author:
      PONDER, Justice Ad Hoc.
     LEMMON,' Justice,

text:
    STATE of Louisiana v. Jon HOGAN.
    No. 80-KA-2363.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Rehearing Denied Oct. 9, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Patrick Leitz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Ralph S. Whalen and Winston W. Purvis of Oestreicher & Whalen, New Orleans, for defendant-appellant.
   PONDER, Justice Ad Hoc.

Defendant appealed from his conviction for distribution of heroin in violation of LSA-R.S. 40:966A(1).

Defendant relies on several assignments of error. Finding merit in one we need not consider the others.

Defendant sold six packets of heroin to a narcotics agent and Olivia Steiner Esen-wein, a police informant, who had allegedly arranged the sale.

In the first prosecution, defendant raised the defense of entrapment, but was unable to obtain the presence of Mrs. Esenwein at trial. The district attorney did not supply Mrs. Esenwein’s name and address until ruled into court for contempt after substantial delays even after agreeing to furnish the name and address. After defendant learned the witness had moved to Arlington County, Virginia, at his request, the trial court certified the relevance and materiality of Mrs. Esenwein’s testimony to the Virginia court and requested her appearance pursuant to LSA-C.Cr.P. Arts. 731 and 741. Defendant was unaware of Mrs. Es-enwein’s absence until the day of the trial.

This court found that defendant had exercised due diligence in trying to obtain Mrs. Esenwein’s presence, that she probably would have appeared at trial had the proper procedures been followed by the state and that the state’s unexplained failure to provide defendant with Mrs. Esenwein’s name or address promptly had contributed substantially to the failure to appear. State v. Hogan, 372 So.2d 1211 (La.1979).

After remand, defendant again attempted to obtain Mrs. Esenwein’s presence. According to the trial court, the Arlington county district judge and sheriff’s office refused to honor or serve the Louisiana subpoena. The Louisiana trial court then asked the Arlington County sheriff to see if Mrs. Esenwein would voluntarily appear at the trial. The deputy reported Mrs. Esen-wein had moved and her whereabouts were unknown.

A motion to dismiss was denied. Defendant was again convicted of distribution of heroin and sentenced to life imprisonment. The trial court denied defendant’s motion for a new trial.

Defendant contends the state’s actions prior to the first trial have resulted in a denial of his constitutional right to compulsory process. We find defendant’s claim has merit.

A defendant has a right to have compulsory process for obtaining witnesses in his favor. U.S. Const. Amend. VI. The state violates this right when it arbitrarily denies a defendant the opportunity to put on the stand a witness whose testimony would be relevant and material to his defense. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1976). The government generally has no obligation to look for defendant’s witnesses unless the witness was made unavailable through the suggestion, procurement, or negligence of the government. Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); Singleton v. Lefkowitz, 583 F.2d 618 (2nd Cir.1978); United States v. Tsutagawa, 500 F.2d 420 (9th Cir.1974); United States v. Calzada, 579 F.2d 1358 (7th Cir.1978); “Confrontation and Compulsory Process; A Unified Theory of Evidence for Criminal Cases”, 91 Harv.L.Rev. 567 (1978).

While we are not unmindful of the state’s efforts to secure Mrs. Esenwein’s return for the second trial, informal, belated and inadequate though they may be, we agree with defendant the state’s actions prior to the first trial have caused her unavailability and have resulted in a denial of defendant’s right to compulsory process. Admittedly, Mrs. Esenwein has returned to Louisiana to testify in some other criminal cases, both before and since defendant’s first trial. There is even some suggestion that she may have returned to Louisiana to live. It is not unlikely that her appearance can again be obtained. The uncooperative and dilatory actions of the State in the first case led to the absence of the witness in the first trial. It is hardly consistent with due process and fair trial to allow the State to say the conviction should be affirmed because it now does not know the witness’s whereabouts, even though she has been a witness in other trials.

Accordingly, we reverse defendant’s conviction and sentence and remand the case for a new trial.

LEMMON, J., concurs and assigns reasons.

LEMMON,' Justice,

concurring.

I agree that the trial court erred in requiring defendant to go to trial without the presence of a key witness, when the prosecution was responsible for the witness’ failure to appear at the original trial. I therefore agree that the conviction should be set aside.

The ultimate question will be whether defendant is entitled to a dismissal of the charge because of the prosecution’s original inaction in the matter. Perhaps the trial court will order the prosecution to produce the witness or to dismiss the charge because of the initial violation of defendant’s constitutional right to compulsory process. If the witness is produced, then the question of this violation will probably be moot. But if the witness cannot be produced by either side within a reasonable time, then the questions raised by defendant’s motion for dismissal will be squarely before the trial court.

       Judges Ellis, Lottinger and Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Calogero, Dennis, Watson and Lemmon.

      . LSA-C.Cr.P. Art. 731:
      “The court shall issue subpoenas for the compulsory attendance of witnesses at hearings or trials when requested to do so by the state or the defendant. Clerks of court may issue subpoenas except as provided in Article 739. Amended by Acts 1980, No. 286, § 1.” LSA-C.Cr.P. Art. 741:
      “If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness shall be required. This certificate shall be presented to a judge of a court of record in the county (parish) in which the witness is found.”

      . Defendant filed a motion to dismiss the charge, which was denied, and the conviction ensued. Our judgment remanding the matter for a new trial is not truly responsive to defendant’s motion, but places the case in the correct status for possible further action.

      . The witness was on probation when defendant subpoenaed her, both for the original trial and for this trial. Under the terms of her probation the witness was required to return to Louisiana to give testimony or to have her probation revoked. Therefore, the witness in all probability would have appeared, but for the prosecution’s unexcused inaction.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Lionel PERKINS v. DEPARTMENT OF CORRECTIONS.
    No. 81-KH-1439.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Lionel Perkins, applying for remedial writ. Parish of Orleans. No. 245-115, Sect. “A.”

Denied. Relator must first apply to the district court.


text:
    STATE of Louisiana ex rel. Gregory SOCKWELL v. Honorable Bernard J. BAGERT, Judge Criminal District Court, Section “H”, Parish of Orleans, State of Louisiana.
    No. 81-KH-1478.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Gregory Sockwell, applying for writ of mandamus. Parish of Orleans. No. 250-914.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Stanislaus ROBERTS v. FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, State of Louisiana.
    No. 81-KH-1480.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Stanislaus Roberts, applying for writs of mandamus. Parish of Calcasieu. No. 4479-74.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Gary James JEFFERSON v. Tommy R. PERQUERON.
    No. 81-KH-1491.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Gary James Jefferson, applying for remedial writs. Parish of Bossier. No. 56685.

Denied. Relator must first apply to the district court.


text:
    STATE of Louisiana ex rel. William PHELPS v. Municipal Court Judge Eddie L. SAPIR and Criminal Sheriff Charles C. Foti.
    No. 81-KH-1502.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re William Phelps, applying for writ of habeas corpus. Parish of Orleans. No. 282-799.

Writ denied.


text:
    STATE of Louisiana ex rel. Walter BURNETTE v. Honorable Thomas TANNER, Judge St. Tammany Parish.
    No. 81-KH-1533.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Walter Burnette, applying for writs of mandamus. Parish of St. Tammany. No. 51015-17.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Gerard E. DAVE v. STATE of Louisiana.
    No. 81-KH-1580.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Gerard E. Dave, applying for writs of remedial writ. Parish of Orleans. Number Unknown.

Denied. Application is moot.


text:
    STATE of Louisiana ex rel. James M. GRANGER, Jr. v. Honorable Thomas TANNER, Judge St. Tammany Parish.
    No. 81-KH-1603.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re James M. Granger, Jr., applying for writ of mandamus. Parish of St. Tammany. No. 51015/6/7.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Joseph L. STEVENSON v. STATE of Louisiana.
    No. 81-KH-1650.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Joseph L. Stevenson, applying for remedial writs. Parish of Calcasieu. Nos. 3059-78 and 3060-78.

Denied.


text:
    STATE of Louisiana ex rel. Shelia JAMES and Linda Simeon v. STATE of Louisiana.
    No. 81-KH-1136.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Shelia James and Linda Simeon, applying for remedial writ from the criminal district court. Parish of Orleans. No. 250-108.

Denied.


text:
    STATE of Louisiana ex rel. Donald HUMBLE v. Judge BAGERT, Chief Judge, Orleans Criminal District Court, Division “B” and Mr. George Down, Attorney, Plaquemines Parish Indigent Defender.
    No. 81-KH-1651.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Donald Humble, applying for writ of mandamus. Parish of Plaquemines. No. 45377.

Denied.


text:
    STATE of Louisiana ex rel. Perry T. CURRY, Sr. v. STATE of Louisiana.
    No. 81-KH-1658.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Perry T. Curry, Sr., applying for remedial writs. Parish of Orleans. No. 269-666.

Denied.


text:
    Darlene F. MAYEUX v. INSURANCE COMPANY OF NORTH AMERICA, et al.
    No. 81-C-1671.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Darlene F. Mayeux, applying for certiorari, or writ of review, to the Court of Appeal, Third. Circuit. Parish of Avoyelles. No. 8194.

Denied.

DIXON, C.J., and CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Maurice G. SMITH v. STATE of Louisiana.
    No. 81-KH-1677.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Maurice G. Smith, applying for supervisory and remedial writ. Parish of Orleans. No. 267-354.

Denied. Trial court has ruled.


text:
    STATE of Louisiana v. Louis Charles HOPKINS.
    No. 81-K-1686.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Louis Charles Hopkins, applying for writs of certiorari, prohibition, and mandamus. Parish of Vernon. No. 27029.

Denied.


text:
    STATE of Louisiana v. Eudice EVANS.
    No. 81-K-1690.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Eudice Evans, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Concordia. No. 80— 2775.

Denied.


text:
    STATE of Louisiana v. Oscar PROCK.
    No. 81-K-1693.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Oscar Prock, applying for supervisory writs of certiorari or review. Parish of Jefferson. No. 78-950.

