author: SAMUEL, Judge.

text:
    Vance Joseph TROXLER, Individually and in his capacity as Natural Tutor of Minor Children, Lee G. Troxler, Vance J. Troxler, Christy, Ted J., and Terry Marie v. HERTZ CORP., U.S. Fidelity & Guaranty Co. Home Insurance, Metal Services, Lynn Burkhardt, Walker Cannon, Rodney Oil Field Comp., John N. Huff, Salem Leasing Corp., Comfort Chair Comp. and Carl Hefner.
    No. 10318.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1980.
    Rehearing Denied July 21, 1980.

      Arthur L. Ballin and Frank C. Dudenhe-fer, New Orleans, for plaintiffs-appellants.
    Murphy & Simon, James C. Murphy, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff, Vance Joseph Troxler, filed suit for the wrongful death of his wife, Sylvia Lee Troxler, individually and as natural tutor of four minor children born of his marriage to decedent, Lee Gerard Troxler, Vance Joseph Troxler, Jr., Christy Ann Troxler, and Ted Julian Troxler. Decedent’s older daughter, Terry M. Troxler, had reached majority at the time suit was filed and she is also a plaintiff. Decedent’s oldest son also was substituted as a party plaintiff because he had become a major at the time of trial.

The petition named numerous defendants but many of them were voluntarily dismissed prior to trial, leaving only Lynn G. Burkhardt, Metal Services Corporation, his employer, United States Fidelity & Guaranty Company, its insurer, Carl Hefner, Comfort Chair Company, Inc., his employer, and Home Insurance Company, as defendants. After jury selection, but prior to opening statements, plaintiffs reached a settlement with Burkhardt, Metal Services Corporation, and United States Fidelity & Guaranty Company.

Since the only remaining defendants were Carl Hefner, Comfort Chair Company, Inc., his employer, and Home Insurance Company, its insurer, the basic question presented to the jury, and to this court on appeal, is the negligence of Hefner in the operation of his motor vehicle.

The jury found Hefner not guilty of negligence and the trial judge signed a judgment in accordance with the verdict, thereby dismissing Hefner, Comfort Chair Company, Inc., his employer, and Home Insurance Company, its insurer, with prejudice. Plaintiffs have appealed from that judgment.

The collision occurred on April 10, 1975 at approximately 4:15 p. m. It was rainy and the street was slippery. At the point of the accident, Highway 90 is a multi-lane highway with two eastbound lanes and two westbound lanes separated by a small median. The decedent proceeded westerly on the inside or left lane, and she was preceded by a truck and a car in the right lane of traffic.

At the same time two tractor-trailer trucks, one operated by Lynn G. Burkhardt and the other operated by Hefner, were proceeding in an easterly direction on Highway 90. The Hefner vehicle was approximately five truck lengths behind the Burk-hardt truck. Both were traveling in the right lane of traffic.

A small red automobile was proceeding on Highway 90-B toward its point of merger with Highway 90 to Hefner’s right. Hefner noticed this vehicle and maneuvered into his left traffic lane. He testified he began to decelerate at this time. Burk-hardt remained in the right lane. When it was evident the red automobile would not yield to traffic on Highway 90, Burkhardt applied his brakes. His truck then jackknifed and jumped the median on Highway 90. The right front of the Hefner truck was struck by the Burkhardt vehicle as the latter jackknifed. Both vehicles crossed the median and came to rest well in the westbound lane of Highway 90. Mrs. Troxler, who was traveling west, hit the Burkhardt truck as it crossed her path and she was killed.

Both trucks were traveling at approximately the speed limit of 45 miles per hour. Both drivers testified they observed the red car approach on Highway 90-B while they were still far from the point of merger. Neither slowed from his stated speed until they were between 200 and 400 hundred feet from the point of merger. Hefner then moved into the left lane and slowed; however, he still overtook the Burkhardt truck when the latter jackknifed.

Our reading of the record in its entirety satisfies us that the jury was within the wide discretion afforded it by holding for defendant Hefner, and we conclude it was not clearly wrong by so holding.

Plaintiffs base their argument almost entirely on the decision of the Louisiana Supreme Court in Dick v. Phillips. In the Phillips case, plaintiff sought damages for being sideswiped on Highway 1-10 by the defendant. The collision occurred when defendant swerved to his left to avoid vehicle which had entered Highway 1-10 without yielding the right of way. At the time of the collision, plaintiff was passing the Phillips vehicle, and the Supreme Court held the plaintiff contributorily negligent for passing the Phillips vehicle in an area marked with merging traffic signs. The court further stated that had plaintiff timely observed the vehicle approaching on the service road would not yield the right of way to the Phillips vehicle, it would have been incumbent upon plaintiff to desist from passing Phillips, and plaintiff would have been obliged to slow his vehicle to avoid the oncoming collision.

In this case, the evidence shows Hefner was not attempting to pass the Burkhardt truck. Before reaching and merging intersection he moved to the left lane and began to decelerate. The Burkhardt truck was to his right when it jackknifed. From the evidence, the jury clearly could have concluded the cause of the accident was Burk-hardt’s negligence in not moving into the left lane ahead of Hefner before applying his brakes. Hefner’s conduct prior to the collision is basically similar to that recommended by the Supreme Court in Dick v. Phillips, supra. We conclude the jury did not commit error by holding Hefner free from negligence.

Plaintiffs also contend certain comments by defense counsel adversely affected the jury and precluded plaintiffs from receiving a fair trial. First, they argue defense counsel committed prejudicial error by asking the court to allow Hefner to testify out of turn in the presence of the jury because he had just learned his wife had been admitted to a hospital that morning and he wished to catch the next available flight. Plaintiffs say this statement precluded them from effectively cross-examining Hefner because the jury would have resented cross-examination and delay of a man in distress. Next, plaintiffs argue defense counsel’s comment to the jury that a settlement had been reached with other defendants influenced the jury adversely. Finally, they argue defense counsel committed error by suggesting to the jury it was improper to have the five children of the decedent testify-

We do not see the comments by defense counsel as sufficiently prejudicial to warrant a reversal of the jury’s verdict. In requesting Hefner be taken out of turn, his counsel simply offered reason for this unusual occurrence by way of explanation, particularly since by taking Hefner at that particular time he was interrupting the jury’s noon hour. An explanation that Mr. Hefner had an emergency, without specifying the hospitalization of his wife, would have been better under all the circumstances, but we cannot hold the statement as made sufficiently prejudiced the jury to warrant reversal.

Second, counsel for defendant concedes that ordinarily evidence of a previous compromise should not be brought to the attention of the jury. He points out, however, that his comments came only after the settlement had been mentioned to the jury on five separate occasions by both the trial judge and counsel for plaintiffs in opening argument, during questioning, and in closing argument. We must agree that ordinarily defense counsel’s comment regarding a prior settlement with another defendant might be improper and prejudicial. However, since the trial judge mentioned the settlement to the jury and plaintiffs’ counsel brought the settlement to the jury’s attention on four separate occasions, defense counsel’s remark was no more prejudicial than plaintiffs’.

Third, defendant had the right to comment on the testimony of the children as well as on the testimony of any other witness. Offering the testimony of the children, particularly the younger ones, was a calculated risk which plaintiffs obviously decided to take. The testimony of these children could have adversely affected the jury or it could have invoked their sympathy. In either event we do not hold counsel for the defendant acted improperly by implying the children’s testimony was improper. Our conclusions are further strengthened by the absence of objection to the comments by counsel for plaintiffs. Had defense counsel’s comments been considered so prejudicial that their effect could not have been removed by a timely instruction by the trial judge, plaintiffs should have requested a mistrial, which they did not do. Redress under the circumstances should not, therefore, be allowed on appeal.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Canter v. Koehring Company, La., 283 So.2d 716; Arceneaux v. Domingue, La., 365 So.2d 1330.

      . 253 La. 366, 218 So.2d 299.

      . See Wilson v. Virgademo, La.App., 258 So.2d 572.


source: Caselaw Access Project

author:
SAMUEL, Judge.
      LEMMON, J.,

license: Public Domain

text:
    PENINSULAR FIRE INSURANCE COMPANY v. LOUISIANA DEBATING & LITERARY ASSOCIATION and Travelers Insurance Company.
    No. 10471.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 21, 1980.

      Lemle, Kelleher, Kohlmeyer & Matthews, Albert H. Hanemann, Jr. and David S. Kelly, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald 0. Collins, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   SAMUEL, Judge.

Peninsular Fire Insurance Company filed this suit against Louisiana Debating & Literary Association and its insurer Travelers Insurance Company, seeking recovery of $129,653.36 paid by Peninsular to its insured, Commonwealth Savings Association, as a result of smoke and water damage to Commonwealth’s leasehold improvements located in Louisiana Debating’s building at 313-317 St. Charles Avenue in New Orleans. Peninsular sues as subrogee of Commonwealth.

Defendants answered, denying liability and relying upon a provision in the written lease between Louisiana Debating and Commonwealth by which the former attempted to relieve itself of liability to Commonwealth in the event of fire damage.

The “Fire Clause” contained in the lease reads as follows:

“If through no fault, neglect, or design of lessee, the premises are destroyed by fire or other casualty or damaged to such an extent as to render them wholly unfit for occupancy, then this lease shall be cancelled.”

The clause further provides for continuation of the lease in spite of fire damage under certain circumstances. The fire clause as quoted above was qualified by an addition to the lease, referred to as “Appendix A” which states:

“Lessee shall maintain fire, extended coverage, windstorm and vandalism and malicious mischief insurance to the extent of the full value of all repairs, bet-terments and improvements made by the Lessee to the leased premises.
Reference is made to the Fire Clause of this lease namely Lines 147 through 152 of the printed portion of the lease. It is expressly agreed that if this lease is can-celled pursuant to the first sentence of the Fire Clause or continued pursuant to the second sentence thereof, there shall be no responsibility on the part of Lessor to pay to Lessee any sum for damages to betterments or improvements made by Lessee on the leased premises or contained therein. . . .”

The premises leased by Commonwealth from the Debating Society is located on the ground floor of a four-story building owned by the Society at the corner of St. Charles Avenue and Union Street in New Orleans’ central business district. The leased premises constituted Commonwealth’s main business offices. The upper three floors of the building were used and occupied by the Debating Society.

