author: SAMUEL, Judge.

text:
    Rita M. CARR v. PORT SHIP SERVICE, INC., the Manhattan Life Ins. Company of New York, and the National Life & Accident Ins. Company.
    No. 11710.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1981.
    Rehearing Denied Dec. 18, 1981.
    Joseph S. Russo, Jefferson, for Rita M. Carr, plaintiff-appellee-appellant.
    Charles R. Maloney, New Orleans, for Port Ship Service Inc., defendant-appellant-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, R. Patrick Vance, New Orleans, for Manhattan Life Ins. Co. of New York, defendant-appellee.
    Christopher E. Lawler, Metairie, for The National Life & Acc. Ins. Co., defendant-ap-pellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SAMUEL, Judge.

Following the death of her husband, plaintiff instituted this suit for $25,000 allegedly due her on two group life insurance policies on which she was the named beneficiary and for penalty interest and attorney’s fees. Named defendants are decedent’s employer, Port Ship Service, Inc., National Life and Accident Insurance Company, and Manhattan Life Insurance Company.

Following trial, judgment was rendered against the employer for $20,000, and in favor of the two insurers, dismissing plaintiff’s claims as to them. Port Ship, the employer, has appealed. Plaintiff also has appealed from that part of the judgment releasing the insurers, and has answered the appeal of Port Ship praying for penalties and attorney’s fees against that appellant.

The record reflects the following:

Marcus Carr, the insured, was a full-time employee of Port Ship at the time of his death on July 21, 1976. During a period of that employment he had been covered by two group life insurance policies, the premiums of which were paid in full by the employer. One, a $20,000 policy purchased in 1971 or 1972 from Manhattan Life, was still in effect as a group policy at the time of his death, and the other, a $5,000 policy purchased from National Life in 1973, was cancelled in 1974. Following Carr’s death, plaintiff made prompt demand for payment of both policies. Payment was refused on the ground that the policies had terminated prior to decedent’s death, i.e., the entire National Life policy and the Manhattan Life policy insofar as decedent was concerned.

The $20,000 Manhattan Life policy, still in effect at Carr’s death, had been terminated as to him when the employer, on its April 1, 1975 quarterly report to the insurer, stated Carr had been terminated as an employee on January 28, 1975. The employer then received a refund of premiums paid on Carr retroactive to the termination date. Although Carr worked for the employer thereafter, the latter never reinstated him as an employee on the policy.

The trial court found decedent had no right in the $5,000 National Life policy because it had terminated in 1974 and notice was immaterial because conversion rights were not available to the insured. As to the $20,000 Manhattan Life policy, he found decedent erroneously was removed from this policy by his employer, which thus became a self insurer for the full amount of $20,000.

In this court Port Ship, the employer, contends it justifiably terminated decedent’s Manhattan Life insurance because of his erratic work history, and thus the judgment against it should be reversed. In support of this contention it introduced the testimony of its vice president, Bernard Gunther, Jr., together with decedent’s time sheets and payroll records.

The Manhattan Life policy provided coverage only for full time workers. However, a former employee could be reinstated after he had been re-employed full time for a period of six months. Decedent had been carried as a full time employee since the inception of the policy (in 1971 or 1972) until April 1, 1975, when, on its quarterly report to the insurer, Port Ship requested termination of decedent’s policy retroactive to January 28, 1975. This was effected by the insurer, and Port Ship received a refund therefor. The reason for termination was that plaintiff was off work from January 28 to February 25, 1975, although he had returned at that time and was working full time up to April 1 (when his insurance was terminated) and beyond, until July 7, 1975. He did not return to work thereafter until August 5, 1975, at which time he worked until August 25, 1975. Thereafter, he did not report to work for several months, returning in December, 1975. He worked from that last date until his death in July, 1976.

Gunther’s testimony was contradictory to some extent. At one point he stated plaintiff had not been a full time employee long enough to be reinstated, and at another point he admitted plaintiff had been working long enough, but had failed to sign any reinstatement papers. According to Gunther, plaintiff was notified of his policy termination by means of a conversation slip every time he was terminated, and he was terminated every time he did not show up for work, even if he was sick and failed to call in.

As we have said, the trial court found decedent was a full time employee in 1976 and the employer had improperly terminated his insurance. This is a factual conclusion which was supported by substantial evidence and we find no error in that finding.

In this court plaintiff appellant contends: (1) She is entitled to judgment in solido against the two insurers; and (2) she also is entitled to penalties and attorney’s fees.

Her first contention is based upon the argument that all of the defendants failed in their duty to notify her husband of termination of the policies. It is conceded the insurers did not notify decedent. The employer insists it fulfilled that duty.

Insofar as the National Life policy is concerned, as we have stated previously, it was cancelled in 1974 (by proper notification to the employer) for non-payment of premiums and at the request of the employer (following notice of the proposed cancellation) to terminate the policy.

As stated in Watkins v. Metropolitan Life Ins. Co., La.App., 174 So. 884, at page 888:

“It appears to be rather well settled in the jurisprudence throughout the country that in a policy of group insurance, the contract is one between the insurance company and the employer, and that the insured employee is only incidentally a party thereto. Especially is this so in cases where the premium is paid entirely by the employer, who then is at liberty to cancel the policy of his own volition and thereby terminate the rights of the employee or his beneficiary under the certificate which he holds. Austin v. Metropolitan Life Insurance Co., 142 So. 337, is a decision of one of our appellate courts in Louisiana which holds to that effect.” (Emphasis ours).

The trial court held that notice was immaterial under the National Life policy because the policy had not been in effect for five years, and thus no conversion privilege was available to decedent. Accordingly, he found no liability on the part of National Life. We agree with this finding and with the applicability of the above quotation from Watkins.

As to liability under the Manhattan Life policy, the record discloses this insurer provided the group Master Policy Holder (i.e., the employer) with insurance pamphlets and termination forms with conversion rights to be distributed to any terminated employees. The employer could contact the insurer for additional supplies. Gunther testified this form was given to decedent each time he was terminated.

Whether or not the decedent was notified is a question of fact. The trial court must have found he was not, and in view of all of the evidence in the record, we cannot say he was erroneous in so finding.

We agree with the trial court’s conclusion that the fault lies with Port Ship in terminating and then not reinstating decedent’s policy with Manhattan Life when, in fact, he was an employee, and thus should have been an insured under that policy. But it is difficult for us to understand how Manhattan Life could be held responsible for the actions of the employer over which it had no control and concerning which it had neither knowledge nor any reasonable means of acquiring such knowledge. However, we are required to follow the Supreme Court cases of Neider v. Continental Assur. Co., 213 La. 621, 35 So.2d 237, and Tabb v. La. Health Services & Indem. Co., La., 361 So.2d 862, which hold that the employer is considered the agent of the insurer and an employer’s omission of such insurance-related duty owed to the employee is attributable to the insurer.

Finally, we consider the question of the penalties and attorney’s fees claimed by plaintiff. Since she has appealed and answered Port Ship’s appeal, the entire matter regarding penalties and attorney’s fees (as against all defendants) is before us.

Plaintiff has referred us to LSA-R.S. 22:656 and 657, and LSA-R.S. 23:640 as authority for those penalties and attorney’s fees. Only R.S. 22:656 is applicable here. That statute is concerned with life insurance policies, and the other two statutes are not. Revised Statute 22:657 is concerned with health and accident policies, and R.S. 23:640 is under the Title “Labor and Workmen’s Compensation”, and is concerned with fringe benefits under collective bargaining agreements.

