author: LEMMON, Justice. MARCUS, Justice DENNIS, Justice, PER CURIAM.

text:
    Willie JONES v. John THOMAS, the Audubon Park Commission, Puritan Insurance Company and the City of New Orleans.
    No. 82-C-1484.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    Rehearings Denied Feb. 11, 1983.
    Gregory P. Dileo, A.J. Capritto, New Orleans, for applicant.
    Robert E. Kerrigan, Jr., Deutseh, Derri-gan & Stiles, James HaneMann, Jr., New Orleans, for respondent.
   LEMMON, Justice.

The legal issue in this case is whether an injured employee’s compensation remedy against his employer is the exclusive remedy when the employee’s injury is caused by the intentional act of a coemployee under circumstances which would cause the employer to be vicariously liable if the injured person had been a third person who had no employment relationship with the employer. The trial court answered the question in the affirmative by maintaining the employer’s exception of no cause of action and dismissing the employee’s suit. The court of appeal affirmed. 413 So.2d 180. We granted the employee’s application for certiorari to review these rulings. 420 So.2d 162.

According to the allegations of the employee’s petition (which must be accepted as true for the purpose of an exception of no cause of action), plaintiff-employee’s coem-ployee intentionally struck plaintiff in the head during working hours and caused the injuries which are at issue in this litigation.

Citing LaBrane v. Lewis, 292 So.2d 216 (La.1974), plaintiff contends that an employer is vicariously liable for the intentional (as well as the negligent) acts of an employee when the conduct causing the injury is so closely connected in time, place and causation to the employment duties that the conduct must be regarded as a risk of harm fairly attributable to the employer’s business. On the other hand, defendant-employer argues that the employer did not expressly or implicitly authorize the injury-causing conduct and did not benefit from it, nor was the action taken by the employee in furtherance of the employer’s interest so as to make the employer vicariously liable for the consequences of the employee’s conduct.

However, since this matter is before us on an exception of no cause of action, we are not as concerned with the question of whether the employer may be held vicariously liable for the particular conduct of the employee under the facts alleged in the petition (or even the facts which may be alleged in an amended petition and proved at trial) as we are with the question of whether the employer can ever be held vicariously liable, under any facts and circumstances, for the employee’s intentional act when the victim of the intentional act is also an employee of the employer. This issue has been brought into focus since the 1976 amendment to La.R.S. 23:1032 expanded the exclusivity of the compensation remedy by barring suits not only against the employer, but also against the coemployees of the employer, with certain exceptions.

Prior to the 1976 amendment, an injured employee, although not entitled to maintain a tort action against his employer for injuries incurred in a work-related incident, was entitled to maintain a tort action against his coemployees, and the courts entertained many tort actions in which the injury resulted from a breach of responsibility owed by an executive officer. See Adams v. Fi delity and Cas. Co., 107 So.2d 496 (La.App. 1st Cir.1958); Canter v. Koehring Co., 283 So.2d 716 (La.1973). The 1976 legislation was designed to close the “executive officer” loophole in the exclusiveness of the compensation remedy and to extend tort immunity not only to employers, but also to principals (who had previously enjoyed only a jurisprudentially established immunity) and to employees of employers and principals, except for “liability, civil or criminal, resulting from an intentional act”. This court has held, in accordance with our perception of legislative intent, that the exception should be confined to those cases involving intentional torts as traditionally defined. See Bazley v. Tortorich, 397 So.2d 475 (La.1981).

The particular question presented by the instant case is whether the 1976 amendment’s general grant of tort immunity should be withheld from an employer because of the intentional act exception, when the coemployee’s intentional act is one for which the employer would be vicariously liable to a third party. The court of appeal adopted the views of the treatise commentators, who have pointed out that the intentional act exception is based on personal moral culpability and should apply only to personal (as opposed to vicarious) liability. However, in Rennier v. Johnson, 410 So.2d 1149 (La.App. 3rd Cir.1982), cert, denied, 412 So.2d 1115, the court of appeal for that circuit, interpreting as ambiguous the provision of La.R.S. 23:1032 that “[njothing in this Chapter shall affect the liability of an employer ... resulting from an intentional act”, construed the statute in favor of the employee and permitted the action.

We note that La.R.S. 23:1032 provides for general immunity, but exempts from immunity the liability of an employer or an employee of the employer “resulting from an intentional act”, without specifying whose intentional act triggers the exception. Because the statute could be interpreted with equal reasonableness to exempt an employer only for liability resulting from his intentional act, we look to all pertinent considerations to make our determination.

Except for the provisions of the compensation act at issue in this litigation, an employer is vicariously liable under general tort law for the injury-causing acts of an employee, whether the acts are negligent or intentional. LeBrane v. Lewis, above. Thus, the 1976 amendment which granted general tort immunity from liability, but further provided that nothing shall affect the civil liability of the employer or coemployee resulting from an intentional act, can very reasonably be interpreted as excepting from general immunity any liability of the employer for an intentional act, whether personal or vicarious. Moreover, an employer’s absolute liability (whether personal or vicarious) for intentionally inflicted injuries could be considered as a possible legislative trade-off for absolute immunity for negligently inflicted injuries.

Finally, the interpretation advocated by the plaintiff (that only nonintentionally injured employees are relegated to compensation benefits) would also provide clarity and consistency. If the injury is caused accidentally, whether by the employer or by a coemployee, then the injured employee can sue only for compensation benefits; but if the injury is caused intentionally, whether by the employer or by a coemployee, then the injured employee can sue in tort.

We conclude that since the first paragraph of La.R.S. 23:1032 provides clearly a rule of general tort immunity under which liability for all nonintentional acts falls within the purview of the compensation act, the second paragraph of the statute should be interpreted to exclude all intentional acts from the general immunity. We further conclude that application of general tort law may make the employer vicariously liable for the intentional acts of the injured employee’s coemployee.

Accordingly, the judgments of the lower courts dismissing the City of New Orleans, the Audubon Park Commission and Puritan Insurance Company are reversed, the exception of no cause of action and the motion for summary judgment are overruled, and the case is remanded for further proceedings.

BLANCHE, J., dissents.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

MARCUS, Justice

(dissenting).

I consider that under the statute in question an employee’s exclusive remedy against his employer is for workmen’s compensation except for liability resulting from the employer’s intentional act. To permit an employee to recover against his employer for the “intentional act” of a co-employee is contrary to the letter and intendment of the statute. Accordingly, I respectfully dissent.

DENNIS, Justice,

dissenting.

I reluctantly dissent.

Although I am not certain the majority has reached an incorrect result, it appears that it has incorrectly pretermitted at least two questions crucial to a disciplined analysis of the exception of no cause of action. I believe that it is necessary to decide and declare under what circumstances an employer shall be held liable for the intentional tort of his employee and to determine whether it can be inferred that such circumstances exist in this case from the allegations of the petitioner. Although I think I agree with the majority’s construction of the worker compensation statute, without consideration of these crucial issues, its opinion actually appears to be an advisory view on an abstract question.

Even if it were determined that the exception of no cause of action was properly sustained, however, I would permit an amendment of the pleadings to cure the deficiency.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing by Puritan Insurance Company, we clarify footnote 6 and reserve to Puritan the right to raise, in the trial court on remand, all appropriate coverage issues.

      . As amended in 1976, La.R.S. 23:1032 provides:
      “The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      “Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      “The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”

      . The intentional act exception was one of several proposals which were considered by the legislature to soften the loss of the cause of action against executive officers and other coemployees. Other proposed exceptions were for an employer’s failure to provide a safety device required by statute, for an employer’s violation of a recognized safety rule, and for a supervisory employee’s gross negligence.

      . The purpose of the intentional act exception is to prevent an employer or a coemployee who personally inflicts an intentional injury from using an immunity designed for accidental injuries to protect himself against the consequences of his own willful misconduct. 2A A. Larson, The Law of Workmen’s Compensation, § 68.11 (1982); W. Malone and A. Johnson, 14 La. Civil Law Treatise — Worker’s Compensation Law and Practice § 365 (2d ed. 1980). Thus, neither an employer nor a coemployee who willfully causes an employee’s injury can avail himself of the shield of tort immunity generally provided by La.R.S. 23:1032.

      . Statutes from other jurisdictions which similarly do not refer expressly to vicarious liability have been generally interpreted as not excepting an employer from tort immunity except for personal willful acts. See Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979); Sands v. Union Camp Corporation, 559 F.2d 1345 (5th Cir.1977); Gallegos v. Chastain, 95 N.M. 551, 624 P.2d 60 (1981). However, at least one state has an explicit statutory pronouncement on the problem:
      “The right to recover compensation pursuant to this chapter for injuries sustained by an employee or for the death of an employee is the exclusive remedy against the employer or any co-employee acting in the scope of his employment, and against the employer’s workmen’s compensation insurance carrier or administrative service representative, except as provided by § 23-906, and except that if the injury is caused by the employer’s wilful misconduct, or in the case of a co-employee by the co-employee’s wilful misconduct, and the act causing the injury is the personal act of the employer, or in the case of a co-employee the personal act of the co-employee, or if the employer is a partnership, on the part of a partner, or if a corporation, on the part of an elective officer of the corporation, and the act indicates a wilful disregard of the life, limb or bodily safety of employees, the injured employee may either claim compensation or maintain an action at law for damages against the person or entity alleged to have engaged in the wilful misconduct.” (Emphasis supplied.) Ariz.R.S. § 23-1022A.

