text:
    Elnoria ZONE, Plaintiff-Appellant, v. TOWN OF BUNKIE, et al., Defendants-Appellees.
    No. 8495.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      David F. Townsend, Opelousas, and Carol J. Aymond, Jr., Bunkie, for plaintiff-appellant.
    Boatner & Luke, Peter J. Lemoine, Bunk-ie, for defendants-appellees.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is a tort suit in which the plaintiff, Elnoria Zone, seeks recovery of damages for the allegedly illegal entry of her home on two occasions by law enforcement officers seeking to execute arrest warrants. The trial was by jury, and the verdict was in favor of defendants. Plaintiff appeals. We affirm.

The defendants are the Town of Bunkie, three members of the Bunkie police force and their insurer, Ideal Mutual Insurance Company. The defendant members of the police force are Officers Burlin Buxton and Floyd Ducote and the Bunkie Police Chief, Charles Condella.

The dates of the entries complained of are April 15, 1980, and April 21, 1980. The defendants admit that they entered plaintiff’s home but defend on the ground that they were given permission by her to enter and search for the persons for whom they held arrest warrants. The defendants did not have search warrants authorizing them to search plaintiff’s home on either occasion and plaintiff denies that she ever gave permission to the officers to enter her house. On the first occasion Officers Burlin Bux-ton, Floyd Ducote, and Bobby Hiddon went to plaintiff’s home in Bunkie, Louisiana, with an arrest warrant for one Arthur Birdlong. According to the officers the plaintiff unhooked her screen door after she agreed to permit them to make the search and they entered. At that time a black male by the name of Louis Sanders was on a couch apparently asleep. Louis Sanders testified on behalf of plaintiff and supports her version of the affair.

On the second occasion, April 21, 1980, Floyd Ducote was accompanied by Chief Condella and also by Captain Burton Dau-zat, a deputy sheriff of Avoyelles Parish. CajJtain Dauzat did not enter the house but was standing some 25 feet away at the side of the house and heard the officers request the plaintiff’s permission to enter and make a search for her brother Donald Ray Zone also known as Donald Ray Johnson. Again the Bunkie police officers contend that they were given permission to enter and search and that plaintiff unhooked the screen door and permitted them to enter.

Besides Louis Sanders, various other disinterested witnesses were called and testified on behalf of plaintiff-appellant. Three witnesses who resided across the street from plaintiff were called on behalf of defendants and testified on their behalf. The brief facts stated above present essentially a credibility question which the jury resolved in favor of the defendants. It is well settled that where there is conflicting testimony, a reasonable evaluation of credibility made by the trier of facts should not be disturbed upon appellate review unless manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our review of the record in this case does not reveal any clear error in the factual conclusions evidently reached by the jury. We will not disturb the jury’s findings.

In addition to complaining of the jury’s verdict, plaintiff-appellant raises other issues in this appeal.

GENERAL OBJECTIONS TO THE JURY SELECTION

After the jury was selected but before any evidence was taken appellant’s counsel made a general objection to the jury impaneled to try the case on the ground that the jury “was not a jury representative of [plaintiff-appellant’s] peers.” The trial court overruled this objection and the trial proceeded. Appellant’s complaint is stated as follows in her brief filed in this court:

“After a trial by an all white jury, a Judgment was signed against petitioner on March 27, 1981. Two of the twelve jurors opposed the decision in favor of the defendants.
“As the court will note from the transcript, the selection of the jury was not transcribed, unfortunately. One basis for this appeal is that of all the perspective (sic) jury members called to the stand only one was black. After an entire day of questioning perspective (sic) jurors, attorneys for petitioner were only allowed to question one perspective (sic) black jury member. The jury consisted entirely of an upper middle class white jury, bearing in mind that Elnoria Zone is a young uneducated black woman with several illegitimate children and her sole means of support is derived from welfare, social security, and other federal programs.
“Realizing the injustice that had taken place, attorneys for Elnoria Zone objected to the jury prior to the questioning of any witnesses on the grounds that the jury selection was not a jury representative of Elnoria Zone’s peers. On page 51 of the transcript, Attorney Carol J. Aymond, Jr., stated the objection to the Honorable Judge B. C. Bennett as follows, to-wit:
‘By Mr. Aymond: In conjunction with the selection of the jury, we would like to object to the selection of the petit jury and base an objection with all due respect to everyone on the ground that the jury is not a representation of the peers of Miss Elnoria Zone and specific detail that we were only able to allow questioning of one black and that the population of Avoyelles Parish is greatly beyond that and we feel like the peer, the jury is not a representation of her peers and she is entitled to a trial by her peers and with that in mind we would like to enter that objection, with all due respect to everybody involved.’
‘By Judge Bennett: And your motion is made and it is ... (inaudible) ... of the entire panel questioned today only one black person was called; however that was done by ... do I hear . . . I’m going to rule against it because ... it was done by lot and because of that this is how it came out; I’m going to
‘By Mr. Boatner: That could show some irregularities, Your Honor . ..’”

Appellant has not indicated any irregularities in the jury selection process and bases her claim entirely on the charge that she was not tried by a jury of .her peers. As contained in her brief the argument in support of this claim is as follows:

“.. . there were no blacks on the jury and all of the jury members were middle class and in the higher income brackets. None of the jury members received any type of social security or any other type of federal benefits. It is very interesting to note that Mr. Boatner himself, the defense attorney, pointed out that the selection of the jury and the jury that sat to hear the case had ‘irregularities’.
“It is fundamental and basic law that everyone has a right to a trial by jury of his peers. Certainly, this was not a jury of Elnoria Zone’s peers, in light of the fact that she is black, on welfare, and has illegitimate children. She was being judged by an all white, upper middle class group of people.”

Even if the record supported all of the factual allegations made in appellant’s brief, we know of no basis on which the trial could be invalidated on these facts alone. We find no merit to appellant’s complaint in this regard.

Appellant urges that defendant’s counsel agreed with her objection that the jury selected did not represent a jury of her peers. She urges that the response by Mr. Boatner quoted above indicates such an agreement. Defendant’s counsel argues that what appears as a statement by him was in reality posed as a question. In any event we are not impressed with appellant’s argument which carries the implication that in appellant’s case a jury of her peers necessarily must consist of all black mothers of illegitimate children whose sole support is derived from welfare, social security and “other federal programs”.

WAS APPELLANT PREJUDICED BY RESPONSES OF CHIEF CONDELLA?

Counsel for plaintiff-appellant called Chief Condella on cross examination. During the cross examination in answer to a question, Chief Condella made a statement which could be understood as a charge that plaintiff’s counsel was suing Chief Condella personally. In brief appellant does not state how she is prejudiced by this remark. In fact, although the trial court instructed the jury to disregard the remarks, counsel never registered any objection beyond the expressed desire that the jury understand that neither he or his co-counsel were suing anyone.

Viewed in context and particularly in view of the trial judge’s admonition to the jury we feel that the jury was not biased by the remarks of the witness.

WAS APPELLANT PREJUDICED BY REFERENCES MADE BY DEFENSE COUNSEL IN CLOSING ARGUMENT?

In the closing argument before the jury, counsel for defendants referred to three witnesses who lived across the street from plaintiff-appellant who testified in behalf of defendants. Defense counsel stated: “Now, let’s talk about these three ‘dockies’ (phonetically spelled) that testified that lived across the street . .. ”. Counsel for plaintiff-appellant made no contemporaneous objection but complains in brief that by referring to these witnesses as “dockies” an element of racism was injected into the argument which was prejudicial to appellant. In view of counsel’s failure to timely object, appellant waived any valid complaint she may have had. Carver v. Cabiro, 381 So.2d 969 (La.App. 4th Cir. 1980), writ denied, 383 So.2d 782 (La.1980).

Assuming, however, that an appeal to prejudice may not, under some circumstances, be cured or counteracted through admonition by the court upon proper objection, we nevertheless fail to see how plaintiff-appellant was prejudiced. In using the term “dockies” defense counsel was referring to defendant’s witnesses and not to appellant. Nor was the term used with reference to any of appellant’s witnesses.

We deem this complaint to be without substance.

CONCLUSION

The primary issue in this appeal is a question of fact. In view of appellant’s suggestion that racial prejudice was responsible for the jury’s verdict, we have carefully considered the record to discover any evidence to support this claim. We find none. For the foregoing reasons we affirm the judgment of the trial court. Plaintiff-appellant is cast with the costs of this appeal.

AFFIRMED.