At the time this suit was instituted [1977] the applicable law was as follows:

“All death claims arising under policies of insurance issued or delivered within this state shall be settled by the insurer within sixty days from the date of receipt of due proof of death and should the insurer fail to do so without just cause, then the amount due shall bear interest at the rate of six per cent per annum from date of receipt of due proof of death by the insurer until paid.” (Emphasis ours).

It is to be noted the penalty provided refers only to interest; it does not include attorney’s fees.

Our jurisprudence is that where the insurer has a reasonable ground to believe its defense is valid its refusal to pay a claim is not considered “without just cause” subjecting it to penalties, even though subsequently that defense is not upheld by the court.

We do not award penalties for two reasons: (1) We find sufficient “just cause” to permit Manhattan Life to litigate the issue of its liability (litigation in which it originally was successful); and (2) the record is devoid of any evidence of the date of receipt of due proof of death by the insurer (or, for that matter, by the employer), proof of that date being essential because the 6% penalty interest provided by R.S. 22:656 cannot begin to run until that date is established.

For the reasons assigned, the judgment appealed from is affirmed in part and reversed in part, and it is now ordered that there be judgment in favor of plaintiff, Rita M. Carr, and against defendant, Manhattan Life Insurance Company, in the full sum of $20,000, such liability being in solid,o with Port Ship Service, Inc. In all other respects, the judgment appealed from is affirmed. All costs in both courts are to be paid by Manhattan Life Insurance Company and Port Ship Service, Inc.

AFFIRMED IN PART; REVERSED IN PART.

      . The insurer issued a notice of cancellation for non-payment of premium (presumably for the 1974-1975 term) and the employer responded requesting cancellation of the policy.

      . On this question the instant case is distinguishable from Neider v. Continental Assur. Co., 213 La. 621, 35 So.2d 237, mentioned later in this opinion. In Neider the employee contributed toward the premium and was entitled to do so even when he had no earnings from which such contributions ordinarily were deducted.

      . Richard v. Am. Federation of Unions, etc., La.App., 378 So.2d 564; Woodard v. Prudential Ins. Co. of America, La.App., 350 So.2d 948; Mistric v. Republic Nat’l. Life Insurance Company, La.App., 314 So.2d 472; Loubat v. Audubon Life Insurance Company, La.App., 170 So.2d 745; Finch v. Baton Rouge Production Credit Association, La.App., 154 So.2d 60.

      . She has appealed devolutively from the judgment dismissing her suit against the two insurers and answered the appeal of Port Ship praying that judgment against it be modified so as to award her penalties and attorney’s fees as to that defendant. She seeks an in solido judgment for penalties and attorney’s fees against all defendants.

      . Since amended by Act 477, Sec. 1 of 1980 to provide for penalty of 8% interest.

      . Mistric v. Republic Nat’l. Life Insurance Company, supra, note 2; Neider v. Continental Assur. Co., supra; Finch v. Baton Rouge Production Credit Association, supra, note 2.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    Roger REBSTOCK v. BIRTHRIGHT OIL & GAS CO., et al. Bussie REBSTOCK, et al. v. BIRTHRIGHT OIL & GAS CO., et al.
    Nos. 14304, 14305.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Writ Denied Dec. 14,1981.

      Edward T. Diaz, Henry J. Lafont, Jr., Golden Meadow, for plaintiffs.
    Christopher E. Janke, New Orleans, for Birthright Oil & Gas Co.
    Charles A. O’Niell, Jr., New Orleans, in pro. per. and for Gene McCutchin.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

The written reasons assigned by the trial judge herein thoroughly cover the facts and the law and properly dispose of all issues presented by this appeal. For the reasons therein stated, which we adopt as our own and attach hereto as an appendix, the judgment appealed from is affirmed, at plaintiffs’ cost'.

AFFIRMED.

APPENDIX

REASONS FOR JUDGMENT ON EXCEPTIONS OF NO RIGHT AND NO CAUSE OF ACTION

I. FACTS

On September 19, 1972, Roger Rebstock granted an oil, gas, and mineral lease to Birthright Oil & Gas Company on a certain tract of land owned by him, which measured approximately one-quarter arpent wide by forty arpents in depth containing approximately ten acres which property was located on the left or east descending bank of Bayou Lafourche near the Town of Golden Meadow, in Section 30, T 19 S, R 22 E, in Lafourche Parish, Louisiana. This lease was recorded in the Conveyance records of Lafourche in COB 481, folio 210, under entry number 361030 on November 7, 1972. This lease was for a primary term of three years, and provided for one-sixth royalties on oil and gas produced.

On September 19, 1972, Mrs. Avilia St. Pierre Rebstock and Bussie Rebstock granted two oil, gas, and mineral leases to Birthright Oil & Gas Company on tracts of land owned by them near the town of Golden Meadow, in Lafourche Parish, Louisiana. The first tract measures one-half arpent in width by forty arpents in depth and is located on the left or east descending bank of Bayou Lafourche in Section 30, T 19 S, R 22 E, and contains approximately twenty acres. The second tract measures one-fourth arpent front by forty arpents in depth and is located on the left or east descending bank of Bayou Lafourche, in Section 30, T 19 S, R 22 E, and contains approximately ten acres.

These two leases were recorded in the Conveyance records of Lafourche Parish, on November 7, 1972, in COB 481, folio 214, under entry number 361031, and COB 481, folio 218, under entry number 361032 respectively. Both of these leases have primary terms of three years and provide for one-sixth royalty payments on oil and gas produced.

On March 18, 1974, Birthright Oil & Gas Company assigned the three leases described above to Charles A. O’Niell, Jr., in so far as those leases affected the strata and horizons above the depth of 5,650 feet, subject to various reservations of overriding royalty interests. This agreement was recorded in the Conveyance records of Lafourche Parish, on March 25, 1974, in COB 509, folio 445, under entry number 384678.

During the later part of 1974, Gene McCutchin successfully completed a gas and condesate well between the depths of 1,509 and 1,521 feet on property belonging to A. J. Simoneaux and others located in Section 29, T 19 S, R 22 E, near the properties leased and described above.

On February 18, 1975, following publication and notice as required by law, the Commissioner of Conservation for the State of Louisiana held a hearing to determine whether or not to create a single drilling and production unit around the Gene McCutchin-A. J. Simoneaux No. 1 Well.

By order dated March 10, 1975, effective March 1,1975, the . Commissioner of Conservation force pooled portions of the properties described in the leases herein into a production unit containing approximately 477.4 acres for the production of the 1,500 foot sand, Reservoir A, in the Golden Meadow Field around the Gene McCutchin — A. J. Simoneaux No. 1 Well. Gene McCutchin was designated as the unit operator. Mrs. Avilia St. Pierre Rebstock and Bussie Reb-stock had 16.1966 acres of their property placed in the unit which represents 3.3927 per cent of the property in the unit. Roger Rebstock had 5.5004 acres in the unit or 1.1522 per cent of the property in the unit.

By instrument dated September 18, 1975, effective July 9, 1975, Charles A. O’Niell, Jr., assigned his interest in the leases herein question insofar only as they affected strata above 3000 feet to Gene McCutchin and Mrs. Alma Porter McCutchin, subject to certain reservations and terms. This agreement was recorded in the Conveyance records of Lafourche Parish, on October 8, 1975, in COB 549, folio 888, under entry number 413474.

By letters dated September 26, 1975, O’Niell sent division orders to Roger Reb-stock, Bussie Rebstock, and Avilia St. Pierre Rebstock, for execution. In reply to this correspondence, O’Niell received a letter from Bussie Rebstock dated October 5, 1975, stating as follows:

In reference to your letter of September 26,1975 with enclosures please be advised that I do not want anything to do with these papers as the lease on this property expired on September 19, 1975.
If you desire that I sign these papers and renew the lease I would appreciate very much you talking to me in person.
If you feel that you do not wish to speak to me I would appreciate your sending the release to this property. Please send this release as soon as possible so that I may register with the Clerk of Court in Thibodaux.

