author: SARTAIN, Judge.

text:
    Stephan G. SHAPIRO v. CITY STORES COMPANY (MAISON BLANCHE DIVISION); the Travelers Insurance Company; Otis Elevator Corporation; and Liberty Mutual Insurance Company.
    No. 11052.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    On Rehearing Nov. 12, 1980.
    Carolyn N. Hazard, New Orleans, Joan B. Montero, Kenner, for plaintiff-appellant.
    Frank J. Achary, New Orleans, for defendants-appellees, City Stores and Travelers Ins. Co.

      Drury & Lozes, James H. Drury, New Orleans, for defendants-appellees, Otis Elevator Corp. and Liberty Mut. Ins. Co.
    Before SAMUEL, REDMANN and SAR-TAIN, JJ.
   SARTAIN, Judge.

This suit arises out of an accident which occurred on June 17, 1977, in which plaintiff’s five-year old son Ryan was injured when his left arm was allegedly caught in the mechanism of the moving rubber handrail of an escalator.

The incident occurred at the up entrance to the first floor escalator at Maison Blanche, Metairie, Louisiana.

Named as defendants are City Stores Company, the owner of Maison Blanche, and its liability insurer, Travelers Insurance Company; and Otis Elevator Company, which had constructed the escalator and was under contract with Maison Blanche to maintain it, and its liability insurer, Liberty Mutual Insurance Company. Each of these parties filed general denials, pleas of contributory negligence, and third party demands against the plaintiff based on lack of supervision, etc., on the part of the child’s mother, imputable to the father. In addition City Stores and Travelers seek indemnification from Otis and Liberty Mutual for any judgment against them in plaintiff’s favor.

Plaintiff now appeals from an adverse judgment in the district court. We reverse.

The evidence reflects that on the day of the accident Mrs. Shapiro entered the store just to shop. She was accompanied by Ryan and her daughter, who was nine years of age at the time. As she approached the area near the escalator she observed a display table and stopped to look at the merchandise. She had been there only a matter of moments when she heard her son scream. She looked around and he was standing near the escalator holding his left arm. She rushed to him and pulled him away from the escalator. The child made some statement to the effect that he had caught his arm on it.

Two employees of the store testified. Ms. Betty Rodriquez was in the department to make a personal purchase. Her back was to the child, who was right at the escalator. She could see that his arms were sort of moving, giving her the impression that he was playing. She heard him scream, turned around and observed the mother rush to the child “and must have pulled his arm-somebody had to get him out of the escalator, whatever was causing him to cry, she relieved the pressure.” However, she could not actually tell whether the child was trapped.

The other employee, Ms. Dolly Leone, also had her back to young Ryan, but was no further than five feet from him. She heard him scream turned around, and saw his mother pull him away from the escalator. When her attention was first attracted to the child he was standing.

Mr. Evans Michael, administrative manager of the store, was called to the scene immediately and arrived before Mrs. Shapiro and Ryan had departed. He made only a visual inspection of the escalator and since it appeared to him to be working properly, he took no further action. He did not check the tension on the handrail or call Otis for further inspection. This appears to be very inadequate under the circumstances because in his report to his insurer he noted, inter alia, “Arm apparently caught in rubber handrail of escalator.”

Otis was not informed of the accident until April 5, 1978, some ten months later. Testimony presented by them is to the effect that the escalator was designed and constructed in accordance with the requirements of the National Elevator Safety Code and that routine inspections made by its personnel before and after the accident failed to reveal any malfunctions or defects. As the handrail moves along the supporting and stationary side portions of the escalator there is a one-sixteenth (Vi6th) of an inch clearance if properly adjusted which Otis contends would not permit the passage of a pencil or a finger, much less an arm. A function of routine inspection is to check the tension of the handrail. If it is too tight, it restricts movement. If it is too loose, it slips. Dust, dirt or other debris under the handrail would cause it to slip on its track, lose tension, and become loose. The Vi6th inch clearance between the handrail and its supporting tract permits the desired tension and proper operation.

Under its contract with Maison Blanche, a supervisor from Otis makes periodic visual inspections of the escalator and if there is an apparent problem with the unit a work order is issued and mechanics make the necessary adjustments and/or repairs. Work records entered in evidence reveal that the instant escalator received mechanical attention on May 19,1977, approximately one month before the accident, and on September 21, 1977, approximately four months after the accident. There is no direct evidence in the record that the handrail was ever loose and, by the same token, there is no direct evidence in the record that the handrail itself was ever physically checked to see if the desired Vi6th clearance, as noted above, was being maintained.

In Marquez v. City Stores Company, 371 So.2d 810 (La.1979), the Supreme Court had occasion to review in detail the jurisprudence relative to escalator operations. In brief it held that under C.C. art. 2317, as interpreted in Loescher v. Parr, 324 So.2d 441 (La.1975), strict liability is imposed upon the owner when there is found to be a defect in the thing under his custody which causes injury to another. The essential elements are custody, defect, and resulting injuries.

The question of custody of the escalator in the instant case is, of course, conceded. However, the issues as to the existence of a defect and the manner in which young Ryan injured himself are very strenuously contested. It is the position of the defendants that plaintiff bears the burden of proving a defect and that in the instant matter he has totally failed to do so. The trial judge agreed and rejected plaintiff’s demands. We are compelled to disagree.

First, we must dispose of one argument advanced by defendants. They contend that, assuming that the injuries were caused by the escalator, they were not the result of any normal or intended use of the escalator, but were the result of the fault of the mother in permitting the child to play around the escalator instead of having him under control. We reject this argument under the present circumstances. The display table where the mother and the child were is within ten feet of the escalator. The mother was within nine feet of the child and the escalator; a sales person was within the same distance, and another was within five or six feet. It is difficult for us to say that any person in such close proximity to the escalator had no business being there or that their presence there was unexpected or unusual. If the escalator was in fact defective, i. e. posed a potential hazard to small children, then we consider the resulting injuries to have occurred within the context of normal and intended use.

Defendants next argue that there were no eyewitnesses to the accident and that the testimony of young Ryan, because of his age and some variance in the way he described the incident, is without credibility. For these reasons defendants submit plaintiff has failed to prove an escalator related accident. We must also reject this contention.

Pretermitting the weight to be accorded the testimony of the child the only reasonable explanation for the injury is that his left arm was in fact caught in the handrail. He was observed shortly before the accident and he was standing. He was observed right after it occurred and he was still standing. This, in our opinion, rules out the possibility of falling either to the floor or into the escalator’s side wall and injuring himself in that fashion.

Further, we do not find the mother guilty of contributory negligence. Our reason for so holding is based on the close proximity of the child to his mother at the time and the location of the display table in relation to the escalator.

We follow the reasoning in Marquez v. City Stores Company, above, and conclude that the fact that the escalator caught this child’s arm is an unusual occurrence in itself which would not have happened had the escalator not been defective. See Ott v. J. C. Penney Co., 360 So.2d 524 (La.App. 2nd Cir. 1978); Tarantino v. City Stores Co. (Maison Blanche Div.), 278 So.2d 149 (La. App. 4th Cir., 1973), writ denied 281 So.2d 741 (La.1973); Hunt v. City Stores, Inc., 375 So.2d 1194 (La.App. 4th Cir. 1979), writ granted 378 So.2d 433 (La.1979).

We turn now to the question of damages. The medical evidence shows that young Ryan sustained a torus fracture of the left distal radius and ulna (wrist). His arm was placed in a cast which he wore for five weeks. Fortunately, the injury was not serious and left no residual effects. His swimming for the balance of the summer was curtailed and he missed out on a vacation trip. We think an award of $2,500.00 is reasonable. Evidence as to medical expenses in the amount of $187.00 was offered without objection.

While City Stores denies any liability on the main demand, it argues in support of its third party demand against Otis that the latter is responsible to it for any award granted the plaintiff based on any defect in the escalator whether it be by reason of design and manufacture or improper maintenance. We find merit in this argument. The escalator in question was designed, constructed and installed by Otis in 1960 and has been under an inspection and maintenance contract with Maison Blanche since the date of installation. This contract provides in pertinent part: “To examine, adjust and if, in our judgment, conditions warrant, repair or replace any Step Tread, Step, Comb Plant or Handrail.” (Emphasis ours) We do not have to decide whether the defect in the escalator was the result of an error in design or of faulty maintenance. Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972). In either event the same inference of negligence applies to Otis, which has failed to rebut the same. Marquez v. City Stores Company, above.

For the above reasons the judgment of the district court is reversed and judgment is rendered in favor of Stephan G. Shapiro, individually, in the sum of $187.00 for medical expenses, and, as administrator of the estate of his minor son, Ryan Shapiro, for personal injuries sustained by the latter, in the sum of $2,500.00 against City Stores Company (Maison Blanche Division), The Travelers Insurance Company and Otis Elevator Corporation and Liberty Mutual Insurance Company, jointly and in solido, together with legal interest thereon from the date of judicial demand until paid and for all costs, and there is judgment over in favor of third party plaintiffs, City Stores Company (Maison Blanche Division) and The Travelers Insurance Company against third party defendants, Otis Elevator Corporation and Liberty Mutual Insurance Company.

REVERSED AND RENDERED.

ON REHEARING

We granted a rehearing in this matter to reconsider our original decree insofar as the same granted full indemnity to City Stores and Travelers Insurance Company on their third party demands against Otis Elevator and Liberty Mutual. Our decision to do so was prompted by the recent holding in Hunt v. City Stores, Inc., et al., 387 So.2d 585 (La.1980), rehearing denied September 12, 1980.

In Hunt plaintiff’s young son was injured when his right tennis shoe was caught in the space between the moving tread and the escalator’s left side panel. The court, citing Marquez v. City Stores Co., 371 So.2d 810 (La.1979) and Mire v. Otis Elevator Co., Inc., 357 So.2d 1326 (La.App. 4th Cir. 1978), found a breach of duty on both City Stores (the custodian) and Otis (the manufacturer) to warn patrons against the risk of harm posed by the use of the escalator by small children wearing tennis shoes. The court reasoned: “The loss should be divided. Otherwise, the store owner has no incentive to warn the public, replace the escalator or otherwise prevent future accidents.” We find the same reasoning applicable here.