      . The testimony in question given on cross-examination and the statements of counsel and the trial court are recorded as follows:
      “Q. You don’t know? Do you realize that the Court cannot subpoena you unless one of the attorneys requests it?
      A. Well you are the one who requested me being subpoenaed up here.
      Q. Are you sure of that?
      A. I’m not real sure, I don’t know.
      Q. You don’t know?
      A. You’re suing me, I’m not suing you.
      Q. You’re suing me?
      A. You and your client, you’re going to get a third of the money if you win the case, so I’m sure you are part of it.
      Q. Think well of what you’re saying Chief and realize that you are under oath . ..
      BY MR. BOATNER:
      Your Honor, I’m going to object to this line of questioning, it’s immaterial and ...
      BY JUDGE BENNETT:
      It’s really not material Mr. Aymond, I’m going to ask the jury to disregard what he said about how much Mr. Aymond is going to get, he doesn’t know that and why don’t we get to the point of the case.
      BY MR. AYMOND:
      If I may Your Honor if Mr. Boatner’s objection would sustain ...
      BY JUDGE BENNETT:
      Yes I sustain the objection and I’m going to tell you that apparently he doesn’t know ... he knows that he’s in court and he knows that he had to come to court because he is a defendant in this case but apparently he does not know the court orders, subpoenas, and so forth and you may ask him that ...
      BY MR. AYMOND:
      Okay, but he is the Chief of Police for the Town of Bunkie; he is a law enforcement officer ...
      BY JUDGE:
      Mr. Aymond, I’m not going to argue with you; I’m going to sustain the objection.
      BY MR. BOATNER:
      Your Honor in the essence of time I’m going to stipulate that I as attorney for the defendants issued the subpoena.
      BY THE JUDGE:
      Alright.
      BY MR. AYMOND:
      Also for the record, Your Honor, if I may, I’m not trying to be rude, I would like for it to be perfectly clear that neither me nor Mr. Townsend is suing Officer Condella for anything.
      BY THE JUDGE:
      We understand that.”

      . The word “dockies” referred to is spelled as it appears in the transcript of the record.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Charles E. DOWDEN, Plaintiff-Appellant, v. COMMONWEALTH LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 8501.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Brittain & Williams, Joe Payne Williams, Natchitoches, for plaintiff-appellant.
    S. Michael Henry, Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is an action by Charles E. Dowden, plaintiff-appellant, against Commonwealth Life Insurance Company, defendant-appel-lee, for benefits allegedly due under policies of cancer insurance issued by defendant, Commonwealth. The trial judge awarded benefits, penalties, and attorney fees under a 1974 policy (No. 741600406) issued by defendant, but denied benefits, penalties and attorney fees under a second policy issued by defendant in 1978 (No. 3555919). From the judgment of the trial court denying benefits, penalties and attorney fees under this second policy, the plaintiff has appealed.

The issue presented on appeal is an extremely narrow one. Can the actions and representations of an insurance agent circumvent the clear and unambiguous language contained in a policy of insurance’s “other policy” clause, where that agent’s representations are clearly contrary to the provisions contained therein?

The facts surrounding this action are completely undisputed. On April 22, 1974, defendant, through its agent, Earl Evans, issued a policy of cancer insurance covering plaintiff and his family. This policy was kept in force and the premiums paid by plaintiff’s mother-in-law, Estelle Kile.

In the fall of 1978, Mrs. Kile was approached by defendant’s agent, Earl Evans, who inquired as to whether or not she wished to increase her insurance coverage under the cancer policies that she maintained for her daughter’s family. Mr. Evans advised Mrs. Kile that she could obtain full coverage for the plaintiff’s family for hospital expenses incurred as a result of treatment for cancer. Mrs. Kile informed Mr. Evans of her desire to increase such coverage, and on November 6, 1978, a new policy of cancer insurance was issued. This policy was added to a premium receipt record which was supplied to Mrs. Kile reflecting an additional monthly premium of $3.36.

Upon issuance of the second policy, Mrs. Kile continually inquired of Mr. Evans as to whether or not she should have two policies in effect covering the plaintiff’s family, or if the second policy should be returned and one policy issued providing full coverage. Each time Mrs. Kile so inquired, Mr. Evans advised her that she had nothing to worry about, that the company was providing her with full coverage and everything was correct.

In the latter part of 1979 plaintiff’s wife learned that she had contracted cancer. At this time Mrs. Kile again inquired of Mr. Evans as to whether or not the medical expenses of her daughter would be covered. Mr. Evans advised her not to worry about the claims because they were fully covered.

Plaintiff’s wife incurred hospital expenses in two separate hospitalizations, one from November 3, 1979, until November 6, 1979, and the second from November 25, 1979, through December 3, 1979.

The trial court found that there was no dispute as to the fact that plaintiff’s wife was hospitalized, treated for cancer, and incurred certain expenses covered by the policies involved. The trial court, however, refused to award benefits under both policies, relying upon the “other policy” clause contained in the second cancer policy.

The “other policy” provision found in the second policy issued by the insurer insuring plaintiff’s wife reads as follows:

“If any Covered Person is also insured under one or more other policies issued by the Company whose benefits are also limited to the reimbursement of expenses incurred for hospitalization or treatment for cancer, the Company’s liability under all such policies shall be limited to the benefits provided by one such policy as may be elected by the Owner and to the refund of that portion of the premiums on the other policy or policies as may be applicable to such person for the period or periods such other policy or policies were in force concurrently with the policy under which benefits are payable.”

Although the language used in this clause appears to be clear and unambiguous allowing coverage under one policy alone, we find that the actions and misrepresentations of defendant’s agent circumvent its application.

Our courts have recognized that in certain instances of mistake, error, negligence or fraud on the part of an agent or employee of an insurer, a contract of insurance can be reformed to conform to the original intention of the parties thereto. If an agent has knowledge of the true intentions of the policyholder as to the coverage sought, the insurer is bound by its agent’s knowledge, and the policy thus issued will be reformed to the insured’s original intention. Fontenot v. American Fidelity Fire Insurance Company, 386 So.2d 165 (La.App. 3rd Cir. 1980); Billiot v. Sentry Insurance, 366 So.2d 1017 (La.App. 1st Cir. 1978), writ denied 368 So.2d 125 (La.1979); Anderson v. Sciambra, 310 So.2d 128 (La.App. 4th Cir. 1975), writ denied 313 So.2d 835 (La.1975); Hebert v. Breaux, 285 So.2d 829 (La.App. 1st Cir. 1973).

Considering the actions and misrepresentations by defendant’s agent, the record overwhelmingly supports plaintiff’s contention that coverage should be allowed under the second cancer insurance policy. Defendant’s agent approached Mrs. Kile and offered to extend coverage on her daughter’s family. On several occasions Mrs. Kile inquired about the propriety of maintaining two policies rather than one providing the same coverage. Time and time again Mr. Evans informed Mrs. Kile not to worry, everything was all right, that her daughter’s family was completely covered. In fact, Mr. Evans verified complete coverage after it was learned that plaintiff’s wife had contracted cancer. Accordingly, benefits under the second policy of cancer insurance (No. 3555913) are due.

As aforementioned, an insurer is bound by its agent’s knowledge of the original intention of the insured when that intention differs from the actual coverage provided by the policy. In the case before us, defendant’s agent not only knew that Mrs. Kile intended to fully insure plaintiff’s family against medical costs arising out of cancer treatment, he initially made the suggestion. In addition to setting the wheels in motion, he continued to mislead Mrs. Kile, whether intentionally or not, into believing that the sum total of both policies provided complete coverage for plaintiff’s family. In light of defendant’s constructive knowledge of the misrepresentations of its agent, we find that the defendant acted without just and reasonable grounds in relying on its “other policy” proviso and in refusing to forward benefits under the second policy. Therefore, we find that in addition to the right to receive benefits due under the second policy, plaintiff is also entitled to a penalty equal to 100% of the benefits due, plus attorney fees. LSA-R.S. 22:657.

The amount of attorney fees rests largely within the discretion of the trier of fact. Factors to consider include the amount involved, the skill of the attorney, and the amount of work necessarily undertaken by the attorney. Ray v. Superior Iron Works and Supply Company, Inc., 284 So.2d 140 (La.App. 3rd Cir. 1973); Baque v. Pan American Life Insurance Company, 313 So.2d 293 (La.App. 3rd Cir. 1975). While such factors may be considered by the trial court when fixing attorney fees, nevertheless, they do not limit the exercise of the judge’s discretion. When attorney fees are awarded as a result of arbitrary nonpayment of insurance benefits, such an award is deemed to be a penalty and the value of the attorney fees need not be proven. Fontenot v. Town of Kinder, 377 So.3d 554 (La.App. 3rd Cir. 1979); Trahan v. Rockwood Insurance Company, 284 So.2d 659 (La.App. 3rd Cir. 1973). We have thoroughly reviewed the record before us in view of the factors mentioned above, and conclude that an additional award of $2,000.00 for attorney fees is appropriate.

For the above and foregoing reasons the judgment of the trial court is reversed insofar as it denied coverage under policy number 3555919, and it is hereby Ordered that there be judgment in favor of plaintiff and against defendant in the amount of $1,447.00 plus a $1,447.00 penalty and $2,000.00 attorney’s fee, together with legal interest thereon from date of judicial demand until paid. In all other respects the trial court’s judgment is affirmed. All costs in the trial court and on appeal are taxed against defendant-appellee, Commonwealth Life Insurance Company.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . LSA-R.S. 22:657 provides:
      “A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases.”


text:
    Joyce B. CAMPBELL, Plaintiff-Appellant, v. Pam TIDWELL and Robert B. Deblieux, Defendants-Appellees.
    No. 8503.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Trimble, Randow, Percy, Smith, Wilson & Foote, Elizabeth E. Foote, Alexandria, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, and Brittain & Williams, Joe Payne Williams, Natchi-toches, Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY, and DOUCET, JJ.
   DOMENGEAUX, Judge.