By letter dated December 14, 1976, O’Niell wrote to Mr. Edward T. Diaz, counsel for the Rebstocks as follows:

Am trying to understand the nature of the differences between the Rebstocks and me.
They granted leases to Birthright Oil & Gas Company dated September 19, 1972, recorded in C.B. 481, folios 214 and 218. Birthright assigned the leases to me insofar as they cover the rights to 5,560 feet, by instrument dated March 18, 1974, recorded in C.B. 509, folio 445. Thereafter the leases were included in Simoneaux gas unit, by order of the Department of Conservation. I emphasize: the unit was created by paramount authority — not by me as a voluntary unit under the lease provisions.
In Thibodaux yesterday, I saw that Birthright took new leases from the Rebstocks about a year ago. These leases have the status of “top leases” and do not affect the original leases insofar as my right (to 5,560 feet) are concerned, which are held by the Simoneaux gas production.
I am told that Birthright gave a release to the Rebstocks on the original leases when the second leases were taken. There in no such release on record in Thibodaux. Of Course, the release would have no importance as far as my rights— to 5,560 feet — are concerned.
Where do we differ? The facts are clear. The Rebstocks are entitled to royalties under one lease and rentals under the other. It seems to me they are in good shape.

In a letter received on June 20, 1978, Bussie Rebstock wrote to Gene McCutchin as follows:

just a few line to let you know that it gone on three years that Gene McCutch-in. A.J. Simoneaux Well No. 1 Produce Gas I like you to know that we got a share in that Well I hope We can get alone with that Problem because you know you don’t have a lease on our Property you force us in the Pool so I wish We can settle it without gone in court and if I get to go I see a lowyer I belive We don’t have to do that Please let me hear from you on this

By a letter dated June 27, 1978, O’Niell replied on behalf of McCutchin to Diaz, the attorney for the Rebstocks, as follows:

You client, Bussie Rebstock, has written Gene McCutchin direct. Copy of his letter is enclosed.
Our position is unchanged: our lease from Bussie Rebstock is valid and effective and royalties thereunder will be paid to him provided he signs a division order.

By a letter dated January 18, 1979, Diaz made a demand on behalf of Avilia St. Pierre Rebstock and Bussie Rebstock to John M. McCollam, attorney as follows:

Mr. Bussie Rebstock has requested that I write to you as a follow up to our correspondence.
The leases by Avilia St. Pierre Rebstock and Bussie Rebstock, in our opinion have expired.
We wish to further advise that according to the language in the leases, the property in question could not be pooled by you, and any pooling by the State would not inure to you, but to Mr. Rebstock.
The records reflect that the well is paid for so we do hereby request that your client pay 8/8’s of its production, after costs, to my clients.
Should this not be done on or before 5:00 O’clock P.M. February 15, 1979, I have been authorized to file suit to have this lease cancelled and to seek recovery of the 8/8’s of production plus appropriate damages.

The instant suits were filed on May 21, 1979, against Birthright Oil & Gas Company and Gene McCutchin. Both of these suits contended that because special clauses in both leases provide that production above ten thousand feet shall not be pooled with any other tracts, that the leases could only be maintained by actual production from the leased premises, or production below ten thousand feet from property with which the leased property was pooled.

Paragraph 10 of each suit alleges as follows:

That petitioners have not received any payments whatsoever for the production, attributable to their properties as a result of the forced unitization of their property by the aforesaid State Unitization Order, and for that reason the leases described herein are now expired and should be cancelled, because of the failure to product oil & gas, as provided in said leases, and in the alternative, should production be attributable to said leases because of the forced unitization, that the leases have terminated because of the failure to pay petitioner any portion of said production.

On August 24, 1979, Diaz wrote to McCutchin on behalf of the plaintiffs as follows:

I represent Bussie Rebstock, Mrs. Avilia St. Pierre Rebstock, and Roger Rebstock concerning the A. J. Simoneaux Well No. 1. and the production Unit created by Department of Louisiana Conservation Order No. 14-K, Lafourche Parish, Louisiana.
Enclosed is a copy of Law Suits filed by my client to compel cancellation of the leases on Birthright Oil Company.
Would you please advise why the 8/8 royalties due to the Rebstocks have not been paid to them? And, if any funds are being paid to any one other than the Rebstocks, who those parties are, and by what authority the funds are being paid.
I am in touch with the attorneys for Birthright, and unless we receive some explanation as to where the Rebstock funds are being paid, we will be compelled to file suit against you, as operator for an accounting.
My clients have always been disposed to amicable discussions, but not having heard anything from you they now want to press forward to collect their money.

On October 11, 1979, an Amending and Supplemental Petition was filed in suit number 39912, adding Charles A. O’Niell, Jr., as a party defendant. No such Amending and Supplemental Petition was filed in suit number 39911, and O’Niell is not presently a party to that action.

By checks dated January 23, 1980, Gene McCutchin tendered royalty payments from commencement of production through November 1979, in the amount of $497.82 to Roger Rebstock and $1,465.82 to Bussie Rebstock and Mrs. Avilia St. Pierre Reb-stock.

On March 7,1980, the plaintiffs in both of these matters filed Second Amending and Supplemental Petitions alleging complianc-es with R.S. 31:137 by notifying the defendants of non-payment of royalties in writing by letters of June 20, 1978, June 18, 1979, and August 24, 1979, and by the filing of suit.

II. TERMINATION OF LEASES FOR FAILURE TO DRILL ON AND PRODUCE FROM ACTUAL LEASE PREMISES DURING PRIMARY TERM

Each of the petitions allege that the leases between the parties contain the following provision:

Notwithstanding anything to the contrary herein contained, any reference to pooling of the property herein leased shall be contruded to mean any production below the depth of 10,000 feet. Specifically, any production above 10,000 feet shall not be pooled with any other tracts of land.

The plaintiffs claim that this clause means that unless there is actual drilling and production on the leased premises within the primary term or production in a pooled unit below 10,000 feet that the lease terminates at the end of the primary term, and that production in a pooled unit above 10,000 feet where the unit well is not located on the lease premises does not serve to maintain the lease in full force and effect.

The contract between parties is the law between them and the Courts are obligated to give legal effect to such contracts according to the true intent of the parties. Article 1945, Louisiana Revised Civil Code; Odom v. Union Producing Company, 243 La. 48, 141 So.2d 649 (1961). The provisions of contracts must be interpreted in relation to each other in order to give each the meaning that results from the entire agreement. Article 1955, Louisiana Revised Civil Code.

The clause immediately following the clause referred to above provides as follows:

Notwithstanding anything to the contrary herein contained, drilling operations on or production from a pooled unit or units established under the provisions of Paragraph 2 hereof or otherwise embracing land covered hereby and other land shall maintain this lease in force only as to land included in such unit or units. (Emphasis added)

Paragraph 2 of the lease agreement refers to voluntary pooling by the lessee. The “or otherwise” contained in this clause therefore must be construed as referring to a non-voluntary or force pooling situation. Paragraph 13 of the lease agreements specifically provides “The requirements hereof shall be subject to any State and/or Federal Law or order regulating operations on the land." Reading these provisions in pari materia the clause restricting pooling to production below 10,000 feet must be interpreted as applicable only to voluntary pooling.

