourth requirement is lacking.

The plaintiffs argue the Association was negligent and therefore should not have recovered the money it loaned to Collins. However, the fact that the servitude was not discovered by the Association’s agents did not discharge Collins’ debt. It was still an element of his damages, still owed to the Association, and there thus was legal justification for requiring the plaintiffs to pay it under the obligation of their warranty of title.

Furthermore, there must be no other remedy at law available to the plaintiffs in order to plead recovery under unjust enrichment. The plaintiffs had ample opportunity at the time the intervention was filed in the original suit to counter the Association’s intervention by motions or defenses, and also to appeal the trial court’s judgment in favor of the Association in the time allowed by law. Plaintiffs failed to do either.

For these reasons, we find that the plaintiffs’ petition fails to state a cause of action for unjust enrichment.

INDEMNIFICATION

The plaintiffs further assert that their petition states a cause of action based upon indemnification for the payment of a thing not due. They argue that the unjust enrichment creates an obligation of indemnification in quasi contracts to restore all amounts received by the defendants. However, as noted by the Supreme Court in Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967), the action for indemnity based upon implied or quasi contract is more properly characterized as an action or claim for unjust enrichment. Therefore, there is likewise no cause of action for indemnification stated in the plaintiffs’ petition.

CONTRIBUTION

The plaintiffs also contend their petition states a cause of action for contribution because the Association is at least a solidary obligor with plaintiffs. The argument is that the defendant’s agents, i.e., its survey- or and its title examiner, failed to discover the pipeline servitude on Collins’ lot, as did the plaintiffs, and therefore Collins’ injury was caused by the fault of both the plaintiffs and the defendant.

A careful reading of plaintiffs’ petition shows that although the plaintiffs allege the Association made an error in failing to discover the pipeline, there is no allegation that the Association breached any duty which it had to Collins, contractual or otherwise. Moreover, in the previous case Collins did not sue the Association.

In its appellate brief, the Association argues it is apparent from the allegations in plaintiffs’ petition and the appellate opinions in the previous ease, to which plaintiffs’ petition refers, that the survey and the title examination made by the Association were for its sole benefit to determine whether it would make a loan to Collins. The Association cites Simmons v. American Savings & Loan Association, 368 So.2d 1206 (La.App. 4th Cir.1979) for a holding in a similar case that the Savings & Loan Association was under no contractual obligation to the borrower to make a proper survey. Plaintiffs cite no authority to the contrary. We agree with the Association’s contention that under the facts alleged it was not liable to Collins for breach of contract or any other duty.

We conclude the trial court correctly sustained defendant’s exception of no cause of action. We are aware that LSA-C.C.P. Article 934 provides that “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” However, we are unaware of any additional allegations which the plaintiffs could make to state a cause of action. Plaintiffs have not argued any such possible amendments. In fact, plaintiffs conceded during oral argument before this Court that there were no fact issues and that only questions of law are before us.

THE MOTION FOR SUMMARY JUDGMENT

The Association also filed a motion for summary judgment to which it attached a copy of the judgment rendered in the trial court in the Collins case after remand. This was the judgment appealed in our opinion at 317 So.2d 672. The Association also attached to its motion for summary judgment an affidavit of its vice president, Mr. Holcomb, that the judgment in favor of the Association as intervenor was paid in the total sum of $11,676.12. No other affidavits or other instruments were introduced in support of the motion for summary judgment, and the plaintiffs filed no opposing affidavits or other instruments.

The facts shown by the judgment of the trial court and by the affidavit attached to the Association’s motion for summary judgment are also alleged in plaintiffs’ petition. Therefore, the present case can be decided both on the exception of no cause of action and on the motion for summary judgment in favor of the Association.

EXCEPTION OF NO RIGHT OF ACTION

The trial court sustained defendants’ exception of no right of action. This exception, provided by LSA-C.C.P. Article 927, raises the question of whether the plaintiff has any interest in enforcing judicially the right asserted, and whether he has the capacity to bring the action. Lambert v. Donald G. Lambert Construction Company, 370 So.2d 1254 (La.1979). In the present case, the plaintiffs clearly have an interest in seeking to enforce their claims for unjust enrichment, indemnification or contribution, and they also have the legal capacity to sue. The exception of no right of action should have been overruled.