The plaintiff, Joyce B. Campbell, brought this suit to recover damages for personal injuries she sustained when she fell on February 26, 1979, in a driveway parking area located behind a building owned by defendant, Robert B. Deblieux, and rented by defendant, Pam Tidwell. Plaintiff additionally alleged that the City of Natchitoches was also responsible because a ledge located where she fell should have been recognized by the City as being dangerous since it was on or near the City sidewalk. After a trial on the merits, the trial judge held that the sole proximate cause of the accident was Mrs. Campbell’s inattentiveness in watching where she was walking, and her stumbling on something with her right ankle. From this adverse judgment, the plaintiff has appealed against all defendants. We affirm.

On appeal plaintiff suggests that the trial court erred in: (1) applying the wrong standard of care owed by lessors and lessees to a third party lawfully on the premises; and (2) finding that the sole proximate cause of plaintiff’s injuries was her own inattentiveness and stumbling on something in her walkpath, and not finding defendants liable for plaintiff’s injuries resulting from the foreign substance found on the premises or for the enhanced damages resulting from plaintiff catching her foot on the ledge.

On February 26, 1979, plaintiff was visiting Natchitoches as a guest of the defendant, Tidwell. Tidwell was the lessee of the property in question which was owned and leased by defendant Deblieux. Miss Tid-well was operating a Snelling & Snelling employment service office on the premises, using the premises both as a business and as her home. At approximately 2 P. M. plaintiff was following a Snelling & Snelling representative to his automobile which was parked on the street near the premises. The Snelling representative preceded plaintiff through the rear door of the building and on a concrete driveway located behind plaintiff’s residence. The driveway in question was partially blocked by plaintiff’s automobile which she had parked there earlier that day. As plaintiff approached the side of the building via the concrete driveway, approximately three feet from the sidewalk, she twisted her right foot and ankle, and lost her balance. In an effort to regain her composure plaintiff threw her left foot out and struck her toe on a one-inch raised concrete ledge which abutted the rear of the building. When plaintiff caught her toe on this ledge she fell forward onto the concrete sidewalk, breaking her left ankle.

Plaintiff contends that the trial court erred in applying the wrong standard of care owed by lessors and lessees to third persons who are lawfully on the premises. More particularly, plaintiff contends that the defendants lessee and lessor are strictly liable under Civil Code Articles 2317 and 2322, respectively. We do not agree.

In Albritton v. J. C. Penney Company, Inc., 385 So.2d 549 (La.App. 3rd Cir. 1980), writ denied 393 So.2d 727 (La.1980), this Court thoroughly addressed these issues and we quote:

“Owners and occupiers of land have an affirmative duty to exercise reasonable care in maintaining their premises in a safe condition and of warning any individuals, who they know or should have known may venture onto those premises, of any concealed or hidden defects. LSA-C.C. Articles 2315, 2316; McCauley v. Nicholas, 297 So.2d 914 (La.App. 1 Cir. 1974) writ denied 302 So.2d 24 (La.1974). LSA-C.C. Article 2695, which provides for strict liability of a landlord for damages resulting from hazardous conditions on the leased premises, is restricted to the landlord-tenant relationship and does not apply to third parties, whose rights are protected by LSA-C.C. Articles 2315, 2316, 2322, and former Article 670 (see now Article 660). Reed v. Ramsay, 355 So.2d 618 (La.App. 4 Cir. 1978). In order for a plaintiff to recover from a landowner-lessor, he must prove that the damages he suffered were as a result of a defect or vice in the thing owned or leased. Lanclos v. Tomlinson, 351 So.2d 1218 (La.App. 3 Cir. 1977), writ denied, 352 So.2d 1023 (La.1977).
Additionally, not every defect can serve as a basis for a claim. The defect must be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. McCauley, supra; Templin v. Traders & General Insurance Co., 288 So.2d 660 (La.App. 3 Cir. 1974).”

Likewise, in order for plaintiff to recover against the lessee under C.C. Article 2317 she must prove a defect in the premises. Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980).

Mrs. Campbell did not fall and injure herself because of any defect in the design or construction of the leased premises. Plaintiff testified that she fell as a result of her twisting her ankle on some foreign object. Although she was unable to identify this object, she alleged that it was either a clump of clay (mud) or a stone which caused her to twist her ankle. We disagree with the plaintiff’s contention that the presence of a foreign object, such as a piece of dirt or clay, if in fact there was one on the premises, constitutes a defect within the meaning of C.C. Articles 2317 and 2322, giving rise to Louisiana’s counterpart to strict liability.

Plaintiff additionally contends that the one inch ledge which protruded from the building also constituted a defect. As noted in Albritton, supra, the defect must be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Plaintiff also bears the burden of proving that her injury was caused by the defect. Jones v. City of Baton Rouge, supra.

The only significant evidence offered at trial describing this alleged defect was the testimony of Mrs. Campbell and some photographs taken of the area. Plaintiff testified that the one inch ledge was clearly visible as one approached the sidewalk down the driveway, and the photographs taken and offered into evidence clearly established the same. In fact, plaintiff testified that she knew the ledge was there and that it would hardly be possible not to know that it was there if you were approaching it. Based on this evidence, we conclude that plaintiff failed to prove that the alleged defect, i.e. the protruding ledge, in the driveway occasioned an unreasonable risk of injury to those who traversed thereon. Furthermore, as mentioned above and discussed below, plaintiff has failed to prove that the alleged defect caused her injury.

Under LSA-C.C. Arts. 2315 and 2316 owners and occupiers of land have an affirmative duty to exercise reasonable care in maintaining their premises in a safe condition and of warning any individuals, who they know or should have known may venture onto those premises, of any concealed or hidden defects.

The facts before us are essentially undisputed. Earlier that day plaintiff pulled her automobile up onto the mud covered driveway and entered defendant’s premises. Later that day as she left defendant Tidwell’s residence through the rear door back across the mud covered driveway, she stepped on something she believed to be a large clump of clay (dirt) or a stone. She also testified that she was aware of or saw the one inch ledge protruding from the building. She claims, however, that she failed to notice what she stepped on. Plaintiff offered no evidence tending to establish the fact that the foreign substance upon which she stepped was hidden or concealed. Additionally, there can be no question as to the obviousness of the protruding ledge.

Plaintiff was a pedestrian and as such is held to have seen that which she should have seen. A pedestrian is not required to look for hidden dangers but she is bound to observe her course and to see if her pathway is clear. A pedestrian is held to have seen those obstructions in her pathway which would be discovered by a reasonably prudent person exercising ordinary care under the circumstances. Boutte v. Pennsylvania Millers Mutual Insurance Company, 386 So.2d 700 (La.App. 3rd Cir. 1980); Artigue v. South Central Bell Telephone Company, 390 So.2d 211 (La.App. 3rd Cir. 1980), writ denied 396 So.2d 917 (La.1981).

The trial judge stated in his reasons for judgment:

“. . . That Mrs. Campbell was not watching where she was going and that the sole and proximate cause of her accident was her stumbling on something with her right ankle, causing her to injure her left ankle.”

Our law is well settled that where there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s determination, on review the appellate court should not disturb this finding unless it is clearly wrong or manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find no manifest error on the part of the district judge, who found all the defendants free of any actionable negligence, and that the sole proximate cause of plaintiff’s accident and resulting injuries was her own negligence. Consequently, we affirm the trial judge’s finding of fact in this case.

For the above and foregoing reasons the judgment of the trial court is affirmed and all costs below and on appeal are to be taxed against plaintiff-appellant, Joyce B. Campbell.

AFFIRMED.

      . The accident in question occurred prior to the effective date of the new Louisiana comparative negligence law, LSA-C.C. Art. 2323.

      . Dallas Purcell, Tidwell’s neighbor, also testified concerning the condition of the driveway. His testimony, however, merely reiterates the plaintiffs testimony.


author: CULPEPPER, Judge.

text:
    Patricia C. BOUDREAUX, Plaintiff and Appellee, v. Milton Joseph BOUDREAUX, Defendant and Appellant.
    No. 8504.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Hopkins & Little, James E. Hopkins, Sul-phur, for defendant-appellant.
    Nathan A. Cormie, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CULPEPPER, Judge.