It is well settled in Louisiana law that the orders of the Commissioner of Conservation supersede the contracts of the parties, are incorporated in the contracts of lease and govern the respective rights and obligations of the parties, and production from a force pooled unit operates as a substitute for performance of drilling obligations contained in a mineral lease. In Delatte v. Woods, 232 La. 341, 94 So.2d 281 (1957), a case originating in this jurisdiction, the Supreme Court of Louisiana made the following observations at page 287 of the Southern Reporter:

Plaintiffs do not contest the right of the State to regulate and control, or to prohibit the production of minerals; and in the light of the foregoing principles they do not contest the right of the State to impair the obligations of contracts under valid police powers such as was exercised by the Legislature in Act 157 of 1940 (now LSA-R.S. 30:2-30:20). The preliminary cause urged by all the plaintiffs for the cancellation of their lease is that the unitization of a portion of the leased premises did not prevent or relieve the defendant Woods from the performance of the drilling obligation which he expressly assumed.
It is firmly established in our jurisprudence that statutory authority is granted to the Commissioner of Conservation to create drilling development units and to integrate various tracts of various owners contained in such units, that the orders of the Commissioner supersede, supplement, replace and are incorporated in the provisions and obligations of contracts and leases relating to mineral development. LSA-R.S. 30:1 et seq. It necessarily follows that these orders become the law as between the parties in determining their respective rights and obligations.
Sec. 8(b) of Act 157 of 1940, as amended, LSA-R.S. 30:9(B), authorizes the commissioner to establish drilling units so as to prevent waste and to avoid the drilling of unnecessary wells. The unit contemplated means the maximum area that might be efficiently and economically drained by one well, the owner of such tracts to share rateably according to their ownership. Such units constitute a developed area as long as a well is located therein which is capable of producing oil or gas in paying quantities.
The rule is too well established in our jurisprudence to require citation that the drilling and production of oil from a unitized area constitutes an exercise and user of the mineral rights throughout the entire unit and operates as a substitute for performance of drilling obligations contained in a mineral lease covering any property or tract located within the unit. As pointed out by us in Hardy v. Union Producing Co., 207 La. 137, 20 So.2d 734, and in Crichton v. Lee, 209 La. 561, 25 So.2d 229, the lessor in such cases received the same revenue as he would have received if the well had been located on his lands and the lessor of any particular tract can receive no more even if the well were drilled on the land covered by his lease. (Emphasis added) See also Caldwell v. Humble Oil & Refining Company, 155 So.2d 228 (La.App. 2nd Cir., 1963).

The result thus reached is equitable because the lessee is precluded from complying with his contractual obligations by the order of the Conservation Commissioner. In the instant case the Commissioner entered the following order:

The separately owned tracts, mineral leases and other property interests within the unit established herein are hereby pooled, consolidated, and integrated in accordance with Section 10, Title 30 of Louisiana Revised Statutes of 1950, with each tract sharing in unit production in the proportion that the surface area of such tract bears to the entire surface area of said unit. Also, all operations on and production from such unit shall be considered operations on and production from each of the separate tracts within said unit and under the terms of each of the mineral leases affecting said tracts. (Emphasis added)

Accordingly, it is the opinion of this Court that the petitions of the plaintiffs state no cause of action in alleging that the leases terminated for failure of the lessee to actually drill and produce from the lease premises during the primary term.

III. TERMINATION OF LEASE FOR NON-PAYMENT OF ROYALTIES

Since the dispute between the parties to this litigation commenced on or after September 19, 1975, the Louisiana Mineral Code which became effective on January 1, 1975, is applicable. R.S. 31:137 provides as follows:

If a mineral lessor seeks relief for the failure of his lessee to make timely or proper payment of royalties, he must give his lessee written notice oí such failure as a prerequisite to a judicial demand for damages or dissolution of the lease. (Emphasis added)

R.S. 31:138 provides in part that “The lessee shall have thirty days after receipt of the required notice in which to pay the royalties due or to respond by stating in writing a reasonable cause for non-payment.”

R.S. 31:139 provides in part that “If the lessee pays the royalties due in response to the required notice, the remedy of dissolution shall be unavailable unless it be found that the original failure to pay was fraudulent.” This statutory scheme evidences a legislative determination that a mineral lessor does not have a right of action to judicially complain of the failure of his lessee to make timely or proper payments of royalties until he gives written notice of such failure to his lessee and allows him thirty days after receipt of the required notice to either pay the royalties due or state a reasonable cause for non-payment. Agurs v. AMOCO Production Company, 465 F.Supp. 154 (W.D.La.1979).

In their original petitions, the plaintiffs sought cancellation of their leases for failure of the lessee to actually produce from the leased premises during the primary lease term. In Paragraph 10 of their petitions, in the alternative, plaintiffs allege that the leases “have terminated because of the failure to pay petitioners any portion of said production.” Construing that language most favorably to the plaintiffs, this Court will interpret it to mean failure to pay royalties pursuant to Paragraph 6 of the lease agreement. The original petitions filed on May 21,1979, failed to properly show rights of action in the plaintiffs because they did not allege facts showing compliance with R.S. 31:137 and 138.

On March 7, 1980, Second Amending and Supplemental petitions were filed in both suits alleging compliance with R.S. 31:137 by letters of June 20, 1978, June 18, 1979, and August 24, 1975, and by the filing of the instant law suits. On or about January 23, 1980, prior to the time that the Second Amending and Supplemental Petitions were filed, Gene McCutchin tendered royalty payments for the period from commencement of production through November 1979 to the plaintiffs. Counsel for the plaintiffs admitted in oral arguments before the Court that the plaintiffs have declined to negotiate the tendered royalty payment checks.

The letter by Bussie Rebstock received by Gene McCutchin on June 20, 1978, does not make a demand for royalty payments pursuant to R.S. 31:137 and 138. A fair interpretation of this letter indicates that Reb-stock was reasserting the position that he took in his letter of October 5, 1975, wherein he claimed that the lease expired on September 19, 1975 for failure to obtain actual drilling and production on the leased premises.

The allegations of the Second Amending and Supplemental petitions referring to the letter of June 18,1979 from Edward T. Diaz to John M. McCollum must refer to the letter filed in evidence dated January 18, 1979. This letter did not make reference to the Roger Rebstock lease. It stated that it was the author’s opinion that the lease by Avilia St. Pierre Rebstock and Bussie Reb-stock had expired. It. further stated that any “pooling by the State would not inure to you, but to Mr. Rebstock.” The letter then requested the payment of 8/8’s of productions after costs to Mr. and Mrs. Bussie Rebstock. This letter did not demand payment of one-sixth royalties pursuant to Paragraph 6 of the lease agreement. This letter did not give the defendants’ thirty days in which to comply as required by R.S. 31:138. The letter is dated January 18, 1979, and advised if there was no lease cancellation and payment of 8/8’s of production by February 15, 1979 (a period of only twenty-eight days) that suit would be filed. The letter of January 18, 1979 did not properly comply with the requirements of R.S. 31:137 and 138.

The letter of August 24, 1979, was sent more than ninety days after the original petitions were filed, and accordingly was not sent as a prerequisite to judicial demand. This letter made demand for 8/8’s royalties due to the Rebstock’s and not royalties as provided for in Paragraph 6 of the lease agreement. This letter was directed to Gene McCutchin and advised him that “unless we receive some explanation as to where the Rebstocks funds are being paid, we will be compelled to file suit against you, as operator for an accounting.” Clearly this letter does not comply with R.S. 31:137 and 138.

The plaintiffs allege that the filing of these suits was a proper demand for payment of the oil and gas production in accordance with R.S. 31:137. A judicial demand is not a valid prerequisite under R.S. 31:137 to a judicial demand. R.S. 31:137 requires written notice as a prerequisite to judicial demand. R.S. 31:138 gives the lessee thirty days within which to respond to the written demand required by R.S. 31:137. The original petition demands cancellation

and not payment of royalties. Clearly this allegation is untenable.