Denied.


text:
    STATE of Louisiana ex rel. Anthony LEE v. Frank BLACKBURN, Custodian.
    No. 81-K-1696.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Anthony Lee, applying for writs of certiorari on writ of habeas corpus. Parish of Calcasieu. Nos. 12304-77 and 2981-78.

Writ denied.


text:
    Paul T. LEMAIRE v. Eugene NOEL.
    No. 81-C-1715.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Paul T. Lemaire, applying for writs of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Vermilion. No. 8140.

Writ denied.


text:
    STATE of Louisiana ex rel. David TELL v. Oliver P. SCHULINGKAMP Section “F” Orleans Parish Criminal District Court.
    No. 81-KH-1786.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re David Tell, applying for writs of mandamus. Parish of Orleans. No. 273-193.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Johnny Lee SULLIVAN v. STATE of Louisiana.
    No. 81-KH-1792.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Johnny Lee Sullivan, applying for writ of mandamus. Parish of Orleans. No. 276-394.

Denied.


text:
    STATE of Louisiana ex rel. James CRIPPS v. Frank BLACKBURN, et al, Warden Louisiana State Penitentiary.
    No. 81-KH-1817.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re James Cripps, applying for writ of mandamus. Parish of Orleans. No. 203-494.

Denied. Moot.


text:
    STATE of Louisiana v. Freddie NASH.
    No. 81-K-1836.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Freddie Nash, applying for writ of review. Parish of Ouachita. No. M45682.

Denied.


text:
    STATE of Louisiana v. Larry DERRYBERRY.
    No. 81-K-1890.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Larry Derryberry, applying for writ of review, and stay order. Parish of East Baton Rouge. No. 9-80-525.

Denied.


text:
    STATE of Louisiana ex rel. Aubrey THOMPSON v. STATE of Louisiana.
    No. 81-KH-1935.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Aubrey Thompson, applying for remedial writs. St. John the Baptist Parish.

Denied.


text:
    STATE of Louisiana v. Lisa TURK, Ubaldo Cossio and Numa Philip Aucoin.
    No. 81-K-1942.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Lisa Turk, Ubaldo Cossio and Numa Philip Aucoin, applying for writ of certiora-ri or review. Parish of Ascension. No. 9-80-64.

Writ denied.


text:
    STATE of Louisiana v. E. J. CHAUVIN, Jr.
    No. 81-K-2013.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re E. J. Chauvin, applying for writs of review, certiorari and mandamus. Parish Court for the Parish of Ascension. No. 44721.

Writ denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. David STAFFORD v. STATE of Louisiana.
    No. 81-KH-2188.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re David Stafford, applying for remedial writ. Parish of Rapides. No. 162-360.

Denied. Relator must first file a motion for an out of time appeal in the district court.


text:
    Marie Hymes Prevost, wife of and Maurice PREVOST v. YOSEMITE INSURANCE COMPANY.
    No. 81-C-1705.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Yosemite Insurance Company, applying for writs of certiorari or review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 400 So.2d 223.

Denied.

BLANCHE, J., would grant the writ.


text:
    Kenneth BOAGNI, Sr. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 81-C-1697.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Kenneth Boagni, Sr., applying for writ of review and/or certiorari, to the Court of Appeal, Third Circuit. Parish of St. Landry. 399 So.2d 813.

Denied.


text:
    Donald R. CHAUSSE, Randolph P. Cazes, Jr., Jimmy Drummond, Individually, etc. v. SOUTHLAND CORPORATION, et al.
    No. 81-C-2315.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Donald R. Chausse, Laurie P. Cazes, and Marguerite Kay Drummond, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 400 So.2d 1199.

Denied.


text:
    Donald R. CHAUSSE, Randolph P. Cazes, Jr., Jimmy Drummond and Amelia Jo LaSalle v. SOUTHLAND CORPORATION, et al.
    No. 81-C-2284.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Southland Corporation, et al., applying for writ of certiorari and review, to the Court of Appeal, First Circuit. East Baton Rouge Parish. 400 So.2d 1199.

Denied.

CALOGERO, MARCUS and BLANCHE, JJ., would grant the writ.


author: CALOGERO, J.,

text:
    STATE of Louisiana v. Gary BELLANGER.
    No. 81-K-2246.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Gary Bellanger, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 57133.

Denied.

DIXON, C. J., and DENNIS and LEM-MON, JJ., would grant the writ.

CALOGERO, J.,

concurs in denial of the writ. Evidence that relator may not be the biological father in this case is inadmissible. See State v. Manning, 390 So.2d 494 (La.1980).


text:
    STATE of Louisiana ex rel. Alton A. BELGARD v. STATE of Louisiana.
    No. 81-KH-2375.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Alton A. Belgard, applying for writs of certiorari. Parish of Rapides. No. 198955.

Denied. No abuse of discretion.


text:
    STATE of Louisiana ex rel. Michael FERRAND v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1241.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Michael Ferrand, applying for writ of habeas corpus. Parish of Orleans. No. 247-769.

Granted.


text:
    STATE of Louisiana ex rel. Roy Kenneth HENNICK v. Franklin E. WOODRUFF.
    No. 81-KH-1535.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Roy Kenneth Hennick, applying for supervisory and remedial writs. Parish of Washington. No. 33230.

Granted. An evidentiary hearing is ordered on the voluntariness of the plea.


text:
    STATE of Louisiana ex rel. Sterling GRAY v. COURT REPORTER CRIMINAL DISTRICT COURT “B” PARISH OF ORLEANS.
    No. 81-KH-1676.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Sterling Gray, applying for writs of mandamus. Parish of Orleans. No. 270-967.

Writ granted. The District Court is ordered to furnish relator with a copy of the Boykin transcript.


author: DOMENGEAUX, Judge. GUIDRY, Judge, PER CURIAM.

text:
    Lelah B. KLEAS, et al., Plaintiffs-Appellees, v. M. L. MAYFIELD, et al., Defendants-Appellants.
    No. 8323.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1981.
    Orders on Denial of Rehearing Sept. 23, 1981.

      G. William Jarman of Sanders, Downing, Kean & Cazedessus, Baton Rouge, and Preston N. Aucoin, Ville Platte, for defendants-appellants.
    Beyt & Beyt, Raymond A. Beyt, Lafayette, for plaintiffs-appellees.
    James T. Skelly, New Orleans, David R. Stevenson, Houston, Tex., and Fruge & Vidrine, Jack C. Fruge, Ville Platte, for defendants-appellees-appellants.
    Before DOMENGEAUX, GUIDRY and CUTRER, J.,
   DOMENGEAUX, Judge.

Plaintiffs-lessors, Lelah Mae Broussard Kleas and Charles L. Broussard, sought and received a judgment in the trial court ordering defendants, M. L. Mayfield and Gulf Oil Corporation, as record owners, to grant a recordable release of an oil, gas, and mineral lease granted by their now-deceased mother, Lelah Gournay Broussard, on January 9, 1940, on her undivided interest in certain lots in that tract of land in Evangeline Parish known as the Easton Townsite. The trial court found that this lease expired under its own terms in 1967 when the unit well holding the lease, the Easton Townsite Unit No. 2 well, went off production and no effort was made to restore production to the well within sixty days as provided under the terms of the lease. Additionally, plaintiffs were awarded a judgment for attorney’s fees against Mayfield and Gulf because of their failure to grant a recordable release after due demand. These fees were set by the court in the amount of $7,500.00.

Plaintiffs’ claim for damages, however, was denied. This claim consisted of interest on working interest funds due plaintiffs from that well known as the Inexco Oil Company-J. Reed No. 1 Well which well is located on property adjacent to the Easton Townsite and presently unitized therewith. Those funds have been suspended by the operator of the well, Inexco Oil Company, ostensibly because of the dispute- between Mayfield and the plaintiffs.

This case was tired on the merits on April 25, 1980, with the written opinion filed on June 30, 1980, and a judgment rendered on September 16, 1980.

THE ISSUES

Mayfield has appealed to argue that (1) the lease has not expired and should therefore not be released; (2) the doctrine of equitable estoppel should have been applied to prevent the plaintiffs from complaining that the lease had terminated; (3) attorney’s fees should not have been awarded; and (4) the depositions of two non-parties should have been excluded from evidence.

Gulf has appealed from the court’s determination that it is liable to plaintiffs for attorney’s fees. Gulf has also appealed from the court’s dismissal of its third-party demand against Mayfield, wherein Gulf maintains that Mayfield is obliged to hold Gulf harmless in the event that judgment is rendered against Gulf in this suit.

Plaintiffs answered the appeal seeking a reversal of that portion of the judgment denying plaintiffs’ damages. Plaintiffs also seek an increase in the amount of attorney’s fees for services rendered at trial and for additional services rendered on appeal.

For the reasons assigned below, we affirm all portions of the judgment except that we reverse the trial court’s dismissal of Gulf’s third party demand against Mayfield, and render judgment in Gulf’s favor on that demand.

FACTS

On the trial of this case all parties entered into a Joint Stipulation of Fact. It was stipulated that Lelah Gourney Brous-sard, plaintiffs’ mother, granted to one S. P. Benckenstein on January 9, 1940, an oil, gas and mineral lease covering her undivided interest in certain lots in the Easton Town-site for a primary term of five years. That lease was assigned to the defendant, Gulf, on February 12, 1940. Pursuant to the pooling provisions contained in the lease, Gulf created a declared unit on November 14, 1941, by pooling the lease with other leases in the area. This unit covered a portion of the Easton Townsite and was designated as the Easton Townsite Unit No. 2. It was stipulated that operations were commenced on land contained in the unit but not covered in the disputed lease, which resulted in the successful completion of a well on December 12,1941. Gulf thereafter began producing the unit well, labeling it the Easton Townsite Unit No. 2 Well.

It was established that Gulf maintained and produced the unit well until 1951, at which time it sublet the leases in the unit, including the disputed lease, to ■ Mayfield, Gulf retaining in that act a right to receive before payout a “net yield” and thereafter a “net profit” from the operation of the leases.

DID THE LEASE EXPIRE?