On the night of January 26, 1977 a fire started on the fourth floor of the building, in an area where the Society stores Mardi Gras costumes. Fire damage was confined essentially to the fourth floor, but Commonwealth’s offices were heavily damaged by water and smoke. Peninsular paid the loss pursuant to the coverages afforded in its policy to Commonwealth, and then filed this suit to enforce its subrogation rights.

In his reasons for judgment, the trial judge stated plaintiff had proved the negligence of the Society in that the fire was started by the carelessness of one of its employees by discarding a lit cigarette or match in a careless fashion. Nevertheless, the trial judge held in favor of the defendants, basing his decision on the fire clause of the lease and on the above quoted provisions of Appendix A thereto. The issue is whether the trial judge correctly held in favor of defendants on the basis of the lease provisions.

Plaintiff seeks reversal on the grounds that it is against public policy for a person to relieve himself contractually of liability for his own future negligence and that, even if the lease provisions relied upon by defendants are enforceable, they are nevertheless ambiguous, and the ambiguity contained therein should be construed against defendants who drafted the lease provisions. Plaintiff relies on numerous cases, among which are Hayes v. Hayes, 8 La.App. 468, Plantation Pipeline Co. v. Kaiser Alum. & Chem. Corp., La.App., 222 So.2d 905, and Sandel & Lastrapes v. City of Shreveport, La.App., 129 So.2d 620. Plaintiff attempts to distinguish cases which have held valid assumption of risk release clauses in cases where the risk was disclosed or apparent to the releasing party.

We agree with the holding of the trial court. In his reasons for judgment, the trial judge stated:

“This written lease between landlord and tenant was negotiated by competent, experienced parties represented by competent and able lawyers. That lease is the law between those parties. By virtue of the fire clause in that lease, there was by contract no responsibility or liability on the part of the lessor to pay fire damages to the lessee for damages to any betterments or improvements made by the lessee to or on the leased premises.”

Our reading of the lease shows the language regarding the fire clause is unambiguous to the extent it specifically requires the lessee to provide insurance coverage for its own loss as a direct result of fire, and that the lessee does not have a valid claim for damages against lessor for betterments or improvements which the former made to the structure. It can hardly be said that the danger of fire, particularly where buildings are so close to each other as they are in the central business district of New Orleans, is a risk not known to owners of property and tenants in that district. Consequently we conclude the language relied upon by defendant is sanctioned by those cases allowing the party to disclose a risk, or to absolve itself from a risk, already known to the leasing party.

Of the total damages paid by plaintiff and claimed against defendants, $124,763.03 represents damage to leasehold improvements. The remaining $4,890.33 included $900.88 for a Lanier Dictation System, $2,989.45 for preservation costs, and $1,000 for “extra expense” allowed by the plaintiff’s policy. Plaintiff argues that these items of damages did not constitute “bet-terments or improvements made by lessee on the leased premises or contained therein.” Plaintiff consequently concludes that the negligence of defendants’ employee requires judgment for these non-leasehold damage items.

It is doubtful that preservation costs just under $3,000 and “extra expense” of $1,000 were expended for anything other than the preservation of and damage to leasehold improvements. Consequently the only item which we hold not to fall within the provisions of the lease is the Lanier Dictation System, and we amend the trial judge’s judgment to award plaintiff its replacement cost.

For the reasons assigned, the judgment appealed from is amended to award to plaintiff the sum of $900.88 as replacement cost of the Lanier Dictation System sued for by plaintiff. As thus amended, and in all other respects, the judgment appealed from is affirmed. Costs in this court are to be paid by the defendants; all other costs are to be paid by the plaintiff.

AMENDED AND AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, J.,

concurring and assigning reasons.

This is a tort case. The tort victim’s subrogee is attempting to recover the tort victim’s damages sustained in a fire admittedly caused by the tortfeasor. The tort-feasor’s defense is that it is not liable, either in contract or in tort, to repair the damages, because of an express contract provision. In rebuttal the tort victim’s subrogee asserts that a party cannot contract away in advance his tort liability for his own negligence or, if he can, may do so only in express terms.

I might agree with the latter contention if this were a suit by the lessee (tort victim) directly against the lessor (tortfeasor) in the absence of a contract provision requiring the lessee to carry fire insurance. However, the damages at issue involve only the lessee’s improvements which will ultimately be owned by the lessor, who therefore, has an insurable interest therein.

In the lease contract the lessor required the lessee to insure its own improvements against fire and to repair the improvements in the event the lease is continued pursuant to the fire clause after fire damage to the premises. The intent of this requirement was to assure not only that the improvements were covered by insurance, but also that the insurance proceeds from partial destruction by fire would be used to repair the improvements and thus benefit the lessor. In effect, the parties- intended the lessor to be treated as an insured under the required fire policy.

Inasmuch as the lessor had an insurable interest and could have been named as an insured to the extent of that interest in the fire policy (apparently at no additional cost because there was no additional risk), the subrogation claim of the fire insurer should be viewed in this case as if the lessor were an insured, since the parties to the lease (which should be read with the fire policy) intended the lessor to be a beneficiary of the fire policy and since there would be no detriment to the insurer if that intent had been carried out by naming the lessor as an insured in the policy required by the lease.

The fire insurer does not have the right to subrogation against its own insured when the insured negligently causes a fire. Since the lessor (who caused the fire) was an intended beneficiary, and in effect an insured under the fire policy pursuant to the intention of all parties (an intention with which the fire insurer presumably would have agreed, since there was no added risk), the fire insurer should not be entitled to subrogation against the lessor. The right of the lessee to grant subrogation against the lessor (with an insurable interest) was waived in the contract of lease.

      . See, for example, Forsyth v. Jefferson Downs, Inc., La.App., 152 So.2d 369; Celestin v. Employers Mutual Liability Insurance Co. of Wis., 387 F.2d 539 (5th Cir. 1968).

      . The two paragraphs of Appendix “A” pertinent to this case read in their entirety as follows:
      “Lessee shall maintain fire, extended coverage, windstorm and vandalism and malicious mischief insurance to the extent of the full value of all repairs, betterments and improvements made by Lessee to the leased premises.
      “Reference is made to the Fire Clause of this lease namely Lines 147 through 152 of the printed portion of the lease. It is expressly agreed that if this lease is cancelled pursuant to the first sentence of the Fire Clause or continued pursuant to the second sentence thereof, there shall be no responsibility on the part of Lessor to pay to Lessee any sum for damages to betterments or improvements made by Lessee on the leased premises or contained therein. It is further expressly agreed that Lessor’s obligation to repair the leased premises pursuant to the second sentence of the Fire Clause shall not include any obligation to repair or replace any better-ments or improvements, made by Lessee on the leased premises or contained therein. In the event Lessor becomes obligated to repair the leased premises pursuant to the second sentence of the Fire Clause Lessee shall be obligated to repair any betterments or improvements made by Lessee on the leased premises or contained therein.”


author: GULOTTA, Judge.

text:
    Mrs. Arthur P. BURDON v. Robert HARVEY and W. G. Wiegand, d/b/a W. G. Wiegand Company.
    No. 10949.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearings Denied July 21, 1980.

      Moliere, Flanagan & Arceneaux, James T. Flanagan, Metairie, for plaintiff-appellant.
    Babovich, McDowell & Bukaty, Wayne M. Babovich, New Orleans, for defendant-ap-pellee.
    Roy L. Price, Metairie, for W. G. Wie-gand, d/b/a W. G. Wiegand Co.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   GULOTTA, Judge.

This dispute arises out of an agreement to buy and sell real property. On April 23, 1977, plaintiffs agreed to purchase, from Robert and Charlene Harvey, property located on Veterans Memorial Boulevard in Jefferson Parish for the sum of $236,500. The agreement was conditioned on the purchasers’ ability to borrow $165,500 by a mortgage loan, with interest not to exceed 9%, payable over a 25-year period. The standard-form real estate agreement further stipulated that in the event the loan was unobtainable by the purchaser, seller or agent, within 45 days from date of acceptance, the contract would become null and void and the agent would be authorized to return the purchasers’ deposit in full. The acceptance date was April 23, 1977 and the expiration date for the 45-day period was June 7, 1977. The plaintiff-purchasers deposited $5,000 with W. G. Wiegand Company, the real estate agent in this transaction. The act was to be passed on or before June 27, 1977.

The purchasers’ efforts to obtain a loan from Weil Investment Company under the terms and conditions set forth in the agreement were unsuccessful. After subsequent inquiries by Dr. Burdon and his attorney to a bank and lending institutions in the area failed to result in a loan, plaintiffs discontinued their efforts and the date for passing the act of sale expired. Defendants subsequently sold the property to a third party for the sum of $225,000.

This litigation commenced when the Bur-dons filed suit against the Harveys and Wiegand for the return of the $5,000 deposit. In an answer and reconventional demand, the Harveys sought a judgment against plaintiffs in the sum of $31,500. This amount comprises the $5,000 deposit, together with the $11,000 difference between the sale price agreed upon between the Burdons and the Harveys and the price for which the property was subsequently sold, plus $15,500 in repairs allegedly made to the property in accordance with the stipulations contained in the buy-and-sell agreement. The Harveys, by a separate pleading, third-partied Wiegand for their $31,500 demand.

The trial judge dismissed plaintiffs’ suit and also dismissed the Harveys’ reconven-tional demand. However, he then rendered a judgment in favor of the Harveys against Wiegand in the sum of $5,000, with legal interest from date of judicial demand. In his reasons for judgment, the judge concluded that plaintiffs must “forfeit” the $5,000 because the seller had offered to “carry the financing”. He pointed out that plaintiffs continued to seek financing after the 45-day period and they were aware that the Harveys would provide the necessary financing. He finally determined that plaintiffs simply decided not to go forward with the purchase.

Plaintiffs, appealing, seek return of the $5,000 together with attorney’s fees. Wiegand, appealing, claims the trial judge erred in assessing legal interest from date of judicial demand on the $5,000 deposit. In an untimely answer to the appeal, the Harveys claim the trial judge erred when he denied their claim to damages and attorney’s fees.

It is clear that the Burdons made good-faith attempts, both before and after the expiration of the 45-day period, to obtain financing from lending institutions for the credit portion of the purchase price. The central issue is whether Harvey made a timely offer to finance the property within the terms and conditions set forth in the agreement. The trial judge concluded that the offer had been made and communicated to plaintiffs and that plaintiffs simply refused to accept the offer. We conclude that although offers were made prior to the expiration of the 45-day period to finance, the offer to finance under the same terms and conditions contained in the agreement was not communicated by Wiegand until after the 45-day period.