None of the letters were directed to Charles A. O’Niell, Jr., or Mrs. Alma Porter McCutchin, who was also a party to the assignment between Charles A. O’Niell, Jr., and Gene McCutchin.

The original petitions claimed that the leases terminated on September 19, 1975, for failure of the lessees to actually drill and produce minerals from the leased premises. The claim for termination for nonpayment of royalties was not seriously made until the filing of the Second Amending and Supplemental Petitions in March, 1980. At that point in time, payments had been tendered by the checks were not negotiated by the plaintiffs.

The pleadings filed by the plaintiffs and the evidence introduced demonstrate that the plaintiffs have no right to proceed with this action because of their failure to properly comply with the requirements of R.S. 31:137 and 138.

IV. CONCLUSION

For all of the above reasons, judgment will be rendered in these matters sustaining the exceptions of no right of action and no cause of action and dismissing the petitions of the plaintiffs with prejudice at plaintiffs costs.

Judgment will be rendered accordingly,

Thibodaux, Parish of Lafourche, State of Louisiana, this 5th day of September, 1980.

/s/ Walter I. Lanier. Jr.

Judge Walter I. Lanier, Jr.

17th Judicial District Court Parish of Lafourche, Div. “A”

JUDGMENT

The above entitled and numbered cause éame up for a hearing, pursuant to a previous regular fixing and the Court after reviewing the pleadings, the evidence, the law and the memoranda submitted by the parties, and considering the law and the evidence to be in favor of the defendants, Birthright Oil & Gas Company, and Gene McCutchin and against the plaintiff, Roger Rebstock:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the defendants, Birthright Oil & Gas Company, et al., and against the plaintiff, Roger Rebstock, sustaining the peremptory exceptions of no right of action and no cause of action and dismissing the suit with prejudice at plaintiff’s costs.

JUDGMENT RENDERED, READ AND SIGNED in Open Court at Thibodaux, Parish of Lafourche, State of Louisiana, on this 5th day of September, 1980.

/s/ Walter I. Lanier. Jr.

Judge Walter I. Lanier, Jr.

17th Judicial District Court

Parish of Lafourche, Div. “A”


author: SCHOTT, Judge.

text:
    STATE of Louisiana in the Interest of L. S.
    No. 12558.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Rehearing Denied Dec. 18, 1981.
    Harry F. Connick, Dist. Atty. by Paul G. Mayoral, Asst. Dist. Atty., Juvenile Division, New Orleans, for appellee State of La.
    Pres Kabacoff, New Orleans, for appellant L.S.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

L. S. has appealed from a judgment adjudicating her a child in need of supervision pursuant to LSA-C.J.P. Art. 13. During the course of a fight with V. J. in a hall at the high school the two 15-year old girls attended, L. S. stabbed V. J. in the back several times and slashed her on the arms and head with a three-inch pocket knife. The issue is whether the trial court erred in his conclusion that the force used by L. S. to defend herself was reasonable and justified under the circumstances.

LSA-R.S. 14:19 provides as follows:

“The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.”

In interpreting this statute, the court in State v. Guinn, 319 So.2d 407 (La.1975) stated:

“Thus, for the force or violence to be justified, the use of such must have been reasonable (an objective standard) and apparently necessary (a subjective standard). Therefore, if a person believed force was necessary to protect himself against an offense against his person, and the force he used to protect himself was reasonable under the circumstances, then his use of force is justified.
“ ... In the instance where no homicide results, as is the case here, the use of force or violence in self-defense is justified when the amount used is reasonable and it is apparently necessary to use such force to protect oneself. . . . ”

The trial court acknowledged that L. S. considered the force she used as necessary so that the subjective test was met, but in finding that the objective standard of reasonableness was not met stated as follows:

“ . .. The only thing that I have ruled on I don’t believe that the force she used to repel Veronica who, I believe was the aggressor, was reasonable. She resorted to unreasonable force to defend herself in my estimation, and had she not had the knife on her, had she tried to fight her off, none of this would have happened and she would not have been found guilty....”

In Brasseaux v. Girouard, 269 So.2d 590 (La.App.3rd Cir. 1972) writs refused 271 So.2d 262, the court discussing the privilege of self-defense in tort actions made the following statement which is applicable to the instant case:

”... Where a person reasonably believes he is threatened with bodily harm, he may use whatever force appears to be reasonably necessary to protect against the threatened injury. Each case depends on its own facts, such as, for instance, the relative size, age and strength of the parties, their reputations for violence, who was the aggressor, the degree of physical harm reasonably feared and the presence or absence of weapons, Roberts v. American Employers Ins. Co., Boston, Mass., 221 So.2d 550 (La.App.3 Cir. 1969) and authorities cited at 554.”

We find the facts of this case to be as follows:

We have concluded that the trial judge’s conclusion that the force used by L. S. in this case was unreasonable is manifestly erroneous. We have arrived at this conclusion considering the facts already summarized as well as some additional facts in the light of a number of decisions on the subject. For instance, in Simms v. D’Avillier, 179 So.2d 707 (La.App. 4th Cir. 1965), the court found that a 57-year old man was justified in striking an unarmed young man in the head with a 16-inch piece of pine wood and noted that circumstances preceding the defensive action are important factors to be considered in deciding whether one has used excessive force in defending himself. The prior threat that V. J. and her gang were going to set upon L. S. at the school dance just three days prior was an important such circumstance. L. S. testified that she was afraid to go to school on the day of the attack and sought advice from her mother who advised her to go ahead. She was threatened by V. J. during the third period class, and she tried to avoid a confrontation by walking away from the gang when the class was over. The relative sizes of the two is a legitimate consideration, L. S. being only 5 feet tall and V. J. 6 feet. State v. Lee, 331 So.2d 455 (La.1976), Mullins v. Pence, 290 So.2d 803 (La.App. 1st Cir. 1974). Possibility of retreat is an important factor in determining whether force used was reasonable under the circumstances. State v. Collins, 306 So.2d 662 (La.1975). When L. S. left her class and walked away from V. J. and her gang she heard her name called and upon turning around was immediately attacked by V. J. who pounced on top of her and proceeded to beat her. Other members of the gang were in close proximity, there was a crowd of students in the immediate vicinity and in order to protect herself she took her pocket knife and began to strike V. J. with it. While this is perhaps the closest question to be decided it seems that circumstances did not require or permit L. S. somehow to make an exit from this situation when she was being overpowered by her attacker. It does not seem that retreat was possible under the circumstances, and her use of the pocket knife was justified.

In its brief, the State justifies the adjudication on the ground that its burden was not to prove beyond a reasonable doubt but simply by a preponderance of the evidence. C.J.P. Art. 73. In the application of this rule, however, we believe it more probable than not that the force used by L. S. to defend herself was not unreasonable and that the trial judge erred in holding otherwise.

The State further contends that the evidence in the most favorable light from L. S.’s point of view show that she was properly adjudicated a child in need of supervision under C.J.P. Art. 13(13)(e) in that her conduct, environment or associations were injurious to her welfare. However, there is nothing in this record to show that she had voluntarily placed herself in the company of V. J. and her gang. On the contrary, when warned to stay away from the school dance she did so in order to avoid a confrontation. She had no choice but to go to school and it was in that environment where she was attacked by V. J.

From a thorough review of this record, we have concluded that the adjudication is based on a finding which is manifestly erroneous and accordingly the judgment appealed from is reversed and set aside.

REVERSED AND RENDERED.


author: PRICE, Judge.

text:
    Wilma Lee HOLCOMB, Plaintiff-Appellant, v. Eugene Edward KINCAID, Defendant-Appellant.
    No. 14600.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    En Banc. Rehearing Denied Dec. 10, 1981.