      . On the other hand, the amendment could be construed as leaving intact the employer’s tort immunity from vicarious liability which existed before the amendment.

      . Puritan Insurance Company, sued as the insurer of the Audubon Park Commission, moved for a summary judgment on the basis that its policy excluded obligations of the insured under workmen’s compensation law. The trial court granted the motion in a separate judgment and dismissed Puritan without prejudice. Plaintiff appealed from both judgments, and the court of appeal affirmed without discussing the summary judgment, since dismissal of the Commission rendered the coverage issue moot. Because we reverse the dismissal of the Commission on exceptions, we also reverse the summary judgment, reserving to Puritan the right to assert other coverage issues relevant to the tort claim.


source: Caselaw Access Project

author:
DIXON, Chief Justice.
     LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Joseph W. AMARENA.
    No. 82-K-1643.
    Supreme Court of Louisiana.
    Jan. 28, 1983.

      John F. Rau, Jr., Gretna, for relator.
    John M. Mamoulides, Dist. Atty., William C. Credo, Gerald Alonzo, Asst. Dist. Atty., for respondent.
   DIXON, Chief Justice.

Defendant, Joseph Amarena, was charged by bill of information on August 20, 1979 with armed robbery in violation of R.S. 14:64. The bill of information was attacked by defendant because more than two years had passed since the date of the institution of the prosecution. C.Cr.P. 578.

Writs were granted in this case on the application of the defendant to review the trial judge’s ruling on a motion to quash the bill of information.

Documents introduced by the defendant at the hearing on the motion to quash, and by stipulation between the defense lawyer and the prosecutor, establish the following facts.

On March 20, 1979 two white men armed with revolvers robbed Pontchartrain Jewelers, taking loose diamonds and rings valued at over $61,000. Complete descriptions of the robbers were given to the police by two employees of the jewelry store. The robbers bound the hands of the employees with black plastic electrical tape and removed loose diamonds from the safe and rings from the front display eases.

The employees related to a detective that the two robbers had entered the jewelry store on the 16th of March and asked about purchasing a diamond. They left to return at 2:15 p.m. on the 20th of March, when they again looked at loose diamonds, then departed. At 5:20 p.m. March 20,1979 they returned and committed the robbery.

The police obtained a detailed description from the employees, who were able to put together composite pictures of the robbers. Information about the robbery was distributed in a bulletin, along with photographs of the composite pictures of the robbers and a summary of the robbery.

On May 4,1979 the Jefferson Parish sheriff’s department received a telephone communication from the San Francisco police department about the purchase (apparently by California police) of $25,000 worth of rings and loose diamonds from two Louisiana residents believed to be from the New Orleans area. The San Francisco police sent the Jefferson Parish police photographs, called “surveillance photographs,” of the two persons in their custody who had sold the jewelry. Photographs of the rings and loose diamonds were also sent to the Louisiana police.

The employees of the jewelry store identified the jewelry by stock and code numbers of the Pontchartrain Jewelers, and by the handwriting on tags attached to the rings. All of the rings were identified as property of Pontchartrain Jewelers. One of the loose diamonds in a photograph was identified by a carbon deposit visible in the center of the diamond. Four white pieces of paper were identified as packets the loose diamonds were in when they were taken during the robbery. This identification was made from the handwriting on the packets.

The employees of the jewelry store viewed a photographic lineup consisting of “surveillance” photographs. The victims asked for better photographs, although one of them thought that one photograph showed two men similar in appearance to the ones who robbed the store.

Further communications between California and Jefferson Parish police produced Louisiana driver’s license photographs of the two men held in California. Three employees of Pontchartrain Jewelers made positive identifications of pictures of the defendant and a Michael Pickett as the two men who robbed them on March 20, 1979.

Amarena was transferred to the federal authorities by the San Francisco police and pleaded guilty in the United States District Court, Northern District of California, to the interstate transportation of stolen goods in violation of 18 U.S.C. § 2315 (1961). On November 8,1979 he was sentenced to serve four years in federal custody. The record does not reveal the date of his transfer from state authorities in California to federal authorities.

An arrest warrant was issued on May 10, 1979, and on August 22,1979 a notice of an arraignment set for September 5, 1979 was sent out by the trial court in Jefferson Parish, but this notice was never served on the defendant. On September 6, 1979 the trial court issued an instanter subpoena for the defendant since he had failed to appear for his arraignment.

The Jefferson Parish district attorney, on January 10, 1980, wrote to the Governor of Louisiana requesting the extradition of Amarena from California. The state officials in Louisiana appeared to be under the impression that the defendant was still under the authority of the California state officials. In response to this request, which was forwarded by the Louisiana Secretary of State to the Governor of California on January 22, 1980, the California Attorney General informed the Louisiana Secretary of State that California was without jurisdiction to extradite the defendant, since he was incarcerated in the federal facility at Terminal Island until 1983, and returned the extradition papers. This letter was forwarded to the Jefferson Parish district attorney’s office on January 31, 1980.

In a letter dated April 21,1980, the federal officials at Terminal Island prison asked that the Jefferson Parish sheriff’s office inform them of the status of the warrant against Amarena, and informed them that if they still wished to secure his custody they should forward a warrant to the federal authorities to obtain a detainer. There appears to have been earlier correspondence from the federal officials at Terminal Island prison camp, but the copy of that correspondence in the record is unreadable.

On May 6,1980 the Jefferson Parish sheriff’s department sent the May 10, 1979 arrest warrant for the defendant to the federal facility to be lodged as a detainer. The federal officials at Terminal Island notified the Jefferson Parish sheriff’s office on May 13, 1980 that their detainer was filed and that the defendant’s discharge date was tentatively scheduled as September 25, 1982.

The federal officials, on May 13, 1980, notified the defendant of the untried charges against him in Jefferson Parish and advised him of his legal right to request a trial on the charges within one hundred eighty days, his right to waive extradition and his ability to consent to being returned to the trial jurisdiction. The form, which defendant signed as receiving, also advised him of his right to oppose the request that he be delivered to Jefferson Parish for the final disposition of the charges pending against him.

In a letter dated April 14,1981, a copy of which was sent to the Jefferson Parish district attorney and the Jefferson Parish sheriff, the defendant’s California attorney stated: “... Mr. Amarena is a defendant in a matter which is now pending in Jefferson Parish, Louisiana and we are requesting that this matter be placed on the trial calendar pursuant to California Penal Code Section 1381.” Therefore, defendant’s California attorney requested that the defendant receive a speedy trial of the charges pending against him in Jefferson Parish.

On June 1, 1981, pursuant to a petition from the district attorney, the trial court issued a “writ of habeas corpus ad prose-quendum” which was directed to the Regional Director of the Federal Bureau of Prisons in California. This writ required him to produce the defendant for a July 1, 1981 arraignment. The record does not reveal whether this writ was ever actually sent to or received by the regional director. Defendant failed to appear for his arraignment on July 1, 1981 and the state requested and was granted an indefinite continuance.

On February 5,1982 the unit manager of the facility at Terminal Island wrote the Jefferson Parish sheriff regarding the May 6, 1980 detainer request and inquired about the status of the request since they had received no further communications from Jefferson Parish officials relative to the defendant. In response to this letter, the Jefferson Parish sheriff wrote to the unit manager at the facility on February 15, 1982 indicating to him that they still wanted to obtain the custody of the defendant and would attempt to locate the extradition papers, or, if unable to do so, would reinsti-tute proceedings.

A second “writ of habeas corpus ad prose-quendum” was issued by the trial court on March 15, 1982. This writ was directed to the Jefferson Parish sheriff commanding him to produce the defendant for arraignment set for May 12, 1982. A copy of this writ was sent to the federal officials at Terminal Island, where the defendant was still in custody, with a request that the Jefferson Parish sheriff be notified when the defendant would be available for the Jefferson Parish authorities.

The Jefferson Parish sheriff obtained custody of the defendant, who appeared for his arraignment on May 5,1982 and entered a plea of not guilty. Trial was set for June 21, 1982.

The date of the arraignment was two years and nine months after the date of the filing of the bill of information; thus the two year period for the commencement of trial was obviously exceeded. Unless there was an interruption of the prescriptive period as provided in C.Cr.P. 579, the indictment should have been dismissed under C.Cr.P. 581.

The state seems to argue in brief that simply because the defendant was in federal custody in California, the first sub-paragraph of C.Cr.P. 579 “should be inter-preted to mean that prescription is interrupted by the defendant being incarcerated by another state or the federal government.” The brief further attempts to justify the fruitless efforts of the state to obtain the presence of the defendant in Louisiana for the purpose of prosecution as being sufficient to constitute an interruption of prescription.