Both Robert Harvey and Wiegand testified that, several times prior to the expiration of the 45-day period, Harvey advised Wiegand he was willing to take a second mortgage, payable in one year, to facilitate the financing. Wiegand testified he communicated this offer to Burdon each time it was made by Harvey. Burdon, on the other hand, testified he did not recall receiving any offers of second mortgage financing from Harvey on or prior to June 7, 1977 (the last day of the 45-day period.)

Since these offers were not under the terms and conditions of the agreement, Burdon was not required to accept them. See Katz v. Chatelain, 321 So.2d 802 (La. App. 4th Cir. 1975); Woods v. Austin, 347 So.2d 897 (La.App. 3rd Cir. 1977).

Furthermore, according to Harvey, on June 3, 1977, four days before the expiration of the deadline, he called Wiegand’s office to ascertain if Burdon had acquired financing. He was advised that Wiegand was away on vacation but that Burdon’s latest loan application had been rejected. Harvey stated that he then called Wiegand in Florida, where the latter was vacationing, to advise him of this development. In that telephone conversation, Harvey once again offered to finance the property, but unlike earlier offers, this offer to finance was under the same terms and conditions as set forth in the agreement. He left it up to Wiegand to convey this offer to the Bur-dons.

Wiegand remembered receiving Harvey’s telephone call while he was in Florida, but did not call Burdon while he was on vacation. Instead, Wiegand waited until he returned from vacation and conveyed Harvey’s offer to the Burdons on June 11, 1977 (four days after the expiration of the 45-day period.) Burdon, on the other hand, testified that he was not informed of Harvey’s willingness to assist in financing until Harvey himself called Burdon, after the expiration of the 45-day period. This communication took place on June 23,1977. By this time, Burdon had decided he no longer wanted to purchase the property and refused Harvey’s offer.

This evidence considered, we find that Harvey did inform Wiegand prior to the 45-day expiration period that he would finance the credit part of the sale under the same terms and conditions set forth in the agreement. Nevertheless, Wiegand failed to timely communicate this offer to the Burdons. At the time of the expiration date for financing the sellers had not acquired financing under the terms of the agreement, although they made the required effort to do so.

In Liuzza v. Panzer, 333 So.2d 689 (La. App. 4th Cir. 1976), we stated that where a purchaser, through no fault of his own, is unable to obtain the loan stipulated in the purchase agreement, he is relieved from his obligation to purchase and is entitled to the return of his deposit. Accordingly, we conclude that Burdon is entitled to the return of the $5,000 deposit.

On the other hand, Harvey timely conveyed to Wiegand his willingness and ability to provide the necessary financing to the plaintiff-purchasers in accordance with the terms and conditions set forth in the agreement to purchase. The suspensive condition, i. e., “Should the loan stipulated above be unobtainable by the purchaser, seller, or agent . . .” (emphasis ours) was fulfilled by Harvey. Plaintiffs, had they learned of the offer within the 45-day period, would have been obligated to go forward with the purchase, since the offer was made under the same terms and conditions as stipulated in the agreement. Harvey timely communicated the offer to Wiegand, and it was through Wiegand’s fault that it was not timely conveyed to the Burdons.

Does Wiegand’s failure entitle the Har-veys to recover damages against him under their third-party demand? The Civil Code states that a broker is an agent for both parties, having a duty toward both, and is answerable for his fraud or fault. LSA-C.C. arts. 3016, 3017, 3018; Uhlich v. Medallion Realty, Inc., 334 So.2d 788 (La.App. 4th Cir. 1976), writ denied 338 So.2d 701. On the other hand, there is some disagreement whether a real estate broker is truly within the purview of the mandate articles of the Civil Code. See Leggio v. Realty Mart, Inc., 303 So.2d 920 (La.App. 1st Cir. 1974), writ refused, 307 So.2d 629; Fleming v. Romero, 342 So.2d 881 (La.App. 3rd Cir. 1977), writ refused 345 So.2d 50; Yiannopoulos, “Brokerage, Mandate, and Agency in Louisiana: Civilian Tradition and Modern Practice,” 19 La.L.R. 777 (1959) which suggests brokerage is a sui generis contract which may or may not coincide with the agency and mandate articles. The line of cases following that idea states that “the real estate broker’s duties are limited to those which can be analogically drawn from LSA-R.S. 37:1454 and from the customs and practices of real estate brokers in general.” Fleming v. Romero, supra, at 884; see also, Leggio v. Realty Mart, Inc., supra, and Amato v. Latter and Blum, Inc., 227 La. 537, 79 So.2d 873 (1955).

Our Supreme Court has stated that a broker’s duty includes the responsibility to convey offers between the parties, and he may be liable for damages for his failure to do so. Amato v. Latter and Blum, Inc., supra. It has not been conclusively established, however, whether the broker’s duty to convey offers includes offers for financing or only offers to buy and sell.

We cannot say a broker would be liable in every circumstance for his failure to transmit a seller’s offer to finance to the purchaser. In this case, however, we believe Wiegand’s duty was regulated under the terms of the agreement to purchase and sell, which was signed by the Burdons, the Harveys, and Wiegand’s representative. The agreement stated, “Should the loan stipulated above be unobtainable by the purchaser, seller or agent within 45 days from date of acceptance hereof, this contract shall then become null and void, and the agent is hereby authorized to return the purchaser’s deposit in full.” The agreement afforded the agent the right and indeed the responsibility to seek financing. In fact, Wiegand was handling the loan application with Weil Investments upon which the parties were relying to consummate the sale. Upon learning of the rejection of the application from Wiegand’s office, Harvey made the offer to the vacationing Wiegand of his willingness and ability to finance under the terms and conditions of the agreement. In this sense, therefore, W. G. Wiegand Company was integrally involved with efforts to obtain financing and Wiegand’s failure to convey Harvey’s offer to the Burdons constituted a breach of his obligations under the agreement, making him liable in damages to the Harveys.

Having concluded Wiegand is liable to the Harveys, we examine the extent to which they can recover from him. As stated earlier in this opinion, the Harveys’ answer to the appeal was late. Accordingly, this court cannot accord them greater relief than they received at the trial level. The original judgment found Wiegand liable to the Harveys in the amount of $5,000 plus legal interest from the date of judicial demand. Although the basis upon which we grant judgment in the Harveys’ favor differs from that on which the trial judge apparently based his decision, we find Robert and Charlene Harvey entitled to the same relief they received in the district court.

Accordingly, the judgment of the district court is reversed in part and affirmed in part, amended, and recast as follows:

It is hereby ordered, adjudged and decreed that there be judgment in favor of Jane Talmige, wife of/and Arthur P. Bur-don, and against William G. Wiegand, d/b/a W. G. Wiegand Company, and Robert and Charlene Harvey, decreeing a return of the deposit and ordering defendant Wie-gand to return to plaintiff the $5,000 placed on deposit with him by plaintiff.

It is further ordered, adjudged and decreed that the reconventional demand of Robert Harvey and Charlene Harvey against plaintiffs be dismissed.

It is further ordered, adjudged and decreed that there be judgment on the third party demand in favor of Robert Harvey and Charlene Harvey and against William G. Wiegand, d/b/a W. ,G. Wiegand Company, in the sum of $5,000 with legal interest from date of judicial demand. Each party is to bear their own costs in these proceedings.

REVERSED IN PART, AFFIRMED IN PART, AMENDED AND RECAST.

      . Under LSA-C.C.P. art. 2133 an appellee’s answer to an appeal must be filed within 15 days after the return day or the lodging of the record, whichever is later. In this case, the court reporter received two extensions on the original return date, so the last return date was Sept. 17, 1979. The record was lodged on that date. The Harveys’ answer to the appeal was not filed until Oct. 9, 1979, well over 15 days after the return date and date of lodging the record. Appellee has filed before us an affidavit from the court reporter, stating that he misinformed appellee’s counsel of the return date and this is why appellee’s answer was late. We do not consider the affidavit. Moreover, if we were to consider it, the affidavit does not justify the lateness of appellee’s answer. The order setting the final return date was available for appellee’s inspection and it was appellee’s responsibility to ascertain the extended return day and the day the record is lodged.

      . The trial judge erred in implying, in his reasons for judgment, that because plaintiffs continued efforts to obtain the loan after expiration of the 45 days, they waived the suspensive condition contained in the agreement. See Pullen v. Kinler, 375 So.2d 727 (La.App. 4th Cir. 1979).

      . LSA-C.C. articles 3016, 3017 and 3018 read as follows:
      “Art. 3016. The broker or intermediary is he who is employed to negotiate a matter between two parties, and who, for that reason, is considered as the mandatory of both.”
      “Art. 3017. The obligations of a broker are similar to those of an ordinary mandatory, with this difference, that his engagement is double, and requires that he should observe the same fidelity towards all parties, and not favor one more than another.”
      “Art. 3018. Brokers are not responsible for events which arise in the affairs in which they are employed; they are only, as other agents, answerable for fraud or faults.”

      . R.S. 37:1454 was amended and re-enacted by Acts 1978, Number 514, § 1, and this statute now appears as R.S. 37:1455.

      . We deny any entitlement to attorney’s fees by either the purchaser or the seller, because of our conclusion that neither purchaser nor seller was at fault in the failure to complete sale of the property. We note, however, that the provision in this agreement under which the parties claim attorney’s fees has been held by this circuit to apply only to agent’s commissions and not to recovery of attorney’s fees. See Lanusse v. Gerrets, 357 So.2d 45 (La.App. 4th Cir. 1978).


author: GARRISON, Judge. STOULIG, Judge,

text:
    Dolores Faciane, Wife of/and Joseph C. DeBATTISTA v. ARGONAUT-SOUTHWEST INSURANCE CO., et al.
    No. 10596.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 21, 1980.