EXCEPTION OF RES JUDICATA

The trial court also sustained defendants’ exception of res judicata. This exception, provided by LSA-C.C. Articles 2285-2286, establishes a legal presumption of correctness and precludes re-litigation of the object of the judgment only when there is (1) an identity of the parties, (2) an identity of “cause” and (3) an identity of the thing demanded. Welch v. Crown Zellerbach Corporation, 359 So.2d 154 (La.1978). In the present case, there was an identity of the parties, in that the plaintiffs in the present case were defendants in the prior case, and the Association was an inter-venor. It can be argued that there is an identity of the thing demanded, since the Association as intervenor in the prior case demanded payment by the plaintiffs in the present case of the money they had loaned Collins, together with expenses incurred in connection with the loan. Judgment was rendered in the prior case in favor of the Association and against the plaintiffs in the present case, ordering that the Association be paid by preference out of the moneys due Collins the amount which the Association had loaned to Collins, together with interest and expenses. However, the cause was not the same in the prior case as in the present case. In the present case, the plaintiffs are contending that the negligence of the Association’s surveyor and title examiner in failing to find the pipeline caused the loss. There was no such issue presented in the prior case as between the plaintiffs and defendant in the present case. Plaintiffs did not file a third party demand against the Association contending that it was negligent, and plaintiffs did not appeal the judgment in favor of the Association. Thus, there is no identity of cause between the same parties in the two suits. The exception of res judicata should have been overruled.

THE EXCEPTION OF PRESCRIPTION

The trial court also sustained defendant’s exception of prescription. LSA-C.C. Article 3544 provides that all personal actions except those specifically provided for in other statutes are prescribed by ten years. Jurisprudence under this article holds that the prescriptive period for an action for unjust enrichment is ten years. Acme Refrigeration of Baton Rouge, Inc. v. Caljoan, Inc., 346 So.2d 743 (La.App. 1st Cir.1977); Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). Since in the present case the plaintiffs’ demand for indemnity by the Association is based on the theory of unjust enrichment, the prescriptive period for such a claim for indemnity is also ten years, and prescription had not run on the demand for indemnity.

The issue of prescription as regards plaintiffs’ demand for contribution is much more complex. Plaintiffs argue alternatively in their brief that if they were liable to Collins the Association was also liable in solido for the same debt, and that plaintiffs are therefore entitled to contribution under LSA-C.C. 2103. As stated above, plaintiffs were found liable to Collins for breach of the warranty of their contract of sale. Thus plaintiffs’ liability arose from a contract. However, for the reasons which we have stated above, we find plaintiffs have not alleged any duty owed by the Association to Collins, contractual or otherwise, the breach of which is the basis of liability by the Association to Collins. Since plaintiffs did not allege the cause of liability of the Association to Collins, we are unable to decide whether there was any solidary liability by plaintiffs and the Association to Collins, and we are unable to decide the further questions of whether plaintiffs are entitled to contribution from the Association, and if so, whether that claim for contribution is prescribed.

The complexity of these problems is set out in detail in the Comment, Prescribing Solidarity: Contribution to the Indemnity Dilemma, 41 La.L.Rev. 659. This Comment discusses the recent Supreme Court cases of Thomas v. W & W Clarklift, Inc., 375 So.2d 375 (La.1979) and Foster v. Hampton, 381 So.2d 789 (La.1980).

Of course, the party urging prescription has the burden of proving it. Langlinais v. Guillotte, 407 So.2d 1215 (La.1981). In the present case, we do not have sufficient allegations or evidence to decide whether the plaintiffs’ claim for contribution is prescribed. Therefore, the exception of prescription as to the demand for contribution must also be overruled.