      Fayard & Snell, by A. R. Snell, Bossier City, for plaintiff-appellant, Wilma Lee Holcomb.
    Bodenheimer, Jones, Klotz & Simmons by David B. Klotz, Shreveport, for defendant-appellant, Eugene Edward Kincaid.
    Lunn, Irion, Switzer, Johnson & Salley, by Harry A. Johnson, Jr. Shreveport, for third party defendant-appellee, State Farm Fire and Cas. Co.
    Before PRICE, JAPSER E. JONES, and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiff, Wilma Lee Holcomb, and defendant, Eugene Edward Kincaid, appeal from the judgment dismissing third party defendant, State Farm Fire and Casualty Company from this suit. The undisputed factual allegations in the pleadings show the following background for this litigation: plaintiff and defendant were married in 1964. After living together 12 years, the marriage became insupportable and plaintiff filed for a separation. She later filed for a divorce on grounds of adultery. Defendant then filed a petition to annul the marriage alleging that he had married plaintiff knowing he was not yet divorced from his first spouse. The marriage was annulled and plaintiff was found to be in good faith and therefore a putative wife.

Plaintiff then filed this suit for damages for the alleged fraud perpetrated on her by defendant and for certain acts of harassment by defendant and his new spouse which allegedly occurred after the annulment. Plaintiff alleged in her original petition and in supplemental pleadings that as a result of defendant’s conduct she suffered humiliation, embarrassment, and medical expenses, pain and suffering, loss of hair, loss of wages past and future, and mental anguish.

Initially State Farm provided legal counsel for defendant under its-homeowners policy issued to defendant containing liability coverage. Subsequently State Farm withdrew legal assistance. Defendant filed a third party demand against State Farm alleging that it was obligated to furnish him a legal defense and would be responsible to indemnify defendant for any judgment rendered against him up to the policy limits. State Farm then filed a motion for summary judgment on the basis that the damages plaintiff alleges she suffered were not covered by the policy, and secondly, that because plaintiff was an insured under the policy at the time the harmful conduct was committed she'was excluded from coverage, and therefore had no cause of action against State Farm. The trial court granted the motion and plaintiff and defendant appealed. For the reasons assigned we reverse.

State Farm contends that the allegations of injuries allegedly suffered by plaintiff from defendant’s actions are not within the coverage provided in the policy which reads as follows:

This company agrees to pay on behalf of the insured all sums which the insured shall be come legally obligated to pay as damages because of bodily injury or property damage, to which the insurance applies, caused by an occurrence.

State Farm relies primarily on the decision in Niekens v. McGehee, 184 So.2d 271 (La.App. 1st Cir. 1966), in which the court interpreted the term “bodily injury” as used in an insurance policy as follows:

In its usual significance the term “bodily injuries” is understood to mean hurt or harm to the human body or some member thereof by contact with some external force or violence either accidental or intentional. In this respect the terms “bodily injury” and “physical injury” appear to be synonymous considering each contemplates actual physical harm or damage to a human being. However, mental distress, unaccompanied by bodily injury resulting from the application of some external force to an individual, is not generally regarded as physical or bodily injury. It is, nevertheless, within the purview of the term “personal injuries” which classification is not confined to “physical or bodily injuries” but extends to injuries to one’s feelings and emotional distress or disturbance resulting from abuse, slander or libel, ....

State Farm takes the position that to have a “bodily injury” as intended by the subject insurance contract, there must be a physical or corporeal injury caused by the application of external violence. This argument would be more persuasive if it were not for the definition of “bodily injury” contained in its own policy which defines this term as follows:

1. “bodily injury” means bodily injury, sickness or disease, including care, loss of services and death resulting therefrom.

This expanded definition casts a shadow of uncertainty on the previously accepted definition of the term “bodily injury” as reflected in the Niekens case and creates ambiguity. Ambiguity of course must be construed against the insurer.

We find the circumstances presented here to be more properly controlled by the decision in Levy v. Duclaux, 324 So.2d 1 (La. App. 4th Cir. 1975), writ denied 328 So.2d 887 (La.1976), in which mental anguish and humiliation were found to be within the definition of “bodily injury” in an insurance policy. The court in Levy resolved this issue as follows:

We attach significance to the fact that the policy defines bodily injury to mean “sickness or disease” in the instant case. These broad terms must include mental distress which persists over a period of time and necessitates the taking of some medication and interferes with one’s performance at work. In this regard, the policy in question seems to be broader than it would have been had that definition not included the words “sickness or disease”. For instance, in 44 Am.Jur.2d 72, Insurance § 1223, it is said that “the words ‘bodily injury’ are commonly and ordinarily used to indicate disease,” apparently referring to policy definitions which do not equate bodily injury with sickness or disease.
We are unable to separate a person’s nerves and tensions from his body. It is common knowledge that worry and anxiety can and often do have a direct effect on other bodily functions. In the instant case, plaintiff’s humiliation brought physical manifestations, such as tears and hysteria, which were observed and attested to by numerous witnesses. She testified that she took medication thereafter and produced the testimony of her employer who corroborated her own testimony that her ability to perform her work as a typist was adversely affected by her mental condition after this incident. We have concluded that plaintiff’s humiliation, mental anguish, pain and suffering, were within the purview of coverage against bodily injury and defendants, as third-party defendants, are entitled to indemnity under the policy.

Plaintiff here alleges physical effects of her humiliation and mental anguish to be rash, falling hair, weight loss, and symptoms of stroke. The physical results which she alleges from defendants’s actions would appear to fit within the policy definition of bodily injury which includes sickness and disease.

State Farm also contends plaintiff’s allegations do not set forth that her injuries arose from an “occurrence” as required for coverage under the policy. It argues the actions of defendant were alleged to have been intentional and were therefore not “accidental” which would be necessary to meet the usually accepted connotation of an “occurrence.” The term “occurrence” has been construed by the jurisprudence in this state to have a broader meaning than the word “accident.” Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905 (La.1973). The definition within the policy itself extends its meaning to “including injurious exposure to conditions.” This language is broad enough to cover the allegations of harassment made by plaintiff in this instance.

The last issue is whether plaintiff is precluded from recovery under State Farm’s policy because she was within the exclusionary clause denying recovery to an insured. The exclusionary clause at issue provides that the policy does not apply “to bodily injury to an insured within the meaning of parts (1) and (2) of definition of insured.” In addition to the named insured, the policy also defines an insured for purposes of liability coverage to be the insured’s spouse if a resident of the same household.

It may well be that plaintiff would by excluded from coverage as an “insured” were she relying solely on the allegations of occurrences which took place while she was living with defendant. However, she has alleged in supplemental pleadings other incidents or occurrences causing her injury which happened after she was no longer living in the household with defendant. Therefore, the application of the exclusionary clause can only be properly determined on a trial of the merits.

For the foregoing reasons, the judgment sustaining the motion for summary judgment and dismissing the demands against State Farm Fire and Casualty Company is reversed and this matter is remanded for further proceedings in accordance with law.

Costs of this appeal are assessed to appel-lee.


text:
    Wilma Lee HOLCOMB, Plaintiff-Appellee, v. Eugene Edward KINCAID, Defendant-Appellant.
    No. 14702.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    En Banc. Rehearing Denied Dec. 10,1981.
    Bodenheimer, Jones, Klotz & Simmons by David B. Klotz and William E. Byram, Shreveport, for defendant-appellant.
    Fayard & Snell by A. R. Snell, Bossier City, for plaintiff-appellee.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, Wilma Lee Holcomb, brought this action for fraud against defendant, Eugene Edward Kincaid. The jury awarded her $200,000, and from this judgment defendant has appealed. For the reasons assigned, we reduce the amount awarded to $5,000 and otherwise affirm the judgment.