The plaintiff wife sues for divorce on the grounds of adultery, also requesting custody of the parties’ minor child, alimony for herself and child support for the child. She alleges that Mr. Boudreaux left the matrimonial domicile on March 20,1980 and committed adultery on May 24th and 25th, 1980. Mr. Boudreaux filed an answer and recon-ventional demand denying petitioner’s allegations and praying for a judgment of separation in his favor, based on his wife’s cruel treatment. Mrs. Boudreaux’s first supplemental and amending petition was filed the same day, amending the dates of Mr. Boudreaux’s alleged adultery to June 16th and 17th, 1980. Pursuant to stipulation of counsel, Mrs. Boudreaux was granted the care, custody and control of the minor child and $900 a month in alimony pendente lite and child support. Her second supplemental and amending petition, filed on December 8,1980, alleged that Mr. Boudreaux had begun living with the woman with whom she had alleged he committed adultery. Mr. Boudreaux thereafter filed a supplemental and amending petition alleging that Mrs. Boudreaux had committed adultery on numerous occasions, specifically October 13th and 14th, 1980, and to request a divorce on these grounds in his favor. After trial, judgment was rendered on February 3, 1981, granting a divorce in favor of Mrs. Boudreaux on grounds of defendant’s adultery, finding her free of fault and awarding her permanent alimony and child support in the sum of $900 per month. From this judgment, defendant appeals, contending that the trial court erred in its finding that Mrs. Boudreaux was free from fault and thus entitled to permanent alimony.

The sole issue presented for this court’s consideration is whether Mrs. Boudreaux was guilty of alimony-barring fault, either in the form of adultery or cruel treatment.

FACTS

Defendant’s allegations of cruel treatment and/or adultery arise from his wife’s relationship with a man named Monceaux. Mrs. Boudreaux and Mr. Monceaux became acquainted some five or six years before the trial of this matter. They met when hunting alligator on the same property. Thereafter they began hunting together frequently, but, according to their testimony, never alone. Mr. Monceaux became a frequent visitor at the parties’ home, at least two or three times a week and sometimes several days in a row. Before Mr. Bou-dreaux left the matrimonial domicile, Mr. Monceaux was often at the house with Mrs. Boudreaux before Mr. Boudreaux even arrived home from work and before the couples’ minor daughter, Maretta, arrived home from school. The Boudreauxs began socializing with Mr. Monceaux and his wife. Mr. Monceaux called the Boudreaux residence quite frequently, always requesting to speak to Mrs. Boudreaux, if Mr. Bou-dreaux answered the phone, but never vice versa, even though he professed to be a good friend of Mr. Boudreaux. Mrs. Bou-dreaux and Mr. Monceaux also conversed on the CB radio almost every morning and every night. Mr. Boudreaux testified that these conversations sometimes lasted until after he had gone to bed. It was also shown that Mr. Monceaux sometimes spent the night at the Boudreaux residence, both before and after Mr. Boudreaux left the matrimonial domicile.

After defendant moved out of the home, his wife’s relationship with Mr. Monceaux continued. Even though Mr. Monceaux was then living with his own wife, the plaintiff washed his clothes and cooked for him sometimes, and also ran errands for him. On July 4,1980, the two of them took a trip to Toledo Bend with Mrs. Bou-dreaux’s son and daughter-in-law. The four of them shared a room, with Monceaux and plaintiff sharing the same bed. In September, Mrs. Boudreaux and her daughter-in-law met Monceaux and her son in Abbeville, where they all shared a motel room for several hours. The son and daughter-in-law both testified that on both of these occasions they did, for one reason or another, leave the couple alone for lengthy periods of time.

The Boudreauxs’ son, Benny, further testified that on one occasion, while he was living with his mother, Mr. Monceaux had come to the house when Mrs. Boudreaux had already gone to bed, leaving instructions that she did not wish to see Monceaux. He nevertheless gained entry into her bedroom and they spent the night there together with the door closed.

Private investigators hired by Mr. Bou-dreaux to conduct surveillance of the couple testified that on the night of October 13, 1980, they saw the couple enter Mrs. Bou-dreaux’s house alone around 8:15, and turn the lights off around 10:15. No one else entered or left the home from the time of their arrival until the investigators left the next morning around 7:00 A.M. They also testified they had telephoned the house before the couple’s arrival and no one answered the phone. However, their testimony was inconsistent in that one testified that the man with Mrs. Boudreaux had a beard, and the other that he did not.

ALIMONY-BARRING FAULT

Defendant-appellant contends that the trial court erred in awarding Mrs. Bou-dreaux permanent alimony because he produced sufficient evidence to exclude every reasonable hypothesis other than that she committed adultery. He also argues that even if the evidence falls short of proving adultery, the wife’s activities constitute cruel treatment rendering their living together insupportable, thus barring her claim to permanent alimony.

LSA-C.C. Article 160 provides that a spouse is entitled to alimony only when he or she has not been at fault. In Pearce v. Pearce, 348 So.2d 75 (La.1977), the Louisiana Supreme Court stated:

“. . . the word ‘fault’ contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Davieson v. Trapp, 223 La. 776, 66 So.2d 804 (1953); Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457 (1952); Adler v. Adler, 239 So.2d 494 (La.App. 4th Cir. 1970).
“To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958). The question of a wife’s fault under the statute providing for alimony when a wife has not been at fault and has not sufficient means for her support is a factual one. Morgan v. Morgan, 260 So.2d 336 (La.App. 4th Cir. 1972). We have recognized that a trial court’s findings of fact on the issue of a wife’s ‘fault’ will not be disturbed on appeal unless found to be manifestly erroneous. Williams v. Williams, 215 La. 839, 41 So.2d 736 (1949); Fletcher v. Fletcher, 212 La. 971, 34 So.2d 43 (1948).”

Fault for purposes of permanent alimony preclusion is synonymous with the fault grounds for separation and divorce under LSA-C.C. Articles 138 and 139. Adams v. Adams, 389 So.2d 381 (La.1980); Smith v. Smith, 216 So.2d 391 (La.App. 3rd Cir. 1968). The wife bears the burden of proving her freedom from fault in order to be entitled to alimony following divorce. Brannon v. Brannon, 362 So.2d 1164 (La.App. 2d Cir. 1978); Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959).

We recognize the heavy burden of proof placed on one alleging adultery. The facts and circumstances must be such as to lead fairly and necessarily to the conclusion that adultery has been committed as alleged in the petition, i.e., the proof must be so convincing as to exclude any other reasonable hypothesis but that of guilt of adultery. Helms v. Helms, 349 So.2d 441 (La.App. 3rd Cir. 1977); Hayes v. Hayes, 225 La. 374, 73 So.2d 179 (1954). We find it unnecessary, however, to reach the issue of the sufficiency of Mr. Boudreaux’s proof of adultery. Even if Mrs. Boudreaux was not guilty of adultery, the evidence clearly shows she was guilty of alimony-barring fault.

Both Mr. Boudreaux and his daughter, Maretta, testified that he objected to his wife’s relationship with Mr. Monceaux and voiced these objections. Mrs. Bou-dreaux and Mr. Monceaux were shown to have been quite affectionate with each other in front of others, including the Bou-dreaux’s children. They called each other pet names, and hugged and kissed. They took trips together with her children and shared a room, although the evidence indicates that the children slept in the same room at least most of the time. Mr. Mon-ceaux’s wife subsequently separated from him, due to his relationship with Mrs. Bou-dreaux. In light of these activities and facts, and the evidence previously discussed, we find Mrs. Boudreaux’s actions constituted mental cruelty sufficient to render insupportable the parties’ living together. This cruel treatment is such as would support a judgment of separation in favor of Mr. Boudreaux under LSA-C.C. Article 138.

This holding is consistent with Bloodworth v. Bloodworth, 306 So.2d 812 (La.App. 3rd Cir. 1975). There the plaintiff wife was seen with another man frequently, had been seeing him for two years under circumstances which reasonably led the defendant husband to believe they were engaged in an illicit affair. We held that the wife was guilty of mental cruelty, justifying a judgment in favor of the husband. In Sklar v. Sklar, 387 So.2d 1308 (La.App. 1st Cir. 1980), the wife became involved with another man after separation from her husband. This relationship was visible to friends and neighbors. They went on trips together with her child and others and shared sleeping accommodations with the child, among other activities similar to those in the instant case. The First Circuit held that while there was not sufficient proof of adultery, these activities constituted such cruel treatment as to render the common life insupportable.

We find the facts and circumstances of this case present a sufficient showing of cruel treatment by Mrs. Boudreaux with respect to her continuing close relationship with Mr. Monceaux, that Mr. Boudreaux would have been entitled to a judgment of separation, in the absence of fault on his part. We therefore hold that the trial court was clearly wrong in its finding that Mrs. Boudreaux was free from fault and thus entitled to permanent alimony.

For the reasons assigned, the judgment appealed is reversed and set aside insofar as it holds plaintiff, MRS. Patricia Boudreaux, free of fault and awards to her permanent alimony. The judgment is amended to award child support only, in the amount of $450 per month, payable one-half on the 1st and one-half on the 15th of each month, subject to a credit for any amounts previously paid as permanent alimony at the rate of $450 per month. All costs in the trial and appellate courts are assessed one-half to each party. Otherwise than as reversed or amended, the judgment appealed is affirmed.

REVERSED IN PART, AMENDED AND AFFIRMED IN PART.


author: GUIDRY, Judge.

text:
    Sherry Edgar NOBLIT, Plaintiff-Appellee, v. Steven Timothy NOBLIT, Defendant-Appellant.
    No. 8510.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Hopkins & Little, James E. Hopkins, Sul-phur, for defendant-appellant.