The January 9, 1940 lease provided:

U * * $
2. Subject to the other provisions herein contained, this lease shall be for a term of five (5) years from this date (called ‘primary term’) and as along thereafter as oil, gas, sulphur and other mineral is produced from said land or land with which said land is pooled hereunder.
* * * * * *
6. ... if after discovery of oil, gas, sulphur or other mineral, the production thereof should cease from any cause, this lease shall not terminate if Lessee commences additional drilling or reworking operations within 60 days thereafter

It was established by the testimony of plaintiffs’ witness, Mr. Charles G. Dannelly, former Production Superintendent for May-field, and the man in charge of the Easton Townsite Unit No. 2 Well located in the Pine Prairie Field, that by August of 1967, the Townsite Well was producing less than three barrels of oil per day. Efforts to increase oil production, first, by pumping gas from an extraneous source into the well thereby forcing the oil out, and, second, by installing a “volume chamber” in the well, met with very limited success. Mr. May-field testified that any gas in the well had long since been depleted by this time.

Due to this low rate of production, Mr. Dannelly recommended and Mr. Mayfield agreed to abandon the Easton Townsite Unit No. 2 Well as non-commercial. As indicated by the testimony of Mr. Dannelly, it was costing more to pump gas into the well than the value of the oil that was being produced. Thus, on August 1, 1967, Mr. Dannelly wrote the Department of Conservation requesting that-the allowable for the unit well, which is the authority to produce granted by the Department of Conservation, be cancelled effectivé August 1, 1967, as the well had declined below an economic level. As a result of this letter, the allowable for the unit well was can-celled on August 7, 1967, effective August 1, 1967, due to the well being off production.

By letter to Mr. Mayfield dated August 1, 1967, Mr. Dannelly confirmed their earlier conversation in which he recommended the abandonment of the unit well and informed Mr. Mayfield of the effective date of the well’s abandonment. Pursuant to the 1951 assignment from Gulf, Mr. Mayfield, by letter dated August 22, 1967, informed Gulf of the decision to plug and abandon the Easton Townsite Unit No. 2 Well due to the non-commercial production.

As indicated by Mr. Dannelly’s testimony and by his letter to Mr. Mayfield of August 1, 1967, noted above, though no cement was actually placed in the shaft of the well, the high pressure gas line going to the well for the gas lift was plugged as well as the flow line which allowed the oil to be produced from the well. Mr. Dannelly testified that the well could not produce in this condition. Mr. Mayfield also testified to this fact.

Mr. Dannelly testified that no effort was made to restore production to the unit well within sixty days after its abandonment of August 1, 1967, as required by the terms of the lease. Mr. Mayfield confirmed this fact. Mr. Dannelly testified that, in fact, nothing was done to the well itself until August of 1968, almost one full year later when the well, pursuant to Mr. Mayfield’s direction, was converted by Mr. Dannelly to the non-productive use of a “bottle” well.

The above evidence clearly demonstrates that Mr. Mayfield made no effort to restore production through additional drilling or reworking operations within sixty days after abandonment of the well occurred on August 1, 1967. The trial court therefore ruled that the lease granted by plaintiffs’ mother lapsed of its own accord. We find this ruling clearly supported by the evidence.

EQUITABLE ESTOPPEL

Mayfield argues that the plaintiffs should be estopped from asserting that the lease has terminated since the plaintiffs knew or should have known of the use by Mayfield of the Easton Townsite Well as a gas storage well and knew or should have known of his re-entry into the well in 1974 to re-establish production. The trial court rejected this argument and the evidence supports that decision.

From August 1, 1967 to August of 1974 the well remained in a physical condition in which it could not produce. During this seven year period no payments of any kind were made to the plaintiffs.

In July of 1974, Mayfield tendered to each plaintiff, and other landowners at Ea-ston, what he termed a “storage” rental of $27.85. He maintained that this payment was for the use of the Easton Townsite Unit No. 2 Well as a “bottle” well, although he admitted that neither at the time of this payment, nor at anytime, has he had a “storage” or “bottle well” agreement with the plaintiffs, their mother, or with any landowner at Easton.

Attached to each of the “storage” rental checks was a notation that the checks covered each landowner’s share of the use of “this well as a ‘bottle well’ for gas lift gas in the Pine Prairie Field . . . . ” The term “this well” referred only to the lease number “210” which appears on the apron of the check. Other than this lease number, there was no reference to the well or the property. Plaintiffs accepted and cashed these checks.

Plaintiffs, both of whom reside in Texas, testified they inherited the subject property and other property when their mother died in 1969. At the time they received the “storage” payments in 1974, plaintiffs were receiving royalty checks from Mayfield for interests in other wells producing at the Pine Prairie Field. They did not then know that the property number “210” applied to the Easton Townsite.

In spite of the fact that the Easton Townsite Unit No. 2 Well had not produced in seven years, Mayfield re-entered the well in August of 1974. The well began producing in 1976, at which time Mayfield tendered to plaintiffs a division order dated January 1, 1976. Neither plaintiff signed the order.

Both plaintiffs testified that they had no knowledge of Mayfield’s re-entry into the well in 1974 and, in fact, had no knowledge of the well itself or of Mayfield’s activities until after they received his division order covering the well in January of 1976. Both also testified that after they learned in 1976 of Mayfield’s re-entry into the well in 1974, they either returned the checks tendered by Mayfield or refused to cash them.

Mayfield testified that he had no knowledge of whether either plaintiff knew of his reworking operations in 1974. He also testified that the lack of response from the Easton landowners to his storage payment in 1974 prior to his work on the well had no influence on his decision to re-enter the well.

Under the circumstances above described, we do not believe Mayfield’s estoppel argument is well-founded. Plaintiffs did not know of Mayfield’s use of the Easton Town-site Unit No. 2 Well as a storage well nor did they know of the well or Mayfield’s re-entry into the well in 1974 until they received a division order in 1976. Since then plaintiffs have consistently opposed Mayfield’s actions in continuing his operations as though the lease had not expired. Furthermore, except by way of the note attached to the “storage” payments, which note did not refer to the well, Mayfield has not demonstrated how plaintiffs should have known of the use of the well as a gas storage well or of Mayfield’s re-entry into the well. Therefore, Mayfield’s contention, that plaintiffs should be estopped from asserting that the lease has expired, is rejected.

ATTORNEY’S FEES

The Mineral Code authorizes the awarding of a .reasonable attorney’s fee in instances in which the former owner of an expired mineral right refuses to furnish a recordable release of the expired mineral right within thirty days after written demand by the person in whose favor the right has been extinguished or terminated.

La.R.S. 31:206 provides:

“When a mineral right is extinguished by the accrual of liberative prescription, expiration of its term, or otherwise, the former owner shall, within thirty days after written demand by the person in whose favor the right has been extinguished or terminated, furnish him with a recordable act evidencing the extinction or expiration of the right.”

La.R.S. 31:207 provides:

“If the former owner of the extinguished or expired mineral right fails to furnish the required act within thirty days of receipt of the demand, he is liable to the person in whose favor the right has been extinguished or expired for all damages resulting therefrom and for a reasonable attorney’s fee incurred in bringing suit.”

Plaintiffs made written demand upon Mayfield and Gulf for a recordable release of the January 9, 1940 lease by letter dated July 21, 1977. However, no recordable release was supplied by either Mayfield or Gulf within thirty days or at any time thereafter.

To establish their claim that attorney’s fees were incurred in bringing suit, plaintiffs offered the affidavit of Mr. Bernard E. Beyt, one of their attorneys, in which he showed over 290 hours of preparation and work conducted by plaintiffs’ attorneys in connection with this suit in the trial court. On the basis of this evidence the trial court awarded the plaintiffs $7,500.00 in attorney’s fees. The amount represents a reasonable attorney’s fee for work done at the trial level and will not be disturbed.

Plaintiff’s request for additional attorney’s fees on appeal will be denied because plaintiffs have not appeared simply to answer defendants’ appeal but have appealed in their own right to request damages, a request which we deny for reasons expressed in the next section of this opinion.

The basis for awarding additional attorney’s fees for services on appeal is that the litigant successful at the trial level must incur additional expenses, which would not have otherwise been incurred, in order to protect his rights on appeal. When the plaintiff seeks additional relief denied at the trial level, and such relief is denied on appeal, an increase in attorney’s fees for services rendered on appeal is not warranted. Gagnard v. Travelers Insurance Company, 380 So.2d 191 (La.App. 3rd Cir. 1980); Conlay v. Houston General Insurance Company, 370 So.2d 196 (La.App. 3rd Cir. 1979), writ granted La., 371 So.2d 618 (no decision yet rendered).

DAMAGES

As damages, plaintiffs claim they are entitled to interest on funds due to them by a nonparty to the suit, Inexco Oil Company, which has withheld these funds from the plaintiffs on its own initiative, and for a reason not conclusively established by the evidence. The trial court rejected plaintiff’s claim for these damages and the record amply supports the court’s decision.

The only evidence bearing on plaintiffs’ claim for damages is two depositions of Inexco Oil Company employees. Counsel for Mayfield objected to these depositions on the grounds that they were irrelevant, immaterial, and did not sufficiently establish plaintiffs’ claim. Subject to the objection, the judge admitted the evidence into the records. Thereafter, he denied plaintiffs’ claim for damages for reasons not divulged.

On appeal, Mayfield argues that the judge erred in allowing the depositions to be admitted into evidence. Specifically, Mayfield contends that the depositions should have been excluded because plaintiffs offered no facts under La.C.C.P. Art. 1450 which warrant the use of depositions of the Inexco employees, who were nonparty witnesses. The record reflects that the parties did not stipulate to the general use of the depositions. Further, when plaintiffs’ counsel offered the depositions as evidence, he made no effort to establish the grounds for admissibility thereof. We find no other evidence in the record which would render the depositions admissible. Therefore, we agree with Mayfield that the depositions should have been excluded from evidence. Maricle v. Cloud, 341 So.2d 29 (La.App. 3rd Cir. 1976); Jacob v. Laborde, 280 So.2d 621 (La.App. 4th Cir. 1973). We note that inasmuch as the trial judge admitted the depositions subject to Mayfield’s objection and then denied plaintiffs’ damages, he might have decided the depositions were inadmissible after all. However, even if the depositions were admissible, we could not say the trial judge erred in denying damages.