The indifferent attitude of City Stores toward liability is evidenced in the fact that it did not report the accident to Otis until ten months later. Secondly, City Stores shared in the risk of harm to others by placing its display counters in such close proximity to the escalator, where it could reasonably be expected that young children would be exposed.

For these reasons that portion of our original decree granting third party plaintiffs, City Stores and Liberty Mutual, judgment over and against third party defendants, Otis Elevator Corporation and Travelers Insurance Company, is recalled and set aside, and the original decree, as amended, is reinstated and made the judgment of this court.

ORIGINAL DECREE AMENDED AND, AS AMENDED, REINSTATED.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    JIM OWENS CO., INC. v. John A. MMAHAT et al.
    No. 10938.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 1980.
    Rehearing Denied Dec. 19, 1980.
    Writ Refused Feb. 13, 1981.
    Roger I. Dallam, Greenberg & Dallam, Gretna, for plaintiff.
    David J. Foshee, Mmahat, Gagliano, Duffy & Giordano, Metairie, for defendants.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   REDMANN, Judge.

Plaintiff, who had obtained a judgment against Quentin Construction Corporation, seeks judgment for the amount of that judgment against Quentin’s two shareholders and another corporation they own. On plaintiff’s appeal from a dismissal on the merits, we reverse as to the other corporation.

Quentin contracted to pay plaintiff $4,153.27 to install carpet as part of some renovation work in an office building owned by Executive Office Centers, Inc. Quentin and Executivi were both wholly owned by John A. Mmahat and Paul F. Dastugue, Jr.

The oral renovation contract between Quentin and Executive, as inescapably established through the individual defendants’ testimony, was that Executive would provide funds to Quentin to pay each item of cost of the renovation. This no-profit arrangement was a regular practice. On that basis we reverse as to Executive. Plaintiff is an intended third-party beneficiary of the Executive-Quentin contract within La.C.C. 1890. Quentin, with little or no money of its own because its shareholders-directors-officers so operated it, could not have paid for the work it was having done for their other corporation Executive (whether as “independent contractor” or as agent). Executive’s agreement to pay each item of cost was intended to provide the exact amount of money necessary to pay each “subcontractor” such as plaintiff, and plaintiff’s judgment against Quentin establishes its amount as a cost for which Executive is liable.

In respect to Quentin’s two shareholders, we can agree with plaintiff’s basic argument that incorporation allows one to reasonably limit, but not to escape, liability. Surely one may not legally acquire free carpet for one’s house (or for a friend’s house) by having one’s moneyless corporation buy it on credit and deliver it to the house. Whatever the technical explanation, the law of corporations, agency, unjust enrichment or tort will somehow hold one individually liable notwithstanding one’s observation of all the formal niceties of corpo-rateness.

But that is not our case. The corporation Quentin did have little operating cash, and its shareholders operated it not for its but for their own benefit by oral contracts to improve their own or their other corporation’s property at cost plus zero: and, in the case of the carpeting obtained from plaintiff for their other corporation’s benefit, they elected not pay or have the other corporation pay the cost. However, they withheld payment not as individuals but as directors or officers of their other corporation, and not tortiously but because of a dispute over workmanship (not here explained or at issue); and any unjust enrichment went not to them individually but to their other corporation (itself in law a person, and said to have over $12,000,000 assets). And if Quentin acted but as an agent, it was as Executive’s agent to improve Executive’s property, and not as agent of the individuals. (Nor, we mention, did either individual sign the written Quentin-plaintiff contract.)

Undercapitalization of the corporation Quentin is argued but not supported by the record. The corporation claimed, in its application for a contractor’s license at the time this dispute arose, $13,500 book value of tools and no debts save the $3,500 balance plaintiff claimed. That is not under-capitalization to a degree that would make the shareholders liable personally.

Finally, we note the argument that some evidence suggests that the final typed form of the minutes of annual shareholders’ meetings were not kept currently, from which plaintiff would infer that the meetings were not held and thus corporateness was not preserved and is not a defense to shareholder liability. But the testimony of the secretary is that the meetings were in fact held, as required by La.R.S. 12:73 A, and minutes kept on a legal pad until final transcription, which satisfies R.S. 12:103’s requirement that “[rjecords of the proceedings of the stockholders” be kept. (Plaintiff did not ask for, and defendants gave no evidence concerning, the minutes of directors’ meetings that § 103 also requires.)

Reversed in part; judgment for plaintiff against Executive Office Centers, Inc. for $3,153.27 with 25% attorney fees and legal interest from February 1,1977 and all costs.


author: SCHOTT, Judge. SAMUEL, Judge,

text:
    Harold LYON et al. v. Henry COBENA.
    No. 10534.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Rehearings Denied Dec. 19, 1980.
    Peter Frank Liberto, New Orleans, for plaintiff-appellant.
    James L. Donovan, Donovan & Lawler, Metairie, for defendants-appellees.
    Before SAMUEL, REDMANN, SCHOTT, BARRY and C. LENTON SARTAIN, (Assigned), JJ.
   SCHOTT, Judge.

This is a workmen’s compensation proceeding instituted by Mr. and Mrs. Harold Lyon, the parents of John Lyon who was killed in an on-the-job accident on September 21, 1974. The suit was brought against Henry Cobena as the immediate employer of John Lyon and against Brown’s Velvet Dairy Products, Inc. as the statutory employer of John Lyon pursuant to LSA R.S. 23:1061. Plaintiffs voluntarily dismissed their suit against Henry Cobena and proceeded to trial against Brown’s Velvet alone. From a judgment dismissing their suit against Brown’s Velvet the plaintiffs have appealed.

The issue is whether Cobena stood in a vendor-vendee relationship to Brown’s Velvet or in a principal-contractor relationship so as to make Cobena’s direct employee John Lyon entitled to workmen s compensation benefits against Brown’s Velvet.

Henry Cobena was a distributor of Brown’s Velvet milk and dairy products in a territory consisting of the westbank of St. Charles Parish pursuant to a written contract between the parties which provided as follows:

“1. Brown agrees to sell and Distributor agrees to buy all of Distributor’s requirements milk and other dairy products handled or produced by Brown, other than ice-cream.
2. Brown agrees to furnish Distributor a list of customers who uses Brown’s dairy products in the territory westbank of St. Charles Parish. These said customers will always remain the property of Brown’s Velvet and of which Distributor has paid no monies for such.
3. Distributor agrees to pay Brown cash for such products purchased.
4. It is understood that 60 days notice must be given to Brown should Distributor decide to give up the distributorship of milk in said territory westbank of St. Charles Parish, and upon such termination Distributor would refrain from selling milk in the territory given up for a period of six (6) months and Brown must give Distributor sixty (60) days notice should another Distributor be desired in said territory.
5. Distributor agrees that a representative of Brown may at any time accompany him on route in said territory.
6. It is further understood that this contract and agreement is entered into for the mutual benefit of both parties concerned and Distributor has right to attend all Brown’s sales meetings.”

Brown’s Velvet had originally served its customers in this territory directly through the use of its own vehicles and employees but some years before Cobena became involved had gone into the distributorship arrangement with an independent distributor to service these customers. Cobena bought the distributorship in 1973 and employed John Lyon as a truck driver delivering the products to residential customers as well as schools and groceries. All of Cobe-na’s trucks were marked as Brown’s Velvet trucks, and although the record is not perfectly clear, the sales representative of Brown’s Velvet who had overseen Cobena’s territory testified that he thought Brown’s Velvet had sold Cobena all of his milk trucks.

The arrangement was for Cobena to place an order with Brown’s Velvet each afternoon for his needs in milk and dairy products and on the following morning Brown’s Velvet would deliver these products to a service station where Cobena’s trucks were stored and load the products on the trucks. Some other pertinent facts concerning the relationship were that shortly before this suit was tried Brown’s Velvet took a judgment against Cobena for $65,000 on the account of milk purchased by Cobena from Brown’s Velvet, and whenever there were any complaints from customers about sour milk Brown’s Velvet representative would go out to the customer and trouble shoot the problem with the customer.

In dismissing plaintiff’s suit the trial judge relied on Broussard v. Heebe’s Bakery, Inc., 268 So.2d 656 (La.1972) concluding that the relationship between Cobena and Brown’s Velvet was nothing more than a vendor-vendee relationship as opposed to principal and contractor.

The Broussard case is distinguishable. In the first place the posture of the case was entirely different from the instant case with Broussard being a direct employee of Wolf attempting to sue in tort Heebe’s which purchased bakery products from Wolf. Broussard was met with the defense that he was the statutory employee of Heebe’s, so that his exclusive remedy against Heebe’s was in workmen’s compensation. The court held that the relationship between Heebe’s and Wolf was not principal-contractor but instead vendor-vendee. The court found that Heebe’s did not exercise any control over Wolf and noted that the case did not fall under certain recognized exceptions to the rule that where the vendor-vendee relationship was present liability in workmen’s compensation would only be found if the transaction was a device or subterfuge to avoid liability under the Compensation Act or whether the arrangement was accompanied by an undertaking by either party to render substantial services in connection with the goods sold.

We have concluded that there was a significant degree of control exercised by Brown’s Velvet over Cobena such as to make Brown’s Velvet the statutory employer of John Lyon. The following indicia of control when taken together are sufficient to reach this conclusion.

1. The contract required Cobena to handle Brown’s Velvet products exclusively and purported to prevent him from selling milk to anyone else in the territory within six months after the contract was terminated.

2. Brown’s Velvet had the right to terminate Cobena on a 60-day notice.

3. Brown’s Velvet, while purported in the contract to sell the products to Cobena for cash, had allowed Cobena to run up an account with a $65,000 balance due Brown’s Velvet.

4. The contract required that Cobena permit a representative of Brown’s Velvet to accompany his employees on their routes at any time that Brown’s Velvet desired.