      Abbott J. Reeves, Gretna, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer & Matthews, George E. Cain, William S. Penick, New Orleans, for defendants-appellees.
    Before GARRISON, CHEHARDY, and STOULIG, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, dismissing the action of Dolores Faciane DeBattista, wife of/and Joseph DeBattista for injuries sustained by Mrs. DeBattista, when she was administered allegedly unwholesome blood, while under treatment at Southern Baptist Hospital. Subsequent to the administration of the transfusion, Mrs. DeBattista contracted Type B Serum hepatitis. The defendants are Southern Baptist Hospital, Inc., d/b/a Southern Baptist Hospital, Southern Hospital Blood Bank, Dr. Ralph M. Hartwell, Dr. George A. Hauser, Argonaut-Southwest Insurance Co. and St. Paul Fire & Marine Insurance Co. After a hearing on the merits, the trial court dismissed plaintiffs’ case stating:

“ . . this Court does not find that there is any implied warranty in connection with the sale of blood. Said warranty this Court believes is protected by specific statute. This Court further believes that no evidence was adduced that convinces it there was negligence in the preparation of the blood, the infusion of the blood or the storage of the blood.”

From that judgment which we now affirm, Mr. and Mrs. DeBattista appeal.

On appeal, the plaintiffs-appellants raise the following issues alleging that the trial judge committed manifest error in failing to find:

1. That the blood bank owed a duty to inform those recipients of the blood processed and/or sold by it of the potential harms inherent therein in order to obtain fully informed consent from those recipients, and that Southern Baptist Blood Bank , hereinafter Blood Bank, failed to so inform Mrs. DeBattista.

2. That the blood bank which processed those units administered to Mrs. DeBattis-ta, failed to obtain her informed consent prior to the administration.

3. That Southern Baptist Hospital failed to obtain Mrs. DeBattista’s informed consent prior to the administration of the unwholesome units of blood.

4. That Mrs. DeBattista’s treating physician failed to obtain from her requisite fully informed consent to the transfusion procedure.

5. That the requirement of informed consent includes full disclosure of reasonably foreseeable harms of which serum hepatitis is one.

6. That he who creates the risk is responsible for the harm incurred thereby under Loescher v. Parr, 324 So.2d 441 (La., 1975) and C.C. Art. 2317.

7. That the blood bank owed a duty to Mrs. DeBattista to inform her that the blood administered was unwholesome and defective once that knowledge was manifest to the blood bank.

8. That the blood bank owed a duty to disclose the unwholesome transfusion to Mrs. DeBattista in order to aid in the mitigation of her damages.

9. That once it was known that the blood was in fact defective, Mrs. DeBattis-ta’s treating physician owed a duty to inform her of the defective nature of the blood administered.

10. That the patient’s right to self-determination shapes the boundaries of the hospital’s duty to disclose potential harms and alternative treatments and the harms inherent therein.

11. That the choice of treatment lies with the patient.

12. That implicit in the duty to inform the patient of all potential harms inherent in the transfusion procedure lies the duty to inform the patient that the blood drawn from a voluntary donor is statistically safer than blood drawn from a paid donor.

13. That Louisiana Civil Code Article 1764(B)(1), which abnegates an implied warranty of fitness and/or merchantability for the sale of human blood, blood plasma, or other human tissue or organs from a blood bank or reservoir of other tissues or organs, is unconstitutional, as a denial of due process, as overbroad in failing to operate equally and fairly to those engaged in like transactions, and vague, as a violation of public policy, and as a prohibited grant of special immunity under Article 3 § 12(7) of the Louisiana Constitution of 1974.

14. That the exclusion of blood as a product is inconsistent with public policy, societal needs, and the present state of the medical arts.

15. That blood is an inherently dangerous product which gives rise to the imposition of strict liability in tort.

16. That the blood bank failed to follow acceptable medical standards in screening donors and testing blood.

17.That Southern Baptist Hospital failed to follow acceptable medical standards in administering blood transfusions.

On appeal, defendants-appellees, Southern Baptist Hospital on its own behalf and on behalf of the Southern Baptist Blood Bank and their insurer, Argonaut-Southwest Insurance Co., argue:

1. That a blood bank is under no obligation to obtain informed consent from the recipient of the blood.

2. That the duty to obtain informed consent lies solely in the treating physician.

3. That neither the Hospital nor the Blood Bank were under any obligation to notify Mrs. DeBattista or her treating physician once it was determined that the blood administered was in fact unwholesome.

4. That neither the Hospital nor the Blood Bank were negligent in screening donors, testing or administering the blood.

5. That blood is not a product but a service, hence the sale of blood is not subject to the imposition of strict liability.

6. That blood is not subject to implied warranties of fitness and merchantability under express legislation contained in C.C. Art. 1764(B)(1).

7. That the potential risk of harm from contraction of hepatitis due to transfusions is outweighed by the benefits of blood transfusions, so that public policy dictates that in the absence of foolproof methods of testing for serum hepatitis, suppliers and prescribers of blood products should not be held liable.

8. That blood is not an inherently dangerous substance.

9. That C.C. Art. 1764(B)(1) is constitutional and does not create a prohibited special immunity.

The operative facts in the instant appeal are as follows:

On January 26, 1973, Robert Watson sold blood for $20.00 per unit to Southern Baptist Blood Bank. Robert Watson had a history of mental disease. He received a psychiatric rejection from the Army as he was classified 1-Y and diagnosed a schizophrenic. Additionally, he had contracted syphillis in 1971 for which he had been treated by the New Orleans Venereal Disease Clinic and which had been reported to the appropriate health authorities. Pursuant to the sale of blood made to Baptist, Robert Watson was interviewed by blood bank personnel. He also responded to a screening questionnaire. When asked if he had a history of syphillis, the questionnaire indicates that he responded in the negative. The questionnaire did not specifically ask if the potential donor had a history of mental disease. Robert Watson was accepted as a commercial donor for one unit of whole blood. This unit, Number S-0783, was tested on January 29, 1973. The results for hepatitis were negative. On February 14, 1973, unit Number S-0783 was administered to Mrs. DeBattista as part of her post-operative care in conjunction with a hysterectomy performed at Southern Baptist Hospital by Dr. Jefferson Steele. Mrs. DeBattista was discharged from Baptist.

Exactly 60 days later, on March 26, 1973, Robert Watson again attempted to sell whole blood to the blood bank. This second unit of blood returned positive results for the Type B Serum hepatitis test. On March 29, 1973, the blood bank notified Mr. Watson of the positive test results and suggested that he authorize his physician to obtain the test results. Accordingly, Watson’s test results were forwarded to his physician, Dr. Edward S. Hyman.

In the interim, Mrs. DeBattista began to experience severe symptoms of hepatitis. On April 16,1973, Dr. Steele diagnosed Mrs. DeBattista’s symptoms to be Type B Serum hepatitis,. She was readmitted to Baptist on April 18, 1973 where she remained an inpatient until May 2, 1973. In August of 1974, she began treatment as an outpatient at Oschner Clinic for Type B Chronic Serum hepatitis. Mrs. DeBattista is still an outpatient at Oschner Clinic.

While unit Number S-0783 is a suspected source of the hepatitis contracted by Mrs. DeBattista, she was also in contact with another potential source. Mrs. DeBattista’s sister, Joyce Faciane had contracted the same type of hepatitis at Southern Baptist Hospital one year prior to the date on which Mrs. DeBattista entered Baptist. Joyce Faciane was asymptomatic. Mrs. De-Battista testified that she visited her sister regularly throughout this period.

While Mrs. DeBattista’s history chart dated February 14, 1973 does not indicate hepatitis under the section on “Review of Systems,” the peculiar nature of Type B Chronic Serum hepatitis is such that she could have already contracted the disease but it would not have appeared on the HAA-CEP test then in use. Chronic Type B Serum hepatitis has an incubation period of 50-180 days. Thus, unit Number S-0783 which returned negative results could have been wholesome at the time administered, if Robert Watson had contracted hepatitis within the 60 day period to the second testing. Mrs. DeBattista may have contracted hepatitis from her sister either prior to the surgery or after. The HAA-CEP test has only a 30% effective rate when used to test the blood of asymptomatic carriers. Thus, it is apparent to this court that the plaintiff failed to establish by a preponderance of the evidence that unit Number S-0783 was unwholesome at the time of the transfusion and that it was the source of Mrs. DeBattis-ta’s injury.

While this court may not necessarily agree with the written reasons of judgment rendered by the district court, we find that the judgment is not manifestly erroneous in its results. Hence, for the reasons discussed above, the judgment of the district court is affirmed.

AFFIRMED.

STOULIG, J., concurs in the result.

STOULIG, Judge,

concurring .

I concur in the result.

      . New Orleans Blood Bank, Inc., hereinafter “N.O.B.B.”, a processor and wholesaler of biological products, which provided some blood to Southern Baptist Hospital, was originally joined as a co-defendant. N.O.B.B. was later dismissed when it was discovered that the unit at issue was drawn and processed by the Southern Baptist Hospital Blood Bank.

      . Joyce Faciane is party to the suit, Joyce Faciane, wife of/and John Martin v. Southern Baptist Hospital et al., CDC # 555-334.

      . “HAA-CEP” — Hepatitis Associated Antigen — Counterelectrophoresis (T. p. 83.)

      . Attorney’s Textbook of Medicine, by Roscoe N. Gray, M.D., Vol. 2, ¶ 38.34, Matthew Bender Publishing Co. (3rd Ed., 1977).

      .This court’s research has revealed that there currently is the “HIM” test which offers the definite possibility of being the solution to the problem of the detection of viral hepatitis carriers among blood donors.” Weaver, King & Brown, A Clinical Evaluation of the “HIM” Test, 49 American J. of Criminal Pathology 647, 651 (1968). Serum Hepatitis Through Blood Transfusions: A Wrong Without a Remedy? 24 Southwestern L.J. 305, 307 (1970). Hence, the outcome may be different under a proper case.

       Judge Pro Tempore as per assignment of the Supreme Court of Louisiana dated November 11, 1979.


author: GARRISON, Judge.

text:
    Arthur TROXCLAIR et al. v. OIL AND MARINE CORPORATION OF LOUISIANA, James M. Gill and Robert G. Claitor.
    No. 10907.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 21, 1980.
    Carville & Edrington, Jules A. Carville, III, Bernard J. Rice, III, LaPlace, for defendants-appellants.
    Vincent J. Sotile, Donaldsonville, Joseph Accardo, Jr., LaPlace, for plaintiffs-appel-lees.
    Before GULOTTA, GARRISON and HOOD, JJ.

       Honorable John T. Hood, the third member of the panel, died subsequent to oral argument. Because we are affirming the trial court’s judgment, we hand down this opinion with the signatures of the other two panel members.