GULF'S POSITION

The trial court held Mayfield and Gulf liable to the plaintiffs for attorney’s fees and dismissed, without any reasons, Gulf’s third party demand against Mayfield.

Gulf contends that it is not liable to the landowners for attorney’s fees because Mayfield assumed all expenses and implied lease obligations and became directly responsible to the lessor for performance of these obligations under La.R.S. 31:128. Gulf’s position vis-a-vis the landowners is untenable.

La.R.S. 31:129 plainly provides:

“An assignor or sublessor is not relieved of his obligations or liabilities under a mineral lease unless the lessor has discharged him expressly and in writing.”

Herein the landowners (lessors) did not discharge Gulf, a sublessor, from its obligations or liabilities under the lease. One such obligation, provided by statute (La. R.S. 31:206-207, supra) is that of providing to the lessors a recordable release of an expired mineral right within thirty days of a demand therefor tendered by the lessors (or other party in whose favor the right expired). Failure to do so subjects the former owner of the expired right to payment of reasonable attorney’s fees and damages.

In the instant case Gulf did not release its interest in the lease within thirty days after demand was made by plaintiffs. Since Gulf was not discharged by the landowners, it is clearly liable to the plaintiffs under 31:129 for failure to provide a recordable release. Therefore, the trial court correctly held that Gulf was, along with May-field, solidarily liable to the plaintiffs for the payment of attorney’s fees.

Gulf argues in the alternative that if it is liable to the plaintiffs for attorney’s fees, then it is entitled to reimbursement or indemnification from Mayfield because May-field contracted to indemnify and hold harmless Gulf from any damage or expense arising out of his failure to discharge the duties and obligations of the original lessee.

The record substantiates Gulf’s view that it is entitled to reimbursement or indemnification from Mayfield.

Section VII, paragraph 1 of the sublease from Gulf to Mayfield provides:

“1. Grantee [Mayfield] specifically assumes all of the duties and obligations, both express and implied, of the original lessee under the terms of the hereinabove described oil, gas and mineral leases and of the instruments to which this assignment is made subject, and binds and obligates himself to comply with the terms thereof, and hereby agrees to indemnify and hold harmless Grantor [Gulf] from any character of loss, damage or expense due to, or arising out of, the failure to Grantee to faithfully perform and discharge the aforesaid duties and obligations. Grantee binds and obligates himself to protect the lands covered by the aforesaid leases and this agreement from drainage by wells on adjoining lands.”

As aforementioned, one of the legal duties imposed upon the lessee is to provide a recordable release of an expired lease. However, neither Mayfield nor Gulf ever provided the requested release. As a result, both were held liable to plaintiff for attorney’s fees. In light of Mayfield’s commitment to hold Gulf harmless from any character of loss, damage, or expense due to Mayfield’s failure to perform and discharge the duties and obligations of the original lessee, we hold that Mayfield should reimburse or indemnify Gulf for whatever amount Gulf has paid unto the plaintiffs pursuant to the trial court judgment.

Mayfield argues that Gulf is equally responsible for attorney’s fees because it was notified and approved the use of the Town-site Well as a gas storage well from 1967 to 1974, then was notified of and approved the re-working of the well in 1974. Further, Mayfield argues, if the lease is upheld, Gulf’s letter to Mayfield authorizing him to release the lease would not have the effect of divesting Gulf of its interest in the well. Instead, Gulf would stand to profit by May-field’s defense of the lease. Because of the following circumstances, we reject the contention that Gulf should be held equally responsible for attorney’s fees.

By letter dated August 22,1967, Mayfield recommended to Gulf that the well be plugged and abandoned and asked Gulf to either approve the abandonment or request that the lease be “assigned” back to Gulf. By letter dated December 7, 1967, Gulf approved the abandonment. However, on June 24, 1968, Mayfield wrote to Gulf indicating that the well had not been plugged and abandoned, despite Mayfield’s receipt of Gulf’s letter approving the abandonment. Instead, Mayfield sought Gulf’s approval to use the well as a “storage” or “bottle” well. Gulf approved. Later Mayfield sought and received Gulf’s approval to rework the well in 1974.

Soon after the plaintiffs demanded a release of the lease from Gulf and Mayfield, Gulf seemed eager to oblige. Gulf believed the lease had expired; sought to persuade Mayfield to release the lease; and even offered Mayfield its interest in the lease in exchange for Mayfield’s assurance that it would hold Gulf harmless.

To summarize, Gulf was willing to abandon the well in 1967 but was later told that the well had not been abandoned. After it first learned from plaintiffs, through their letter, that a dispute existed as to whether or not the lease had expired due to the 1967 abandonment, Gulf took and maintained the position that the lease had terminated. Only Mayfield’s refusal to provide a release prompted this litigation. Under these circumstances, Gulf is entitled to reimbursement or indemnification from Mayfield, particularly since Mayfield agreed in the sublease agreement to hold Gulf harmless from any character of loss, damage, or expense precipitated by Mayfield’s failure to perform the lease obligations.

DECREE

For the above and foregoing reasons, the portion of the judgment of the district court which dismissed the third party demand of Gulf Oil Company against M. L. Mayfield is reversed and it is hereby Ordered, Adjudged, and Decreed that there be judgment herein in favor of Gulf Oil Company and against M. L. Mayfield to the extent of any payment which Gulf Oil Company has made to or hereafter makes to the plaintiffs, Lelah Mae Broussard Kleas and/or Charles L. Broussard, in satisfaction of the September 16,1980 judgment awarding plaintiffs $7,500.00 as attorney’s fees. In all other respects the judgment is affirmed. Costs on appeal are assessed one-half to M. L. Mayfield and V4th to Gulf Oil Company and Vith to plaintiffs.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GUIDRY, J., concurs and assigns reasons.

GUIDRY, Judge,

concurring.

I do not agree that a plaintiff, who by answer to an appeal seeks relief denied at the trial level, is not entitled to an increase in attorney’s fees for services rendered On appeal, if the relief prayed for in answer is denied. Rather, my views on this issue coincide with those expressed by Judge Cul-pepper in his dissent in Gagnard v. The Travelers Insurance Company, 380 So.2d 191 (La.App. 3rd Cir. 1980). I am able to concur in the result reached on this point, however, because in my view the amount awarded by the trial court as attorney’s fees is adequate to compensate for services rendered both at the trial level and on appeal. In other respects I agree with the opinion as authored.

ON APPLICATION FOR REHEARING AND MOTION FOR CLARIFICATION

PER CURIAM.

The District Court has not made a determination as to the ownership of the funds deposited by defendant-appellant Koch Oil Company in the Registry of the Clerk of Court’s Office, Parish óf Evangeline, Thirteenth Judicial District Court. Therefore, this matter is not before us. Furthermore, appellants Mayfield and Koch are under the District Court’s order to grant accountings.

With this Per Curiam, the application for rehearing filed by appellant Mayfield is denied, as is the Motion for Clarification of Judgment filed by appellant Koch Oil Company.

      . Mr. Dannelly testified that this conversion in August of 1968 to a “bottle” well was accomplished by reconnecting the high pressure gas line back into the casing of the well so that the gas would flow in and out of the shaft of the well as the pressure varied on the gas lift system. This use, as Mr. Dannelly indicated, did not allow the Easton Townsite Unit No. 2 Well to produce, and in fact rendered it incapable of production as gas from an extraneous source was simply allowed in and out without the production of oil from the well. Thus, his testimony indicated that the well was used merely as oil field equipment and not as a producing oil well.

      . Since neither deponent was a party or acting on behalf of a party, and the depositions were not used for the purpose of contradicting or impeaching the deponents (the deponents did not appear as witnesses), then only paragraph 3 of Article 1450 is applicable:
      “At the trial or upon the hearing of a motion or an interlocutory proceeding, any part pr all of a deposition, so far as admissible under the rules of evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
      * * * * * *
      (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (a) that the witness is dead; or (b) that the witness is at a greater distance than one hundred miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of the witness was procured by the party offering the deposition; or (c) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (e) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.”

      . Culf claims it is an assignor. Although Gulfs agreement with Mayfield is styled an “assignment”, it is really a sublease because of Gulfs retention of a “net profits interest” and right of reversion. Cameron Meadows Land Company v. Bullard, 348 So.2d 193 (La.App.3rd Cir. 1977). See also the pertinent comment under La.R.S. 31:127.

      . Section VII, paragraph 9 of the sublease agreement provides:
      “9. Grantee [Mayfield], shall neither release, surrender nor abandon the aforesaid leases, nor allow the same to expire under their own terms, without the written consent of Grantor [Gulf]; however should Grantee desire to surrender, release or abandon said leases, or any of them, or allow them to expire under their own terms, it shall give Grantor forty-five (45) days written notice of such intention and if Grantor fails or refuses to consent in writing to such release, surrender or abandonment within thirty (30) days after receipt of such notice, then Grantee shall reassign to Grantor such lease and be thereby relieved of all future obligations hereunder.”


author: LEAR, Judge.

text:
    Richard HAWKINS v. CAMPER VILLAGE, INC., et al.
    No. 14153.
    Court of Appeal of Louisiana, First Circuit.
    July 27, 1981.
    Rehearing Denied Sept. 11, 1981.
    John Burgess, Livingston, for plaintiff-appellee Richard Hawkins.
    James Kuhn, Denham Springs, for defendant-appellant Camper Village.
    John Keogh, Baton Rouge, for appellant Pace Arrow.
    Carey Guglielmo, Baton Rouge, for appel-lee Chrysler.
    Elliot Atkinson, Baton Rouge, for appel-lee Nationwide.

      Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This appeal involves rescission of a contract of sale of a recreational vehicle and cancellation of a chattel mortgage and promissory note.

The facts necessary for determination of the issues are as follows:

On December 9, 1977, plaintiff purchased a new Pace Arrow motor home from Camper Village, Inc. (Camper Village). The motor home was manufactured by Pace Arrow of Indiana, Inc. (Pace Arrow), mounted on a Dodge truck chassis manufactured by Chrysler Corp. (Chrysler).