      Raleigh Newman, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

This is a custody action instituted by plaintiff, Sherry E. Noblit, against defendant, Steven T. Noblit, wherein plaintiff seeks to obtain permanent custody of two of the parties’ four minor children following a judgment of divorce ending the marriage of the aforesaid parties. After hearing extensive testimony presented by both plaintiff and defendant, the trial court awarded permanent custody of Donna and Nathan Noblit to plaintiff. Defendant, Steven T. Noblit, appeals from that judgment.

The sole issue on appeal is whether or not the trial court clearly erred in concluding that it is in the best interest of Donna and Nathan Noblit to remain in the custody of their mother, Sherry E. Noblit.

The trial judge rendered comprehensive written reasons setting forth in detail his factual findings and his conclusions in regard thereto. Close scrutiny of the extensive trial record reveals not only that the trial judge’s conclusions are free of manifest error but also that such conclusions are fully supported by the evidence adduced. For this reason, we take the liberty of adopting as our own the well-reasoned and considered opinion of the trial court which reads in its entirety as follows:

“This is a suit for divorce in which the plaintiff, Mrs. Sherry Noblit, seeks custody of the two younger minor children born of the marriage and in which the defendant, Steven Noblit, seeks custody of all four minor children.
The parties separated January 3, 1980, and on January 9, 1980 Mrs. Noblit filed suit for separation and obtained an ex parte court order giving her provisional custody of the two younger children, the two older children being in the physical custody of their father. At a hearing on January 29, 1980, on a rule to show cause why the mother should not be granted provisional custody also of the two older children, it was stipulated that she be granted the provisional custody of all four children. On October 23, 1980 defendant abducted the four children and on that same day filed a rule seeking a change of custody. The following day plaintiff applied for a writ of habeas corpus seeking the return of the children. The matters were fixed for hearing on October 28, 1980; and following a hearing lasting approximately three days, the court denied the father’s request for a change of custody and ordered that the provisional custody remain with the mother.
On January 30, 1981, plaintiff amended her petition for separation and prayed for a divorce on the grounds that the parties had lived separate and apart for a period in excess of one year without reconciliation. On February 24, 1981, defendant amended his reconventional demand for a separation to seek a divorce on the grounds of adultery. Both parties prayed for the permanent custody of all four children.
At the trial plaintiff was permitted by the defendant to first take up her suit for divorce on the grounds of having lived separate and apart for a period in excess of one year. During her presentation of the divorce aspect of her case, plaintiff stipulated fault on her part, admitting to an act of adultery on August 13, 1980. At the provisional custody hearing in October she had also admitted an act of adultery on another occasion, both occasions occurring after she and her husband separated.
Judgment will be rendered granting plaintiff a divorce, with a finding, however, of fault on the plaintiff’s part because of her adultery. The court further finds the defendant to have been guilty of cruel treatment prior to their separation and, thus, also at fault.
The trial of the custody phase of the case lasted approximately two days. The children are Paul, age 12, Shannon, age 10, Donna, age 7, and Nathan, age 8. At the outset of the custody hearing Mrs. Noblit withdrew her request that she be granted custody of the two older boys, Paul and Shannon, because of their strong desire to live with their father. It was abundantly clear from the evidence that Paul and Shannon strongly prefer their father, that they are extremely hostile toward their mother, that they refuse to accept the authority of their mother, and that she is unable to control them. The court is convinced that she genuinely loves these two children but that she recognizes this custodial preference and her inability to cope with them. She strenuously urges, however, that she be granted the custody of the two younger children, Donna and Nathan.
The circumstances of this case are unusual. In fact, they are so unusual that the court has decided to grant the custody of Paul and Shannon to their father and the custody of Donna and Nathan to their mother, contrary to the usually accepted principle that it is in the best interests of children that the custody of all be granted to one parent. If Mrs. Noblit were to be granted the custody of Paul and Shannon an intolerable situation would be created. In granting their custody to the father the court is not allowing their preference to be the controlling factor. At the provisional custody hearing there was no uncertainty about their preference, and yet the court granted their provisional custody to the mother. However, events since then have proven that arrangement unworkable due to the attitude, ages, physical size of the boys, together with paternal pressures, both direct and subtle, brought to bear on the children.
At this point let me say in deference to Mr. Noblit that he is a good father in many ways. Just as the court is convinced that Mrs. Noblit genuinely loves all four of her children, the court is likewise convinced that Mr. Noblit genuinely loves them. He is a deeply religious man. He provides very adequately for their physical needs. He personally provides for a great deal of their care and spends much time with the children. In spite of his many attributes as a father, there are good reasons why it would be in the best interests of Donna and Nathan that their custody not be granted to their father but on the contrary be granted to their mother.
It is not in the best interests of the two younger children that they be reared in such a manner as to develop the present attitudes of the two older boys. They have developed an attitude of resentment and hostility toward their mother, an attitude that is an unnatural one that cannot be explained by the reasons given by the boys for their attitude. The court is aware of too many instances in which much more severely abused children than these are, even according to their own stories, have nevertheless showered affection on the abusing parent. Children, inherently, are of a forgiving nature. But these children have on some occasions been deliberately taught to resent and pass judgment on their mother. And in other ways, even though perhaps not deliberate, their respect for their mother has been undermined. It would serve no useful purpose to recite detailed examples of the instances which are in evidence. This damage has not as yet occurred to a significant degree to Donna and Nathan because of their tender years, and it is in their best interest that such damage does not occur. There will be less chance of it occurring by granting their custody to their mother than to their father.
The evidence further reveals that the defendant is of the belief that a wife should be submissive to her husband, that it is wrong for a wife to be rebellious to her husband. Most disturbing was the testimony of a clinical social worker and the administrator of the Women’s Shelter that the defendant in justification of his striking his wife stated that it was his responsibility, his duty, to correct her, to make her act right, to see to it that she did things according to God’s way.
It is not in the best interest of these children, and particularly Donna, that they be reared in this belief.
Mrs. Noblit has not been shown to be an unfit mother, morally or otherwise. To the contrary, various witnesses have testified that she is a good mother. To her discredit she has been guilty of committing adultery since she and her husband separated. However, her conduct in this regard has not been flagrant and indiscreet and has not been shown to have taken place in the presence of the children. The following language from Cleeton v. Cleeton, 383 So.2d 1231, is pertinent:
‘To change the custody of these girls would punish their mother for past behavior when there is no proof of a detrimental effect on her daughters. An award of custody is not a tool to regulate human behavior. The only object is the best interest of the child. LSA-C.C. art. 157.’
The court further believes that a girl seven years of age and a boy three years of age need their mother. A girl of this age has special needs that a mother can best provide. The same is true of a boy three years of age.
The court in considering the means of the husband, the financial needs of the children, the income of the wife, and recognizing her obligation to share in the support of the children with their father, fixes the amount of child support to be paid by Mr. Noblit to Mrs. Noblit in the sum of $300.00 per month payable in installments of one-half each on the 1st and 15th of each month commencing April 15, 1981:”

The standard of appellate review applicable in child custody matters was recently reiterated in Bordelon v. Bordelon, 390 So.2d 1325 (La.1980) wherein the Louisiana Supreme Court stated:

“. .. in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion. Fulco, supra; Cleeton v. Cleeton, 383 So.2d 1231 (La.1989). This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is ‘clearly wrong’. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact.”

As noted, we fail to discern any clear error on the part of the trial court.

For the above and foregoing reasons, the decision of the trial court is affirmed. All costs of this appeal are assessed to the defendant, Steven T. Noblit.

AFFIRMED.

      . Plaintiff, Sherry E. Noblit, did not seek custody of the parties’ two older children, Paul, age 12, and Shannon, age 10, for the reasons stated in the trial court’s written reasons for judgment. Thus, the instant custody dispute concerns only the two younger Noblit offspring, Donna, age 7, and Nathan, age 3.


text:
    Laurence Mallet BREAUX, v. Addie Breaux DOMINGUES, et al.
    No. 8512.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.

      Edwin S. Patout, Lafayette, for plaintiff & appellant.
    Stanford B. Gauthier, II, Breaux Bridge, for defendant & appellee.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CULPEPPER, Judge.

This is an action by the surviving widow to recover, out of the estate and succession of her deceased husband, the marital portion in usufruct only under the provisions of LSA-C.C. Article 2382. After the trial on the merits, the trial court rendered judgment in favor of the defendants and against the plaintiff. From this judgment, plaintiff appeals. We reverse.

Clayus J. Breaux was first married to Edora Kidder Breaux, who predeceased him. Of this union, two children were born, namely, Addie Breaux Domingues and Car-rol Breaux, defendants herein. On May 30, 1962, Mr. Breaux remarried, this time to Laurence Mallet Breaux, the plaintiff herein. No children were bom of this marriage. Clayus Breaux died intestate on November 8, 1978 in the Parish of St. Martin. Plaintiff and the decedent lived, from the time of their marriage until the decedent’s death, in his house on a tract of land situated in Cecilia, St. Martin Parish, owned separately by Mr. Breaux.