   GARRISON, Judge.

This is an appeal from the judgment of the district court declaring plaintiffs Arthur Troxclair, Jean E. Troxclair, Noe D. Troxclair, Jr., Vincent Troxclair, Mrs. Elisha T. Mosely, Mrs. Patricia T. Anderson, Malcolm Troxclair Beadle, Thaddeus Trox-clair, Mrs. Bernadette T. Robert, Louis L. Troxclair, Joseph M. Troxclair, and Catherine T. Waguespack, hereinafter “the Trox-clairs” to be the owners of certain batture located between the Mississippi River and a levee described in the act of sale between the Troxclairs and Edna Lopez, wife of/and Ernest Amann passed on October 7, 1950. From that judgment which we now affirm, defendants Oil and Marine Corporation of Louisiana, James M. Gill, and Robert G. Claitor, who purchased the land conveyed to the Amanns from the Amanns on August 11, 1971, appeal.

On appeal, the defendants raise a number of issues. Our review, however indicates that there is one critical issue which is dispositive of this case.

Did that act of sale dated October 7,1950 convey the batture at issue to the defendants precursors in title?

We conclude that it did not. There is a variance between the October 7, 1950 property description and the prior description of the property, which is of special significance. The transfer to the Amanns contained the following reference to the disputed property:

“Said tract containing two hundred twenty-one and eighty-four hundredths (221.-84) acres net according to the plan of survey by H. E. Landry, C. E. and Surveyor dated February 24, 1934, less that portion taken it (sic) by the new Angelina Set Back Levee in 1945, . . ” (emphasis added)

Our review of the evidence presented, especially the deposition of Marcel Troxclair, confirms that the judgment below was not manifestly erroneous.

For the reasons discussed above, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Frank DAVIS v. LIBERTY MUTUAL INSURANCE COMPANY, Delta Field Erection Company, Inc. and Tenneco.
    No. 11151.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 21, 1980.
    Joel P. Loeffelholz, New Orleans, for plaintiff-appellant.
    William J. Branum, Metairie, for defendants-appellees.
    Before GULOTTA, GARRISON and HOOD, JJ.

       Honorable John T. Hood, the third member of the panel, died subsequent to oral argument. Because we are affirming the trial court’s judgment, we hand down this opinion with the signatures of the other two panel members.

   GARRISON, Judge.

This is an appeal from a judgment of the district court, dismissing plaintiff’s suit, which sought to enforce an oral contract of settlement. From that judgment, which we now affirm, plaintiff appeals.

On August 12, 1976, Frank Davis was injured in an explosion at his job site with Delta Field Erection, Inc. and Tenneco. On December 27, 1977, after prescription had run, counsel for Davis filed a petition seeking workmen’s compensation benefits and enforcement of an oral contract of settlement allegedly confected between counsel as representative of Mr. Davis, and a representative of Liberty Mutual Insurance Co. Defendants filed an exception of prescription against the claim for workmen’s compensation benefits, which was properly maintained by the trial court. Additionally, defendants filed an exception of no cause of action against the contract sought to be enforced, which exception was overruled by the trial court. Both counsel stipulated that the case be submitted on depositions. After taking the case under advisement, the court rendered judgment on August 29, 1979.

Prior to the filing of the suit, Davis’ attorney was engaged in on-going settlement negotiations with Barbara McCoy Lambert, Claims Supervisor for Liberty Mutual. In May of 1977, he made formal demand for settlement. He testified that Liberty Mutual made an offer of $5,000.00 in June which he refused. Additionally, he testified as follows:

“The Witness: . . . (S)ometime in very early August . . . (s)he came up with an offer of $10,000.00 less all medical payments that were made by them up to the date of the settlement, but we had not yet determined what all of the medical payments were because we had questions on . two medicals that should have been paid ... I called my client. We had several discussions after that, and we were holding it open to determine what the medicals were.
Mr. Loeffelholz:
In other words, the deal was struck and you were waiting—
Mr. Richaud:
Wait a minute, counsel.
The Witness:
The deal was not struck until September.”
Deposition, pp. 13-14. (emphasis added)

In the interim, prescription ran on August 12,1977 without suit having been filed so as to interrupt prescription.

Barbara McCoy Lambert, the adjuster handling plaintiff’s claim for compensation, testified as follows:

“Q: Now as far as you are concerned, when you spoke to Mr. Gertler on September 7, 1977 and he communicated to you that your offer was acceptable of $10,000.00 less the medical payments, when you hung up the phone, or when he told you in that conversation that your offer was acceptable; as far as you were concerned, at that moment, you had a settlement, did you not?
A: At the time that I had him on the phone, yes. As soon as I put it down, no. (Deposition p. 36.)
* * * * * *
Q: When David Gertler told you on the telephone that your offer, or whatever it was, was acceptable, in your mind, at that moment, not after you hung up the phone, but at that moment, in your mind, did you not feel that the deal was struck? A: That deal was struck . . . (Deposition pp. 40-41.)
Q: Who was the first person you talked to after you hung up the phone?
A: W. T. Walker.
Q: What did you tell him?
A: I told him I had just settled a case after it had prescribed.
Q: Why did you tell him?
A: That is essentially all I told him. Q: Why did you tell him that?
A: Because I had just settled a case that had prescribed.
Q: Did you go to him and tell him you had made a mistake, or that you don’t know what to do, or do you remember what, exactly, that you told him?
You had to, but my question is, did you feel so?
A: Was I upset?
Q: Yes.
A: Yes.
Q: I knew that it was wrong and I should not have agreed to the settlement because the case had prescribed.
Q: And why would that be wrong?
A: Because we did not owe anything, because he had not filed any suit to stop prescription, to interrupt the statute.” Deposition pp. 45-46 (emphasis added)

Our review of this case indicates that there was no agreement as to settlement prior to September 7, 1977 by which time the case had prescribed. Having so concluded, we find that the trial court was not manifestly erroneous in dismissing plaintiffs suit. Arceneaux v. Domingue, 365 So.2d 1330 (1978); Canter v. Koehring Co., 283 So.2d 716 (1973). Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . Deposition of David Gertler taken on July 6, 1979.

      . Deposition of Barbara McCoy Lambert taken on March 16, 1979.


author: STOKER, Judge.

text:
    Freida Bordelon MARTINEZ, Plaintiff-Appellant, v. POSNER, MARTINEZ, AND PADGETT et al., Defendants-Appellees.
    No. 7529.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Rehearing Denied July 16, 1980.

      J. Minos Simon, Lafayette, for plaintiff-appellant.
    Sandoz, Sandoz & Schiff, Leslie J. Schiff, Opelousas, Daniel J. McGee, Mamou, for defendants-appellees.
    Before FORET, SWIFT and STOKER, JJ.
   STOKER, Judge.

This is a contest by a former wife as plaintiff against her husband who was a member of a medical partnership and against the partnership. After the dissolution of the marriage between defendant Joseph P. Martinez, III, M.D., and plaintiff Freida Bordelon, the latter was offered a sum represented to equal one-half of Dr. Martinez’s interest in the medical partnership as of the date of dissolution of the marriage. The interest was allegedly comprised of accounts receivable and physical assets of the medical partnership in which Dr. Martinez had a one-third interest. Mrs. Martinez declined the sum offered and maintains that, upon dissolution of the marriage, she became owner of an undivided one-sixth interest in a continuing partnership consisting of Dr. Martinez and the two other physicians who made up the partnership.

This action is not a part of the separation-divorce proceedings between Dr. and Mrs. Martinez. The present action is an independent suit by Mrs. Martinez to compel the defendant doctors, as a partnership, to require the partnership to pay her one-sixth of the amount of the partnership funds disbursed to, and expended on behalf of, the members of the partnership since dissolution of marriage. This suit was filed on October 30, 1978. Plaintiff-appellant also complains that she was not allowed to make discovery relevant to her claim. Plaintiffs action was dismissed on a motion for summary judgment.

I.

The essential issue under consideration here is whether, upon dissolution of a marriage, one spouse will become a partner in a partnership to the extent of one-half of other spouse’s interest in the partnership.

The former wife urges that her former husband’s partnership interest is a community asset, acquired during the existence of the community, and is no different from any other community asset. She likens the interest to ownership in a corporation in which the interest is represented by shares of stock in the corporation which, upon dissolution of the marriage, vests in the former spouses in indivisión. The two situations are not analogous.

A partnership is made up of persons themselves, who associate through contract with one another. The pertinent articles of the Louisiana Civil Code on this subject are LSA-C.C. arts. 2801, 2802, 2803, 2805, 2809, and 2810. These articles provide as follows:

Art. 2801. Partnership is a synallag-matic and commutative contract made between two or more persons for the mutual participation in the profits which may accrue from property, credit, skill or industry, furnished in determined proportions by the parties.
Art. 2802. It may be made by all persons capable of contracting.
Art. 2803. It is regulated by the rules laid down in the title: Of Conventional Obligations, in all things not differently provided for by this title.
******
Art. 2805. Partnerships must be created by the consent of the parties. ******
Art. 2809. Property, credit, skill and industry being the sources from which the profits of a partnership may be drawn, each of the partners may furnish either or all of these, in such proportions as they may mutually agree.
Art. 2810. By credit, in the foregoing article, is meant, not only a reputation for responsibility as to pecuniary concerns, but also any quality or other circumstance that may acquire the good will of others, and contribute to the prosperity of the partnership.

It follows from the Civil Code articles quoted above that the only persons who can be members of a given partnership are those who contract to be partners. A partnership is an entity distinct from its partners. Edco Properties v. Landry, 371 So.2d 1367 (La.App. 3rd Cir. 1979). In view of these principles, Mrs. Martinez is not a member of the partnership in question.

A partner in a professional partnership brings into the partnership his knowledge, skill and labor. Physical assets, which may consist of a building, furniture, and equipment and other movables, merely assist the individual partners in rendering services to clients — in this case patients. Except for a pooling of talents and sharing of physical facilities, professional partners are no different from sole practitioners. As to a sole practitioner, it seems obvious that the spouse of the practitioner does not, by the act of marriage, acquire any ownership rights or interest in the knowledge, skill or laboring capacity of the practitioner. Nevertheless, whether a person practices alone or in partnership it is basic, of course, that once the practitioner puts the knowledge and skill to work, and thereby earns professional fees, such fees are community income. Due v. Due, 342 So.2d 161 (La. 1977). Also, some accounting must be made to the community, in case of the dissolution of a partner’s marriage, for any proportionate interest the partner-spouse may have in physical assets of the partnership acquired during the existence of the community.