National Financial Corporation of Louisiana (now Citicorp Person to Person Financial Center, Inc. and hereinafter referred to as “Citi”) financed the purchase and held a chattel mortgage on the vehicle.

Pace Arrow filed a third party petition against Chrysler and Camper Village. Citi filed a third party petition based on its “dealer agreement” against Camper Village seeking re-purchase of its chattel mortgage.

The court rendered judgment as follows: On the main demand in favor of plaintiff and against Camper Village and Pace Arrow, in solido, rescinding the purchase contract plus judgment in the sum of $7,104.08 against said defendants, in solido, representing the down payment and monthly installments paid by plaintiff less $2,500.00 for use of the vehicle. The court further awarded attorney fees in the sum of $4,646.16. The court further gave judgment to plaintiff and against Citi rescinding the contract of chattel mortgage and note.

On Citi’s third party demand against Camper Village, the court gave Citi judgment ordering Camper Village to re-purchase the contract and awarding Citi $1,800.00 in attorney fees.

Camper Village was granted judgment against Pace Arrow for all sums, attorney fees and interest payable by Camper Village in the suit plus attorney fees of $4,525.00.

All other demands were dismissed and Pace Arrow was assessed for all costs.

The defects complained of by plaintiff were numerous. These were: A leak in the window over the sink and around the bathroom vent; non-functioning of outside lights; the engine oil level light did not work; the engine temperature and transmission temperature did not work; the brakes were dragging; the refrigerator did not perform properly; the generator (power plant) was insufficient; the windshield wiper spray did not work; the air conditioner leaked into the interior of the motor home; the carpet was soiled; the dashboard vibrated; and the alternator did not function.

Plaintiff also complained of two scratches on the exterior of the vehicle and a broken speedometer. Plaintiff alleges that he returned the vehicle to Camper Village at least twenty times during the ten months he operated it and that the alleged defects were not corrected.

Two of the basic codal provisions concerning this issue are LSA-C.C. 2520 and 2521, which provide as follows:

“C.C. 2520
“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
“C.C. 2521
“Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

Plaintiff testified that, prior to the sale, he was aware of the following defects:

1. Exterior scratches;
2. Non-functioning of the outside, porch (entry) lights;
3. Non-functioning of the oil, engine temperature, transmission temperature and coolant level gauges or lights;
4. Dragging brakes;
5. Problems with generator (power plant).

As to these defects, even if proven, we find that they were apparent (known to plaintiff) at the time of sale, and are therefore not redhibitory vices.

Further, as regards the generator (power plant), one of the experts who testified, Mr. Niblick, found no problem with the generating unit. The evidence also indicated that this unit was replaced. Expert testimony, with regard to the generating unit, also indicated that it required certain routine maintenance. While stating that this maintenance “must have been done,” plaintiff could not recall where, when or how maintenance to the generating unit was performed.

Plaintiff next complains of window leaks and bathroom vent and air conditioning unit leaks. Again, expert testimony from Mr. Niblick indicated that the caulking around these exterior openings would dry out and crack and that over a period of time exterior windows and vents would develop leaks unless, through normal maintenance, they were periodically sealed to prevent such leaking. Plaintiff offered no evidence that such routine maintenance had been performed.

Even if it is assumed that these leaks were present at the time of sale, we do not believe that they are of such a nature or extent as to be redhibitory. See Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir., 1975); Margan v. Precision Motors, Inc., 317 So.2d 664 (La.App. 4th Cir., 1975).

Other problems complained of by plaintiff were malfunction in the windshield wiper spray device and the refrigerator. Again, even if proven to have existed at the time of sale, we do not believe that these types of defects are sufficiently serious to justify rescission of the sale. See Rankin v. Blanchard, 349 So.2d 968 (La.App. 1st Cir., 1977).

Lastly, plaintiff complained of a problem with the alternator, and claimed that the entire engine failed on three occasions. There appears to be some conflict in the testimony as between plaintiff, who indicated that the engine failed on three occasions, and plaintiff’s wife, who recalled that this problem occurred only once, a few days before the vehicle was returned to defendant Camper Village.

As regards whether the defect existed at all, two expert witnesses, Mr. Niblick and Mr. Lemings, testified that this type of problem is generally attributed to a wire becoming loose during the normal use of the vehicle. And, Mr. Lemings testified that he drove the unit on two occasions without experiencing any engine failure.

Even if plaintiff’s testimony, that this problem occurred on three occasions, is accepted, we find no evidence indicating that this defect existed at the time of sale. Plaintiff failed to carry his burden in this regard. Nor did plaintiff afford defendants the required opportunity to repair this defect prior to the filing of this suit. See Jordan v. LeBlanc and Broussard Ford, Inc., 332 So.2d 523 (La.App. 3rd Cir., 1976).

Considering the nature and extent of the complained of defects, plaintiff’s admitted knowledge of the majority of these defects and plaintiff’s failure to show the required routine maintenance, we find that the judgment of the trial court is clearly wrong in holding that the complained of defects warrant rescission of this sale. We do, however, find that a reduction in price is warranted, and this suit should be remanded to the trial court for further evidence as to the amount of the reduction in price. See Cassey v. Arnaudville Industries, Inc., 393 So.2d 15 (La.App. 1st Cir., 1980); Leathers v. Mobile Home Brokers, Inc., 382 So.2d 967 (La.App. 1st Cir., 1980); Ark-La-Tex Builders & Realty v. Hoge, 344 So.2d 90 (La.App. 2nd Cir., 1977).

The judgment of the trial court is hereby reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion.

All costs are to be paid by plaintiff-appel-lee, Richard Hawkins.

REVERSED AND REMANDED.


author: CHEHARDY, Judge.

text:
    Daniel E. CAMBRE v. The TRAVELERS INDEMNITY COMPANY, John W. Dussouy and Company, Inc., and XYZ Insurance Company.
    No. 12027.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1981.
    Rehearing Denied Oct. 20, 1981.
    William M. Detweiler, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Glenn G. Goodier, New Orleans, for The Travelers Indem. Co., defendant-appellee.
    Porteous, Toledano, Hainkel & Johnson, Ralph R. Alexis, III, New Orleans, for John W. Dussouy & Co., Inc., defendant-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, Daniel E. Cambre, appeals a district court decision in favor of defendants The Travelers Indemnity Company (Travelers) and John W. Dussouy & Company, Inc. (Dussouy), and against the plaintiff, dismissing his suit at his cost.

In his written reasons for judgment, the trial court made the following findings:

“The Court finds that the plaintiff asked for full coverage on his boat, without enumerating the specific perils.
“The agency obtained a named Perils policy which was the best obtainable.
“The policy does not cover the theft of the vessel.
“The Court finds no liability on the Insurance Agent.”

At a trial on the merits of the case the plaintiff testified that in May - of 1978 he owned a 1977 “Lafitte skiff” for the purpose of commercial crabbing and shrimping, and for which he had secured, through Dus-souy, an insurance policy (covering a period from March 1978 through March 1979), written by Travelers. Cambre testified he had called Arthur Caron, an employee of Dussouy, and asked him to get full coverage, enumerating “fire, theft, collision, liability,” and using the words “just like an automobile.” He added that when Caron called him back, although he stated he had had a little trouble getting the coverage, he said he had gotten it placed with Travelers and that “I had full coverage, not to worry about it.” Two or three months later Cam-bre received a copy of the policy, and Dus-souy also assisted him in getting the financing on the policy.

Cambre testified further that on May 17, 1978, he went out to run his crab traps and when he was coming in he had trouble with the boat’s motor, which stopped running. He said he then tied up the boat to the bank of “Ship Channel,” took the keys, and walked for about a half a mile before getting a ride back to the marina. He added the man who ran the marina was busy, and consequently, by the time he secured another boat with which he returned for his own boat, it was approximately an hour or an hour and fifteen minutes later, and his boat was gone. He subsequently reported its disappearance to the St. Bernard Parish Police and to Caron at Dussouy.

The plaintiff said Caron was “kind of surprised himself” when he told Cambre that Travelers had denied coverage on the claim. He testified he had sustained losses in crab sales due to the loss of the boat and his financial inability to secure a comparable craft.

Caron testified that upon making the claim for Cambre, Travelers told him the subject policy “did not cover disappearance by theft.” He also said the plaintiff did not ask him for full coverage but only for boat coverage and that the application only called for “full marine coverage” which was the best coverage available. He added he did not get into the details with Cambre as to what was included in full marine coverage.

Caron also noted he had approached no less than six carriers (most of whom refused to insure a used Lafitte skiff under any circumstances) before he finally secured coverage on the vessel with Travelers. He also stated the unearned premium on the policy was returned to the plaintiff after the craft’s disappearance.

Thomas H. Elliott, IV, owner of a wholesale marine insurance brokerage called Vessel Coverages Limited, who was accepted by the court as an expert in the marine insurance brokerage field, explained that the subject insurance policy is a “named risks” rather than an “all risks” policy. He also said the Travelers policy was the best and broadest coverage which could be obtained on a commercial vessel of the nature of the skiff in this case.

The application for marine insurance, dated March 27, 1978, and signed by the plaintiff, stated the cost to replace the vessel as $8,000 and also set the insured value at $8,000. Under the heading of “Coverage Desired” was checked “full marine coverage.”

The actual insurance policy issued to Cambre by Travelers on the subject craft stated the following:

“PERILS
“Touching the Adventures and Perils which the Underwriters are contented to bear and take upon themselves, they are of the Waters named herein, Fire, Lightning, Earthquake, Assailing Thieves, Jettisons, Barratry of the Master and Mariners and all other like Perils that shall come to the Hurt, Detriment or Damage of the Vessel.
“ADDITIONAL PERILS (INCHMAR-EE)
“Subject to the conditions of this Policy, this insurance also covers loss of or damage to the Vessel directly caused by the following:
Accidents in loading, discharging or handling cargo, or in bunkering; Accidents in going on or off, or while on drydocks, graving docks, ways, gridirons or pontoons;
Explosions on shipboard or elsewhere; Breakdown of motor generators or other electrical machinery and electrical connections thereto, bursting of boilers, breakage of shafts, or any latent defect in the machinery or hull, (excluding the cost and expense of replacing or repairing the defective part);
Breakdown of or accidents to nuclear installations or reactors not on board the insured Vessel;
Contact with aircraft, rockets or similar missiles, or with any land conveyance;
Negligence of Charters and or Repairers, provided such Charterers and or Repairers are not an Assured hereunder;
Negligence of Masters, Officers, Crew or Pilots;
provided such loss or damage has not resulted from want of due diligence by the Assured, the Owners or Managers of the Vessel, or any of them.”