There is no substance to the arguments of the prosecution. Although the prosecution was early informed of the whereabouts of the defendant, it was reasonably foreseeable that none of the efforts made to obtain the presence of the defendant in Louisiana would be successful; the state did not follow the requirements of any statute (for example see 18 U.S.C. § 4085) or federal regulation in attempting to obtain custody of the defendant for prosecution, although the defendant’s own lawyer wrote the Jefferson Parish district attorney and sheriff requesting a speedy trial in Louisiana. The whereabouts of the defendant were known to Jefferson Parish officials for more than two years. His presence in Louisiana was easily obtainable. When the prosecution finally took the appropriate steps to obtain Amarena’s presence in Jefferson Parish, he was promptly delivered. The state’s argument that the time limitation on his trial was interrupted under C.Cr.P. 579 simply because he was in prison outside the state, and beyond the control of the state, is without merit. The mere physical detention of the defendant in a state or federal prison will not alone serve to interrupt prescription. See State v. Devito, 391 So.2d 813, 814 (La.1980); State v. Shushan, 206 La. 415, 19 So.2d 185 (1944).

Another ground of interruption not relied upon by the state in brief or oral argument, although it had been argued to the trial judge, was that prescription had been interrupted because defendant fled the state or was outside the state in order to avoid prosecution. The burden of proving that the defendant’s purpose in remaining outside the state was to avoid detection, apprehension or prosecution, and thereby interrupted the two year prescription of C.Cr.P. 578 rests with the state. State v. Campbell, 404 So.2d 956, 959 (La.1981). This burden is a heavy one in which the record must clearly establish that the purpose of the defendant’s absence was to avoid detection, apprehension or prosecution. State v. Williams, 414 So.2d 767, 768-69 (La.1982). See State v. Campbell, 404 So.2d 956 (La.1981); State v. Guidry, 395 So.2d 764 (La.1981); State v. Wicker, 391 So.2d 845 (La.1980); State v. Devito, supra; State v. Driever, 347 So.2d 1132 (La.1977).

Each subsection of C.Cr.P. 579 is applicable to the defendant in this case. The prescription of C.Cr.P. 578 running against trial is interrupted if the record establishes that Amarena fled or was outside the state with the purpose of avoiding detection, apprehension or prosecution. The record before us adequately demonstrates that the prescription was interrupted because the defendant “with the purpose to avoid detection, apprehension or prosecution [fled] from the state,” or was “outside the state.” C.Cr.P. 579(1).

Six weeks after the armed robbery of Pontchartrain Jewelers, the defendant was in the custody of the San Francisco police, having been apprehended in a police operation in which the police, for $25,000, bought the identical jewelry stolen in Louisiana. The custody of the defendant shifted from the San Francisco police to á federal penal institution in California, where defendant was incarcerated for interstate transportation of stolen jewelry. It is clear from the record that the defendant was one of the robbers. It is inescapable that his presence in California (and therefore his absence from Louisiana) was closely, if not exclusively, related to his desire to sell the jewelry he stole in Louisiana. The record, therefore, adequately establishes that the defendant left the state and was outside the State of Louisiana “with the purpose to avoid detection, apprehension, or prosecution.” C.Cr.P. 579(1). State v. Campbell, supra; State v. Montgomery, 257 La. 461, 242 So.2d 818 (1970). Prescription was therefore interrupted.

However, a time came when the state learned of the defendant’s whereabouts and had within its power the ability to obtain the custody of the defendant. State v. Devito, supra at 814 and 816. The Jefferson Parish officials learned of Amare-na’s incarceration in the federal facility at Terminal Island when they received the letter from the California Attorney General, which was forwarded to them by the Louisiana Secretary of State. The forwarding date appears to have been January 81,1980; by February of 1980 it was no longer beyond the control of the state to obtain the custody of the defendant. Any interruption of the period of limitation which existed under C.Cr.P. 579(1) ceased when the state learned of the incarceration, location and availability of the defendant, and the two year prescriptive period began to run anew from that time.

Under C.Cr.P. 579(2) if the presence of the defendant cannot be obtained by legal process or for any other cause which is beyond the control of the state, the two year prescriptive period will be interrupted.

In State v. Shushan, supra, the defendant was imprisoned in a federal penitentiary outside the State of Louisiana and this court found that the defendant could have been obtained by a proceeding which would have been honored by the federal government. Although not a fugitive, since Shushan could have been obtained by legal process, this court held that the running of prescription against his prosecution was not interrupted.

The obverse of that ruling is codified in C.Cr.P. 579(2); it provides that if the defendant cannot be tried because his presence cannot be obtained by legal process or because of any other cause which is beyond the control of the state, the prescriptive period of C.Cr.P. 578 is interrupted. The official redactor’s comments to C.Cr.P. 579 indicate that the Shushan doctrine has been expanded by the phrase “because his presence for trial cannot be obtained by legal process.” C.Cr.P. 579, Official Revision Comment (d). This, the comment suggests, is intended to cover situations where the defendant is incarcerated in other jurisdictions and the processes of Louisiana will not be honored.

In the present case, the fact that the state finally proceeded in the proper fashion and successfully obtained the custody of the defendant indicates that, had the state used the proper methods earlier, their requests would have been honored. The letters received by the state officials demonstrate that the federal officials were cooperative. The federal officials inquired about the case when they did not hear from the state officials within a reasonable period of time, in their letters to the Jefferson Parish sheriff in April of 1980 and February of 1982. Had the Jefferson Parish officials followed the proper procedures and followed up on the effort (as they did in 1982), they probably would have obtained the defendant as effortlessly as they did in 1982. The record suggests that the efforts of the state to secure the custody of the defendant were marked by the use of inappropriate procedures and a notable lack of diligence. It is clear that it was within the state’s power to secure the custody of the defendant by legal processes, and C.Cr.P. 579(2) will not operate to interrupt the running of the two year prescriptive period which began in February of 1980.

But the last sentence of C.Cr.P. 579 provides that prescription began to run anew from the date the cause of interruption “no longer exists.” The interruption of prescription because of Amarena’s flight from Louisiana came to an end when the state learned of the defendant’s whereabouts and had the power to obtain the return of the defendant to this jurisdiction. Prescription once more began to run against the state in February of 1980, when the California Attorney General wrote the Louisiana officials, telling them where Amarena was. This prescription was not thereafter interrupted for more than two years. The arraignment of defendant on May 5, 1982 and the setting of trial for June 21, 1982 clearly fall beyond this prescriptive period.

We find that the state did not try the accused within the time mandated by law under C.Cr.P. 578, and that the defendant’s motion to quash the indictment should have been granted.

The ruling of the trial court on the motion to quash the indictment is reversed. The indictment is dismissed, and the defendant is discharged. C.Cr.P. 581.

MARCUS, J., dissents for reasons assigned by LEMMON, J.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

This case turns essentially on the application of the burden of proof in prescription cases and on the interpretation of La.C. Cr.P. Art. 579.

The usual rule in prescription cases is that the party pleading prescription has the initial burden of proving that the prescriptive period has run, after which the party opposing the plea of prescription has the burden of proving that prescription was interrupted. However, when the opposing party successfully proves that prescription was interrupted, the burden should be placed on the party pleading prescription to prove that the interruption terminated and that the prescriptive period has run anew since the termination.

In the present case, there was no dispute that the two-year prescriptive period had elapsed when the trial was not commenced within two years of the institution of prosecution on August 20, 1979. The state, thus having the burden of proving interruption, established that prescription was interrupted under Article 579(1) when the defendant, with the purpose of avoiding prosecution, fled from the state and was outside of the state continuously during the period after prosecution was instituted. For defendant to prevail on the issue of prescription, it was therefore necessary for defendant to present evidence establishing that the interruption of prescription had terminated and that the two-year period of limitation had run after the date of termination.

The majority incorrectly concludes that the cause of the interruption under Article 579(1) ceased to exist when defendant’s whereabouts became known and his presence could be obtained by legal process. At that point in time, perhaps, the cause of the interruption under Article 579(2) ceased to exist.

However, the cause of interruption in a case governed by Article 579(1) continues to exist until the defendant, after initially leaving the state to avoid prosecution and thereafter remaining outside the state, does something to indicate a change in his intent or purpose to avoid prosecution by Louisiana authorities. Since the burden is on defendant to prove termination of the cause of interruption of prescription, he had the burden of proving that he no longer intended to avoid prosecution at some point in time more than two years before the date for commencement of trial. The only evidence in the present record of defendant’s change of his initial intent or purpose to avoid prosecution is a letter by the California attorney on April 14,1981 to the Louisiana District Attorney, requesting that the case be placed on the docket. Since the state scheduled the commencement of trial within two years of April 14, 1981, defendant failed to prove the lapse of two years after the termination of the cause of interruption of the prescriptive period.

       Judge William Norris III of the Second Circuit Court of Appeal participated in this decision in place of Blanche, J., recused.