We fail to see how being a member of a professional partnership changes the basic propositions referred to above. It is true that a partnership is a legal entity separate and distinct from the partners. However, a partnership is by no means the same as a corporation. A partnership and a corporation are two different and distinct legal entities; the rights and obligations of a partner are not at all similar to the rights and obligations of a stockholder in a corporation. Monteleone v. Airey, 57 So.2d 257 (La.App. Orl. 1952), writ denied June 2, 1952.

A corporation derives existence through being granted a charter by the state following compliance with certain forms by an incorporator or incorporators. Ownership, represented by shares of stock may be freely transferred without the consent of other shareholders (absent anything to the contrary in the corporate charter.) A share of stock in a corporation is but a fragmented portion of the ownership with rights regulated by the corporation and the corporate charter. A corporation does not consist of persons but is a fictional person itself which functions through agents deriving their appointment as an ultimate matter from the shareholders. The direct appointing authority usually is a board of directors elected by the shareholders in which corporate power is placed. Ordinarily, no contribution in “property, credit, skill or industry” is required of a shareholder. No contractual relationship exists between shareholders. No shareholder can act for or bind the corporation.

In a partnership, the relationship (1) is founded on the intent of the members to be partners, that is, their consent thereto, LSA-C.C. art. 2805, (2) is founded on a contract between two or more persons for a pooling of “property, credit, skill or industry” for “the mutual participation in the profits which may accrue” therefrom, LSA-C.C. art. 2801 and (3) is founded on the obligation of each partner to contribute in some way to the partnership enterprises, LSA-C.C. art. 2801 and 2809 and share in the losses and expenses, LSA-C.C. art. 2813. In the absence of an agreement to the contrary, each partner may act for the partnership and bind the partnership to others. LSA-C.C. art. 2870. A corporate shareholder, however, is limited to voting on certain basic propositions and in voting for directors in whom the ownership of the corporation is vested. A shareholder is not responsible for corporate debts or obligations.

From the foregoing reasons, we are of the opinion that no one may become a partner in a partnership except by being a party to the partnership contract. No one may be a partner without contributing, or participating, in the words of Civil Code article 2801, through furnishing property, credit, skill or industry. Therefore, we conclude that Mrs. Martinez did not become a member of the medical partnership upon the dissolution of her marriage contract with her husband. Dr. Martinez was the contracting party and the contract was personal to him. The contract did not bind Mrs. Martinez, and the other two physicians did not accept her as a partner. More important, the most valuable thing which the medical partners contributed to the partnership was their knowledge and skill. Without the ability to make such a contribution, Mrs. Martinez could not fulfill a fundamental obligation of a partner.

On the basis of the principles discussed, plaintiff must fail in her demand to be paid one-sixth of the amount of the partnership funds which have been disbursed (or expended) since the dissolution of her marriage with Dr. Martinez.

II.

We are not faced here with a situation such as was presented in Due v. Due, supra. Plaintiff is not seeking payment or accounting for one-half of fees earned by her former husband as of the date of the dissolution of the marriage. She is not seeking an amount equal to one-sixth of the partnership’s assets. In fact, plaintiff’s position rejects the notion that her rights are limited to such an interest. Her position, on the contrary, is that she is a partner owning a one-sixth interest. Therefore, she contends she should be paid on a continuing basis, the same as other partners, in any distribution of partnership funds, whether it be profits, payment of expenses or other distribution of funds. The allegations of plaintiff’s petition are that the partnership has made payments to the partners and has ignored her interest. Therefore, she alleges she is entitled to be paid this amount by defendants.

Under the circumstances, this case does not encompass the issue which was involved in Due v. Due. This is not a suit for what might be due the community accrued as of the time of dissolution of the community.

III.

Plaintiff emphasizes that in the separation-divorce proceedings her interest in community assets was recognized by judgment. She asserts she was recognized as an owner of a one-sixth interest in the medical partnership of Posner, Martinez, and Pad-gett. A judgment in the proceedings between Mrs. Martinez and Dr. Martinez appears in the transcript of the record of this case as Defendant’s Exhibit 2, Tr. 25-32. On transcript page 27, among the items listed as community property is item eleven which reads: “(11) Drs. Posner, Martinez & Padgett — partnership Vs interest [Listed as Item 12 in Inventory].” Standing by itself, we do not see that this item appearing in the judgment gives the plaintiff any rights other than to an accounting of the income accrued to the community as of the time of dissolution of the Martinez marriage and an accounting from Dr. Martinez for his share of the value of the partnership assets as outlined in Due v. Due, supra. Dr. Martinez has no direct interest in partnership assets as they belong to the partnership as a distinct entity separate from the partners.

IV.

We note in passing that the summary judgment granted in this case is not in contravention of the provisions of LSA-C. C.P. art. 969 which prohibit its application “in any case where the community, para-phernal, or dotal rights may be involved in an action between husband and wife”. The parties agree on this point. See Loeb v. Loeb, 252 So.2d 516 (La.App. 4th Cir. 1971); Thomas v. Otwell, 234 So.2d 475 (La.App. 3rd Cir. 1970) and Patrick v. Patrick, 230 So.2d 759 (La.App. 2nd Cir. 1970).

V.

Plaintiff-appellant urges that the trial court’s action must be reversed, if for no other reason than that the trial court judgment was in the form of a “partial summary judgment”. Plaintiff-appellant relies on Beckham v. Hartford Accident & Indemnity Company, 137 So.2d 99 (La.App. 3rd Cir. 1962). It is true that the judgment is so denominated in the title of the judgment, and the term “partial summary judgment” is employed in the decretal portion of the judgment. Considering the relief sought by plaintiff-appellant as compared to the thrust of the summary judgment, we are of the opinion that there was nothing “partial” about the summary judgment. The judgment was a pronouncement on all the issues in the case. There were only two issues: (1) plaintiff’s right to continue to receive income from the partnership after dissolution of her marriage as though she were a partner owning a one-sixth interest in the partnership, and (2) her right to discovery concerning earnings of and disbursements by the partnership since dissolution of the marriage. The summary judgment covered both these points. There is no relief demanded by plaintiff which has been left undisposed of. Hence, the summary judgment was not partial. The trial court properly rejected plaintiff-appellant’s motion, both to compel discovery and for imposition of sanctions and contempt.

VI.

On the question of the trial court’s refusal to allow plaintiff-appellant in making discovery, it follows that the action of the trial court was correct because Mrs. Martinez has no rights to protect. She is not in the same position as the former wife in Due v. Due, supra, who sought to discover information as to the partnership situation at the time of dissolution of marriage. The information sought in Due v. Due, supra, related to contracts acquired during marriage and indicia as to the value of such contracts and other relevant information. Here, Mrs. Martinez, considering herself as a partner after dissolution of marriage, seeks to discover information relative to earnings and distribution of funds to partners beyond the date up to which she had any interest in such affairs. The trial court properly dismissed plaintiff-appellant’s motion to compel discovery, for contempt and for expenses occasioned in the attempt to make discovery.

VII.

Defendant filed a motion to dismiss the appeal contending that the judgment rendered in the trial court was a non-ap-pealable interlocutory order. LSA-C.C.P. art. 968 provides, in pertinent part:

Judgments on the pleadings, and summary judgments, are final judgments and shall be rendered and signed in the same manner and with the same effect as if a trial had been had upon evidence regularly adduced. .

Clearly, the summary judgment rendered below is a final judgment and is therefore appealable. Defendant’s motion to dismiss is without merits. Beckham v. Hartford Accident & Indemnity Company, supra.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

      . Plaintiff names as defendants Posner, Martinez, and Padgett, an ordinary partnership and Gerald E. Posner, M.D., Joseph P. Martinez, M.D., and Ernest E. Padgett, Jr., M.D., as partners thereof. Plaintiff asks for judgment against the partnership and the individuals for their virile share of her demand.

      . On March 29, 1977, Mrs. Martinez obtained a judgment of separation. The judgment of separation dissolved the community regime retroactively to the date of the filing of the petition, December 28, 1976. A judgment of divorce was rendered June 19, 1978. A property settlement judgment rendered January 12, 1979, recognized Dr. Martinez’s 'A interest in the partnership as community property. An inventory of the partnership’s assets as of the date of the dissolution of the community valued Dr. Martinez’s ‘A interest in the partnership at $15,-180.38. A check for 'A of this amount was delivered to Mrs. Martinez, which she refused.

      . Cf. Stern v. Stern, 66 N.J. 340, 331 A.2d 257, 74 A.L.R.3rd 613 (1975).

      . Due v. Due, supra. See also Annotation, Evaluation of Interest in Law Firm or Medical Partnership for Purposes of Division of Property in Divorce Proceedings, 74 A.L.R.3rd 621 (1976) for discussion of the valuation of a spouse’s community interest in an on-going partnership.

      .The Louisiana Business Corporation Law is contained in LSA-R.S. 12:1 et seq. See the article “The 1968 Business Corporation Law of Louisiana” by Ben R. Miller, 29 La.L.Rev. 435 (1969) and 18 Am.Jur.2d, Corporations, particularly Sections 1 and 13.


author: SWIFT, Judge.

text:
    Washington DEMERY et al., Plaintiffs-Appellants, v. Sam NELKEN et al., Defendants-Appellees.
    No. 7554.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Rehearing Denied July 16, 1980.
    Paul Henry Kidd, Monroe, for plaintiffs-appellants.
    Sam Nelken, Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for defendants-appellees.
    Before FORET, SWIFT and STOKER, JJ.
   SWIFT, Judge.

The plaintiffs instituted this action seeking to nullify a judgment for partition by licitation and a judicial sale executed pursuant thereto. Made defendants were Gaha-gan Land and Timber Co., Inc., Russell Ga-hagan and Sam Nelken.