The defendants are the only surviving children of Mr. Breaux. The Succession of Clayus J. Breaux, Probate No. 8709, was opened without administration on February 9, 1979. Defendants petitioned for and were placed in possession of the estate of Clayus J. Breaux by judgment signed on the same date. The decedent’s estate was shown as consisting entirely of separate property, with a gross value of $79,439.50, and a net value of $75,283 after payment of succession debts. The sole assets listed therein were the house and land which had served as the matrimonial domicile of Mr. and Mrs. Breaux. On February 16,1979, by act of cash sale duly recorded, the defendants sold the property belonging to the separate estate of Clayus J. Breaux for $79,-439.50.

At the time of her husband’s death, in November of 1978, Mrs. Breaux’s financial condition was as follows: She was 76 years old; she had an undivided one-half interest in two checking accounts, one having a balance of $533.51, the other a balance of $105.71; she had a savings of $1,600 in cash. These accounts were apparently community assets. She was receiving $94 monthly in Social Security benefits and $84 monthly in old age benefits (SSI).

The trial court held that as there was no change in plaintiff’s manner of living as a result of her husband’s death, she was not in necessitous circumstances and therefore not entitled to the marital portion from the Succession of Clayus Breaux. As the case was disposed of on the basis of this finding, the other issues presented and argued at trial were not reached by the trial judge. They are, however, argued on appeal in the event of a reversal of the judgment of the lower court. Thus, the issues before this Court, as raised in the briefs of the parties, are these:

(1) Is plaintiff entitled to receive the marital portion of her husband’s estate in usufruct?
(2) If so, has her claim thereto prescribed?
(3) If she is so entitled, does the usufruct attach to the liquidated proceeds of the estate?
(4) If so, must she post security for same?

RIGHT TO THE MARITAL PORTION

In November, 1978, when decedent died, the marital portion of the surviving spouse in necessitous circumstances was provided for in Article 2382 of the Louisiana Civil Code:

“Art. 2382. When the wife has not brought any dowry, or when what she brought as a dowry is inconsiderable with respect to the condition of the husband, if either the husband or the wife die rich, leaving the survivor in necessitous circumstances, the latter has a right to take out of the succession of the deceased what is called the marital portion; that is, the fourth of the succession in full property, if there be no children, and the same portion, in usufruct only, when there are but three or a smaller number of children; and if there be more than three children, the surviving, whether husband or wife, shall receive only a child’s share in usufruct, and he is bound to include in this portion what has been left to him as a legacy by the husband or wife, who died first.”

The Louisiana Supreme Court has stated the facts which must exist to entitle the survivor to claim this marital fourth under Article 2382 are:

“(1) A marriage.
(2) Husband or wife must die rich.
(3) Party dying must leave the survivor in necessitous circumstances.
(4) There shall be no children.”
Succn. of Guillon, 150 La. 587, 91 So. 53 (1922) and Malone v. Cannon, 215 La. 939, 41 So.2d 837 (La.1949).

Plaintiff contends the trial court was in error in holding that she was not placed in necessitous circumstances as a result of her husband’s death because her lifestyle was not altered thereby, arguing that there is neither a legal nor a factual basis for this conclusion. Defendants argue that comparison of the patrimonial assets of the deceased with those of the survivor is only a part of a two-fold test which the courts have intimated is necessary to determine whether or not a surviving spouse is entitled to receive the marital portion. They contend that it is necessary to consider the conditions of the survivor and a relative comparison of her style of life prior to the decedent’s death with that up to, and including, the time of the trial. This argument is based on Succession of Ziifle, 378 So.2d 500 (La.App. 4th Cir. 1979), wherein the Fourth Circuit required that there be a change in lifestyle in order to be entitled to the marital portion.

It has long been settled that the right to the marital portion is a bounty, founded upon the consideration that neither of the married persons, who have lived together in common enjoyment of wealth and the position which it gives, shall suddenly be reduced to penurious circumstances. It is given in honor of the past marriage, that the survivor be retained in the previous accustomed rank and position. Malone v. Cannon, supra; Succession of Lichtentag, 363 So.2d 706 (La.1978). The purpose of the provision is to provide some certainty for the support of the spouse left poor, and not to leave her as she would be left if forced to look exclusively for support to the varying changes of fortune or hazard. Dupuy v. Dupuy, 52 La.Ann. 869, 27 So. 287 (1899). Thus it is clear that the terms “rich” and “necessitous circumstances” are used relatively and are to be applied comparatively, with regard to the respective positions of the spouses. As this Court stated in Succession of Henry, 287 So.2d 214 (La.App. 3rd Cir. 1973):

“Thus if one spouse, by reason of the other’s death is unable to live in similar style, comfort, and elegance as a person of her former rank, i.e., similar economic conditions in which she lived during marriage, she is considered to be in ‘necessitous circumstances’. Thus property which would make a person in one walk of life rich would be inadequate to supply the wants, albeit they are artificial, of one in another condition of life.” (Citations omitted)

Defendants further argue that the plaintiff was not in necessitous circumstances because the present value of her Social Security benefits and old age assistance benefits represent an asset of the present value of $24,954.92, and thus the relative comparison of the assets of the decedent and the surviving spouse gives a ratio of about 3 to 1. This is based on the calculations of an economic expert who testified that a capital investment of this amount would be required to produce interest income equivalent to the plaintiff’s monthly benefits.

We feel that, regardless of this testimony, the fact is that this widow is in necessitous circumstances, and that the trial judge was clearly wrong in holding to the contrary, under the standards of Arceneaux v. Dominque, 365 So.2d 1330 (La.1978). Therefore, since her husband died rich in comparison, she is entitled to receive the marital portion in usufruct.

When her husband died, Mrs. Breaux had a one-half interest in two checking accounts totaling $639.21, she had a savings of $1600 cash, and was receiving $178 a month from the government. Her husband left a net estate of something over $75,000. At the time of the trial, Mrs. Breaux had depleted her cash assets, and was living in a 3-room shack which she purchased for $1,000 and moved onto a lot owned by her grandson. She was subsisting on $248.30 a month Social Security and old age benefits. In any walk of life, one surviving solely by means of Social Security benefits and old age assistance must be considered in necessitous circumstances. Indeed, the fact of the plaintiff receiving old age benefits shows, prima facie, that she is in need, inasmuch as this is a gratuity extended by the government to those who lack sufficient income to meet their daily needs.

We recognize that the major policy underlying this article is to prevent one who has become accustomed to living according to a certain standard from suffering a loss of position and comfort by reason of the death of their spouse who neglected or refused to make provisions for them. The fact that this couple lived quite frugally before the husband’s death establishes only that they preferred to enjoy the property belonging to him as a resource, a form of security upon which his wife, along with him, could rely in a situation of urgent need. That Mr. Breaux chose to maintain his estate in the form of immovable property, rather than liquid assets to be readily depleted, does not mean that Mrs. Breaux did not share in the enjoyment of a measure of security which it provided for them. It is only too clear that when he died, this condition of security was snatched away. She was deprived of the family home of which she had enjoyed the benefits for 16 years. The fact that she continued to reside there a few months after her husband’s death makes no difference. The fact remains that she was no longer imbued with the right to enjoy the property and rely on the resource which it had provided her during the marriage. There are more ways than one in which to enjoy an asset. It is not necessary that one deplete it in order to have the enjoyment thereof.

Further evidence of Mrs. Breaux’s change in condition and lifestyle is shown by the fact that the savings she was able to accumulate during marriage had to be used to secure accommodations. Furthermore, the death of her husband has rendered her unable to set anything aside for emergencies in her present condition. We feel that the trial court’s reading of Succession of Ziifle, supra, is far too narrow, in that it envisions only a change in lifestyle — i.e., state of accommodations, eating habits, basic comforts, rather than the true condition or quality of life. One need not be destitute to show necessitous circumstances, Smith v. Smith, 217 La. 646, 47 So.2d 32 (La.1950), although certainly little lies between this plaintiff and destitution, in light of the present economic tenor and the state of today’s Social Security program. This plaintiff, who lived with and cared for the decedent for 16 years, and in so doing enjoyed the benefit and security of his property, is without doubt in the very situation for which Article 2382 was intended to provide.

Since the decedent had only two surviving children, the plaintiff is entitled to a marital portion of one-fourth of the succession of Clayus J. Breaux in usufruct only.

RIGHT OF USUFRUCT OVER LIQUIDATED PROCEEDS OF THE ESTATE

The defendants contend that plaintiff should be estopped from claiming a usu-fruct over the liquidated assets of the decedent’s estate since the property was disposed of 15 months prior to plaintiff’s filing of a formal claim. They argue that the claim had prescribed since her remedy to enforce it was by filing a claim within three months of the closing of the succession.