      . “Except as otherwise provided in this Chapter, no trial shall be commenced:
      (1)In capital cases after three years from the date of institution of the prosecution;
      (2) In other felony cases after two years from the date of institution of the prosecution; and (3) In misdemeanor cases after one year from the date of institution of the prosecution.
      The offense charged shall determine the applicable limitation.” C.Cr.P. 578.

      . It appears that the State of Louisiana was aware of the defendant’s incarceration at Terminal Island prior to the receipt of this letter. The Jefferson Parish district attorney’s office in its January 10, 1980 letter to the Governor of Louisiana informed the Governor that the defendant was in the custody of the Bureau of Prisons, Federal Correctional Institution, Terminal Island. However, it is unclear from the record when the state obtained this information.

      . This action appears to have been initiated by the district attorney upon the advice of the federal officials at the Terminal Island facility where the defendant was in custody.

      . An assistant district attorney, Gerald R. Alonzo, testified at the hearing on the motion to quash that the district attorney’s office, after several phone calls in 1982, realized that they should have directed the first “writ of habeas corpus ad prosequendum” to obtain Amarena to the Jefferson Parish sheriff and sent a copy to the federal facility, rather than directing it to the regional director of federal prisons as they had previously done.

      . “The period of limitation established by Article 578 shall be interrupted if:
      (1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
      (2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state. The periods of limitation established by Article 578 shall commence to rim anew from the date the cause of interruption no longer exists.” C.Cr.P. 579.

      . Article 579 expressly provides that the period of limitation commences to run anew from the date that the cause of the interruption no longer exists, but does not provide which party has the burden of proving that the cause of interruption no longer exists. It is appropriate to place this burden on the party pleading prescription as a rejoinder to the proof by the opposing party that the original period of limitation was interrupted. Moreover, in cases of doubt, such a burden should be placed on the party who benefits by the plea.

      . Arguably, the state also proved that prescription was interrupted under Article 579(2) because defendant’s presence could not be obtained for trial by legal process. Defendant was incarcerated in a federal penitentiary in California, and there was no Louisiana process which the federal authorities were compelled to hon- or, although the federal authorities did have discretion to honor a request that defendant be returned to this jurisdiction. The state proved that the first request for defendant’s presence was not honored.

      .Because there were two causes of interruption of prescription, it was necessary for defendant to prove both causes no longer existed. The majority concludes that the interruption of prescription under Article 579(2) was terminated when the state discovered the fact of the defendant’s incarceration in a federal penitentiary, at which point he could no longer be considered a fugitive. See State v. Shushan, 206 La. 415, 19 So.2d 185 (1944). The majority, however, did not cite any procedure for compeiiing defendant’s presence for trial during incarceration in a federal penitentiary (during which he is not subject to extradition). The fact that the federal authorities complied with the Louisiana authorities’ second request for defendant’s presence does not establish that his appearance could have been “obtained by legal process” during the prescriptive period.
      In the Shushan decision the court rejected the state’s contention that prescription should not run while the defendant was in a federal penitentiary and not amenable to trial, noting that defendant’s presence for trial could have been obtained by a writ of habeas corpus ad prosequendum which would have been honored by the federal government. Official Revision Comment (d) to Article 579 notes that the “Shushan doctrine” was expanded by use of the phrase “because the presence for trial cannot be obtained by legal process” in order to cover situations in which the defendant is incarcerated in other jurisdictions and the processes of Louisiana will not be honored.

      The present case is distinguishable from State v. DeVito, 391 So.2d 813 (La.1980), on the basis that defendant’s presence for trial in the DeVito case could have been obtained by the legal process of extradition, so that prosecution was arguably never interrupted by the operation of Article 579(2), (although prescription was clearly interrupted under Article 579[1]).

      . The present case can be distinguished from the Shushan case on the basis that Shushan never left the state with the purpose of avoiding prosecution of the charged state offense, but rather remained in the state until he was tried and convicted on the federal offense and was then incarcerated outside of the state. Therefore, the facts of the Shushan case would not have established a cause for interruption of prescription under present Article 579(1).

      . Defendant must prove both the fact that he changed his intent to avoid prosecution, as well as the date on which that (previously established) “purpose to avoid” ceased to exist.


text:
    LIFEMARK CORPORATION v. Roger GUISSINGER, Secretary, Department of Health and Human Resources, State of Louisiana, et al.
    No. 82 CW 0396.
    Court of Appeal of Louisiana, First Circuit.
    May 28, 1982.
   In re: National Medical Enterprises, Inc., applying for supervisory writs, Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 255,861.

The application of relator in the above entitled and numbered cause having been duly considered,

IT IS ORDERED that a writ of mandamus hereby issue herein, vacating and recalling the judgment of May 20,1982, in the above entitled and numbered cause, and any rulings issued pursuant thereto.

IT IS FURTHER ORDERED that the Honorable William H. Brown order the joinder of National Medical Enterprises, Inc., as a party defendant in said cause.


text:
    QUALICARE, INC. v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, State of Louisiana, et al.
    No. 82 CW 0399.
    Court of Appeal of Louisiana, First Circuit.
    June 2, 1982.
   In re: Department of Health and Human Resources, State of Louisiana, et al applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 256,546.

WRIT DENIED: No abuse of discretion.


author: ELLIS, Judge:

text:
    Roosevelt M. WHITE, et al. v. Emily Winn MITCHELL, et al.
    No. 15039.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    On Rehearing Feb. 22, 1983.
    James R. Coxe, III, Baton Rouge, for plaintiffs-appellants Roosevelt M. White, Phobe White Jackson, Octavia White Johnson and the heirs of John White, Jr.
    Robert W. Stratton, In Pro. Per.
    Bryant W. Conway, Baker, for defendants-appellees Emily Winn Mitchell, Elnora Winn Westley, Mattie Weston, Laverne Winn Maderson, Joe L. Winn, Patricia Winn, Delores Winn, Darryl Winn and Leroy Winn.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

Elsie Barrow Winn died intestate on June 9, 1963, leaving three legitimate children and three illegitimate children. Her succession was opened on the petition of her legitimate children, and by ex parte judgment, dated July 18, 1973, the legitimate children were recognized as her sole heirs and sent into possession of her estate. The property involved consists of 35V!t acres of land in East Baton Rouge Parish which is alleged to remain in the possession of the legitimate children.

This suit was brought by Mrs. Winn’s illegitimate children seeking to set aside the above judgment of possession and to be recognized as heirs of Mrs. Winn and sent into possession of their portion of her estate. To the petition, defendants, who are either the legitimate children of Mrs. Winn, or their .heirs, filed peremptory exceptions of no cause of action and prescription. After a hearing, the trial court sustained the exception of no cause of action and granted plaintiffs 15 days to amend their petition. When no amendment was made, judgment was signed, sustaining the exception of no cause of action and dismissing plaintiffs’ suit. From the judgment of possession, plaintiffs have appealed.

In Succession of Brown, 388 So.2d 1151 (La.1980), the court found Article 919 of the Civil Code to be unconstitutional, which had the effect of placing illegitimates on the same level with legitimate children in inheriting from their mutual parent. If Succession of Brown, supra, is applicable to this case, plaintiffs are entitled to their proportional share in the succession of their mother.

The trial judge based his reluctant holding as to the applicability of the Succession of Brown on a number of appellate court decisions to the effect that Brown should have no application before September 3, 1980, the date on which it was handed down. Since the decision in the court below, however, the Louisiana Supreme Court, in Succession of Clivens, 426 So.2d 585 (La.1982) held that Succession of Brown would be applied retroactively “in intestate successions where the rights of third parties are not involved.”

On the face of the record in this case, it involves an intestate succession in which all of the property inherited remains in the hands of either the heirs who were recognized in the judgment of possession, or their descendants. The ruling of Succession of Brown is therefore applicable.

The judgment appealed from is therefore reversed, and there will be judgment herein overruling the said exception of no cause of action and remanding the case to the trial court for further proceedings in accordance with law. All costs of this appeal shall be paid by defendants. All other costs shall await final disposition of the case on its merits.

REVERSED AND REMANDED.

ON REHEARING

In our original opinion herein, in which the facts and issues are fully delineated, we found the holding in Succession of Brown, 388 So.2d 1151 (La.1980), to be applicable to this case, following the original opinion in Succession of Clivens, 426 So.2d 585 (La.1983). In that opinion, the Court held that Brown would be applied retroactively “in intestate successions where the rights of third parties are not involved.”

However, since our original opinion herein, the Supreme Court, having granted a rehearing in Clivens, has issued a second opinion in that case. In the opinion on rehearing, three justices were of the opinion that Brown should be applied retroactively only to January 1, 1975, the effective date of the Constitution of 1974. Justice Lem-mon was of the opinion that, under the facts of the Clivens case, Brown should be applied retroactively without time limitation. Justice Watson adhered to the original opinion, which placed no limitation on the retroactive effect of Brown “in intestate successions where the rights of third parties are not involved.” Chief Justice Dixon dissented without comment, and must have been of the opinion that Brown was applicable retroactively beyond January 1, 1975. Justice Marcus concurred in the result, but expressed the opinion that Brown should not be applied retroactively.