5. The contract gave Cobena the right to attend Brown’s Velvet sales meeting.

6. Cobena’s trucks were all identified as Brown’s Velvet trucks.

7. Brown’s Velvet at all times remained the owner of the customer lists.

8. Brown’s Velvet retained the right and responsibility to handle any complaints from customers with respect to sour milk.

When these factors are considered together it seems clear that Brown’s Velvet did exercise control over Cobena both economically and as a practical matter. Its ability to extend substantial credit to Cobe-na together with its right to terminate Cobena at will, along with the other matters enumerated above, which enabled Brown’s Velvet to involve itself rather intimately in Cobena’s dealings with the customers all add up to a sufficient degree of control to make Cobena an agent of Brown’s Velvet and John Lyon a statutory employee.

This conclusion is consistent with Samson v. Borden Co., 92 So.2d 152 (La.App. 1st Cir. 1957) and Buettner v. Polar Bar Ice Cream Co., 17 So.2d 486 (La.App.Orl.1944). See also 13 La.Civ.L.Tre. (Malone & Johnson) § 73.

We are unable to compute the exact amount of weekly benefits due plaintiffs under Act 25, Extra Session of 1968 and R.S. 23:1232 because the record does not establish the amount of decedent’s salary or the proportion of decedent’s salary contributed to plaintiffs in the year prior to his death. The record shows only that plaintiffs got 50% of the salary each week and used it along with contributions from other family members as a common fund to run the household. We can only conclude that plaintiffs are entitled to some percentage of 65% of decedent’s wages for 500 weeks, subject to the limitations prescribed by Act 12 of 1974.

Accordingly, the judgment appealed from is reversed and set aside and the case is remanded to the district court for the purpose of determining the amount of weekly payments due plaintiffs. Such payments are to bear legal interest from the date each payment became due. All costs are assessed against defendant.

REVERSED AND REMANDED

SAMUEL, J., dissents and assigns reasons.

SAMUEL, Judge,

dissenting.

I agree the issue is whether the relationship between Cobena, the distributor and employer of the deceased, and the defendant was that of vendor-vendee or principal-contractor. If the latter, the deceased was a defendant statutory employee under R.S. 23:1061 and defendant is liable in compensation; if the former, defendant is not liable. The deciding factor is control.

I do not agree that the indicia of control stated in the majority opinion makes the defendant the statutory employer of the deceased. In my view, especially when balanced against other and undisputed facts not mentioned in the majority opinion, those indicia fail to establish anything other than a limited right of control or inspection which goes no further than is necessary to obtain a satisfactory end result, the sale of defendant’s products for the benefit of Cobena and the defendant.

The contract does appear to require that Cobena handle defendant’s products exclusively (other than ice cream) and it does prevent him from selling milk (and only milk) in the territory within six months after termination. However, this certainly is not conclusive. As I read the contract, Cobena was required to refrain from selling milk in the territory for a six month period only if he, Cobena, was the one who terminated the contract.

As to the next two indicia listed by the majority: Under the contract both Cobena and the defendant had the right to terminate on a 60 day notice. And neither that mutual right or the defendant’s action in extending credit to Cobena have anything to do with control.

The fact that a defendant representative had the right to accompany Cobena’s employees on their routes and the fact that defendant retained the right and responsibility to handle complaints limited to those regarding sour milk were only for the ultimate benefit of both Cobena and the defendant. This is also true of Cobena’s contractual right to attend defendant’s sales meetings; Cobena was not required to attend and defendant could not force him to do so.

As to No. 7 of the listed indicia, the only customer list which remained in defendant’s ownership was the list furnished Cobena by the defendant; Cobena certainly had the right to service other customers not on that list and the contract gives to the defendant no rights to any such list of additional customers.

It is true that the defendant’s name was on Cobena’s delivery trucks. But those trucks did not belong to the defendant; Cobena owned them and had them serviced at a station he designated for parking them when not in use.

In addition to what has just been said about the delivery trucks, there are other indicia showing a lack of control by the defendant. Cobena would place his orders with defendant the day before delivery was made and defendant had no control over how much or how little was purchased; Cobena paid his employees with his checks imprinted with his name and drawn on his bank account; and defendant was totally without authority to hire, fire or control any of Cobena’s employees.

If the defendant is liable in compensation for the injury or death of a Cobena employee, I would find it difficult to understand why General Motors, or perhaps its Buick division, should not be liable in compensation to a mechanic employed in and by a. local Buick dealership.

As I am of the opinion the judgment appealed from should be affirmed, I respectfully dissent.


author: BOUTALL, Judge.

text:
    Ida YOUNG, individually and as natural Tutrix of her minor child Renee Young v. ORLEANS PARISH SCHOOL BOARD, New Orleans Public Schools, et al.
    No. 11271.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Rehearing Denied Dec. 19, 1980.

      Law Office of Bendana & Carlton, Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff-appellee Ida Young.
    Richard G. Verlander, Jr. of Polack, Rosenberg, Rittenberg & Endom, New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

Ida Young, individually and as natural tutrix of her minor child, Renee Young, sued the Orleans Parish School Board for damages and personal injuries when Renee, at that time 12V2 years old, stepped on a nail protruding from a board in one of his school buildings. The trial court rendered judgment in favor of plaintiff, and the defendant school board has appealed. Plaintiff answers to the appeal seeking an increase in quantum.

While attending school on September 22, 1977, Renee Young prepared for his 5th period physical education class by changing into his uniform and placing his clothing and other belongings in an unused hallway storage area adjacent to the boys’ locker room facility. Dressing and locker storage facilities were available in the locker room, but Renee had no lock and hence chose to hide his clothing in an unused hallway adjacent to the locker room. This hallway afforded passage from the boys’ locker room to an outside exit of the building, but because of vandalism, the outside door was kept securely fastened. On one side of the passageway, there was unused shelving, and on the opposite side was a wall dividing the passageway from a staff room. When Renee returned after his physical education class, he began to look for his clothing which he had hidden under the unused shelving, and in the process, stepped back upon a piece of plywood several feet square, from which some nails protruded. One of the nails pierced his foot, causing the injuries complained of.

There is no direct evidence establishing how the plywood got on the floor of the passageway near the unused shelving. Renee testified that he did not see the board there when he hid his clothes at the beginning of the class period. Similarly, the athletic coach testified that he had been in the area at the beginning of that class and he did not see the board there. The custodian of the building testified that he had swept the area the evening before, and had been through the area several times prior to the incident, and he did not see the board. Although these witnesses’ testimony does •not show how the board got there, it serves to establish a time frame within which the board made its appearance, that is, after the start of the 5th period and before the end of the 5th period. The board was identified as a piece of plywood that had been used in one of the exterior windows of the staff room as a temporary replacement for a glass window that had been broken out by vandals. The defendants theorize that perhaps some vandals tore the board from the window and placed it in the location where it caused injuries. We disagree and point out that the only reasonable hypothesis is that the board was taken from the window by some schoolboard employee and placed in the hallway alongside the unused shelving.

We are led to this conclusion by a number of factors. The first is that this occurred during school and at a time when there were a number of people in the general vicinity, a rather unlikely time for vandalism of this type. Defendant’s evidence convinces us that this board had to be forcibly removed from the outside of the exterior window of the staff room, transported inside in some way and across the staff room into the hallway, or through the hallway itself, to be placed alongside the unused shelving. While it is easy to visualize a vandal tearing down the board or perhaps kicking it out of the window from inside, the only reasonable explanation for its appearance in the unused hallway alongside the unused shelving is that some employee put it there, presumably as a convenient storage place.

Unfortunately, the evidence shows that this board was situated out in the passageway and lying flat with nails protruding up from the end of it. Such a placement in a passageway, even one that is used only rarely, constitutes negligence, especially when we consider that it is foreseeable that young children would use this passageway at one time or another. At the same time, we cannot conclude that there was contributory negligence on the party of young Renee, who had been in the area an hour earlier and thus had no advance warning and who, while searching for his hidden books, took a step backwards, stepping upon the nail. Although the trial judge rendered no written reasons for judgment, the evidence in this case is such as to support the conclusions we have detailed above.

The only other issue is the quantum. While the record shows that the puncture wound caused Renee more problems than an ordinary wound would (some osteomyeli-tis was incurred) nevertheless the medical testimony indicates that he has no residual disabilities that would disable him. Considering the course of treatment that he underwent, the pain and suffering he encountered, and his inability to participate in sports, etc., during the period of his healing, we think the award of $5,000 in general damages is sufficient.

For the reasons above assigned, we affirm the judgment appealed from.

AFFIRMED.


author: PRICE, Judge. PER CURIAM.

text:
    Jack C. EDWARDS and Cheryl Ann Edwards, Plaintiffs-Appellants, v. The LEWIS GROCERY COMPANY, Willie Clark, Jr. and the Travelers Insurance Company, Defendants-Appellants.
    No. 14316.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    On Rehearing Dec. 8, 1980.

      Snellings, Breard, Sartor, Inabnett & Trascher by Kent Breard, Monroe, for plaintiffs-appellants.
    Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Monroe, for defendants-appellants.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiffs, Jack C. Edwards and his wife, Cheryl Edwards, seek damages for injuries sustained by Mrs. Edwards in a motor vehicle collision. Judgment was rendered against defendants and in favor of Cheryl Edwards for $60,000. Both parties have appealed. Liability has been admitted, and therefore the sole issue on appeal is the amount awarded by the trial court. We affirm for the reasons assigned.

Plaintiffs assign as error the inadequacy of the award for general damages to Cheryl Edwards; the failure of the court to award her damages for a loss of earning capacity; and the rejection of the claims of Jack Edwards for future medical costs and the cost of providing domestic help because of his wife’s alleged disability. Defendant contends the amount awarded .is excessive and should be reduced.