Admittedly, it has been held by the courts, as in Jennings v. Louisiana & Southern Life Insurance Co., 280 So.2d 297, 300 (La.App. 1st Cir. 1973):

“A contract of insurance, like any other agreement, is the law between the parties, and every stipulation therein must be construed as written. The rules established for the interpretation of written instruments in general apply in the construction of insurance policies. Harmon v. Lumbermen’s Mutual Casualty Company, 247 La. 263, 170 So.2d 646.
“Courts must give legal effect to the provisions of an insurance policy according to the true intent of the parties, which intent must be determined in the light of the policy provisions when the policy terms are clear and unambiguous and lead to no absurd consequences. LSA-C.C. arts. 1901, 1945; Vidrine v. Southern Farm Bureau Casualty Insurance Company, La.App., 247 So.2d 660.
“The words used in insurance contracts are to be understood in their common and usual significance, without attending so much to grammatical rules, as to general and popular use. LSA-C.C. art. 1946; Harmon, above.”

However, it was also held in Jennings:

“Appellant correctly contends that in the interpretation of insurance contracts, doubtful or ambiguous clauses or provisions are to be construed favorably to the insured and against the insurer. Graves v. Traders and General Insurance Company, La.App., 200 So.2d 67. This rule of strict construction, however, does not authorize perversion of language or the creation of ambiguity where none exists. J. M. Brown Const. Co. v. D & M Mechanical Contr., Inc., La.App., 222 So.2d 93.” 280 So.2d at 300.

Plaintiff now argues the theft of his boat should be covered under either the phrase “Assailing Thieves” or the phrase “and all other like Perils that shall come to the Hurt, Detriment or Damage of the Vessel.” We cannot agree.

The court noted in Northwestern Mutual Life Insurance Co. v. Linard, 498 F.2d 556 (2nd Cir. 1974), that although in an “all risks” policy the burden is plainly on the underwriter to show that an exception to coverage applies, the burden of proof is on the insured to show that the loss was proximately caused by the peril insured against and claimed under.

Furthermore, in the case of S. Felicione & Sons Fish Co. v. Citizens Casualty Co. of N. Y., 430 F.2d 136 (5th Cir. 1970), the court said at 139-140:

“We are convinced that the term ‘assailing thieves’ in marine policies provides coverage for theft by force or violence of personal property on vessels, not coverage for the theft of the vessel itself. We have researched the subject exhaustively. All the authorities we found dealing with the term ‘assailing thieves’ arise in the context of taking of goods aboard a vessel; none construe the term with reference to a taking of the vessel itself. See, e. g., Swift v. American Universal Ins. Co., 1965, 349 Mass. 637, 212 N.E.2d 448 and cases there cited; Babbitt, Goode & Co. v. Sun Mutual Insurance Company, 1871, 23 La.Ann. 314; Annot., 19 A.L. R.3d 1150.
* * * * * *
“In D. Winter, Marine Insurance (3rd Ed. 1952) the author in discussing theft of goods on board ship says:
******
The peril of thieves, as covered by the marine-insurance policy, is generally recognized by merchants and by. the textbook writers as that of the taking of property by force, as distinguished from taking by stealth, which latter form of larceny is known by the specific term pilferage. It was always the intention of underwriters to protect property on vessels from losses occasioned by the criminal acts of those who obtained access to the property by force. Pilferage, however, was not contemplated by the underwriter when property was insured, because such loss was supposed to be the result of the criminal acts of those who had a right to be with the property, such as stevedores or others who by stealth mingled with them and thus had access to the goods. Unfortunately, this theory and practice were overridden in certain state courts, where the judge, in an academic discussion of the meaning of the word ‘thieves,’ ignored for the most part the practice of the merchants and underwriters which, of old, was the basis on which marine-insurance law was determined and held that the word ‘thieves’ covered what is commonly known in marine circles as pilferage. Accordingly, most policies in use in the United States have inserted the words ‘assailing thieves’ in order to make clear the original and present intention of underwriters insuring against thieves. (Emphasis supplied) Id. at 184. See also Arnould’s Eleventh Edition § 837, at 1088.
“We think that the paucity of authority construing the term ‘assailing thieves’ with reference to theft of a vessel (as opposed to theft of goods on board) demonstrates that it was so generally understood that the term never contemplated theft of entire vessels that no effort was made before this case to litigate the point. If the ‘assailing thieves’ peril contemplated theft of the entire vessel, there would be no reason to provide protection, as was done in the policy involved in Feinberg v. Insurance Company of North America, D.Mass. 1958, 161 F.Supp. 686, vacated 260 F.2d 523 [(1st Cir.)] against both ‘assailing thieves’ and ‘theft of the entire yacht.’ We entertain no doubt that the term ‘assailing thieves’ is limited to personal property aboard the vessel taken by force. It is a descriptive phrase, purposefully and precisely coined by the underwriters to distinguish between the theft of personal property by stealth, such as pilferage, and that taken by force. It has nothing whatever to do with insuring against the theft of an entire vessel.”

The court also noted in S. Felicione & Sons Fish Co., supra, that the words “all other like perils” cannot extend the scope of the policy to include perils beyond and entirely different from those specially enumerated.

Furthermore, in Southport Fisheries v. Saskatchewan Gov. Ins. Office, 161 F.Supp. 81 (E.D.N.C.1958), the court also said, in examining an insurance policy similar to the one in the present case at 84:

“Keeping in mind the diversities of the perils specifically enumerated, the Court’s opinion is that ‘other like perils’ need not be like in character to the qualities possessed by any particular listed risk, but rather must be similar to the perils set forth only in the same manner as the enumerated perils are similar to each other. Put another way, the word ‘like’ means possessing the characteristic common to the group rather than qualities associated with any particular risk. In this manner a particular and definable quality is established as a necessary ingredient of ‘like peril’, and a means determined to make cognizable those perils contemplated was within the coverage of the policies.
“Turning to the listed perils in order to define their common quality, it is noted that circumstances attendant upon maritime commerce render vessels notoriously defenseless against losses effected by fire, lightning, and earthquake. Loss by jettison is a risk certainly peculiar to the sea. Excepting jettison, the man-caused perils set forth in the policies are more likely to befall mariners, as opposed to others, because historically a ship’s physical location and total lack of communication has limited its security to that derived from its own resources, thus increasing the possibility of successful warfare or plunder against the same. In short, an examination of the perils set forth in the policies discloses that each has become particularly feared by the maritime world because circumstances surrounding maritime commerce increase the likelihood of loss from such risks. It is this quality which is common to the three categories of risks formally discussed as being within the term ‘perils of the sea’, and in the Court’s opinion it is the sole ingredient essential in order to qualify a risk as a ‘like peril’ within the coverage of the policy.”

In Southport Fisheries, supra, the court further determined that a spiteful injury to fishing nets was an ordinary risk rather than a “like peril” and, therefore, did not result from a risk insured against within the terms of the insurance contracts. In the present case this court also must conclude that the theft of the plaintiff’s entire vessel was an ordinary risk and, therefore, not covered by the term “all other perils” as used in the subject policy.

In this case, we do not find the terms “assailing thieves” and “all other like perils” to be so ambiguous as to demand they be construed against the insurer, and therefore this court holds that the district court was correct in giving legal effect to the provisions of the policy and in holding the theft of the plaintiff’s entire vessel was not covered under those provisions. Furthermore, we find plaintiff’s argument that the loss of the vessel was directly caused by the breakdown of the motor and, therefore, covered under the inchmaree clause of the policy, to be an erroneous interpretation of the intent of that part of the coverage in the policy.

This court does, however, find error in the district court’s dismissal of the plaintiff’s case against Dussouy. In the case of Porter v. Utica Mut. Ins. Co., 357 So.2d 1234 (La.App. 2d Cir. 1978), the court stated at 1237-1238:

“The applicable law is concisely stated in Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973):
An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage. C.C. 3002 and 3003; Kieran v. Commercial Union Insurance Company of New York, 271 So.2d 889 (La.App. 4th Cir. 1973); Hight v. Stewart, 265 So.2d 640 (La.App. 2d Cir. 1972); Bordelon v. Herculean Risks, Inc., 241 So.2d 766 (La.App. 3d Cir. 1970); Shrv Teletype Coin Exchange, Inc. v. Commercial Union Insurance Company of New York, 191 So.2d 208 (La.App. 2d Cir. 1966); Arceneaux v. Bellard, 149 So.2d 444 (La.App. 3d Cir. 1963); Brown v. Stephens Buick Company, 139 So.2d 579 (La.App. 4th Cir. 1962).
“In order to recover for loss arising out of the failure of an insurance agent to obtain insurance coverage, the plaintiff must prove: (1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (3) the actions of the agent warranted an assumption by the client that he was properly insured.”

In the present case, because the insurance agent Caron was unable to obtain an “all risks” policy on the boat, as was the type of policy requested by the plaintiff, he had a duty to inform Cambre that the only insurance obtainable on the vessel was a “named risks” policy in order to call the plaintiff’s attention to the difference in coverage provided by the policy obtained and the coverage requested by Cambre. It is also apparent from the testimony of the parties that the actions of Caron after he obtained the policy led the plaintiff to believe he had, indeed, secured an “all risks” policy on the skiff. For these reasons, this court holds that the plaintiff has a right to recover from the defendant Dussouy the loss he has sustained as a result of the agent’s failure to inform the plaintiff of his inability to procure the desired coverage.