It appears, therefore, that six justices would give Brown retroactive effect until January 1, 1975, and that four justices would not give it retroactive effect beyond January 1, 1975, under the facts of the Clivens case, in which the decedent died intestate in 1971, and the property remained in the hands of the legitimate heirs.

In this case, Elsie Barrow Winn died intestate in 1963. Under the opinion on rehearing in the Clivens case, Brown would have no application beyond January 1,1975, and Mrs. Winn’s illegitimate children have no cause of action to demand a share in her estate.

The original judgment herein is therefore set aside, and the judgment appealed from is affirmed, at plaintiffs cost.

AFFIRMED.


author: EDWARDS, Judge. WATKINS, Judge,

text:
    Nolan PORTIER v. TEXACO, INC.
    No. 82-CA-0144.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Feb. 25, 1983.

      Grady C. Weeks, Houma, for plaintiff and appellee.

      Miles P. Clements, New Orleans, for defendant and appellant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Nolan Portier, brought this action under the Jones Act, 46 U.S.C. sec. 688, and general maritime law. Portier’s suit alleged that he had suffered serious disabling injuries while working for defendant, Texaco, Inc., as a rotary helper aboard the Drilling Barge TERREBONNE BAY, owned and operated by the defendant.

A reading of the record reveals the following facts surrounding plaintiffs accident and subsequent disability. Plaintiff suffered his injury while working with a crew which was lifting a forty-foot long section of five-inch drill pipe into the elevator located above the drilling rig’s rotary table. Another Texaco employee, James Fontenot, was operating the air hoist which was being used to lift the drill pipe. Plaintiff and another helper, Cliff Ludeman, stood on either side of the pipe in order to guide it into the elevator. Another coworker, Malcolm Westley, stood behind the elevator, ready to latch the elevator around the front end of the pipe. The first attempt to latch the pipe was unsuccessful, as the front end of the pipe would not fit properly into the elevator. Fontenot then attempted to jerk the pipe in order to get it into the elevator latch properly. Fontenot intended to allow the pipe to descend slowly, then shift the hoist into an upward position, causing the pipe to jerk into the elevator. As Fontenot undertook this procedure, Portier, who had his back to Fontenot, kept his hands on the pipe in an attempt to guide it into the elevator. Portier and Fontenot testified that the pipe fell a distance of about one and one-half feet. This sudden drop caused plaintiff to wrench his back.

The trial court rendered judgment in favor of plaintiff in the amount of $932,-960.80, representing $150,000.00 for past and future pain and suffering, $28,250.00 for loss of wages from the date of accident until the date of trial, $686,907.00 for loss of future wages and $67,830.80 for loss of future fringe benefits. The trial court’s judgment for plaintiff was based on a finding of Jones Act negligence as well as unseaworthiness under general maritime law.

Defendant appeals the judgment of the district court, raising a variety of specifications of error. Texaco contends that the trial court erred in holding it liable for plaintiff’s original accident and in concluding that plaintiff was free from any contributory negligence. Furthermore, defendant maintains that plaintiff’s condition was worsened by chiropractic treatment which plaintiff sought and that the trial court erred in holding it liable for the consequences of that treatment. Additionally, Texaco contends that the trial court erred in considering a “productivity factor” in calculating plaintiff’s loss of future wages and in basing plaintiff’s award upon his gross income rather than his after-tax income. Finally, defendant contends that the trial court erred in allowing plaintiff prejudgment interest on the sum awarded. Each specification of error will be considered separately.

At the outset, however, we deem it appropriate to discuss the law applicable to plaintiff’s action and the standard of review to be applied. Plaintiff’s action was filed in the Louisiana courts pursuant to 28 U.S.C. sec. 1333, the “saving to suitors” clause. Federal substantive admiralty or maritime law applies to that action. Lavergne v. Western Co. of North America, Inc., 371 So.2d 807 (La.1979). Appellate review of a case brought under the Jones Act and general maritime law is governed by Rule 52(a) of the Federal Rules of Civil Procedure. Kratzer v. Capital Marine Sup ply, Inc., 645 F.2d 477 (5th Cir.1981). Under federal law and jurisprudence the findings of the trial judge on the merits may not be disturbed unless they are clearly erroneous. Kratzer v. Capital Marine Supply, Inc., supra; Melancon v. I.M.C. Drilling Mud, 282 So.2d 532 (La.App. 1st Cir.), cert. denied, 283 So.2d 769, 771 (La.1973).

In McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954), the United States Supreme Court gave the following explanation of the clear error rule:

“A finding is clearly erroneous when ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” 348 U.S. at 20, 75 S.Ct. at 7.

DEFENDANT’S LIABILITY FOR PLAINTIFF’S ACCIDENT

The trial court predicated defendant’s liability to plaintiff upon two theories of recovery, Jones Act negligence and the general maritime law principle of unseaworthiness. Because these two bases of liability involve distinct concepts, they will be discussed separately.

The trial court found that the accident occurred either because the brake on the air hoist failed or because Fontenot, the air hoist operator, inadvertently placed the hoist control in the down position. It further concluded that Fontenot was negligent for failing to warn Portier that he was about to lower the pipe. Portier testified at trial that he was given no warning that the pipe was about to be lowered. Additionally, Fontenot admitted that he gave plaintiff no warning prior to lowering the pipe and that he heard no one else warn him. Both sides called petroleum engineers as expert witnesses. Each testified that the air hoist operator should not lower a load when there is someone underneath it and that he should at least warn anyone underneath before lowering the load. Defendant makes much of plaintiff’s admission at trial that in an earlier deposition he testified .that Cliff Ludeman warned him that Fontenot was going to attempt to bounce the pipe into the elevator. However, plaintiff remained adamant in his testimony at trial that he never received any warning. Furthermore, Cliff Ludeman was not called to testify at trial.

A trial court’s findings regarding negligence are treated as findings of fact reviewable under the “clearly erroneous” standard. Tucker v. Calmar Steamship Corporation, 457 F.2d 440 (4th Cir.1972). On the basis of the evidence in the record, we are unable to say that the trial court was clearly erroneous in concluding that Fontenot negligently failed to warn plaintiff that he was lowering the pipe. The Jones Act incorporates the standards of the Federal Employers’ Liability Act (FELA), which renders an employer liable for the injuries negligently inflicted on its employees by its “officers, agents, or employees.” 45 U.S.C. sec. 51; Hopson v. Texaco, Inc., 383 U.S. 262, 86 S.Ct. 765, 15 L.Ed.2d 740 (1966), per curiam. Under the Jones Act, evidence of slightest negligence is sufficient to sustain a finding of liability. Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir.1977); Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958 (5th Cir.1969). There is no error in the trial court’s finding of Jones Act liability on the part of the defendant.

The trial court also concluded that Texaco had breached its duty under general maritime law to provide a seaworthy vessel. The court found that the D/B TERRE-BONNE BAY was unseaworthy because of defective equipment and lack of a competent crew. The law is well-settled that a shipowner has an absolute duty to provide a seaworthy vessel. In Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960), the U.S. Supreme Court described this duty as follows:

“[T]he owner is [not] obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service.” 362 U.S. at 550, 80 S.Ct. at 933.

The courts have repeatedly emphasized that liability based upon unseaworthiness is wholly distinct from liability based upon negligence. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971); Mitchell v. Trawler Racer, Inc., supra. The doctrine of unseaworthiness is not limited to the physical condition of the ship itself; an unfit crew may render a vessel unseaworthy. Boudoin v. Lykes Brothers Steamship Company, 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955). However, mere individual acts of negligence do not necessarily create the conditions of unseaworthiness. As the United States Supreme Court noted in Usner v. Luckenbach Overseas Corp., supra:

“What caused the petitioner’s injuries in the present case, however, was not the condition of the ship, her appurtenances, her cargo, or her crew, but the isolated, personal negligent act of the petitioner’s fellow longshoreman. To hold that this individual act of negligence rendered the ship unseaworthy would be to subvert the fundamental distinction between unseaworthiness and negligence that we have so painstakingly and repeatedly emphasized in our decisions.”

There was no evidence that Fonten-ot was inadequately trained or incompetent. Fontenot’s single act of negligence cannot properly form the basis for a finding that the D/B TERREBONNE BAY was unsea-worthy. However, there was an alternate basis for the trial court’s finding of unseaworthiness — defective equipment.

A number of witnesses testified that the brake bands on the air hoist were completely worn out. There was testimony to the effect that workers on the rig occasionally used roofing paper or cord as a substitute for the brake bands. The evidence conclusively established that the air hoist was not functioning at the time of the accident. This defective brake constituted an unsea-worthy condition.