Cheryl Edwards was injured on September 2, 1975, when the car in which she was riding collided with a tractor-trailer rig owned by Lewis Grocery Company. As a result of this accident she sustained injuries to her neck and lower back. She was first treated by her family physician, who referred her to Dr. Frank Cline, an orthopedist. Dr. Cline examined Mrs. Edwards for the first time on September 19, 1975. Initially he diagnosed her injury to be a mus-culoligamentous cervical and lumbosacral strain and placed her on medication and a conservative regime of treatment. Mrs. Edwards continued to suffer back pains and headaches, so in May of 1976 Dr. Cline performed a myelogram which indicated a possible disc protrusion. The test, however, showed no evidence of neurological deficits, and therefore Dr. Cline advised Mrs. Edwards to continue with the conservative treatment. Mrs. Edwards’ symptoms of pain persisted, so in November of 1976 she was hospitalized for further diagnostic treatment. During her hospitalization she underwent an electromyogram and an epidural venogram. The results of these tests indicated to Dr. Cline that the disc protrusion had probably resolved itself, and that the cause of Mrs. Edwards’ continued discomfort was nerve irritation. He continued to prescribe conservative treatment.

In April of 1977 Mrs. Edwards sought treatment from Dr. Owen B. Tabor, an orthopedic surgeon of Memphis, Tennessee. Dr. Tabor’s report indicated that Mrs. Edwards underwent extensive tests and had a neurosurgical consultation with Dr. D. J. Canale. Dr. Tabor performed a myelogram and an electromyogram on Mrs. Edwards which were interpreted as normal. On Dr. Tabor’s suggestion, Mrs. Edwards was examined by Dr. Roy Bond, a psychiatrist who saw her on several visits and suggested she continue with psychiatric care when she returned to Louisiana. After testing Mrs. Edwards for several days in the hospital, Dr. Tabor’s final diagnosis was: (1) chronic lumbosacral strain with possible lumbro disc disorder, but without neurologic deficit; (2) exogenous obesity, mild; (3) psychoneurotic depressive reaction, moderate. He further estimated Mrs. Edwards to have a 5% residual disability. For treatment he recommended an exercise program and symptomatic medication, indicating, however, that if her symptoms worsened exploratory surgery may be in order.

After returning to Louisiana, Mrs. Edwards was seen by Dr. Charles Armistead, a psychiatrist, who found her to have a chronic neurotic type of depression related to the pain and discomfort she experienced. He opined that relief of her pain syndrome would probably relieve her depression.

Dr. Ross Greer, a neurosurgeon in Monroe, performed exploratory surgery on Mrs. Edwards in December 1977, which revealed a herniated disc. The disc was surgically removed and Mrs. Edwards remained in Dr. Greer’s care during her convalescence. On June 14, 1978, approximately six months after the disc surgery, Dr. Greer discharged her from his care, finding she had no residual disability.

Mrs. Edwards contends she is still having excessive pain and is incapable of performing her household work. She claims she remains depressed, nervous, and constantly tired, and therefore has lost all interest in the activities she once enjoyed. She further claims her condition has worsened since the disc operation. Jack Edwards seeks compensation for inconvenience and the expense of future medical costs and domestic help needed because of Mrs. Edwards’ alleged inability to do the housework.

A review of the medical testimony fails to establish any specific need for future medical treatment on the part of Mrs. Edwards. Prerequisites for such an award include some medical testimony that future medical treatment is indicated and setting out the probable costs. See Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970), writ denied 256 La. 266, 236 So.2d 36; Wilson v. MaGee, 359 So.2d 315 (La.App. 4th Cir. 1978); Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3d Cir. 1978); and Sikes v. McLean Trucking Company, 383 So.2d 111 (La..App. 3d Cir. 1980).

Plaintiffs contend Mrs. Edwards sustained a loss of earning capacity as a result of this accident, and that the amount awarded by the trial court is inadequate to compensate her for this loss. The evidence does not show Mrs. Edwards has any significant history of employment in the past, or that she is specially qualified for a particular occupation for which she is now disabled. Whether her history of having had a back injury from which the medical evidence shows she has recovered would prevent her from obtaining employment at a minimum wage in the future is too conjectural to justify an award for special damages for loss of wages. See Wyble v. St. Paul Fire & Marine Insurance Company, 316 So.2d 819 (La.App. 3d Cir. 1975).

The next issue to be considered is whether the evidence supports a finding that Mrs. Edwards suffers traumatic neurosis as a result of this accident. The medical consensus was to the effect that Mrs. Edwards’ depression was directly related to the pain she was experiencing, and once her pain was relieved, her depression would end. There is, however, no medical evidence relating to her mental state subsequent to back surgery.

. . . inasmuch as a claim for damages based on alleged neurosis is nebulous, it must therefore be scrutinized with extreme care to protect tort feasors against unjustified and unwarranted claims while at the same time insuring that bona fide claims of such nature will not be denied. We hold therefore, that in tort actions proof of the existence of conversion neurosis and its causal relation to the injury producing incident sued upon must be presented in clear and convincing fashion. We so hold because in instances of this character the diagnosis of neurosis must perforce be made primarily upon subjective symptoms. Vezinat v. Marix, 217 So.2d 416 (La.App. 1st Cir. 1968). See also Devillier v. Traders & General Insurance, 321 So.2d 55 (La.App. 3d Cir. 1975) and Belson v. Subsurface Completion Service, 253 So.2d 686 (La.App. 3d Cir. 1971).

Although there is some evidence that Mrs. Edwards experiences periods of depression, we do not find it substantiates her claim that she suffers a traumatic neurosis caused by the accident. We therefore conclude the trial court did not err in denying plaintiffs this element of damages.

Plaintiffs contend the trial court erred in failing to award them damages for domestic services, past and future, on the basis Mrs. Edwards has been unable to do household work and will be unable to do it in the future.

The jurisprudence of this state has allowed a husband to recover reasonable and necessary expenditures incurred to obtain domestic help which was usually performed by his wife, but which she could not perform because of her incapacity. Hickman v. Bawcom, 149 So.2d 178 (La.App. 3d Cir. 1963); Poche v. Frazier, supra.

In the instant case plaintiffs offered no evidence showing past expense incurred 'for domestic help. Since the time of the collision Mrs. Edwards’ domestic chores have been shared by family members. While the medical evidence does assign a minimum permanent disability to Mrs. Edwards from the accident, the evidence as a whole does not support her contention that she will be disabled to perform substantially all of the usual household duties of a homemaker.

In regard to the sufficiency of the award for general damages, we recognize the amount of pain and suffering Mrs. Edwards has experienced through the lengthy period of treatment and convalescence. The award of $60,000, while in the low range, does not appear to be an abuse of the wide discretion accorded the trial court in fixing the amount of damages. The defendants’ contention that the award is excessive has no merit in view of the extensive treatment undergone by Mrs. Edwards.

For the reasons herein assigned, the judgment is affirmed. Costs are to be assessed to plaintiffs.

Before PRICE, HALL, MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.

ON APPLICATION FOR REHEARING

PER CURIAM.

In his application for rehearing the attorney for plaintiffs, Jack C. Edwards and Cheryl Ann Edwards, has requested this court to amend the written judgment of the trial court to have it conform to the written opinion of the trial judge. The judgment as prepared and signed by the court suggests that the award is in favor of both plaintiffs, Jack and Cheryl Ann Edwards, whereas the trial court actually rejected all demands of Jack Edwards as head and master of the community, and the sum awarded was solely in favor of Cheryl Ann Edwards.

Our opinion is amended to clarify the judgment of the trial court in this respect and to delete any reference to the award being in favor of Jack C. Edwards.

      . The record reveals that all of Mrs. Edwards’ medical expenses, totaling $7,193.07, were paid by the defendant insurance company.


author: CUTRER, Judge.

text:
    Betty POCHE, Plaintiff-Appellee, v. LOUISIANA HEALTH SERVICES & INDEMNITY COMPANY, Defendant-Appellant.
    No. 7827.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Writ Refused Jan. 16, 1981.

      Trimble, Randow, Smith & Wilson, Lon P. Wilson, Alexandria, for defendant-appellant.
    Rivers & Willson, Larry W. Rivers, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

Betty Poche filed suit against Louisiana Health Services & Indemnity Company (Blue Cross) for the reimbursement of hospital and physician charges that she incurred while she was hospitalized at the Rapides General Hospital for a period beginning March 21, 1979 and ending March 24, 1979. Plaintiff also claimed penalties and attorney’s fees. The trial court rendered judgment in favor of the plaintiff and against defendant for $2,226.00, including penalties and attorney’s fees. Defendant appeals. We affirm.

The issues presented on appeal are: (1) Whether plaintiff’s claim is excluded under the provisions of the Blue Cross hospital and medical care policy issued to the plaintiff; and (2) if coverage is found to exist, we have the issue of whether plaintiff is entitled to penalties and attorney’s fees under LSA-R.S. 22:657.

In March 1979, plaintiff consulted Gutierrez, her physician since 1976, complaining of abdominal pains, cramping, intermittent diarrhea, constipation, rectal bleeding and urinary incontinence. She had been experiencing these problems for about three weeks prior to seeing Dr. Gutierrez. This physician examined plaintiff but was unable to determine the cause of her complaints, especially the rectal bleeding. He felt that such a condition could result from several causes including serious diseases such as polyp, carcinoma (cancer) or diverticulitis. The doctor, faced with this situation, recommended that she be hospitalized as soon as a room was available. The next day, March 21st, she was admitted to the Rapides General Hospital. After tests were made, Dr. Gutierrez’s diagnosis was hemorrhoids. According to Dr. Gutierrez’s testimony, plaintiff’s treatment consisted primarily of proctosigmiodoscopy, x-ray studies, and mild to moderate analgesia for discomfort. The hospital records reveal that she was administered drugs on ten occasions during the three-day stay.