For the reasons assigned, therefore, the district court judgment is reversed in part in favor of the plaintiff, Daniel E. Cambre, and against the defendant John W. Dussouy & Company, Inc., and it is hereby ordered, adjudged and decreed that the plaintiff is awarded damages against John W. Dussouy & Company, Inc., in the amount of Eight Thousand Dollars ($8,000), together with all costs and interest from the date of judicial demand until paid. In all other respects, the trial court decision is affirmed.

REVERSED IN PART; AFFIRMED IN PART.


author: DOUCET, Judge.

text:
    Eula Thompson BARTLETT, et al., Plaintiffs-Appellants, v. Stella CALHOUN, nee Herron, Defendant-Appellee.
    No. 8092.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 2, 1981.
    Rehearing Denied Oct. 12, 1981.

      Brumfield & Brumfield, William Brum-field, Baton Rouge, for plaintiffs-appellants.
    Calhoun & Murray, Geroge C. Murray, Jr., Vidalia, for defendant-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOUCET, Judge.

This is a petitory action. Plaintiffs, the alleged heirs of Mr, and Mrs. W. C. Thompson, claim the ownership of approximately 300 acres of land in defendant’s possession. In addition, they seek an accounting of the revenues from the property. Defendant filed a motion for summary judgment, which was based on a plea of ten years acquisitive prescription. Following a hearing, the trial court sustained the motion, dismissing plaintiffs’ suit. From that judgment, plaintiffs appealed.

The sole issue on appeal is whether the trial court erred in sustaining defendant’s motion for summary judgment.

LSA-C.C.P. Art. 966 provides that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.

It is well settled that a summary judgment is warranted only when reasonable minds must inevitably conclude that on the facts before the court the mover is entitled to judgment as a matter of law. The mover has the burden of showing that there is not a genuine issue of material fact in dispute, and any doubt must be resolved against the granting of a summary judgment and in favor of a trial on the merits. Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Clement v. Taylor, 382 So.2d 231 (La.App. 3rd Cir. 1980).

Thus, the issue presented for our resolution is whether defendant has proven that no genuine issue of material fact existed and that she is entitled to judgment as a matter of law.

The evidence shows that the disputed property, which is located near the Black River in Catahoula Parish, was owned at one time by Mr. and Mrs. W. C. Thompson. The record contains an act of sale dated November 20, 1949, which recites that the property was sold to defendant by the Thompsons. Plaintiffs challenge the validity of that instrument, alleging that the signatures of the Thompsons were forged.

The record also contains two other acts of sale, which purport to affect the title to the property. The first, which is dated December 10, 1949, states that defendant sold the property to Grey Ramone Brown. The second, which is dated October 1, 1951, states that Brown sold the property to defendant. Although plaintiffs have questioned defendant’s right to convey title to the property to Brown, they have not otherwise challenged the validity of those documents, nor have they disputed the fact that Brown went into possession of the property in December of 1949, and that defendant has been in continuous possession of it since October of 1951.

Defendant’s contention that she is entitled to judgment as a matter of law is based on her claim that she has acquired title to the disputed property by ten years acquisitive prescription. The conditions necessary for that form of prescription are set forth in LSA-C.C. Art. 3479, which provides:

“To acquire the ownership of immova-bles by the species of prescription which forms the subject' of the present paragraph, four conditions must concur:
1. Good faith on the part of the possessor.
2. A title which shall be legal, and sufficient to transfer the property.
3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
4. And finally an object which may be acquired by prescription.”

Plaintiffs argue that there are genuine issues of material fact with regard to whether two of the above conditions have been met. First, they contend that defendant’s good faith is at issue. The trial court concluded that it did not matter whether defendant was personally in good faith, since under LSA-C.C. Art. 3493 and the case of Liuzza v. Heirs of Nunzio, she was able to take advantage of Grey Ramone Brown’s good faith by tacking or joining her subsequent possession to his.

Plaintiffs do not appear to seriously dispute the trial court’s legal conclusions, which we find to be correct. However, they argue that Grey Ramone Brown’s good faith is at issue. We find no merit in that argument. Good faith is always presumed in matters of prescription; and he who alleges bad faith in the possessor must prove it. LSA-C.C. Art. 3481; Jackson v. D’Aubin, supra. Contrary to plaintiff’s arguments, we find nothing in the record to rebut that presumption.

In response to interrogatories propounded by the plaintiffs, defendant affirmatively alleged Brown’s good faith. Plaintiffs, on the other hand, when asked the question, “Do you contend that Grey Ramone Brown and/or J. L. Calhoun were not in legal good faith when Grey Ramone Brown acquired the property on the tenth day of December, 1949?”, responded as follows: “Interrogatory No. 1 does not properly set forth a contention of plaintiffs herein.” That response was clearly not sufficient to put Brown’s good faith at issue. Having found nothing else in the record on point, we conclude that the trial court was correct in finding that Brown was in good faith and that defendant was entitled to take advantage of that good faith by tacking or joining her subsequent possession to his.

Next, plaintiffs argue that there is a material issue with regard to whether there was a title which was legal and sufficient to transfer the property. That argument is also without merit. The kind of title that is contemplated by LSA-C.C. Art. 3479 is described in LSA-C.C. Art. 3484 as follows:

“By the term just title, in cases of prescription, we do not understand that which the possessor may have derived from the true owner, for then no true prescription would be necessary, but a title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title were such as to transfer the ownership of the property.”

Since the prescriptive period began with Grey Ramone Brown’s possession of the property, the relevant instrument for determining whether there was a just title is the act of sale of December 10, 1949, pursuant to which Brown purchased the property from defendant. A reading of that document shows that it was such as to transfer the ownership of the property, and for the foregoing reasons, there is no question about the fact that Brown was in good faith and honestly believed that he received title to the property from the real owner.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

      .LSA-C.C. Art. 3493:
      “The possessor is allowed to make the sum of possession necessary to prescribe, by adding to his own possession that of his author, in whatever manner he may have succeeded him, whether by a universal or particular, a lucrative or an onerous title.”

      . 241 So.2d 277 (La.App. 1st Cir. 1970).

      . See also, Jackson v. D’Aubin, 338 So.2d 575 (La. 1976).


author: GARRISON, Judge.

text:
    Meryl RABIDEAU v. Earl J. SCHMITT, Jr. and Travelers Insurance Company.
    No. 11729.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1981.
    James G. Kambur, Preston G. Sutherland, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John C. Combe, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting Traveler’s motion for summary .judgment and dismissing it from the suit. From that judgment, plaintiff appeals.

On November 21, 1974, plaintiff found $2,400,000.00 (dollars) in Treasury bonds in a sock. He took the securities to an attorney, Earl J. Schmitt. Plaintiff says he hired the attorney in order to discover if a finder’s fee was offered or if plaintiff was entitled to ownership of the securities. Schmitt took the securities and subsequently was convicted of theft of the securities. Plaintiff brought the present malpractice action against Schmitt. Plaintiff’s malpractice suit was consolidated with an action brought by Robert Werk, who claims ownership of the securities.

The malpractice carrier, Traveler’s Insurance, filed a motion for summary judgment on the grounds that the theft was excluded from coverage under the following terms of the policy:

“This policy does not apply:
(a) to any dishonest, fraudulent, criminal or malicious act or omission of any insured, partner or employee . . . . ”

Code of Civil Procedure Article 966 provides as follows:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed.
“The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” (Emphasis supplied)

In the instant appeal, there- is no factual dispute. Additionally, under a reading of the policy language cited above, theft is clearly not an insurable action. Accordingly, we conclude that the trial court did not err in granting summary judgment, dismissing the insurer from the suit.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . State of Louisiana v. Earl J. Schmitt, Jr., 354 So.2d 1339 (La.1978).


author: GARRISON, Judge. BOUTALL, Judge,

text:
    Joseph Tallon BUNCH, Individually and on Behalf of the Estate of his Minor Child, Danny Tallon Bunch, and Joanne Gonzalez Bunch, Wife of Joseph Tallon Bunch v. MERCY HOSPITAL OF NEW ORLEANS, Continental Insurance Company of America, Dr. Celeste G. Wichser and Chubb Pacific Company.
    No. 11620.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 1981.
    Rehearing Denied Oct. 20, 1981.
    Knight, D’Angelo, & Knight, George M. Papale, Gretna, for plaintiffs-appellants.
    Donovan & Lawler, James L. Donovan, Kermit Frymire, C. Suzanne Dittmer, Me-tairie, for defendants-appellees Chubb Pacific Co. and Dr. Celeste G. Wichser.

      Christovich & Kearney, W. K. Christo-vich, New Orleans, for defendants-appellees Sisters of Mercy d/b/a Mercy Hospital of New Orleans, and the Continental Ins. Co.
    Before BOUTALL, GARRISON, and KLEIBERT, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, dismissing plaintiff’s suit on her own behalf and on behalf of her minor son for injuries sustained during the son’s birth. Mrs. Bunch sued not only for damages to her minor son but also for damages she incurred during and as a result of the delivery. The minor Danny Tallón Bunch, suffered a brachial plexus injury, resulting in Erbs palsy, permanent nerve damage to the right shoulder and right arm, resulting in limited use of a few muscles of the right arm and paralysis of the other muscles, and a head injury. After a trial by jury, the court dismissed plaintiff’s case in compliance with the jury verdict. From that judgment which we reverse, plaintiff appeals.

Mrs. Bunch had undergone a prior breach birth. Her treating physician, Dr. Celeste Wichser, was aware of this and arranged to have a specialist, Dr. Holmes, on hand should complications develop. The mother’s physical condition prior to delivery showed several indications that complications were imminent: plus-two edema, pre-eclampsia, and pre-diabetic. Dr. Wichser apparently was aware that a caesarian section was a distinct possibility. In fact, he did decide to perform a C-section, but he waited too long to begin the operation. In the interim, the fetus began to move down the birth canal and into the impacted shoulder position.