Defendant contends that the defective brake was not a cause of plaintiff’s accident, however, because Fontenot testified that he did not attempt to use it. The burden on the plaintiff to prove proximate cause in actions based on general maritime law is a light one, often referred to as “featherweight.” Davis v. Hill Engineering, Inc., supra; Landry v. Two R. Drilling Company, 511 F.2d 138 (5th Cir.1975); Gilmore & Black, Admiralty (1957), sec. 6-36, page 311. In the instant case, we hold that plaintiff carried his burden of establishing a causal connection between the defective air hoist brake and his accident.

Russell Hebert, a former Texaco employee who worked as a driller aboard the TER-REBONNE BAY, testified that the proper method of lowering the air hoist was to engage the brake, shift the throttle to neutral and ease off on the brake, lowering the load. Paul Montgomery, a petroleum engineer testifying on behalf of plaintiff, also testified that the brake should be used in this manner when lowering a load. In his testimony, Fontenot did concede that he did not apply the brake when lowering the drill pipe. However, he noted: “There wasn’t any use. There weren’t any brake bands, you couldn’t stop it.”

Thus, the fact that Fontenot did not attempt to apply the brake does not defeat the causal connection between the defective condition of the vessel and plaintiff’s accident. Fontenot recognized the futility of attempting to use the brake. The evidence establishes that the proper method of lowering the air hoist was through use of the brake.. The defective condition of the brake made safe operation of the hoist impossible. There is no error in the trial court’s conclusion that the unseaworthy condition of the vessel caused plaintiff’s injury.

CONTRIBUTORY NEGLIGENCE

Defendant contends that the trial court erred in its finding that plaintiff was not contributorily negligent. Texaco maintains that Portier was negligent in standing underneath the suspended pipe. Under both the Jones Act and general maritime law, contributory negligence will not defeat a seaman’s claim but may be considered as comparative negligence to mitigate the damages in proportion to the degree of plaintiff’s negligence. Bobb v. Modem Products, Inc., 648 F.2d 1051 (5th Cir.1981). In Spinks v. Chevron Oil Company, 507 F.2d 216 (5th Cir.1975), the following principle was set forth:

“The duty owed by an employer to a seaman is so broad that it encompasses the duty to provide a safe place to work. By comparison, the seaman’s duty to protect himself (the ground for any countervailing legal interest serving to exclupate the employer) is slight. His duty is to do the work assigned, not to find the safest method of work.” 507 F.2d at 223 (citations omitted).

The trial court correctly decided the issue of contributory negligence. Portier was assigned the task of guiding the drill pipe into the elevator. Since that job required him to push on the pipe with his hands, it necessarily entailed his proximity to the pipe which was suspended over his head. We agree with the trial court’s conclusion that plaintiff was as careful as possible under the circumstances and was not negligent.

AGGRAVATION OF PLAINTIFF’S INJURIES

Plaintiff’s post-accident medical history was outlined by the trial court as follows:

“Immediately after the accident, plaintiff complained of a burning pain in his lower back. Plaintiff continued to work, but was switched to the less strenuous job of operating the air hoist. Following a restless night, he reported the incident to his superior.
“Medical attention was sought. One day after the accident, July 12, 1978, plaintiff was seen by Dr. Padraic Carmo-dy for treatment. Dr. Carmody treated plaintiff until August, 1978, when he referred the plaintiff to Dr. Chris Cenac, an orthopedist. Dr. Carmody’s diagnosis of plaintiff’s condition was low back strain. Medication was prescribed. At one point, Dr. Carmody released plaintiff for light duty; however, plaintiff’s low back pain reoccurred.
“Dr. Cenac confirmed Dr. Carmody’s diagnosis of a low back, soft tissue injury. Due to continued subjective complaints by plaintiff, Dr. Cenac performed several tests including a EMG and nerve conduction study. The results of the tests were within normal limits, and plaintiff was released to go back to work with instructions to refrain from heavy lifting. Plaintiff’s complaint of pain persisted, so a lumbar myelogram was scheduled and performed on November 14, 1978. As interpreted by Dr. Cenac and Dr. Jim Nelson, a radiologist, the myelogram and x-rays were normal. Plaintiff was directed to return to work.
“On subsequent visits to Dr. Cenac, plaintiff still had complaints of intermittent pain. Dr. Cenac referred plaintiff to Dr. Russell Grunsten for evaluation. Plaintiff saw Dr. Grunsten on April 30, 1979, and Dr. Grunsten conducted a physical examination, reviewed the previous studies, x-rays, and myelographic studies, and reviewed additional x-rays made at his request at the office of Dr. Schneider. Upon doing so, Dr. Grunsten discharged plaintiff to do his regular duties and activities. Two weeks later plaintiff saw Dr. Cenac who also returned plaintiff to work with no restrictions. Dr. Cenac examined plaintiff for the last time on July 5, 1979.
“Although the doctors’ findings were negative, plaintiff still had complaints of pain. At this point, plaintiff consulted a chiropractor and began regular treatments, which continued from August 3, 1979 through September, 1979. Unable to obtain relief, plaintiff went to see Dr. Jerry Levine who referred him to Dr. Henry LaRoeca, an orthopedic surgeon.
“On October 8,1979, plaintiff was seen by Dr. LaRocca, who suggested a hospitalization workup. Accordingly, plaintiff was admitted to Touro Infirmary in New Orleans on November 5, 1979, and remained until the 16th of November. Plaintiff underwent a physical examination; x-rays were taken; an epidural venogram test performed; and a genitourinary tract appraisal was run. A neurogenic bladder was diagnosed. (A neurogenic bladder is a bladder which is partially paralyzed.)
“A discograph also revealed that plaintiff’s L-5/S-1 disc was abnormal. Surgery was performed to excise the L-5/S-l disc. The disc did not relieve plaintiff’s pain. To treat the pain, Dr. LaRocca hospitalized plaintiff and treated him with an electronic stimulator device. The device sends electrical impulses to the skin and diverts the patient’s attention from the pain. The device seemed to offer plaintiff some relief, and he was discharged from the hospital.
“On July 25th, 1980, plaintiff still complained bitterly of pain. A spinal fusion was considered and later performed. However, the fusion did not take. Since an attempt to re-fuse has even less chance of success than an initial fusion, plaintiff’s prognosis is dim. He will have pain indefinitely, which will require that his back motion be restricted by the use of a brace. Twisting, bending, lifting, and sitting for prolonged periods of time will cause him pain; continued medication will be necessary.”

Defendant contends that the plaintiff’s physical difficulties are the result of an intervening cause, the manipulations of the chiropractor. Texaco maintains that it has no responsibility for any aggravation of plaintiff’s injuries which stem from this treatment. The trial court concluded that the evidence did not establish an intervening cause or the malpractice of the chiropractor.

The only evidence relative to the chiropractic treatments was plaintiff’s own lay testimony. Plaintiff testified that the chiropractor “cracked” his back nine or ten times. The chiropractor was not called as a witness and thus there was no testimony relative to the nature or extent of treatments received by plaintiff. It is also significant that Dr. LaRocca, the orthopedic surgeon who operated on plaintiff’s back, attributed plaintiff’s physical condition to the rig accident. After a thorough review of the evidence, we are unable to say that the trial court was clearly erroneous in concluding that the chiropractic manipulations did not aggravate plaintiff’s condition.

PRODUCTIVITY FACTOR

During the course of his testimony, Melville Wolfson, an economist called by plaintiff, testified that Portier’s salary would have increased at 5.75 percent annually over the span of his work life. Defendant objected to introduction of this evidence, arguing that this “productivity” increase was a disguised inflation factor. The trial court overruled defendant’s objection and utilized this productivity factor in calculating defendant’s loss of future wages.

On appeal defendant contends that the trial court erred in admitting and considering this productivity factor. Defendant renews its contention that this factor is in actuality an inflation consideration. Defendant relies upon the United States Fifth Circuit Court of Appeals’ decision in Johnson v. Penrod Drilling Company, 510 F.2d 234 (5th Cir.1975), which held that the effect of inflation cannot be taken into account in computing a damage award. In response, plaintiff asserts that this productivity factor did not take into account the effects of inflation.

It is not necessary to characterize the nature of the productivity factor. In a recent decision, Culver v. Slater Boat Co., 688 F.2d 280 (5th Cir.1982), the Fifth Circuit overruled its prior decision in Johnson v. Penrod Drilling Company, supra. In doing so, the court used the following language:

“Our first conclusion, therefore, is that parties should be allowed, in future earnings damages cases, to present evidence not only of the interest rates available on safe investments, but also the likely wage increases that would have been obtained by the particular plaintiff in his occupation, whether these likely increases are due to cost of living, promotions, merit raises or productivity.” 688 F.2d at 308.

Therefore, even if the “productivity factor” was influenced by inflation, the trial court properly considered the evidence with regard to the likely wage increases that would have been obtained by plaintiff in his occupation.

INCOME TAX

In calculating the amount of plaintiff’s award for loss of future wages, the trial court refused to consider the effect of income taxes. The trial court concluded that any consideration of the effect of income taxes would be too speculative.