The facts are that on October 2, 1973, Gahagan Land and Timber Co., Inc., filed a suit for a partition by licitation of a tract of land located in Natchitoches Parish. It is undisputed that the company owned an undivided one-half interest in the property. The other one-half interest was owned in indivisión by the heirs of Henry Demery, all but one of whom (Mrs. Alice Demery Morgan) are the plaintiffs in the instant case. When the partition suit was filed all of the Demery heirs were absentees except Mrs. Morgan. She was a resident of Natchitoch-es Parish and was personally served. The court appointed Sam Nelken, an attorney, to represent the absentees and they were cited and served through him. A notice of the filing of the partition suit was published in accordance with LSA-C.C.P. Article 4624. No answer was filed by or on behalf of any defendant and a preliminary default was entered. The default was confirmed and the property was sold at public auction on January 23, 1974, to Gahagan Land and Timber Co., Inc., for the sum of $3,505.00. The absentee heirs’ shares of the proceeds of the sale were deposited in the registry of the court. It appears that Mrs. Morgan was paid her share.

The plaintiffs instituted this suit on January 22,1979, contending that they received no notice of the partition suit and first learned of the sale in June, 1978. The defendants filed exceptions of two and five years prescription, apparently under LSA-C.C. Articles 3542 and 3543 (nullity or rescission of partitions and public sales, respectively), and also exceptions of no right and no cause of action.

At the hearing on the exceptions there was admitted into evidence a copy of a letter dated November 7, 1973, from the curator ad hoc to all persons that were then heirs of Henry Demery, except Mrs. Morgan. It informed them of the pendency of the suit “so that you may take any action you deem necessary.” Copies were mailed to each heir at addresses furnished by Mr. Gahagan, who represented the land company. However, the only address given for five of the children of a deceased son was that of their sister in Atlanta, Texas. None of the letters were returned to the curator. Both Messrs. Gahagan and Nelken stated that they were contacted subsequently by a person from Atlanta who said he was an attorney and represented one or more of the heirs. According to Mr. Gahagan, this attorney appeared and bid on the property at the partition sale.

The trial judge sustained the pleas of prescription and dismissed this suit at plaintiffs’ costs. The latter have appealed.

Plaintiffs have assigned as error the judge’s decision that the prescriptions of two and five years were applicable rather than the one year prescription provided in LSA-C.C.P. Article 2004. Under this article,

“A final judgment obtained by fraud or ill practices may be annulled.
“An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

The plaintiffs argue that the partition judgment was obtained as a result of “ill practices” on the part of Mr. Nelken and Mr. Gahagan in failing to notify them of the partition suit, failing to conduct the proceedings contradictorily and failing to comply with other duties provided for an attorney appointed to represent an absentee by Articles 5091 through 5096 of our Code of Civil Procedure. Their position in this respect is that the requirements of these articles constitute matters of substance which must be complied with or else the legal proceeding is an absolute nullity, as distinguished from mere informalities or defects which are only relative nullities cured by the prescriptions of Articles 3542 and 3543 of our Civil Code.

We do not agree.

In the first place the record does not reveal that either Mr. Nelken or Mr. Gaha-gan committed any ill practice under Article 2004. According to the Official Revision Comment:

“(b)* * * *
“Although the courts do not sanction negligence or laches, they have not hesitated ‘to afford relief against judgments irrespective of any issue of inattention or neglect, when the circumstances under which the judgment is rendered show the deprivation of the legal rights of the litigant who seeks relief, and when the enforcement of the judgment would be un-conscientious and inequitable.’ ” (Emphasis added.)

The plaintiffs have not shown that either attorney knew of any better addresses for the Demery heirs than those used in the curator’s November 7, 1973, letter or that they did not exercise reasonable diligence to communicate with the defendants in the partition suit and inform them of its pend-ency. To the contrary, the evidence indicates that most if not all of the heirs received such a notice.

In addition, there is no indication that the Demery heirs were deprived of any legal rights. LSA-C.C.P. Article 4621 provides:

“When one of the co-owners of property sought to be partitioned is an absentee, the partition may be effected by Imitation, as provided in this Chapter, whether the property is divisible in kind or not.”

The petition contains no allegation that the plaintiffs had any defense to the partition suit of which they were deprived or that the price bid for the property at the sale was inadequate.

Although the code provides for a contradictory proceeding against the attorney for an absent heir, in our opinion he is not absolutely required thereby to contest the suit or interpose any defense unless he is aware of same.

Furthermore, LSA-C.C.P. Article 5098 specifically provides:

“The failure of an attorney appointed by the court to represent an unrepresented party to perform any duty imposed upon him by, or the violation by any person of, the provisions of Articles 5092 through 5096 shall not affect the validity of any proceeding, trial, order, judgment, seizure, or judicial sale of any property in the action or proceeding, or in connection therewith.
“For a wilful violation of any provision of Articles 5092 through 5096 an attorney at law subjects himself to punishment for contempt of court, and such further disciplinary action as is provided by law.”

For us to uphold the plaintiffs’ contention that the partition proceedings and public sale were absolutely null and void because of the failure of either of the defendant attorneys to perform any duty imposed by the Articles of our Code of Civil Procedure in the chapter dealing with attorneys appointed for unrepresented defendants would be in direct conflict with the provisions of Article 5098. We therefore conclude that the trial judge correctly sustained the exceptions of two and five years prescription filed herein by the defendants.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.


author: FORET, Judge.

text:
    Saule SCHEXNEIDER, Plaintiff-Appellee, v. UNITED GEOPHYSICAL CORP. et al., Defendants-Appellants.
    No. 7560.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Rehearing Denied July 16, 1980.

      Davidson, Meaux, Sonnier & Roy, John E. McElligott, Jr., Lafayette, for defendants-appellants.
    John Rixie Mouton, Lafayette, for plaintiff-appellee.
    Before FORET, SWIFT and STOKER, JJ.
   FORET, Judge.

The plaintiff, Saule Schexneider, brought this action to recover damages to his deep water well caused by the defendants’ seismographic operations. The trial court found for the plaintiff and awarded damages in the amount of $13,600.00. We amend and affirm.

In early 1978, the defendants, Atlantic Richfield, United Geophysical Corporation, and Joseph Faulk were engaged in seismographic operations on the plaintiff’s land. The tests were conducted by exploding one-pound shots in the ground and measuring the vibrations. One such test was made within 287 feet of the plaintiff’s deep water well which was used for irrigation purposes.

The deep water well was drilled in 1962 and was used to irrigate approximately 75 acres of land yearly. This land was used primarily for rice farming by the plaintiff’s son-in-law, Robert Landry.

Shortly before the seismic tests, Mr. Landry had used the irrigation well to flood approximately 20 acres of rice land for duck hunting. At that time, Mr. Landry testified, the well operated to its usual capacity with normal efficiency. The next time the well was used, several weeks after the seismic operations, the plaintiff discovered the well’s capacity was reduced in half.

The trial judge found that the detonation of the one-pound charge 287 feet from the well caused a diminution in the capacity of the well which rendered it unsuitable for irrigation purposes.

The defendants argue on appeal that the trial judge committed manifest error in his factual determination that the reduced productivity from the well was caused by the seismic operations. We disagree.

At the outset it must be observed that the doctrine of strict liability applies in this case. Roshong v. Travelers Insurance Company, 281 So.2d 785 (La.App. 3 Cir. 1973). LSA-C.C. Article 667.

In addition to the plaintiff and his son-in-law, Mr. Landry, who both testified that the well’s capacity had decreased by approximately one-half as a result of the seismic operations, the trial court heard testimony from Mr. Willie Arceneaux, vice-president of Stamm-Sheele, Inc., a well service and drilling corporation from Rayne, Louisiana.

Mr. Arceneaux, who has been in the deep water well drilling business since 1946 and supervised the drilling of the plaintiff’s well in 1962, visited and examined the plaintiff’s well on February 15,1979. He was familiar with the capacity of the well prior to the defendants’ seismic operations, having examined the well approximately three years before the seismic tests were made. Mr. Arceneaux testified that when he examined the well after the seismic operations it was producing from about one-half to two-thirds of its capacity. He further explained that when the capacity of a well is decreased by the well’s sanding up, the decrease comes about slowly and progressively, and the same applies when the decrease in productivity is caused by a falling water table. Due to the sudden decreased efficiency of the plaintiff’s well, Mr. Arceneaux ruled out both of those possible explanations for the trouble.

Mr. Arceneaux noted the presence of oil on the water which indicated that one of the seals in the well had been jarred out of place, permitting air to enter the pumping system and causing the decrease in volume. He explained that he had never seen this type of defect occur unless the seal was damaged by an explosion. This witness also testified that the mud and sand seen by Mr. Schexneider, when he used the well after the seismic operations, could only have been caused by a vibration in the formation which moved the unconsolidated material around the screen in the well.

Mr. Arceneaux further testified that in his opinion the seals in the well which had been jarred out of place could be replaced for the sum of $3,500.00 or $4,000.00. However, this would not eliminate the problem of the well sanding up. The only way to alleviate this problem would be to pull out the well and go back into the hole, which would be a costly operation, with no guarantee of success. Consequently, he recommended that this well be abandoned and a new well drilled which could be done at a cost of $15,000.00.

The defendants produced two witnesses to say that in their opinion the decreased productivity of plaintiff’s irrigation well was not caused by the seismic tests. However, an examination of their qualifications and testimony reveal that the trial court was not clearly wrong in accepting the testimony of Mr. Arceneaux over that of the defendants’ experts. The latter had no experience with irrigation wells, knew very little about the operation and component parts of irrigation wells, and the gist of their testimony was that they had not experienced any detriment to irrigation wells resulting from seismic tests. However, neither testified that they had ever detonated explosives within 287 feet of an irrigation well. On the contrary, Mr. Arceneaux, plaintiff’s witness, had a great deal of experience with irrigation wells, and considerable experience with such wells being damaged by seismic tests being conducted too close to such wells.

It is well settled that a trial judge’s factual determinations are entitled to great weight and should not be disturbed unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our review of the record reveals ample support for the trial court’s factual conclusions. We are satisfied that the defendants’ operations caused the damage to the plaintiff’s deep water well.

Defendants-appellants’ second contention on appeal is that the court erred in setting the amount of plaintiff’s damages. Speaking to this issue, the trial judge said:

“Mr. Arceneaux, expert for plaintiff, testified it would cost $15,000.00 to dig a new well and install a new pump in the event plaintiff’s pump could not be moved. The court takes notice of the fact that plaintiff’s well is seventeen years old and therefore reduces above estimate by $3,000.00 for depreciation leaving a balance of $12,000.00.”