The treating physician consulted with an expert OB-GYN, Dr. McCune, prior to ordering the C-section. Dr. McCune testified that a C-section should have been performed immediately and that the treating physician erroneously told Dr. McCune that Mrs. Bunch has been dilated for 20 minutes, when in fact she had been dilated for 40 minutes. Dr. McCune also testified that if Dr. Wichser had consulted him when Mrs. Bunch had been dilated for only 20 minutes, he would have order the C-section immediately at that point.

In light of the evidence presented, we are appalled by the verdict of the jury. In this case, this court has finally encountered one of that rare genus and species: manifestus erroneous. We conclude that the trier of fact, in this case the jury, was manifestly erroneous.

While liability of Dr. Celeste Wichser is clear upon the record, we note that there is scant evidence contained therein on the question of Mercy Hospital’s liability. As plaintiff failed to meet the required burden of proof against Mercy, we find that the Sisters of Mercy d/b/a Mercy Hospital and its insurer, Continental Insurance Company are dismissed.

Turning to the issue of damages, we note that Danny Tallón Bunch is permanently disabled with the disability rating of 60%, that he will require medical care for the rest of his life, and that should he undergo future surgery and that surgery be successful, he will probably still have a disability rating of 40%. We also note that he is subjected to cruel treatment and humiliation by other children as a result of his disability. In light of the evidence presented, we find that an award on One Hundred-Twenty Thousand Dollars would be adequate compensation. We note that the policy limits of the insurance issued by Chubb/Pacific Company is One Hundred Thousand Dollars.

For the reasons discussed, the judgment of the district court is reversed and we render judgment as follows:

IT ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of DANNY TALLON BUNCH, minor child of JOANNE GONZALEZ BUNCH, and against the defendants, DR. CELESTE WICHSER and CHUBB/PACIFIC CO., awarding damages in the amount of ONE HUNDRED THOUSAND AND NO/100 ($100,000.00) DOLLARS, plus legal interest from the date of judicial demand until paid and costs.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that there be judgment herein in favor of plaintiff, JOANNE GONZALEZ BUNCH, and against defendant, DR. CELESTE G. WICHSER, awarding damages in the amount of TWENTY THOUSAND AND NO/100 ($20,000.00) DOLLARS, plus legal interest from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of defendant, Sisters of Mercy d/b/a Mercy Hospital, dismissing plaintiff’s suit against this defendant.

REVERSED AND RENDERED.

BOUTALL, J., concurs.

BOUTALL, Judge,

concurring.

Although I do not agree with the extent of the majority opinion, I concur with the result.

      . Suit was originally brought by Joseph Tallón Bunch on behalf of his minor son. After suit was filed but prior to trial, Mr. and Mrs. Bunch were divorced. Mrs. Bunch was granted custody and substituted as party plaintiff.

      . Green v. State through Southwest La. Charity Hospital, 309 So.2d 706 (La.App.), writ denied 313 So.2d 601 (La.); Anderson v. Sears Roebuck, 377 F.Supp. 136; Willis v. Everett, 359 So.2d 1080 (La.App.) writ denied 362 So.2d 800 (La.).


text:
    TUTORSHIP OF Dorothy Joann STANFIELD, Tammy Rene Stanfield, and Amanda Michel Stanfield.
    No. 8108.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 11, 1981.

      Neblett, Weeks & Neblett, B. Gerald Weeks, Alexandria, for applicant-appellant.
    Chris J. Roy, Alexandria, for tutrix-ap-pellee and Lemoine and Saucier, Henry H. Lemoine, Jr., Pineville, for appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

This is an appeal from a judgment rendered by the district court in a tutorship proceeding. The relevant facts and reasons for the judgment were succinctly stated by the trial judge as follows:

“Thus far, these proceedings involve a lively dispute between relatives of three minor children as to who will be appointed tutor (tutrix). Walter L. Stanfield and Patsy Knight Stanfield were killed in an automobile accident which occurred on or about April 2, 1980. They had two children, Tammy Renee Stanfield, age 6, and Amanda Michel Stanfield, age 5. Another child, Dorothy Joann Stanfield, age 10, was the child of Patsy Stanfield and her previous husband, Orville Majer-us. Patsy Stanfield had been divorced from Majerus in May, 1971, and the following month she married Walter. When Dorothy Joann was two years old her name was changed from Majerus to Stan-field by judgment of the Ninth Judicial District Court dated August 10, 1971.
“The two contestants for tutorship are Patricia Stanfield Poche, surviving sister of Walter Stanfield, and Adrion Knight, surviving brother of Patsy Stanfield. The children have always been close to their aunt, Patricia Poche, who lived across the street from Walter and Patsy Stanfield. Adrion Knight in Ohio and has had little or no contact with the Stan-field children since they were born. Both are willing, able and qualified to care for the children. The spouses of each of them expressed their willingness for the children to live in their homes.
“I feel that the children should be raised in their accustomed environment with relatives whom they know and with whom they have been associated since their earliest remembrances. Whether or not Dorothy Joann was adopted by Walter Stanfield has not been proved, however, she probably was not. Nevertheless, her father, Orville Frank Majerus, has not asked to be qualified as tutor. Since he is living Civil Code Article 263 does not give Mr. Knight priority for appointment as tutor of Dorothy Joann. I have determined that it will be in the best interest of the other two children to remain with Patricia Poche. I feel that to separate them from their sister, Dorothy Joann, would be detrimental to them as well as their sister. Accordingly, the best interest of all three children will be served by the appointment of Patricia Poche as their tutrix.”

Adrion Knight, a resident of the State of Ohio, has appealed the judgment appointing Patricia Poche tutrix of the three children.

The issues on appeal are: (1) whether the trial court erred in failing to find that appellant had a superior right to be appointed tutor of Dorothy Joann Stanfield, and (2) whether the trial court erred in finding that the appointment of appellee, Patricia Poche, was in the best interest of the three children involved in this controversy.

Tutorship proceedings in this state are governed in part by the following provisions:

LSA-C. C. P. Art. 10(A)(4):

A. A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions:
(4) A tutorship or curatorship proceeding if the minor, interdict, or absentee, as the case may be, is domiciled in this state or has property herein;”

LSA-C. C. Art. 250:

“Upon the death of either parent, the tutorship of minor children belongs of right to the other. Upon divorce or judicial separation from bed and board of parents, the tutorship of each minor child belongs of right to the parent under whose care he or she has been placed or to whose care he or she has been entrusted.”

LSA-C. C. Art. 257:

“The right of appointing a tutor, whether a relation or a stranger, belongs exclusively to the father or mother dying last.
“The right of appointing a tutor, whether a relation or a stranger, also belongs to a parent who has been named the curator for the other living spouse, when that other living spouse has been interdicted, subject only to the right of the interdicted parent to claim the tutorship should his incapacity be removed by a judgment of a court of competent jurisdiction.
“This is called tutorship by will, be-cáuse generally it is given by testament; but it may likewise be given by any declaration of the surviving father or mother, or the parent who is the curator of the other spouse, executed before a notary and two witnesses.”

LSA-C. C. Art. 258:

“If the parents are divorced or judicially separated, only the one to whom the court has entrusted the care and custody of the children has a right to appoint a tutor for them as provided in the preceding article.”

LSA-C. C. Art. 263:

“When a tutor has not been appointed to the minor by father or mother dying last, or if the curator thus appointed has not been confirmed or has been excused, then the judge shall appoint to the tutorship, from among the qualified ascendants in the direct line, collaterals by blood within the third degree and the surviving spouse of the minor’s mother or father dying last, the person whose appointment is in the interests of the minor.”

LSA-C. C. Art. 270:

“When a minor is an orphan, and has no tutor appointed by his father or mother, nor any relations who may claim the tutorship by effect of law, or when the tutor appointed in some of the modes above expressed is liable to be excluded or disqualified, or is excused legally, the judge shall appoint a tutor to the minor.”

Appellant contends that the trial judge erred in finding that he did not have a superior right to be appointed Dorothy Joann’s tutor because her father, Orville Frank Majerus, is still living. He argues that because Patsy Stanfield, as the custodial parent, had the exclusive right to appoint a tutor by will, the child’s father does not have the right to be appointed her natural tutrix and is relegated to the position of an ascendent under LSA-C. C. Art. 263. We cannot agree with that construction of the above provisions.

It is true that under LSA-C. C. Arts. 257 and 258 Patsy Stanfield had the legal right to appoint a tutor for the child other than the child’s father. Paul v. Cloud, 378 So.2d 586 (La.App. 3rd Cir. 1979), writ refused 380 So.2d 101 (La.1980). However, we do not believe that the rule set out by the legislature in those articles can properly be extended to deprive an out-of-custody parent of the tutorship of his or her child in cases like this one where the custodial parent has not exercised the right to appoint a tutor by will.

The well established rule is that a parent’s right to the custody of his or her child is superior to a non-parent’s. This preferred right is primed only by the state’s superior right to deprive a parent of the custody child when the physical, mental and moral welfare of the child requires it. Wood v. Beard, 290 So.2d 675 (La.1974); Paul v. Cloud, supra. In view of those principles, we believe that LSA-C. C. Arts. 257 and 258 must be strictly construed.

We conclude that upon Patsy Stan-field’s death, Orville Majerus was called to the natural tutorship of his daughter, Dorothy Joann. Since Patsy Stanfield did not exercise her right to appoint a tutor by will, LSA — C. C. Arts. 257 and 258 are not applicable. LSA-C. C. Arts. 263 and 270, which by their express terms apply to cases in which both parents have died, are likewise inapplicable. Thus, when Mr. Majerus did not come forward and qualify as natural tutor, the trial judge found himself in the position of having no governing statutory provisions to apply, although the court unquestionably had jurisdiction under LSA-C. C. P. Art 10. Under those circumstances, we believe that the trial judge’s appointment of Patricia Poche was a proper exercise of that jurisdiction under LSA-C.C.P. Art. 191.

Turning to the second issue, we find no error in the trial court’s conclusion that the best interests of all three children would be served by the appointment of Patricia Poche as their tutrix. We fully agree that it would be better to maintain the children in familiar surroundings where they will be cared for by relatives with whom they have had a close and long-standing relationship.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to the appellant.

AFFIRMED.

      . Art. 191. Inherent judicial power
      A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.