The defendant relies on the following exclusion as a bar to plaintiff’s recovery. Article IX of the policy provides as follows:

“No services or benefits shall be provided for:
* * * * Sic *
“(e) Hospitalization primarily for diagnostic studies, x-ray examinations, laboratory examinations, basal metabolism tests, electrocardiograms, physical therapy■”

To properly evaluate this coverage question, we feel that the provision of the policy that provides coverage should be set forth. Article III provides:

“1. ... A Subscriber who is admitted to a Member Hospital shall be entitled to receive hospital services, as provided by Article IV, for each Hospital Confinement:”

Article IV provides:

“1. A Subscriber who is admitted as an in-bed patient and confined to a bed in a Hospital shall be entitled to the following hospital services when consistent with the diagnosis and treatment of the condition for which hospitalization is required and only when such services are ordered bv a Physician, furnished and charged for by said Hospital and administered and used during such admission provided the Subscriber was not confined in a hospital on the effective date of the coverage; otherwise, coverage would commence upon discharge from the Hospital:”

Following the above coverage is a list of services which are covered. Among these services are laboratory examinations, medical supplies, drugs and medicines, x-ray examinations and other services.

Faced with the above coverage provision,' along with the exclusionary clause in question, the trial court, in its reasons for judgment, made the following findings:

". . . Plaintiff is a fifty year old woman. In the Spring of 1979 she visited her personal physician, Dr. M. E. Gutierrez, with complaints of lower abdominal pains, cramping, stress incontinance (urinal), diarhea [sic], and stools containing large amounts of blood. Dr. Gutierrez testified by deposition that he felt that plaintiff’s condition warranted treatment in Rapides General Hospital. During the course of this treatment tests were run and medicines were administered [sic] to plaintiff, which aided her in overcoming her complaints.
“Counsel for the defense was very skillful in cross-examining Dr. Gutierrez in the deposition. Defense counsel phrased his questions in such a manner as to emphasize only the diagnostic aspect of the treatment plaintiff (Mrs. Poche) received. Dr. Gutierrez noted that the first step in treatment of any disease or injury is the diagnosis of the cause of same.
“The exclusion relied on by defendant is addressed to hospitalization ‘primarily’ for diagnosis. In the instant case, plaintiff was admitted to the hospital with numerous serious physical problems. It was essential to the treatment of these problems that the cause thereof be determined. Dr. Gutierrez testified that the rectal bleeding plaintiff experienced could be caused by any number of diseases, from hemorrorids [sic], to cancer to diverticulitis. The cause of the bleeding was determined to be hemmorroids [sic], and the proper treatment, including medication, was prescribed. Plaintiff also was treated for her other physical complaints.
“Under these circumstance [sic], I do not feel that plaintiff’s hospitalization was ‘primarily for diagnostic studies.’ Rather I feel that plaintiff was hospitalized for treatment of serious physical problems. Diagnosis of the cause of these problems was merely part of this treatment.”

The record supports the trial court’s factual conclusions.

The services received by plaintiff at Rap-ides General were “consistent with,” and was directed toward the diagnosis and treatment of the condition from which she had been suffering.

In Baque v. Pan American Life Insurance Company, 313 So.2d 293, 297 (La.App.3rd Cir. 1975), writs ref’d, 318 So.2d 52 (La.1975), this court gave a broad definition to the word “treatment,” as follows:

“Although the Louisiana jurisprudence reveals no case defining ‘treatment’, we find applicable the following definition of that term by the courts of sister states: ‘In common parlance and often in the law, “treatment” is the broad term covering all the steps taken to effect a cure of the injury or disease. It includes examination and diagnosis, as well as application of remedies’, Hester v. Ford. 221 Ala. 592, 130 So. 203, 206 (1930). See also Stephens v. Williams. 226 Ala. 534, 147 So. 608 (1933); Kirschner v. Equitable Life Assurance Society. 157 Misc. 635, 284 N.Y.S. 506, 510 (1935); Permanent Edition, Words and Phrases, Volume 42A, Treatment, p. 45. We believe that the foregoing definition of the word ‘treatment’ accords with logic and common sense. ”

Under the broad definition of “treatment” in Baque, and the evidence in the record, we fully agree with the trial judge’s conclusion that the exclusionary provision of defendant’s policy is not applicable.

The defendant relies on the case of Niles v. American Bankers Insurance Company, 258 So.2d 705 (La.App.3rd Cir. 1972). That case is distinguishable from the one at hand in that Mrs. Niles’ doctor testified that she was hospitalized for “observation and tests” and the trial judge thus concluded that she was hospitalized principally for the purpose of diagnosis.

PENALTIES AND ATTORNEY’S FEES

The second issue to be dealt with is the award of penalties and attorney’s fees. Defendant contends that the trial court was in error in its application of LSA-R.S. 22:657 to this case. In support of this contention, counsel cites Tabb v. La. Health Services & Indem. Co., 361 So.2d 862 (La.1978), and several of its progeny from this circuit. However, the more recent expression of the Louisiana Supreme Court, Rudloff v. Louisiana Health Services & Indem., 385 So.2d 767 (La.1980), overrules Tabb and holds that a policy which provides benefits for hospital and medical care is a health policy. Since this is a health policy, the trial court was correct in its application of LSA-R.S. 22:657.

Under that statute, a penalty of double the amount of the benefits due and attorney’s fees are to be awarded when a claim properly submitted is not paid within thirty days, “unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist.”

Whether the insurer denied plaintiff’s claim, on just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, is a question of fact.

We have carefully examined the record and have concluded that the trial court erred in granting plaintiff penalties and attorney’s fees under the circumstances presented. The defendant obtained the hospital records of plaintiff and submitted them to two physicians for a review. After such a review, the report of each of these physicians shows that they were of the opinion that the hospitalization of the plaintiff was primarily for diagnostic studies. They also concluded that hospitalization was not required for the administering of the medications that were given. The defendant was under a duty to determine, by an honest and sincere effort, whether plaintiff’s hospitalization was primarily for diagnostic studies. After an evaluation of the physicians’ reports and the hospital records, it concluded that plaintiff’s hospitalization was primarily for diagnostic studies. Even though we have ruled otherwise herein, we conclude that defendant’s refusal to pay the claim cannot be classified as unreasonable or unjust. For these reasons, we shall reverse the trial court’s award of penalties and attorney’s fees.

For the above and foregoing reasons, the judgment of the trial court is reversed so far as it awards penalties and attorney’s fees and is affirmed in all other respects. Costs of this appeal are assessed one-half to plaintiff-appellee and one-half to defendant-appellant.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . Dr. Gutierrez testified as follows:
      “Q. And you were of the opinion that based on the complaints of cramping lower abdominal pain, bright red blood with stools, and some mixed with stools, and intermittent diarrhea and constipation that it was medically necessary that you admit her to the hospital?
      “A. Yes.
      “Q. And'how long did she remain hospitalized?
      “A. I think she was in the hospital for three days-you can say three or four, depending on whether you count the day of discharge.
      “Q. And while she was in the hospital what type treatment regime did she undergo?
      “A. Her treat [sic] was primarily that of proctosigmiodoscopy, x-ray studies, mild to moderate analgesia for discomfort-she was under no course of specific therapy for her complaints other than what I’ve stated.
      * * * * * *
      “Q. And after you examined her in your office on March 20th, you recommended to her that she be admitted to the hospital for treatment of the complaints that she gave you at the time as well as for perhaps assistance in diagnosing what the actual root cause of the problem was-Would that not be a true statement?
      “A. I think that’s true, yes.
      “Q. And would it not be a true statement that when you admitted her to the hospital you intended to treat her for those complaints?
      “A. Oh certainly, yes.
      “Q. And I believe the hospital records show that you did in fact give her certain medication for pain. Did you not?
      “A. Yes.
      “Q. Would it be a true statement to say that the medications you gave her for pain were for treatment of the abdominal pain of which she was complaining when you saw her on March the 20th?
      “A. Well, yes, that certainly sounds-would be true, yes.”


author: CULPEPPER, Judge.

text:
    TRINIDAD PETROLEUM CORPORATION, Plaintiff and Appellant, v. PIONEER NATURAL GAS COMPANY et al., Defendants and Appellees.
    No. 6787.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    George W. Hardy, III, Houston, Tex., and J. P. Mauffray, Jr., Jena, for plaintiff and appellant.
    Provosty, Sadler & deLaunay, David P. Spence, Alexandria, Plauche, Hartley, La-peyre & Ottinger by Patrick S. Ottinger, Lafayette, Breazeale, Sachse & Wilson, James E. Toups, Jr., Baton Rouge, Gaharan & Wilson, Joseph Wilson and William Henry Sanders, Jena, for defendants and appel-lees.
    Before CULPEPPER, CUTRER and SWIFT, JJ.
   CULPEPPER, Judge.

This case is before us by remand from the Louisiana Supreme Court, 381 So.2d 808. A complete history of the case is stated in the Supreme Court opinion.

In its original opinion rendered March 3, 1980, the Supreme Court held:

“Viewing the initial result reached by the court of appeal as correct, we now reverse the decision of the district court which dismissed on exceptions of no cause and no right of action and remand the case to the district court for trial on the merits.”

On applications for rehearing of its March 3, 1980 opinion, the Supreme Court rendered a per curiam opinion on April 9, 1980 stating:

“Applications for rehearing have been filed by respondents Pioneer Natural Gas Company, Royal Mineral Corporation and MBM Partnership. Although we find that the applications are essentially without merit and that our judgment herein reversing the Court of Appeal’s dismissal of relator’s appeal is correct, we nonetheless conclude that our affirming the Court of Appeal’s original judgment (a judgment which reversed the trial court) is inappropriate, primarily because the judgment in the Court of Appeal has never become final in that court.
“Accordingly, the applications for rehearing are denied but our judgment on original hearing is amended so as to pretermit review of the Court of Appeal’s original action and to remand the case to the Court of Appeal for further consideration.”

In compliance with the instructions from our Supreme Court on remand, we have given further consideration to our original opinion rendered on February 5, 1979. We reach the same result.