In Malone v. Cannon, supra, the Louisiana Supreme Court stated:

“But as to his right to take the marital fourth the surviving spouse is not an heir, and the portion he is entitled to is not an inheritance. It is therefore not a vested right, nor is it a debt. It is a gift, a bounty, bestowed, not by the deceased, but by the law, when the conditions surrounding the relations of the parties to each other before and at the time of the dissolution of the marriage by death of one of them, and surrounding the one surviving after the dissolution, meet the requirements of the law.”

Thus, it follows that the right to a usufruct over the marital portion of the decedent’s estate attaches at the moment of the dissolution of the marriage by death, if the required conditions exist, i.e., one spouse dying rich, and the survivor left in necessitous circumstances, or comparatively so with regard to the other. Furthermore, as this is not a debt of the succession, LSA-C.C.P. Article 3007 regarding prescription of claims by creditors of the succession is not applicable.

As this Court stated in Succession of Henry, 287 So.2d 214 (La.App. 3rd Cir. 1973), the surviving spouse can assert this right after liquidation of the estate, or even after property of the succession has been received. Since the defendants took possession of the property of their father’s estate and sold it within a week thereafter, LSA— C.C. Article 615 governs.

“Art. 615. Change of the form of property
When property subject to usufruct changes form without any act of the usu-fructuary, the usufruct does not terminate even though the property can no longer serve the use for which it was originally destined.
When property subject to usufruct is converted into money or other property without an act of the usufructuary, as in a case of expropriation of an immovable or liquidation of a corporation, the usu-fruct does not terminate but attaches to the money or other property.”

Under the holding in Malone v. Cannon, supra, plaintiff is entitled to a usu-fruct on one-fourth of the net value of Mr. Breaux’s estate at the time of his death, i.e., one-fourth of $75,283. She is not entitled to a usufruct on one-fourth of the sum of $79,439 realized from the sale of the property by the heirs.

SECURITY

The defendants further contend that the usufruct created by Article 2382 is not a legal usufruct, and as such the usu-fructuary must post security. We find such a position untenable. As noted previously, the marital portion is a gift bestowed, not by the deceased, but by the law, in honor of the past marriage of the spouses. The usu-fruct created by operation of the law is called legal. LSA-C.C. Article 544. Article 573 provides that legal usufructuaries are not required to give security. There can be no doubt, then, that one who is entitled to the marital portion in usufruct is not required to give security.

DECREE

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is now rendered in favor of the plaintiff, Laurence Mallet Breaux, and against defendants, Addie Breaux Domingues and Carrol Breaux, for the sum of $18,820.75, said sum representing the marital portion (one-fourth) of the net value of the succession of Clayus J. Breaux at the time of his death, and plaintiff is hereby awarded a lifetime usufruct over said sum of $18,-820.75 without the necessity of posting security therefor. All costs in both the trial and appellate courts are assessed against defendants-appellees.

REVERSED AND RENDERED.


author: LABORDE, Judge.

text:
    Lyle WOODS, et al., Plaintiffs-Appellees, v. James E. RATLIFF, et al., Defendants-Appellants.
    No. 8517.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Sholars, Gunby, Allbritton & Hayden, Clifford L. Lawrence, Jr., Monroe, for defendants-appellants.
    Gaharan & Wilson, Joseph Wilson, Jena, for plaintiffs-appellees.
    Before FORET, SWIFT and LABORDE, JJ.
   LABORDE, Judge.

Plaintiffs filed suit against defendants seeking cancellation of a mineral lease, attorney’s fees, and proceeds from oil sales allegedly due them. Defendants reconvened for the amount of its movable equipment allegedly appropriated by plaintiffs or alternatively, for rent of that equipment. Defendants also sought production payments, damages and attorney’s fees. The trial court rendered judgment ordering cancellation of the mineral lease and awarding plaintiffs $2,288.98 in proceeds from oil sales and $7,500.00 in attorney’s fees. Defendants were awarded $3,500.00 for plaintiffs’ use of their movable equipment. Defendants appeal and raise the following issues:

1. Whether the mineral lease should have been ordered cancelled?
2. Whether plaintiffs were entitled to attorney’s fees and if so was the amount awarded excessive?
3. Whether the damages awarded defendants on its reconventional demand should be increased?
4. Who owns the movable equipment located on the leased premises?

Following a recitation of the facts, each issue will be discussed separately.

FACTS

On December 18,1973, George H. Woods, his wife Laurel, and their two sons Lyle and Donald, as record owners, executed an oil, gas and mineral lease covering property in LaSalle Parish, Louisiana. By a series of assignments and subleases, the leasehold “working interest” was acquired by the defendants — Tennessee Fuel Sales, Inc., Harry C. Powell, J. T. Blong, and James E. Ratliff. Ratliff conducted business under the trade name “Jena Oil Company” which was designated as operator of the Woods No. 1 Well in July of 1976.

The Woods No. 1 Well is the only producing well on the leased premises and is the subject of this lawsuit.

Jena Oil Company operated the well, occasionally shutting it down for repairs or for other reasons but always resuming operations until May 2, 1979, when the high speed gear in the pumping unit broke. The broken gear was removed and a new one ordered to replace it with delivery expected by mid-June. Delivery of the new gear was delayed and no further operations were conducted by Jena Oil Company after May 2, 1979.

On August 2,1979, Laurel, Lyle and Donald Woods, as record owners, granted an oil, gas and mineral lease covering the same property to RLS Partnership. On September 2, 1979, RLS Partnership commenced operations using Jena Oil Company’s movable equipment except for the pumping unit which it installed.

In January of 1980, Laurel, Lyle, and Donald Woods and RLS Partnership instituted this suit against Tennessee Fuel Services, Inc., Harry C. Powell, J. T. Blong, and James E. Ratliff.

CANCELLATION OF THE MINERAL LEASE

In seeking a cancellation of the December 18, 1973, lease ultimately acquired by defendants, plaintiffs allege that the lease expired due to defendants’ failure to produce the well or to conduct additional drilling or reworking operations without cessation in operations of more than ninety consecutive days as provided by the lease.

It is defendants’ position that the lease was maintained by both production and operations until May 2, 1979. Beyond that date, defendants contend that their obligations as lessees were suspended under the force majeure provisions of the lease. Finally, defendants contend that in any event, plaintiffs’ suit should have been dismissed because the law requires a putting in default prior to filing a suit for cancellation of a mineral lease.

Section 2 of the lease in question sets forth its term. More particularly it provides:

“2. Subject to the other provisions herein contained, this lease shall be for a period of Ninety Days from this date (called ‘primary term’) and as long thereafter as (1) oil, gas, sulphur or other mineral is produced from said land hereunder or from land pooled therewith; or (2) it is maintained in force in any other manner herein provided.”

Section 7 of the same lease, in pertinent part, provides:

"... If at the expiration of the primary term or at the expiration of the ninety day period provided for in the preceding sentence, oil, gas, sulphur or other mineral is not being produced on said land or on land pooled therewith but Lessee is then engaged in drilling operations or reworking operations thereon, or if production previously secured should cease from any cause after the expiration of the primary term, this lease shall remain in force so long thereafter as Lessee either (a) is engaged in drilling operations or reworking operations with no cessation between operations or between such cessation of production and additional operations of more than ninety consecutive days; or (b) is producing oil, gas, sulphur or other mineral from said land hereunder or from land pooled therewith.... ”

In accordance with these provisions then, the primary term of the lease extended ninety days from December 18, 1973, and if minerals were being produced at the end of the ninety day period, the primary term was extended and continued until production ceased. At the expiration of the primary term, however, the lease remains in force only if the lessee is producing minerals or is engaged in drilling or reworking operations with no cessation in these operations of more than ninety consecutive days.

Returning to the facts, plaintiffs established that the lease’s primary term had expired due to the cessation of production caused by breakdowns following the initial ninety day period. Thereafter, the lease remained in force only by production of minerals or by drilling or reworking operations conducted with no cessation in operations of more than ninety consecutive days. In this regard, plaintiffs established that on May 2,1979, the well was shut down and in excess of ninety consecutive days thereafter, defendants neither produced minerals nor drilled or reworked the well. The evidence compels the conclusion that by its terms, the lease terminated ninety days after May 2, 1979, unless, as defendants argue, it was suspended under its force maj-eure provisions. We now turn to a discussion of this possibility.

The force majeure provisions appear in Section 14 of the lease which, in pertinent part, provides:

“When drilling, reworking, production or other operations are delayed or interrupted by force majeure, that is, by storm, flood or other acts of God, fire, war, rebellion, insurrection, riot, strikes, differences with workmen, or failure of carriers to transport or furnish facilities for transportation, ... or as a result of any cause whatsoever beyond the control of the Lessee, the time of such delay or interruption shall not be counted against Lessee, ... but this lease shall be extended for a period of time equal to that during which Lessee is so prevented from conducting such drilling or reworking operations on, or producing oil, gas, ... or other minerals from the premises; ...”