The allegations of fraud leveled against defendant by plaintiff in this matter arise out of an illegal marriage relationship and its subsequent dissolution after a period of some 12 years.

Plaintiff and defendant, residents of Cad-do Parish, were both married to different spouses in 1965 when they decided to get married. Desiring to obtain divorces from their respective spouses as quickly as possible, they moved to Arkansas to establish residence. On the advice of their mutual Arkansas attorney, plaintiff obtained her divorce first, and defendant went into court a month later to obtain his. On June 30, 1965, the judge took the petition for divorce under advisement. On July 2, 1965 plaintiff and defendant were married. Thereafter, on July 16, 1965, the Arkansas judge rendered a decree of divorce in favor of defendant.

In 1977 plaintiff filed for a separation. Defendant reconvened based on abandonment and plaintiff converted her suit to divorce based on adultery. Defendant then reconvened for annulment of the marriage. An annulment was rendered in 1977. At the annulment proceeding the trial judge found plaintiff to be a good faith putative spouse and awarded her alimony. She later received her share of the community property.

Plaintiff filed the present suit, alleging fraud by the defendant for concealing his marital status at the time of their marriage. She prayed for damages for lost wages and retirement pay, humiliation, embarrassment, indignation, and mental anguish and suffering. A jury awarded her a lump sum award of $200,000. Defendant appeals contending (1) plaintiff has no cause of action under La.C.C. Art. 2315; (2) the judgment is clearly contrary to law and evidence; (3) the trial judge erred in not giving an instruction that the jury should consider plaintiff’s failure to call witnesses to corroborate her testimony; and (4) the jury abused its discretion in setting the amount of the award.

On this appeal defendant contends the trial court erred in not sustaining his exception of no cause of action. He contends that Louisiana C.C. Arts. 117 and 118 provide for the exclusive remedies of putative spouses, and since plaintiff has received her share of the community property and is receiving alimony, she has received everything she is legally entitled to as a putative spouse. He further contends that to uphold plaintiff’s cause of action and to grant recovery would lead to a variety of tort suits between legal and putative spouses.

The Louisiana Supreme Court recognized that a C.C. Art. 2315 wrongful death action is a civil effect inuring to the benefit of a putative spouse of an invalid marriage. King v. Cancienne, 316 So.2d 366 (La.1975). The court has further ruled that an award for alimony to a good faith putative spouse could be based on C.C. 160 and C.C. 2315. Cortes v. Fleming, 307 So.2d 611 (La.1973).

The Louisiana jurisprudence has apparently never considered the specific issue here presented — a request for damages because of a fraudulent inducement to marry. However, other jurisdictions that have considered this question have recognized such a cause of action. For example, in McGhee v. McGhee, 82 Idaho 367, 353 P.2d 760 (1960), the Idaho Supreme Court made the following comment concerning this area of the law:

It is the duty of a person once married to know, before entering again into a marriage relationship, that the previous marriage has been dissolved. The appellant having proferred marriage to respondent and held himself out as one capaci-tated and qualified to enter into the marriage relationship and having entered into such relationship when he, in fact, had no such capacity, he therefore perpetrated a fraud upon respondent.
A woman also has such a cause of action (tort) against a man where she enters into a marriage with him, misled by his misrepresentations or concealment to believe that he has capacity to marry her, at least where she subsequently cohabits with him believing herself to be his wife.
Damages in an action by a woman against a man for fraud in inducing her to enter into a marriage are not limited to pecuniary loss, but cover change of single status, humiliation, disgrace, mental anguish, and deprivation of that conjugal society comfort, and attention to which one is entitled by reason of the change from single to marital status. Such damages are naturally somewhat speculative, depending on the circumstances of the particular cases and their computation is largely in the discretion of the jury.

The following cases also recognized a similar cause of action: Mashunkashey v. Mashunkashey, 189 Okl. 60, 113 P.2d 190 (1914); Morrill v. Palmer, 68 Vt. 1, 33 A. 829 (1895); Larson v. McMillan, 99 Wash. 626, 170 P. 324 (1918); Humphreys v. Baird, 197 Va. 667, 90 S.E.2d 796 (1956).

All of the cases cited above considered damages only for mental anguish; there was no mention of the offended party having other rights accorded by law for alimony or a division of community property. However, the Supreme Court of Michigan in Sears v. Wegner, 150 Mich. 388, 114 N.W. 224 (1907) held there was a cause of action for fraudulent inducement to marry, and awarded support payments for the putative wife and her children in addition to damages for mental anguish and suffering.

Since there is no Louisiana precedent to guide us in resolving this issue, we find the decisions in the other jurisdictions persuasive. Following those decisions, we find that plaintiff’s petition does state a cause of action. There is nothing in the wording of C.C. Arts. 117 and 118 that would preclude a cause of action under C.C. Art. 2315. We do not intend by our holding to create additional causes of action in the matrimonial relationship where the rights of the parties are prescribed and restricted by the Civil Code. Our holding is limited to those instances where a person has fraudulently induced another to enter into a marriage contract. There is no public policy reason for limiting a person’s right to recover from someone who concealed his marital status from him.

We next consider whether the jury was clearly wrong in finding defendant guilty of fraud. There is documentary proof in the record of defendant obtaining his final divorce decree after his marriage to plaintiff. At the annulment proceeding defendant testified he knew he was not free to marry plaintiff. We conclude there was ample evidence in the record to substantiate the jury’s finding of fraud.

Defendant complains the trial judge erred in not instructing the jury that it should consider plaintiff’s failure to call witnesses who could corroborate her testimony. The trial judge gave a general instruction that a party’s failure to call a witness who has some particular knowledge concerning an aspect of the ease creates a presumption they would have testified against him. We find the trial judge’s instruction was sufficiently broad to adequately instruct the jury on this issue.

The final issue for our consideration is whether the jury abused its much discretion in awarding plaintiff $200,000. Since it was a lump sum award, it is impossible to determine whether it was compensation solely for her mental anguish, or whether it allowed for lost wages and retirement pay. In any event, we believe any sum the jury might have allowed for lost wages and retirement pay was improper. Plaintiff was not working at the time of their marriage, nor did she ever hold a job during the 12 years of her marriage. It is highly speculative whether she would have resumed her teaching career even if defendant had not disapproved of her doing so. Regarding her claim of mental anguish, the evidence in the record shows that she suffered only temporarily from a nervous condition, and that her emotional upset could have been as much the result of the breakdown in her personal relationship with defendant as the learning that her marriage with defendant was a nullity.

The jury in this instance has clearly abused its discretion in awarding such a large amount on the evidence presented. Any sum over $5,000 would necessarily have to have been punitive in nature and not allowable under the law of this state. We therefore reduce the award to the sum of $5,000.

For the foregoing reasons, the judgment is amended to reduce the award to the sum of $5,000 and as amended the judgment is affirmed at appellant’s cost.


author: HALL, Judge.

text:
    Ray I. BYNOG d/b/a Painting Specialists, Plaintiff-Appellee, v. Ronald Victor ADLEY, Defendant-Appellant.
    No. 14669.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.

      Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for defendant-appellant.
    Richie & Richie by C. Vernon Richie, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff filed suit against the defendant homeowner to recover $2,655, the balance allegedly due under the terms of a building repair contract. The defendant answered the suit admitting the existence of the contract and partial payment of the total price but denying he owed plaintiff the balance of the contract price. Defendant also filed a reconventional demand alleging that plaintiff had breached the contract in that he failed to timely complete the work contracted for and had performed some of the services contracted for in an unworkman-like manner. Defendant, as plaintiff-in-re-convention, sought over $24,000 in damages allegedly occasioned by plaintiff’s delay and the faulty performance of the contract. After trial on the merits, the trial court rendered judgment in favor of plaintiff and against the defendant for $2,655 and rendered judgment on defendant’s reconven-tional demand against the plaintiff for $600. Defendant appeals and we affirm.