In our original opinion rendered on February 5, 1979, we treated this case as a possessory action, as it had been treated in the pleadings, the trial, the decision by the trial judge, and on appeal. We held the trial judge erred in sustaining the exception of no cause of action because plaintiff’s petition alleged all of the essential elements of a possessory action required by LSA-C. C.P. Article 3658. Furthermore, we held the trial court erred in sustaining the exception of no right of action on the grounds that plaintiff owned no interest in the leases. We decided the issue of ownership of plaintiff’s lease was tried and decided in a possessory action, contrary to the provisions of LSA-C.C.P. Article 3661 that ownership is not at issue in a possessory action.

The Supreme Court held that this is not a possessory action, but is instead an ordinary action to determine the rights of the parties under a mineral lease contract. Accordingly, we will reconsider the exception of no cause of action and the exception of no right of action, treating this case as an ordinary proceeding to determine the rights of the parties under the lease.

First, we will consider the exception of no cause of action. In its opinion, the Supreme Court briefly describes the allegations of plaintiff’s petition and the relief sought as follows:

“In this suit the relief sought by plaintiff against Pioneer has several objects. First, it would recognize that the lease is still in force. It also alleges that the lease should not be cancelled or treated as having been ended by prescription because plaintiff was prevented from carrying on operations on the lease because of blowouts which occurred, rendering it impossible to carry out further work on the leased premises, at least until the blowout could be brought under control or would bridge over, thus shutting itself off. This, plaintiff claims, brings into operation the Force Majeure clause of the leases which would relieve it of the obligation to operate the lease during such period. Additionally, plaintiff seeks damages caused from the action of lessor by treating the lease at an end and giving a subsequent lease to other parties, thereby causing economic loss to plaintiff. Plaintiff also seeks payment of damages from the other parties, i. e. payment for loss arising from the wrongful action of these parties resulting in a loss of profits which should be paid or should have been paid to plaintiff from any minerals produced from the tract affected by the lease.”

In considering the exception of no cause of action we must accept as true all of the factual allegations of plaintiff’s petition. Clearly, a cause of action is alleged. We have no difficulty in concluding the trial court erred in sustaining the exception of no cause of action.

We now consider the exception of no right of action, which is more complex. In our original opinion rendered on February 5, 1979, we cited Guillory v. Nicklos Oil & Gas Company, 315 So.2d 878 (La.App. 3rd Cir. 1975), which holds:

“The function of the peremptory exception of no right of action is to provide a threshold device for terminating a suit brought by one without the legal capacity to file it or without the legal interest to assert it.
* * He * * *
“The exception of no right of action is not available to urge a defense to the effect that plaintiff is without interest simply because defendants have a defense to the action. Alside Supply Company v. Ramsey, 306 So.2d 762 (La.App. 4th Cir. 1975); Bielkiewicz v. Rudisill, 301 So.2d 136 (La.App. 3rd Cir. 1967).”

In the present case, the legal capacity of the plaintiff to file this suit is not questioned. Defendants’ argument is that the lease in question, dated November 6, 1969, is for a term of two years and “as long thereafter as oil, gas or other mineral is produced from said land or land with which said land is pooled hereunder.” Defendants then point to the provision of the lease that:

“5. ... if after the discovery of oil, gas, sulphur or other mineral, the production thereof should cease for any cause, this lease shall not terminate if lessee commences operations for additional drilling or reworking within sixty days thereafter. ...”

Under the above quoted provisions of the lease, defendants argue evidence introduced at the hearing on the exceptions in the trial court shows that production commenced during the primary term, but that it ceased on November 17, 1974 for more than 60 days without the lessee commencing operations for additional drilling or reworking. Plaintiff contends that although production ceased for over 60 days, the “force maj-eure” clause relieved it of drilling or reworking operations within the 60 days. Thus, the essential issue in this case is whether the “force majeure” clause relieved plaintiff of the obligation to commence drilling or reworking within 60 days after cessation of production. Clearly, plaintiff has a sufficient legal interest to sue on a cause of action in which the substantial issue is whether the lease has terminated. Plaintiff is the record owner of the lease. If it has not terminated, it will remain the record owner. Defendant’s contention that the lease has terminated is a defense which should be urged by answer and tried on the merits. Guillory v. Nicklos Oil & Gas Company, supra; Alside Supply Company v. Ramsey, supra.

We are supported in this view by the statement of the Supreme Court in its original opinion rendered March 3, 1980 that: “Viewing the initial result reached by the Court of Appeal “as correct, we now reverse the decision of the district court which dismissed on exceptions of no cause and no right of action and remand the case to the district court for trial on the merits.”

As regards the motion to dissolve the writ of sequestration, we adopt the reasoning and the ruling in our original decision of February 5,1979 that the writ of sequestration should not have been dissolved by the district judge.

In view of our decision that the exceptions of no cause of action and of no right of action must be overruled, and that the case must be remanded for trial on the merits, it is unnecessary to consider plaintiffs’ argument that our February 5, 1979 judgment became final because defendants did not apply for a rehearing in our Court after the case was remanded to us by the Supreme Court. Our February 5,1979 decision overruled the exceptions and remanded the case for trial. Thus, the result is the same, even if our February 5, 1979 decision did become final.

For the reasons assigned, the judgments appealed are reversed and set aside. It is now ordered, adjudged and decreed that the exceptions of no cause of action and of no right of action filed by the defendants are overruled, and the motions to dissolve the writ of sequestration are denied. This case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendants-appellees. Assessment of costs in the trial court must await a final judgment there.

REVERSED AND REMANDED.


author: SWIFT, Judge.

text:
    David L. THIBODEAUX et al., Plaintiff-Appellees, v. WESTERN WORLD INSURANCE COMPANY et al., Defendants-Appellants.
    No. 7712.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      John P. Navarre, Oakdale, for defendants-appellants.
    Guillory, McGee & Mayeux, Donald L. Mayeux, Eunice, for plaintiff-appellee.
    Gist, Methvin, Hughes & Munsterman, David Hughes, Alexandria, for defendant-appellee.
    Before CULPEPPER, CUTRER and SWIFT, Judges.
   SWIFT, Judge.

Defendant, Security Timber Company, Inc. (Security), has appealed from a judgment which awarded damages to plaintiff, Donald Perron, for trees cut from his land without permission and dismissed the suit as to the other defendant, Western World Insurance Company (Western), Security’s insurer.

On or about March 28, 1978, Mr. Perron, the owner of approximately 45 acres of partly wooded land in Evangeline Parish, entered into a written contract to sell the property to Nolton Fontenot for $76,500.00. Although no written agreement existed, it was understood by all of the parties that Mr. Fontenot would thereafter convey 10 of the 45 acres to plaintiff, David L. Thibo-deaux, his nephew by marriage. Three days later, while engaged in cutting timber on an adjoining tract under a timber deed from its owner, Security’s men crossed Per-ron’s fence and cut 28 to 30 loblolly pine trees 11 to 28 inches in diameter from the 10 acre tract, some of which were within 100 feet of the planned location of Thibo-deaux’s house. The logs were removed, but the stumps and tops of the trees were left on the land.

On May 12, 1978, Perron conveyed by cash deed 10 acres directly to Thibodeaux for the price of $10,000.00 as theretofore agreed by Fontenot and Thibodeaux. Per-ron also agreed that he would assist the latter in an attempt to recover the damages occasioned by the trespass, the entire recovery to go to Thibodeaux. Perron thereafter conveyed the remaining acreage to Fonten-ot for the balance of the $76,500.00 contract price.

Perron and Thibodeaux then filed this suit against Security and Western. The trial court held that Thibodeaux was not entitled to recover as he was not the owner of the property when it was damaged and had no written agreement to purchase it. However, Perron, then the owner, was awarded $7,830.00 for the loss of the trees and their aesthetic value, the willful and intentional trespass and the cost of removing the tree stumps and tops, restoring the fence and removing an obstruction left in the gully. Western was absolved from liability because the damages were not covered by its policy. Mr. Thibodeaux did not appeal, so the judgment is now final as to him.

The issues on appeal are the correctness of the trial judge’s determination that an intentional trespass occurred on Perron’s land, the recoverable damages and the finding of non-liability of the insurer.

In support of its attack on the sufficiency of the proof showing that the trees cut were on Mr. Perron’s land, appellant contends the trial judge erred in allowing a survey plat of the ten acres to be admitted in evidence without the supporting testimony of the surveyor.

The record reflects, however, that counsel for Security did not object when the plat was offered and admitted in evidence. Instead, he made such an objection to its prior admission at the end of the trial. It is elementary that objections to evidence must be made at the time of its offer and the failure to do so, unless the opportunity does not exist, will be considered as a waiver of such objection. In Re Industrial Homestead Ass’n., 198 So. 528 (La.App.Orl.1941). The opportunity to object being present in this instance, the plat of survey in question was duly admitted for consideration in this case. It and other evidence amply support the trial judge’s finding that the trespass occurred on the 10 acre tract.

It was established that a fence was located on the boundary between Perron’s land and that of the neighbor on whose property Security was conducting timber operations. Also, the timber on the adjoining property was separated from Perron’s timber by a cleared area. Nevertheless, Security destroyed portions of the fence, crossed over onto Perron’s land and cut his timber.

Security contends that at most it was negligent in not checking the property lines more closely. However, prior to the trespass Security attempted to purchase Perron’s standing timber and he refused. This indicates rather clearly that Security knew Perron owned the land containing the timber it sought to buy and yet it still deliberately crossed over his fence and cut timber from his land. We are unable to say the trial court’s determination that Security was in bad faith due to its willful and intentional actions was clearly wrong.

Thus, LSA-R.S. 56:1478.1(B) is applicable. This statute provides as follows:

“A. It shall be unlawful for any person to cut, fell, destroy or remove any trees, or to authorize or direct his agent or employee to cut, fell, destroy or remove any trees, growing or lying on the land of another, without the consent of the owner or legal possessor.
“B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed or removed.
“C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed or removed, except however, that the provisions of this section shall apply only to trees cut or removed across ownership lines, marked boundary lines, or outside of designated cutting area lines, and that no provision herein shall apply to cutting operations within an area covered by a contract or agreement with the owner.
“D. The provision of this section shall not apply to the clearing and maintenance of rights of way or to utility service situations where a utility is acting in good faith to minimize the damage or harm occasioned by an act of God; the provision of this Act shall not apply to land surveying by or under the direction of a registered professional land survey- or, duly registered under the laws of the state of Louisiana.”