The trial court was not impressed, from the evidence, that defendants were prevented from producing the well by either force majeure or by any cause beyond their control. We take the liberty of quoting portions of the trial court’s written reasons concerning this issue:

“It is Ratliff’s testimony (supported by both Little and McCartney) that as soon as the broken high speed gear was discovered a replacement part was ordered from Superior Iron Works. The initial anticipated delivery date of the replacement part was approximately 5-6 weeks after the date on which the defective part was discovered. However, Ratliff was unable to obtain the part until sometime in the fall of 1979, after the date on which the new lease had been granted in favor of RLS Partnership and operations had been commenced by that lessee. The question is simply whether or not the inability to obtain this part was something beyond the control of the lessee as contemplated by Paragraph 14 of the Woods/Vista Corporation lease.
In Logan v. Blaxton, 71 So.2d 675 (La.App.2d Cir. 1954), the defendant/lessee sought to excuse lack of performance under the ‘force majeure’ provision of his lease. The defendant contended that the only feasible manner of transporting and marketing the oil was by truck but that he was prevented from delivering same as a result of impassable roads due to excessive rain. In rejecting his argument, the court stated:
‘We are not of the opinion, from the evidence, that defendant established due diligence in his attempt to dispose of the production, and while it would appear from the evidence that it was not economical to connect this well with any of the pipelines in the vicinity, it appears that the defendant made only one effort to procure transportation for the oil and as to that the testimony of the defendant and his father is at considerable variance. The testimony does not establish the transportation in small trucks or by some other means of conveyance could not have been profitably effected.’
Logan v. Blaxton, supra at page 677.
It is apparent, from the evidence, that there were other means of restoring operation of the “Woods No. 1” well. According to the testimony of Monte Atkins, the field supervisor of RLS Partnership, there are machine shops in both Winn-field, Louisiana and Tullos, Louisiana which can effect repairs to the high speed gear. While these repairs are often temporary in nature, they are sufficient to enable restoration of operations until such time as a new part can be obtained. In his testimony, Ratliff stated that he had knowledge of such machine shops but simply elected not to employ temporary repairs.
Monte Atkins further testified that there are larger machine shops in Texas which have the ability to construct a new gear (by using the old gear as a pattern) and that delivery time from these sources is generally less than six weeks and the cost is comparable if not lower than the price charged by the manufacturer. Again, Ratliff acknowledged that he was aware of the existence of such companies.
It is clear from the testimony that Ratliff simply did not explore any of the options available to him, other than submitting the order for the new part through Superior Iron Works. It is also clear that the wells were put back into production by replacement of the pumping units. Ratliff, et al could have done the same. The situation is virtually identical to that set forth in Logan v. Blax-ton, supra, in which the court held that the force majeure provision was inapplicable.
* * * * * *
It is my opinion that “force majeure” is inapplicable to the present case, because the situation is not one truly beyond the control of the lessee. There were at least two other sources from whom Ratliff could have obtained a temporary replacement part which would have restored operations within the required 90 days....”

Based on our thorough review of the record, we cannot say that the trial court committed manifest error in reaching this conclusion and on appeal, it must be affirmed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Finally, under this specification of error, defendants contend that the provisions of the Louisiana Civil Code concerning putting in default apply to mineral leases; that plaintiffs failed to put them in default and hence, that plaintiffs’ suit must be dismissed.

While it is true that the codal articles on putting in default apply to mineral leases, LSA-R.S. 31:135, it is also true that when the term of a mineral lease runs, the lessor need not place the lessee in default as a prerequisite to a suit seeking a declaration that the lease has been dissolved by that fact. LSA-R.S. 31:133 and the comment under that article. In Talley v. Lawhon, 150 La. 25, 90 So. 427 (1922), the lessor sought cancellation of a mineral lease on the grounds that the lessee suffered more than 60 days to elapse between the cessation of work on one well and the beginning of work on another. The court, in response to the lessee’s argument that a putting in default was required, stated:

“... We do not think so. There was nothing the said company could have been put in default about, as there was no obligation on its part to do anything. There was only a right on its part to prolong the existence of the lease by doing a certain specified thing within a certain specified time, or to let the lease run out by not doing that thing.”
Talley v. Lawhon, supra 90 So. at page 428

An identical situation is presented in the present case. Defendants had the right but not the duty to maintain their lease by operations or production without a cessation of more than ninety consecutive days. Hence, there is nothing the defendants could have been put in default about.

Defendants’ first specification of error lacks merit.

AWARD OF ATTORNEY’S FEES

Defendants contend the trial court erred in granting attorneys’ fees to plaintiffs and alternatively, that the amount awarded was excessive.

LSA-R.S. 31:206 and 207 provide:

“§ 206. Obligation of owner of expired mineral right to furnish recordable act evidencing extinction or expiration of right
When a mineral right is extinguished by the accrual of liberative prescription, expiration of its term, or otherwise, the former owner shall, within thirty days after written demand by the person in whose favor the right has been extinguished or terminated, furnish him with a recordable act evidencing the extinction or expiration of the right.
§ 207. Effect of failure to furnish act evidencing extinction or expiration of right
If the former owner of the extinguished or expired mineral right fails to furnish the required act within thirty days of receipt of the demand, he is liable to the person in whose favor the right has been extinguished or expired for all damages resulting therefrom and for a reasonable attorney’s fee incurred in bringing suit.”

The record establishes that the mineral lease in question expired by its own terms ninety days after May 2,1979. Plaintiff at no time after this date made written demand on defendants. Therefore, the trial court erred in awarding plaintiffs attorney’s fee and that award is reversed on appeal.

THE RECONVENTIONAL DEMAND

RLS Partnership, in obtaining production from the Woods No. 1 Well, used some of defendants’ movable equipment. Defendants, when sued, reconvened for the value of this equipment and alternatively for a rental fee for its use. The trial court awarded defendants’ $3,500 for the use of that equipment. In its third assignment of error, defendants question whether these damages should be increased. Defendants also,, through their fourth assignment of error, ask this court to recognize them as owners of the movable equipment. These two assignments will be discussed together.

As regards the matter of who owns the movable equipment located on the leased premises when RLS Partnership commenced operations, plaintiffs make no ownership claims to it and we hold that it is owned by defendants.

The question of damages for its use presents a more difficult one. The trial court, in arriving at this award, stated:

“In presenting evidence to support the reconventional demand, Ratliff, et al introduced no evidence or proof of the value of their demand in reconvention. They failed to establish the present value of the equipment and did not offer any testimony as to a fair rental value of the equipment. Under the circumstances, I, am of the view that an award of $3,500.00 will fairly compensate defendant for the equipment used by RLS Partnership."

Several witnesses, some of them plaintiffs’, testified regarding the value of the movable equipment located on the leased premises. All, or in any event, most of that testimony was directed at what it would cost to replace the equipment instead of what its reasonable rental value was. Based on our thorough review of the record, we cannot say that the trial court abused its “much discretion” in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Reck v. Stevens, 373 So.2d 498 (La.1979).

As a final matter, the trial court committed a mathematical error in allocating the proceeds of the sale of oil after RLS Partnership commenced operations. In discharging our duty of rendering any judg-t ment which is just, legal, and proper upon the record on appeal, we must correct that error. LSA-C.C.P. art. 2164.

The record shows that on November 25, 1979, RLS Partnership sold to Placid Oil Company 103.7 barrels of oil produced from the Woods No. 1 Well. The gross income derived from this sale was $3,366.10. After deducting severance tax and that portion of the proceeds paid to the royalty interest owners, the net proceeds for distribution among the working interest owners totaled $2,580.01. Defendants are entitled to a portion of these proceeds representing oil produced by them and stored in the tanks prior to the RLS Partnership operations. At the trial one of RLS Partnership’s employees, Monte Atkins, testified that he personally gauged these tanks after RLS Partnership acquired its lease from the Woods family. Upon inspection, he found that one tank contained 1'8" of fluid and the other contained 1'4" of fluid. In converting the tank measurement in feet and inches, a conversion factor of 1.17 barrels per inch is applicable to these tanks. Using this conversion table, 42.1 barrels of fluid were produced by defendants instead of 11.1 barrels as found by the trial court. Using the net proceeds figure, the oil was sold for $24.87 a barrel. This price times defendants’ 42.1 barrels, equals $1,047.02 to which amount defendants are entitled. The remaining $1,532.99 belongs to plaintiffs.

For the above and foregoing reasons, the judgment appealed from is affirmed insofar as it ordered cancellation of the mineral lease as is the judgment insofar as it grants defendants $3,500.00 for use of its equipment.

The judgment of the trial court is reversed and set aside insofar as it awarded plaintiffs attorney’s fees.

The judgment of the trial court is amended to reduce plaintiffs’ allocation of proceeds from oil sales from $2,288.98 to $1,532.99 and to increase defendants’ allocation from $291.03 to $1,047.02.

Costs of this appeal are taxed one half to plaintiffs-appellees and one half to defendants-appellants.

AMENDED IN PART AND AFFIRMED AS AMENDED; AFFIRMED IN PART; PART; AND REN-REVERSED IN DERED.

      . The record does show that on September 22, 1978, plaintiff, thinking the lease had expired, made written demand for its cancellation. However, the lease was still valid. When the lease expired in 1979, a new demand for its cancellation was required.