Defendant points out that in Norfolk & W. By. Co. v. Liepelt, 444 U.S. 490,100 S.Ct. 755, 62 L.Ed.2d 689 (1980), the U.S. Supreme Court held that the trial court erred in excluding the defendant’s proffered testimony of an expert witness that the decedent’s federal income taxes, during the period of lost future wages, would have amounted to a particular figure, which defendant wished to urge in reduction of damages. In concluding that such evidence was admissible, the Supreme Court stated:

“The amount of money that a wage earner is able to contribute to the support of his family is unquestionably affected by the amount of the tax he must pay to the Federal Government. It is his after-tax income, rather than his gross income before taxes, that provides the only realistic measure of his ability to support his family. It follows inexorably that the wage earner’s income tax is a relevant factor in calculating the monetary loss suffered by his dependents when he dies." 444 U.S. at 493, 494, 100 S.Ct. at 757.

The Liepelt case arose under the FELA. The Jones Act incorporates the provisions of the FELA. 48 U.S.C. sec. 688. Thus, the Supreme Court’s decision in Liepelt applies to the instant case and plaintiff’s award for loss of future wages should have been based upon his after-tax earnings. See Fanetti v. Hellenic Lines Ltd., 678 F.2d 424 (2nd Cir. 1982).

The record reveals that Portier’s gross income would have been subjected to an income-tax liability of 29 percent. The trial court awarded plaintiff $686,907.00 for lost future wages. That sum must be reduced to reflect plaintiff’s tax liability. Accordingly, plaintiff’s award for loss of future wages is reduced by 29 percent to $487,-703.97 and plaintiff’s total award will be reduced to the sum of $733,757.77.

PRE-JUDGMENT INTEREST

The district court awarded plaintiff pre-judgment interest from the date of judicial demand. Defendant asserts that this award was in error. It is true that in a Jones Act case brought on the law side interest may be awarded only from the date of judgment. Barrios v. Louisiana Construction Materials Company, 465 F.2d 1157 (5th Cir.1972); Sanford Bros. Boats, Inc. v. Vidrine, supra; Rains v. Diamond M. Co., 396 So.2d 306 (La.App. 3rd Cir.), cert, denied, 399 So.2d 623 (La.1981). However, plaintiff’s case was brought under the general maritime law as well, and in such cases the award of pre-judgment interest is within the trial court’s discretion. In the instant case, we find no abuse of that discretion in the award of pre-judgment interest.

DECREE

For the foregoing reasons, the judgment of the district court is amended to award plaintiff the sum of $733,757.77. In all other respects, that judgment is affirmed. All costs, both trial and appellate, are assessed against defendant-appellant, Texaco, Inc.

AFFIRMED AS AMENDED.

ON APPLICATION FOR REHEARING

Rehearing denied.

WATKINS, J., is of the opinion that rehearing should be granted for the reasons assigned.

WATKINS, Judge,

dissenting.

The applications for rehearing by appel-lee and appellant demonstrate that this court erred in reducing plaintiff’s award for loss of future income by 29 percent. It was this court’s intention to thereby allow plaintiff to recover his yearly net, rather than gross, income for the remainder of his work-life expectancy in accordance with the dictates of Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980).

Both parties have demonstrated that the solution adopted (reduction of plaintiff’s award by 29 percent) does not achieve this intended purpose. Appellant notes that Portier’s future earnings award was based upon the assumption that he would receive annual salary increases of 5.75 percent. Appellant correctly points out that, because of the graduated system of income tax, Portier’s tax liability will grow to exceed 29 percent of his gross income. On the other hand, appellee notes that in Liepelt the Supreme Court stated that the taxation of interest earnings from the investment of a lump-sum award is also a factor to be considered in determining a damage award.

Since the record before us does not contain the information necessary to take these factors into account in reaching an award for loss of future wages, I believe that this case should ultimately be remanded for the taking of additional testimony, limited to the issues discussed above.

      . Fed.R.Civ.P. 52(a) provides, in pertinent part, as follows:
      “(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”


author: WATKINS, Judge.

text:
    Don SPIERS d/b/a Don Spiers Realty v. Edward SEAL and Clyde Seal. Patrinia M. SCIANNA and John Scianna v. Clyde SEAL, Edward Seal and Seal Lumber Company.
    Nos. 82 CA 0146, 82 CA 0147.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Feb. 17, 1983.
    Writs Denied April 15, 1983.

      John N. Gallaspy, Bogalusa, for plaintiffs.
    M. Reggie Simmons, Franklinton, for defendants.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

These are two cases which were consolidated for trial and are now consolidated for purposes of appeal.

We will discuss only the demands that are the subject of the present appeal. In No. 82 CA 0147 Patrinia M. Scianna and her major son, John S. Scianna, brought suit for specific performance of a contract to sell allegedly entered into by Seal Lumber Company, Inc., damages from Seal Lumber Company, failure of Seal Lumber Company to comply with the alleged contract to sell, or alternatively, damages from Edward Seal and Clyde Seal for failure to comply with the alleged contract, and attorney’s fees from the parties east in judgment. In No. 82 CA 0146, Don Spiers, d/b/a Don Spiers Realty, seeks a commission of $3,000.00 from Edward Seal and Clyde Seal for work in obtaining an alleged contract to sell which the Seals allegedly failed to perfect into an actual sale. The trial court awarded $3,000.00 commission in favor of Don Spiers Realty but denied the Sciannas’ demands for specific performance, damages and attorney’s fees. In No. 82 CA 0147 the Sciannas appealed, and in No. 82 CA 0147 Edward and Clyde Seal appealed. We affirm the action of the trial court in awarding a commission in the sum of $3,000.00 in favor of Don Spiers Realty, but also hold that the Sciannas are entitled to specific performance.

Seal Lumber Company, Inc., was founded by the father of the brothers Edward and Clyde Seal. Upon their father’s death, Edward and Clyde Seal became sole shareholders, directors and officers of Seal Lumber Company, Inc., and at all times pertinent to the case they were sole stockholders, directors and officers of Seal Lumber Company, Inc., with Edward Seal as president and Clyde Seal as secretary and treasurer.

It has been stipulated that all of the instruments given below which were introduced at the trial as exhibits dealt with the same property, although under different descriptions. Suffice it for present purposes to say that the property in question was owned by Seal Lumber Company, Inc., and consisted of approximately 26 acres on South Columbia Street near Bogalusa, Louisiana.

The five exhibits which are pertinent to our discussion are as follows:

Stipulated Exhibit # 1. Listing agreement dated January 18, 1978, listing the said property with Georgia Spiers of Spiers Realty over the signature of Clyde Seal on the line provided for “Owner’s Signature”. The total requested sales price is given as $44,600.00 and a 10% realtor’s commission is provided for.

Stipulated Exhibit # 2. Letter signed by Edward Seal, under which signature is typed “Edward W. Seal, Pres., Seal Lumber Co., Inc.”, dated March 22, 1979, addressed to Don Spiers Realty Co., offering the whole property for sale for a price of $60,-000.00, or fractional portions thereof for lesser sums. The letterhead reads “Seal Lumber Company, Inc., Lumber-Paints— Building Materials, Bogalusa, Louisiana 76427”. The offer states it is to remain in effect for six months from date of the letter.

Stipulated Exhibit # 3. Listing agreement dated March 22,1979, listing property with “Georgia” of Don Spiers Realty, over the signature of Edward Seal on the line provided for “Owner’s Signature”. The total requested sales price is given as $60,-000.00 and a 10% realtor’s commission is provided for.

Stipulated Exhibit # 4. Instrument captioned “Agreement to Purchase” dated “3/23,1979” beginning on line one with the words “I/We offer and agree to purchase” followed by a description of the property in question. A realtor’s commission of 5% is provided for. The instrument recites that the “offer” is to remain open until “3/25/79” and is signed by Patrinia M. Scianna and John S. Scianna. Below the Sciannas’ signatures is a line stating “I/We accept the above in all its conditions” followed by the signatures of Clyde Seal and Edward Seal. Opposite the signatures is written “3/27, 1979”.

Stipulated Exhibit # 5. Letter from John N. Gallaspy, attorney for Patrinia M. Scianna and John S. Scianna, dated April 24, 1979, addressed to Edward Seal and Clyde Seal stating that pursuant to the Purchase Agreement (Stipulated Exhibit # 4) his clients are prepared to accept title to the property on either April 26, 1979, at 11:00 a.m. or April 28,1979, at 11:00 a.m. at Mr. Gallaspy’s office in Bogalusa.

The record reveals that the Seals never appeared to transfer title to the property in question. Clyde Seal’s testimony is that they decided not to transfer title to the Sciannas because: “We just decided it was kind of a bad deal.... ”

However, we find that by this time by virtue of Stipulated Exhibits #’s 2, 3, and 4, a binding contract had been perfected between Patrinia M. Scianna and John C. Scianna on the one hand and Seal Lumber Company, Inc., on the other hand, which constituted a contract to sell, and required that Seal Lumber Company, Inc., proceed with a transfer of title to the Sciannas. The corporate officers of Seal Lumber Company, Inc. were not free to change their minds because of the binding nature of the contract.