The trial court found, based on expert testimony, that the total market value of the trees cut was $350.00 and awarded Per-ron three times this amount or $1,050.00 for the loss of the trees. The plaintiff is unquestionably entitled to this sum.

We also believe, just as the trial court did, that the remedy under the above statute for such an intentional trespass is not exclusive. The statute seems to standardize the damages due for the loss of trees unlawfully cut. But it does not expressly or impliedly eliminate recovery of other damages suffered by a land owner as a result of a trespass.

It is well settled that a land owner can also recover for the loss of aesthetic value of trees and shrubs as a result of a trespass. Morgan v. Dixie Electric Membership Corporation, 112 So.2d 315 (La.App. 1 Cir. 1959); Womack v. Travelers Ins. Co., 258 So.2d 562 (La.App. 1 Cir. 1972), writ denied 261 La. 775, 260 So.2d 701 (La.1972); Curole v. Acosta, 303 So.2d 530 (La.App. 1 Cir. 1974); Turner v. Southern Excavation, Inc., 322 So.2d 326 (La.App. 2 Cir. 1975). Different measures of damages were applied in each of these cases, but it is obvious that considerable discretion is vested in the trial court in these matters. We do not believe that the judge abused his discretion in awarding $500.00 for such item under the facts here.

The courts in this state also allow damages in cases of deliberate, forcible trespass for invasion of property rights and mental anguish. Loeblich v. Garnier, 113 So.2d 95 (La.App. 1 Cir. 1959); Turner v. Southern Excavation, Inc., supra. Although we must say that the award to Mr. Perron of $1,500.00 for this trespass seems high in view of the circumstances in this case, we do not find the judge abused his discretion.

Mr. Perron was also awarded $4,780.00 to remove the stumps, rebuild the damaged portion of the fence, burn the trash and tree tops left on the land and remove the obstruction that prevented water from flowing through the gully on the property. The trial judge considered the conflicting testimony as to the cost of such work and concluded this amount was the most reasonable. We cannot say that he erred in this respect.

Appellant’s principal argument is that Perron is not entitled to damages in this instance because he sustained no monetary loss, having sold the property after the trespass for the same amount as he contracted to sell it for before. We do not agree. As owner of the property, Mr. Per-ron was damaged by the defendant’s trespass to the extent of the award of the trial court. In our opinion the fact that the buyer and his designee were willing to complete the purchase for the price set forth in the contract to sell, even though the property was subsequently damaged by a third party without fault of the seller, should not enure to the benefit of the trespasser any more than a reduction in an injured party’s damages from a collateral source should benefit the tort feasor.

Appellant also assigns as error the trial court’s ruling that it was not covered for these damages by Western’s policy. Western contends this issue is not before us, because no incidental action was filed in the suit and appellee Perron did not appeal or answer Security’s appeal. We do not agree. Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (La.1963); Reid v. Monticello, 215 La. 444, 40 So.2d 814 (La.1949).

The insuring clause of the policy provides:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. Bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence, ...”

The word occurrence is defined in the policy as:

“[Occurrence means an accident, including, continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured ;”
[Emphasis added]

Having concluded that the damages to the plaintiff’s property resulted from a willful and intentional trespass, it certainly cannot be said that they were “neither expected nor intended from the standpoint of the insured”. Therefore, it is clear that such damages were not caused by an “occurrence” so as to be insured under the policy. See Argonaut Southwest Insurance Company v. Maupin, 500 S.W.2d 633 (Tex.1973); Corvallis Sand & G. Co., Inc. v. Oregon Auto. Ins., 521 P.2d 1044 (Ore.1974); and these Louisiana cases denying coverage for bodily injuries resulting from intentional torts: Monk v. Veillon, 312 So.2d 377 (La.App. 3 Cir. 1975); Kipp v. Hurdle, 307 So.2d 125 (La.App. 1 Cir. 1975); Terito v. McAndrew, 246 So.2d 235 (La.App. 1 Cir. 1971); and Wigginton v. Lumbermens Mutual Casualty Company, 169 So.2d 170 (La. App. 1 Cir. 1964).

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

AFFIRMED.


text:
    Mathilda Romero TOUCHET et al., Plaintiffs-Appellees, v. Louis HUVAL, Jr. et ux., Defendants-Appellants.
    No. 7786.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      Haik, Broussard & Haik, C. E. “Gene” Broussard, New Iberia, for defendants-appellants.
    Guillory, McGee & Mayeux, John G. Fon-tenot, Eunice, for plaintiffs-appellees.
    Before CULPEPPER, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

The appellees-lessors brought this summary proceeding against appellants-lessees for eviction and collection of $1,150.00 in past due rent. The trial court rendered a judgment evicting the lessees and awarding the lessors $850.00 for accrued rental. Appellants contend they owed no rent due to a verbal alteration of the lease contract and that the judgment of eviction is improper because one of the lessees is a co-owner of the leased property.

On February 18, 1976, Stephen Touchet and Mathilda Romero Touchet leased fifty arpents of land in Lafayette Parish to Louis Huval, Jr., and Ruby Touchet Huval, the lessors’ son-in-law and daughter. The lease was for a term of fifteen years running from March 1, 1976 to March 1, 1991. It stipulated an annual rent of $300.00 to be paid on March 1st of each year. Mr. Tou-chet died on January 31, 1978, and his widow remarried on October 6, 1979. On November 2, 1979, the lessees were given 30 days notice to vacate the land for nonpayment of rent. They refused. This suit was filed by Mrs. Touchet and her son on December 12, 1979.

The appellants’ specification of errors raise only two issues on this appeal. First, the terms of the lease were altered by a verbal agreement with the Touchets that the cause of the lease was to have the Huvals living nearby to provide them with assistance and services in their old age and that the rent was waived. Second, the action of eviction is improper because Mrs. Huval is a co-owner of the leased property through inheritance from her father, Mr. Touchet.

The trial judge found the Touchets waived the first year’s rent, based upon testimony that the Huvals offered such rental to the Touchets and they refused to accept it. However, he concluded there was no evidence which supported the lessees’ contention that the rentals for 1977, 1978 and 1979 had been waived. This finding of fact cannot be disturbed unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). No such manifest error exists.

The appellants in their brief attempt to analogize this case to those dealing with late rental payments. They cite Himbola Manor Apartments v. Allen, 315 So.2d 790 (La.App. 3 Cir. 1975), wherein this court stated:

“There is, however, a well established general rule in the jurisprudence of this state that where a lessor-owner customarily accepts rental payments after the date on which they are due, such “custom” by acquiescence of the parties, has the effect of altering the original contract in respect to punctuality of rent payments. Briede v. Babst, 131 La. 159, 59 So. 106 (1912); Standard Brewing Co. v. Anderson, 121 La. 935, 46 So. 926 (1908); Raytheon Manufacturing Company (Equipment Sales Division) v. Jack Neilson, Inc., 196 So.2d 675 (La.App. 4th Cir. 1967); Rex Credit Co. v. Kirsch, 4 So.2d 797 (La.App.Orl.Cir.1941).

We do not agree that such rule is applicable to the facts of this case. Its purpose is to prevent a lessor who has acquiesced in a custom of late payment of rent from cancelling the lease at a future date due to a late payment without additional notice to the lessee that lessor intends to strictly enforce the lease provisions. It is not meant to protect a lessee who fails to pay the rent altogether. We are therefore in accord with the decision of the trial court that the lessees’ right to occupy the property under the lease ceased for failure to pay the rent and they were subject to eviction. LSA-C.C. Articles 2710, 2712 and 2713. The lessors were also entitled to the accrued rental.

We turn now to the second issue raised by appellants, that Mrs. Huval inherited an interest in the leased property from her father and as an owner in indivisión she cannot be evicted from possession by her co-owners. Here Mrs. Huval possesses the land both as a lessee and as a co-owner. As stated, the appellants have breached the contract of lease by their failure to pay the rent due. Therefore, the action of eviction is proper with respect to their possession under the lease. However, as a co-owner Mrs. Huval has the right to use and occupy the property coextensively with the other co-owners.

In McVay v. McVay, 318 So.2d 660 (La. App. 3 Cir. 1975) this court said this on the subject:

“We believe that the right of one co-owner to use and possess the property owned in common with someone else is equal to that of the other co-owner. Ordinarily the co-owner having possession cannot be dispossessed or deprived of the use of the property by the co-owner who is not in possession, the remedy of the latter being to sue for a partition of the property. LSA-C.C. arts. 491 and 494; Spencer v. Spencer, 273 So.2d 605 (La.App. 4 Cir. 1973); Coon v. Miller, 175 So.2d 385 (La.App. 2 Cir. 1965); Arcemont v. Arcemont, 162 So.2d 813 (La.App. 4 Cir. 1964); Juneau v. Laborde, 228 La. 410, 82 So.2d 693 (1955).

Therefore, the judgment will have to be amended to eliminate therefrom the order for eviction of Mrs. Huval from possession of the property as a co-owner.

For the above and foregoing reasons, the judgment of the trial court is amended so as to recognize and preserve for Mrs. Ruby T. Huval her right to use and occupancy of the subject property as a co-owner, but otherwise it is affirmed. The appellants are to pay all costs of these proceedings.

AMENDED AND AFFIRMED.

      . Any objection to the use of a summary proceeding to obtain a money judgment for the rent was waived by failure to object timely. Ritchey v. Brignac, 328 So.2d 190 (La.App. 3 Cir. 1976).


text:
    Crit H. ROGERS, III et al., Plaintiffs and Appellees, v. LOUISIANA POWER & LIGHT COMPANY, INC. et al., Defendants and Appellants.
    No. 7800.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      Theus, Grisham, Davis & Leigh, Brian E. Crawford, Monroe, for defendants and appellants.
    Joseph M. Henry, Jr., Natchitoches, for plaintiffs-appellees.
    Before CULPEPPER, CUTRER and SWIFT, JJ.
   CULPEPPER, Judge.