Additionally, the court awarded $1,600.00 to the plaintiff representing the cost of additional fuel and oil used as a result of the well’s damaged condition.

In Roshong v. Travelers Insurance Company, supra, at page 789, we said:

“In awarding property damages to a party who has been injured through the legal fault of another, the primary objective is to restore the injured party in as near a fashion as possible to the state in existence at the time immediately preceding the injury. Several tests have been formulated in order to realize this goal. In Granger v. Bouillion, 220 So.2d 764 (La.App. 1 Cir. 1969), and in Davis v. Roberts, 194 So.2d 772 (La.App. 1 Cir. 1967), it was recognized that three tests have been utilized in determining damages. The first is the cost of restoration, if the damaged object cannot be adequately repaired. The second is the difference in value of the damaged property preceding and subsequent to the injury. The third is if the value before and after damage cannot be fairly determined or if the cost of repairs exceeds the value of the thing damaged, damages should equal the replacement cost less depreciation.
In order to maintain the flexibility necessary to promote substantial justice to the parties in each instance, the test for damages selected, if one is appropos at all, is the one best fitted to the particular facts of each case.”

We believe that the fairest method of setting damages in the present case is replacement cost less depreciation because there is no evidence of the value of the property prior to and after the damage. Gullatt v. Ashland Oil & Refining Company, 243 So.2d 820 (La.App. 2 Cir. 1971). The trial court, based on Mr. Arceneaux’s testimony, determined that the well could be replaced for $15,000.00. The court then subtracted $3,000.00 for depreciation and arrived at a balance of $12,000.00 for the cost of the new well. The trial court erred in not adequately figuring the amount of depreciation.

In Gullatt, supra, the plaintiff’s well was thirteen years old at the time it was damaged. There was evidence in the record which indicated that the well had a life expectancy of from ten to forty years. Based on that information, the court allowed for a reasonable depreciation factor of one-third.

The difficulty in figuring the exact amount of recovery to which the plaintiff is entitled does not mean that his demands should be rejected. In these circumstances, the court must set the amount of damages in the fairest possible manner. Roshong v. Travelers Insurance Company, supra.

The plaintiff’s expert, Mr. Arceneaux, estimated that the plaintiff’s well had a life expectancy of twenty-five to thirty years. Using the thirty-year figure, based on seventeen years of use, it follows that the normal life of the well has been consumed by approximately 56%. Accordingly, the cost of replacement should be 44% of the cost of a new well, or $6,600.00.

The trial court’s lesser amount for depreciation is in error because it places the plaintiff in a far superior position than he was in prior to the seismographic operations.

The trial court’s award of $1,600.00 for the cost of additional fuel and oil consumed by the well as a result of the well’s damaged condition was proper. Adding that amount to the $6,600.00, the correct amount of damages to which the plaintiff is entitled is $8,200.00, plus interest from date of judicial demand.

For the above and foregoing reasons, the judgment of the trial court is amended to reduce the total award to the plaintiff to $8,200.00, and as amended, is affirmed.

Costs of this appeal are assessed one-half to plaintiff and one-half to defendants.

AMENDED AND AFFIRMED.


text:
    S. J. PATTON, Plaintiff-Appellee, v. SILVEY COMPANIES and Palmer-Jones Timber Company, Inc., Defendant-Appellant.
    No. 7571.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Rehearing Denied July 16, 1980.
    Brittain & Williams, Joe Payne Williams, Natchitoches, for defendant-appellant.
    Lowther & Boone, Robert Lowther, Jr., Many, for plaintiff-appellee.
    Before FORET, SWIFT and STOKER, JJ.
   SWIFT, Judge.

In this workmen’s compensation case Palmer-Jones Timber Company, Inc. (Palmer-Jones) and its insurer, Silvey Companies (Silvey), defendants, appeal a judgment of the trial court which impliedly overruled their exception of prematurity and awarded benefits to the plaintiff, S. J. Patton, Sr.

The facts, for the most part, are undisputed. On May 9, 1978, during the course and scope of his employment with Palmer-Jones, the plaintiff was operating a tractor when a tree limb was thrown in some manner by the wheels of the tractor and punctured his abdomen. Surgery was performed on the day of the accident.

The defendant insurer received a report of the injury on May 10, 1978, and paid weekly compensation benefits without undue delay in the maximum amount of $130.00 for the period from May 9 through November 28,1978. The medical and hospital bills were paid as they were submitted and plaintiff was reimbursed for travel when the insurer was notified he had been to see his doctors.

Dr. Poimboeuf, the attending physician, saw Mr. Patton five times between June 27 and September 5, 1978, after which he sent short reports to the defendants on plaintiff’s progress. On September 5 Dr. Poim-boeuf referred Patton to Dr. V. M. John, who had performed the surgery, for a possible release to return to work. When Silvey learned of this it wrote to Dr. John and inquired as to when plaintiff would be able to resume his employment. By letter of October 18, 1978, Dr. John replied as follows:

“To whom it may concern: Jack Patton will be able to return to regular work on November 80, 1978. Thank you. From Dr. John’s Office.”

The plaintiff’s workmen’s compensation benefits were terminated in reliance on this report from Dr. John. However, no benefit was paid for November 29.

Mr. Patton returned to Dr. John’s office on November 30 complaining of abdominal pain. Dr. John then recommended three additional months of disability. He wrote the plaintiff’s attorney to this effect on December 14 and sent a similar letter to the defendants’ attorney on January 8,1979. It was not established that the defendants received any other notice of this change in Dr. John’s opinion or that any demand was made for the resumption of compensation payments prior to the institution of suit. Silvey’s adjuster testified that he would have resumed payment of compensation immediately on receipt of Dr. John’s latest report reflecting extended disability. That this was actually done, certainly supports his declared intention and indicates a desire on the part of the insurer to cooperate.

Suit was filed on December 8, 1978, and the trial was set for January 10, 1979. On that morning the defendants tendered workmen’s compensation benefits from November 28,1978, up to date, their previously filed exception of prematurity was referred to the merits and the court proceeded with trial of the case. Thereafter the trial judge concluded that plaintiff was totally and permanently disabled, the defendants were arbitrary and capricious in terminating compensation benefits as of November 28, 1978, and therefore plaintiff was entitled to the maximum benefits, statutory penalties and an attorney fee of $500.00. Later the court reopened the case and raised the attorney fee to $3000.00. The defendants have appealed from this adverse judgment and the plaintiff has answered, requesting an additional $2000.00 for his attorney’s services on the appeal. We reverse.

Defendants’ principal complaint is that the trial court erred in impliedly overruling their exception of prematurity.

The essential requirements in this regard to support a suit for workmen’s compensation benefits appear in LSA-R.S. 23:1314 as follows:

“Unless in the verified petition above referred to it is alleged (where the petition is filed by the employee or his dependents) that the employee or the dependents is not being or has not been paid, and that the employer has refused to pay, the maximum percent of wages to which petitioner is entitled under the provisions of this Chapter, . . . the presentation or filing of such petition shall be premature and shall be dismissed; when such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by the court, if it be shown that such allegations are without reasonable cause or foundation in fact, such petition shall be dismissed; and the question of whether or not such allegations of nonpayment or of failure to render medical attention or failure to furnish medical reports is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved.” (Emphasis added.)

Plaintiff argues that this provision does not apply in a case where defendants had notice of the injury and benefits were paid, but later terminated. We disagree.

In Jack v. Fidelity & Casualty Company of New York, 306 So.2d 806 (La.App. 3 Cir. 1975), this court was concerned with circumstances strikingly similar to those in this case. Concluding that the exception of prematurity should have been sustained, it said:

“In cases involving the termination and the later resumption of payment of compensation benefits, the decisive factors in determining whether the employer can maintain his exception of prematurity are the reasonableness of his action in ceasing to make payments, his promptness in resuming them, and the manifestation of a desire to cooperate in making the payments which are legally due the claimant. See Vidrine v. Argonaut-Southwest Insurance Company, supra [166 So.2d 287 (La.App.)]; Hadwin v. American Mutual Liability Insurance Company, 171 So.2d 776 (La.App. 3 Cir. 1965); Malone, Louisiana Workmen’s Compensation Law and Practice, 1951, Sec. 383, p. 490.”

The plaintiff further contends that the employer’s actions were unreasonable as the employer ceased weekly payments without sufficient justification. In the Jack case the employer discontinued benefits upon receiving reports from plaintiff’s doctors that the plaintiff could return to work. The defendant had no information which would tend to contradict those reports and it was concluded that defendant was justified in terminating the payment of benefits upon receipt thereof. Plaintiff argues, however, that in this suit it was defendants’ duty to ascertain whether, in fact, he did return to work on that date as Dr. John’s letter was of an “expected future condition.” Although written five weeks before the date Mr. Patton was to return to work, the language of Dr. John’s letter, that he would be able to do so, was clear and unequivocal. It is the opinion of this court that the defendants acted reasonably on the basis of this information.

Actually, through some error the benefits were terminated one day early (following November 28 rather than 29,1978). But we do not consider this to be of any significance. In Hadwin, supra, this court concluded that the suit was premature where compensation was paid at an incorrect rate for several months, but on learning of the error the defendant promptly paid the difference. That defendant’s failure to notice the error was found reasonable when it corrected the rate and brought up the deficiency promptly after becoming aware thereof, particularly in view of the insurer’s desire to cooperate.

Plaintiff also contends the defendants were unreasonable in waiting one month after the filing of suit to resume compensation payments. In Jack the defendant did not receive the doctor’s report of additional disability for six weeks after the suit was filed. Compensation payments were resumed three days later. Here, as in Jack, once the defendants received the doctor’s report of January 8, all past due payments were made promptly. The court in that case concluded, as we do here, that such action was not a “refusal” to pay the benefits due plaintiff.

We conclude that the actions of the defendants in regard to the termination and resumption of payment of workmen’s compensation benefits were reasonable and this suit is premature.

For the above and foregoing reasons, the judgment of the district court is reversed and judgment is rendered herein in favor of defendants, Palmer-Jones Timber Company, Inc., and Silvey Companies, against plaintiff, S. J. Patton, sustaining the exception of prematurity filed by defendants and dismissing this suit as of non-suit. Plaintiff’s request for an additional attorney fee is denied. All costs of the suit, including this appeal, are assessed to plaintiff-appellee.

REVERSED AND RENDERED.

      . LSA-R.S. 23:1314.