THE DECREE

For the reasons assigned, we reverse and set aside those portions of the district court judgment which sustain defendants’ exceptions of no right of action, res judicata and prescription, and judgment is now rendered overruling these three peremptory exceptions. Those portions of the judgment appealed which sustain defendants’ exception of no cause of action and motion for summary judgment and dismiss plaintiffs’ suit are affirmed. All costs in the trial and appellate courts are assessed against the plaintiff s-appellants.

REVERSED IN PART, AFFIRMED IN PART.


author: ELLIS, Judge:

text:
    Lawrence J. LIRETTE v. CHROMALLOY AMERICAN CORPORATION and Chromalloy Natural Resources, a Division of Chromalloy American Corporation and Northwest Insurance Company.
    No. 82-CA-0027.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 23, 1983.
    Ferdinand J. Kleppner, Metairie, for plaintiff & appellant.
    Joseph A. Reilly, Jr., Houma, for defendants and appellees.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This is a suit for workmen’s compensation benefits filed by Lawrence J. Lirette against Chromalloy American Corporation and Northwest Insurance Company, its insurer. To the petition, Chromalloy filed a peremptory exception of prescription. After a hearing the exception was maintained, and plaintiff’s suit dismissed as to both defendants. From the judgment of dismissal, plaintiff has appealed.

Plaintiff was first injured in September, 1976. He was treated by Dr. Rhymes for his injury, and discharged after about a year as fully cured. He missed no work and drew his full wages, and performed his full duties without restriction following that accident. No compensation was paid him.

Plaintiff was injured a second time on October 12, 1978, when he was struck by a steel beam. He was paid compensation until February, 1979, when payment was stopped. Suit was filed on the second accident on February 21, 1980.

In July, 1980, he was examined and treated at the Veterans Administration Hospital in New Orleans. The physicians at that hospital concluded that certain pain which plaintiff was experiencing in his neck and upper back was due to the injury received in the September, 1976, accident. Plaintiff then filed this suit on May 14, 1981, for compensation benefits allegedly due as a result of the first accident.

Defendants’ exception of prescription is based on R.S. 23:1209, which provides:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

Defendants claim that, since this suit was commenced more than two years from the date of the accident, it has prescribed under the clear terms of the above statute.

Plaintiff claims the benefit of the doctrine contra non valentem agere non currit praescriptio.

In Nathan v. Carter, 372 So.2d 560 (La.1979), the court said:

“This court has, however, accepted in certain limited situations the common law doctrine contra non valentem agere non currit which means that prescription does not run against a person who could not bring his suit. . [Citations omitted].
“This equitable doctrine has been applied to cases wherein defendant has concealed the fact of the offense or has committed acts (including concealment, fraud, misrepresentation, or other ‘ill practices’) which tend to hinder, impede, or prevent the plaintiff from asserting his cause of action, as long as plaintiff’s delay in bringing suit is not willful or the result of his own negligence.”

In view of the clear language of R.S. 23:1209, supra, which provides a two-year peremptive period within which to bring a compensation suit for an injury which does not manifest itself immediately after the accident, we do not believe that the doctrine of contra non valentem is applicable. In Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971), a case in which the injury did not manifest itself until over two years after the accident, an exception of prescription was maintained to plaintiff’s workmen’s compensation suit. In its opinion, the court said:

“The two-year provision of the Louisiana statute is a peremption. See Wallace v. Remington Rand, Inc., [229 La. 651, 86 So.2d 522] supra. Important differences exist between a peremption and a prescription, or statute of limitations. A statute of limitations bars the remedy. It cuts off resort to the courts for the enforcement of an existing- substantive right. On the other hand, we have often held that after a peremptive period has expired no cause of action or substantive right exists. [Citations omitted].
“As we construe the statute, it removes disabilities arising more than two years after the accident from the scope of liability. As to these belated disabilities, the statute confers no cause of action. Doubtless, the legislative judgment was founded upon such considerations as loss of records, death or dislocation of witnesses, lapse of memories, difficulties of medical proof, and increased risk of malingering. ...”

It is, therefore, our opinion that plaintiff’s cause of action was extingúished two years after the accident, and cannot now be revived.

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

AFFIRMED.