This case involves the St. Julien doctrine. Plaintiffs are co-owners of a residential subdivision in the city of Natchitoches. They filed this suit against defendant, Louisiana Power & Light Company (LP&L), for damages for trespass caused by an electric line on their property without a servitude. They also sought an injunction ordering removal of the line. The district court awarded plaintiffs $20,000 for diminution in the value of their property but denied in-junctive relief. LP&L appeals. Plaintiffs did not appeal nor answer the appeal.

The substantial issues are: (1) Does defendant own the servitude either under the St. Julien doctrine or under LSA-R.S. 19:14? (2) If so, are plaintiffs entitled to compensation for the servitude?

On November 27, 1976, the property was purchased by plaintiff, Joseph M. Henry, Jr., from Mrs. Louise Schuman. In 1950, Mrs. Schuman had entered into a servitude agreement with LP&L, granting permission to construct and maintain the power line and poles. The deed described the location of the servitude as lying across “the Northwest comer of Section 77, Township 9 North, Range 7 West.” Also, the servitude agreement was recorded in the mortgage records only. The power line in dispute actually lies in Section 78 of plaintiff’s property. Defendants admit that the discrepancy in the section number was the result of a typographical error, and that the section actually intended by the parties was Section 78. On this basis, the trial court ruled that the written right of way agreement was insufficient to put plaintiffs, as third party purchasers, on notice of the existence of the servitude.

On appeal, defendants first argue the error in the description of the section does not render the written servitude agreement invalid. In support of their contention, they cite Trahan v. Younger, 169 So.2d 15 (La.App. 2d Cir. 1964) and Burgas v. Stoutz, 174 La. 586, 141 So. 67 (La.1932). These cases stand for the proposition that any insufficiency of description in a servitude agreement as to the width, length or points of traverse of the right of way does not render the conveyance void for want of certainty if the grantee actually constructs the line on the land in accordance with the intent of the parties. Thus, defendants argue any uncertainty as to the location of the transmission lines was resolved once the structure was actually erected on Section 78.

In the case before us, the descriptive limits as to the width, length and points of traverse of the servitude are not in dispute. The only uncertainty involved is the determination of the proper section intended by the parties to the agreement. We recognize the rule that as between the parties to a contract, either party is always permitted to correct any mutual error in the instrument purporting to evidence the contract, so as to make it express truly and correctly the intention of the parties. This rule, however, gives way once the rights of third parties have intervened. Reynaud v. Bullock, 195 La. 86, 196 So. 29 (La.1940); Dixon v. Schockley, 356 So.2d 96 (La.App. 1st Cir. 1978). Under our Public Records Doctrine, plaintiffs were entitled to rely solely on what was found in the records, or, more precisely, on the absence of any recorded servitude on Section 78, notwithstanding actual notice to the contrary. McDuffie v. Walker, 125 La. 152, 51 So. 100 (La.1909). We therefore agree with the trial judge’s finding that the recordation of the right of way deed did not create a valid servitude on Section 78 as to the plaintiffs.

Defendants next argue they own a servitude for the line by virtue of the St. Julien doctrine. Under this rule, established in St. Julien v. Morgan Louisiana & Texas Railroad Co., 35 La.Ann. 924 (1883), a public or quasi-public corporation having expropriatory powers can acquire a servitude over the land of another where the landowner consents or acquiesces in the construction of facilities for a public purpose. The landowner is precluded from reclaiming his property and is limited to an action for compensation for the value of the property taken and damages, both determined as of the date of the taking. Veillon v. Columbia Gulf Transmission Company, 192 So.2d 646 (La.App. 3rd Cir. 1966); A. K. Roy, Inc. v. Board of Corn’s For Pontchartrain Levee District, 238 La. 926, 117 So.2d 60 (La.1960).

In Lake, Inc. v. LP&L, 330 So.2d 914 (La.1976), our Supreme Court, disenchanted with this extra-codal establishment of predial servitudes, overruled the St. Julien doctrine insofar as it applied to the acquisition of discontinuous servitudes. As in the present case, the Lake decision involved an electric transmission power line which, the Court stated, is a discontinuous apparent servitude. See Nash v. Whitten, 326 So.2d 856 (La.1976).

The district court, in its written opinion, held the St. Julien doctrine inapplicable to the facts of this case in light of the Lake decision. However, in Lake the Supreme Court expressly stated that its ruling was to be applied prospectively only, affecting conduct occurring after the finality of the Lake judgment. Here the transmission line was constructed in the early 1950s. Thus, the present case is clearly unaffected by the Lake decision. Plaintiffs’ claim must be decided under St. Julien.

We note that in 1976 the legislature enacted R.S. 19:14 (Act 504 of 1976) in response to the Lake decision. That statute provides in pertinent part:

“In the case where any corporation referred to in Section 2 of this Title has actually, in good faith believing it had the authority to do so, taken possession of privately owned immovable property of another and constructed facilities upon, under or over such property with the consent or acquiescence of the owner of the property, it will be presumed that the owner of the property has waived his right to receive just compensation prior to the taking, and he shall be entitled only to bring an action for judicial determination of whether the taking was for a public and necessary purpose and for just compensation to be determined in accordance with Section 9 hereof, as of the time of the taking of the property, or right or interest therein, and such action shall proceed as nearly as may be as if the corporation had filed a petition for expropriation as provided for in Section 2.1 of this Title.
Added by Acts 1976, No. 504, § 1.”

Two court of appeal decisions and several legal scholars have expressed the opinion Act 504 of 1976 reinstates the St. Julien doctrine with slight variations. Trustee Corporation v. Allen, 359 So.2d 715 (La.App. 4th Cir. 1978); Brooks v. New Orleans Public Service, 370 So.2d 686 (La.App. 4th Cir. 1979), writ denied 373 So.2d 512; A.N. Yiannopolous “The Work Of The Louisiana Appellate Courts for the 1975-76 Term: Property,” 37 La.L.Rev. 317 at 326 (1977); Comment, 51 Tul.L.Rev. 375 (1977); Note, 22 Loy.L.Rev. 1066 (1976). Nevertheless, regardless of whether, or the extent to which, Act 504 of 1976 reinstates the St. Julien doctrine, that doctrine applies in the present case because the Supreme Court’s decision in Lake is prospective only.

One of the requirements for application of the St. Julien doctrine is acquiescence by the landowner to the construction of the facility. Plaintiffs contend neither they nor their author in title, Mrs. Schu-man, were aware of or acquiesced in the construction of the power line on the property.

As to Mrs. Schuman, this argument clearly has no merit. The evidence discussed above shows Mrs. Schuman actually signed a servitude agreement for the power line, but through error the document stated the line was to be constructed across Section 77 when, in fact, it was constructed across Section 78. Defendants’ witness, Mr. Holly, testified he had been employed by LP&L in Natchitoches Parish since 1950, and that pursuant to the right of way agreement signed by Mrs. Schuman the power line was actually constructed in 1950 on Mrs. Schu-man’s land in Section 78 and that there had been no objection or question by Mrs. Schu-man as to the construction or maintenance of the line from 1950 until she sold the land to Mr. Henry in 1976, a period of over 26 years. Mr. Ponder, also an employee of LP&L, testified that he actually obtained the right of way agreement from Mrs. Schuman in 1950, and that he recognized his signature as well as that of Mrs. Schuman. Mr. Ponder stated he negotiated with Mrs. Schuman the location of the line, and that it was built in the location to which she agreed. We conclude the evidence is clear that Mrs. Schuman consented and acquiesced in the construction and the maintenance of the power line.

It is not perfectly clear from plaintiffs’ brief whether they argue that even if Mrs. Schuman did acquiesce, it is also necessary that plaintiffs acquiesced after they purchased the property in 1976. If such an argument is being made, we reject it. In the early case of Webster Sand, Gravel & Construction Company v. Vicksburg S&P Railway Company, 129 La. 1096, 57 So. 529 (1912), the court held that the railway company having constructed its track with the consent or acquiescence of the owner at the time of construction, subsequent owners took the property subject to the servitude, even if it was unrecorded. See also Perret v. Louisiana Southern Railway Company, 118 So.2d 510 (Orl.App.1960). Although several cases have discussed the acquiescence on the part of the owner of the land subsequent to the time the facility was constructed, it appears that these discussions are simply to support the finding that there had been no opposition to the construction or maintenance for many years. See for instance Gumbel v. New Orleans Terminal Company, 186 La. 882, 173 So. 518 (1937). We find no case holding that where the owner at the time of construction acquiesces, the acquiescence of the subsequent owner who files the suit is also necessary.

Having concluded St. Julien is applicable, the next question is whether plaintiffs are entitled to compensation and damages from defendants for the taking of the servitude. This question was recently examined in Brooks v. New Orleans Public Service, 370 So.2d 686 (La.App. 4th Cir. 1979), a case somewhat similar to the present one. In Brooks, the court stated:

“. .. an essential element of the St. Ju-lien doctrine was that the right to compensation is a right personal to the owner of the property at the time the servitude is taken. Because the right does not attach to the land, it can be conveyed only by express subrogation from the vendor to the vendee. Without an express transfer, one who buys property subject to a St. Julien appropriation has no right of action, (for compensation). Gumbel v. New Orleans Terminal Company, supra, and cases cited therein.”

The Gumbel decision referred to is 197 La. 439, 1 So.2d 686 (1941), the last of the three Gumbel cases, which cites several previous cases for the same rule.

There is no evidence in the record that Mrs. Louise Schuman expressly subrogated her right to compensation to plaintiffs. Accordingly, plaintiffs are not entitled to compensation.

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is now rendered in favor of defendants dismissing plaintiffs’ suit at their cost in the trial and appellate courts.

REVERSED AND RENDERED.