On appeal, defendant-appellant argues that the preponderance of the evidence clearly established that plaintiff failed to complete the work contracted for in a workmanlike fashion and thereby breached the contract; therefore, the trial court erred in awarding plaintiff judgment on the main demand. Additionally, defendant contends the trial court erred in denying him greater recovery on his reconventional demand for the damages occasioned by plaintiff’s failure to timely complete the work and plaintiff’s failure to complete some work in a workmanlike fashion.

Defendant wished to purchase his mother’s home in Shreveport and attempted to secure long-term financing from the Federal Housing Administration (FHA). Defendant secured a loan commitment for a loan at 10 percent but the FHA would not approve the loan until certain specified repairs on the home were completed and approved. Defendant secured a short-term loan from a local bank to cover the cost of the needed repairs and to pay off a preexisting debt of his deceased father and purchased the house on July 6, 1979. Defendant was then living in Mississippi and his mother continued to live in the house in Shreveport. Defendant secured estimates on the price of needed repairs from plaintiff and one other local contractor. Plaintiff’s estimate was prepared by plaintiff and one of his employees after defendant’s mother showed them what work she wanted done on the house. The requested repairs were itemized and plaintiff forwarded this list and the price he would charge to perform all the listed items to defendant in Mississippi. After several telephone conversations with defendant, plaintiff was told to begin work on the repairs. Several additional items of repair work were added to the initial list by agreement of the parties and the final contract price of $6,155 was agreed on.

Under the terms of the agreement, plaintiff contracted to perform repair and renovation work on the interior and exterior of the house. The required work on the interi- or included patching of sheetrock where needed and spot texturing where patched; caulking around all doors, windows, and cabinets; and painting of all ceilings, walls, and trim. Work on the exterior included replacement of asbestos siding where needed; replacement of rotted facial and trim boards; scraping of old paint and painting of the asbestos siding and all trim; caulking around windows, doors, and facial and trim boards; and glazing all windows. Plaintiff began work on the house sometime in late September or early October 1979.

On October 2, 1979, defendant secured an additional short-term loan from the bank for over $5,000. On October 9, 1979 the FHA loan commitment expired. During the time plaintiff was working on the house, defendant had to pay the bank substantial sums in interest on the loans he had secured.

When plaintiff had completed about half of the repairs, defendant paid him $3,500. The entire job was completed by May 1980 and plaintiff made demand for the balance of the contract price. Defendant refused to pay the balance because of the delay in completion of the job and because of his dissatisfaction with some of plaintiff’s work. This suit ensued.

Plaintiff sought the balance of the contract price; defendant reconvened alleging that plaintiff breached the contract and sought return of the $3,500, the cost of completing the repairs in a workmanlike fashion and reimbursement for the interest he had to pay for interim financing.

The contract involved in this case is a building contract as defined in LSA-C.C. Art. 2756. With regard to building contracts, LSA-C.C. Art. 2769 provides as follows:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

In Aireo Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961), the court summarized the law applicable to cases controlled by Article 2769 as follows:

“... Under this codal provision the law is well settled that when the contractor has substantially performed a building contract which he has breached, he is entitled in a suit on the contract to recover the contract price less whatever damages the owner may prove attributable to the breach.
“Substantial performance of the contract is essential to warrant the application of this rule of law. For if the breached contract has not been substantially performed, the contractor may not recover on the contract, but is limited to recovery on quantum meruit.” [footnotes omitted]

Whether there has been substantial performance so as to permit recovery is a question of fact. “Among the factors to be considered are the extent of the defect or rion-performance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the defendant of the work performed.” [footnote omitted] Aireo Refrigeration Service, Inc. v. Fink, supra.

The evidence of record clearly establishes that plaintiff substantially performed the contract. Plaintiff completed all the work he contracted to do and defendant has derived the use and benefit of plaintiff’s work. Therefore, plaintiff is entitled to recover the balance of the contract price less whatever damages defendant proves are attributable to the breach. Because the contract was substantially performed, defendant may not recover the $3,500 paid to plaintiff.

The extent of the claimed nonperformance is that some of the work was not completed in a workmanlike fashion and that defendant suffered damages because of plaintiff’s delay in completing the job. Plaintiff’s witnesses, the employees who worked on the job, testified that the work performed by each was done in a workmanlike manner. Defendant offered the testimony. of a supervisor in the remodeling business, qualified as an expert estimator in the remodeling business, to establish that plaintiff’s work was not satisfactory. This witness testified that plaintiff’s patching of the sheetrock in the interior of the home was not done well; that there were gaps in the caulking around the windows; that some rotted facial boards had not been replaced; that the replaced asbestos siding did not match the original siding; and that the glazing of the windows could have been done better. This witness also testified that it would cost $500 to $800 to repair these defects and get the house in shape for FHA approval. The trial court allowed defendant to recover $600 on his reconven-tional demand which would cover the cost of correcting defects in the plaintiff’s work.

Defendant argues, however, that he should also recover the costs of interim financing which he incurred because of plaintiff’s delay in completing the work. Defendant relies on the case of Master Maintenance Engineering, Inc. v. McManus, 292 So.2d 284 (La.App. 1st Cir. 1974), in which the court allowed a homeowner to recover the cost of interim financing because of the builder’s delay in completing construction of a home. In that case, however, the building contract entered into by the parties specified that the work was to be completed by a certain date. In the instant case, no time limit for completion of the work was established by the parties; nor did defendant inform plaintiff of the need for a quick completion of the work. LSA-C.C.Art. 1943 limits a debtor’s liability for breach of contract only to those damages which were foreseen or might have been foreseen at the time of contracting.

Defendant’s failure to notify plaintiff of his interim finance dealings could be sufficient to defeat defendant’s demand for recovery of the costs of interim financing. Additionally, it should be noted that much of the delay in completing the work must be attributed to defendant’s mother who was living in the house while the repair work was being done. The testimony establishes that on several occasions plaintiff’s employees were refused admittance to the house to do their work. Additionally, defendant’s mother often required plaintiff and his employees to work around her schedule which caused significant delay.

Finally, it must be noted that defendant seeks reimbursement for interest payments in the sum of $5,057.50, constituting interest plaintiff had to pay on two loans totaling approximately $21,300. Defendant testified he first secured a loan of $16,000, $9,000 of which he used to pay an outstanding debt incurred by his deceased father. The remaining $7,000 was to be used to pay for the repair work. The second loan defendant secured was, according to defendant’s testimony, to be used to buy a washer and dryer, curtains and other such items for the house. Clearly then, over two-thirds of the total indebtedness incurred by defendant cannot be deemed to be interim financing. We are unable to determine from the record what portion of the interest paid is attributable to actual interim financing. Defendant simply failed to establish with specificity the amount of this element of damages and, as noted above, failed to establish that plaintiff should have foreseen this consequence of a delay, and failed to establish that the delay in completing the work was attributable to plaintiff. For these reasons the defendant is not entitled to be reimbursed by plaintiff for the interest he had to pay on his loans.

In sum, the trial court did not err in allowing plaintiff recovery on the main demand because plaintiff established substantial performance of the contract. The judgment allowing defendant damages of $600 on his reconventional demand is also without error, defendant having failed to establish that plaintiff’s breach of the contract caused him to suffer greater damages.

For the reasons assigned, the judgment of the trial court is affirmed in its entirety. Costs of the appeal are assessed to the defendant-appellant, Ronald V. Adley.

Affirmed.

      . “Art. 2756. To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.”