Stipulated Exhibits #’s 2, 3, and 4 were the product of negotiations between Seal Lumber Company, Inc., and the Sciannas in which Don Spiers Realty acted as an intermediary. Stipulated Exhibit #’s 2 and 3 were clearly intended, the record reveals, to be an offer to the world in general, and the Sciannas in particular, to sell the property in question for $60,000.00 with a 10% realtor’s commission. The offer was made on behalf of Seal Lumber Company, Inc. as Edward Seal signed Stipulated Exhibit # 2 as President of Seal Lumber Company, Inc., under the letterhead of Seal Lumber Company, Inc.

Stipulated Exhibit # 4, styled “Agreement to Purchase”, clearly constitutes an acceptance by the Sciannas of the offer made by Seal Lumber Company, Inc. to sell the property for $60,000.00. The Agreement to Purchase begins “I/We offer and agree to purchase ...” the property in question. The purchase price is given as $60,000.00. The instrument is signed by Patrinia M. Scianna and John S. Scianna. The execution of the instrument by the Sciannas embodies an acceptance by virtue of the very terms of the instrument itself ((W)e ... agree to purchase....”) of the offer made by Seal Lumber Company, Inc. to sell the property for $60,000.00.

However, even if we construe the instrument to constitute on its face an offer to purchase for $60,000.00, rather than an acceptance of an offer to sell at that price, we see that the instrument must be legally construed as an acceptance. An offer to sell at a certain price followed by an offer to buy at a price more favorable to the seller, causes a contract to be completed at the seller’s price, under the provisions of LSA-C.C. art. 1807, which reads as follows:

“When, however, from the circumstances of the case, the offer necessarily implies an assent to the modification of the acceptance, then the obligation is complete, although there be a difference in terms between the one and the other. If, for example, one offers to sell a certain article for one hundred dollars, and the other, not having yet received the offer, should on his part propose to give two hundred dollars, the proposal to give the greater sum necessarily implies an assent to take it for a less, and the contract is complete at the lowest sum.”

If an offer of the buyer to purchase at a higher price than the price set by the seller in his offer to sell completes a contract (at the seller’s price), then also an offer to purchase at the same price as that set by the seller in his offer to sell completes a contract. Even when cross offers are made on the same terms, so that there is no knowledge on the part of the parties making the original offers of the offer of the other party, under the Civilian tradition which Louisiana follows in this aspect of the law, there is a contract, because (1) there is a concurrence of wills and (2) the law favors the formation of contracts. See Litvinoff, Offer and Acceptance in Louisiana Law: A Comparative Analysis: Part II — Acceptance, 28 La.L.Rev. 153, 201 (1968). In the present case, applying this analysis we see that there was a mutually expressed concurrence of wills on the part of Seal Lumber Company and the Sciannas, that the property be sold by Seal Lumber Company and purchased by the Sciannas for the sum of $60,000.00.

We construe the Sciannas’ “Agreement to Purchase” as constituting an acceptance of the offer contained in Seal Lumber Company’s letter to sell for $60,000.00. Furthermore, under LSA-C.C. art. 1807, even if the “Agreement to Purchase” constitutes an offer, it conforms to the price set by the offer made by Seal Lumber Company, Inc. and thus a binding contract was formed.

The offer made in Stipulated Exhibit # 2 signed by Edward Seal as the designated President of Seal Lumber Company, Inc. was not supported by any resolution of the board of directors of Seal Lumber Company, Inc., written or verbal. As a general rule, a mandate authorizing an agent (officer) to buy or sell immovable property must be express and in writing. LSA-C.C. art. 2997; Centanni v. A.K. Roy, Inc., 258 So.2d 219 (La.App. 4th Cir.1972); Tchoupitoulas, Inc. v. McCullough, 349 So.2d 346 (La.App. 4th Cir.1977), writ refused 351 So.2d 166 (1977). However, if a corporation is seeking to avoid an instrument conveying immovables confected by an agent (officer) clothed with the apparent authority to bind the corporation executing that instrument, and an innocent purchaser relies upon that apparent authority, the corporation is bound by the conveyance for the reason that the innocent purchaser cannot be permitted to be misled by a corporate officer that the corporation permits to hold himself out as acting with full authority. See Ideal Savings & Homestead Ass’n. v. Kerner, 208 La. 513, 23 So.2d 200 (1945). The apparent authority doctrine is obviously an exception to the general rule requiring that there must be an express written resolution of the board of directors authorizing the corporate officer to execute an instrument buying or selling immovables. In the present case, Edward Seal did not act under the express authority of a written resolution of the board of directors of Seal Lumber Company, Inc. However, he was clothed with the apparent authority to make an offer to sell the tract in question for the reason that he used the Seal Lumber Company, Inc. letterhead in that offer, and signed the letter in his apparent authority as corporate president. Furthermore, the sole two shareholders, Edward Seal and Clyde Seal, verbally held themselves out throughout the negotiations with Spiers Realty and indirectly the Sciannas as making an offer to sell on behalf of Seal Lumber Company, Inc. A more classic case of apparent authority could not exist.

It is true that the Agreement to Purchase executed by the Sciannas which constituted an acceptance of the offer contained in Stipulated Exhibit # 2, incorrectly described the tract in question as “belonging to Clyde & Edward Seal”. However, the parties have stipulated that all the instruments in question describe the same property, and thus, any flaw in the description is of no moment. Furthermore, the incorrect description appears to have been entered in the handwriting of Mary W. Crain, agent of Spiers Realty, and not to be the result of any action on the part of the Sciannas or Edward or Clyde Seal.

The signatures of Edward Seal and Clyde Seal appear opposite the date 3/27/79 in the Agreement to Purchase. A contract to sell had already been confected by that time by virtue of the offer contained in Stipulated Exhibits #’s 2 and 3 and the acceptance that took place when the Sciannas signed the Agreement to Purchase on 3/23/79. Thus, the only possible legal significance of the affixing of the Seals’ signatures to the Agreement to Purchase is that that act constitutes further support for the contract to sell already con-fected. Corporate shareholders of a corporation having but two shareholders may informally but in writing authorize (ratify) the execution of an option agreement after it is in fact executed by one of the two shareholders. Greenleaf Plantation, Inc. v. Kieffer, 403 So.2d 100 (La.App. 3d Cir.1981), writ refused 409 So.2d 675 (1981). Similarly, obviously the execution of a contract to sell may be informally authorized (ratified) in a writing subsequent to the execution of the contract to sell. Thus, the contract to sell acquired an additional support to its formation.

The Agreement to Purchase contains terms not in the Seal Lumber Company letter (stipulated Exhibit # 2), but these terms are either statements of existing law, inapplicable to the proposed transaction, or more favorable to Seal Lumber Company, Inc., than the terms of Stipulated Exhibit # 2. Thus, the differences are either legally irrelevant or fall under the general rule of LSA-C.C. art. 1807 finding a contract to be formed when the buyer offers to buy at a price more favorable to the seller than that contained in the offer to sell.

We, therefore, find that a binding contract to sell was perfected, and herein direct specific performance of the same.

On trial of the merits, counsel for the Sciannas stated he sought damages only in the alternative. The pleadings pray for damages in addition to specific performance. Even if the demand for damages is not considered to be in the alternative, we find damages are not sufficiently proven. The Sciannas desired the property to build an ice plant. Expert witnesses testified to the increased cost of constructing an ice plant on the property because of the delay in transferring title. The testimony of the experts, however, was based solely upon plans prepared long after the mailing of the letter from Mr. Gallaspy calling for Seal Lumber Company, Inc. to transfer title. Thus the plans appear to have been an afterthought, and the cost of the ice plant at the time when the transfer of title was demanded by Mr. Gallaspy is too much a matter of conjecture to be a basis for the award of damages.

No mention is made of attorney’s fees in brief before the court. Neither the contract to purchase nor any statute requires attorney’s fees in the present situation. Attorney’s fees are therefore denied. See Roberie v. Sinclair Refining Company, 252 So.2d 488 (La.App. 3d Cir.1971); Walters Air Condition Co. v. Firemen’s Fund Ins. Co., 252 So.2d 919 (La.App. 2d Cir.1971).

We find that Spiers Realty Company is entitled to the commission of $3,000.00 as awarded by the trial court. Because we order specific performance of the contract to sell, a commission is in order. The Agreement to Purchase calls for a commission of 5% of $60,000.00 or $3,000.00. The listing agreement calls for a commission of 10%. Spiers Realty prayed for a commission of 5%, which was awarded by the trial court. Spiers Realty has not answered the appeal. We affirm the action of the trial court in awarding a commission of $3,000.00.

Accordingly, judgment is rendered requiring specific performance. Because an exact property description is not in evidence, we remand the matter to the trial court to formulate a decree embodying the correct property description and ordering the transfer of title to the property in question from Seal Lumber Company, Inc. to Patrinia M. Scianna and John S. Scianna for a price of $60,000.00.

In all other respects the judgment of the trial court is affirmed. All costs shall be paid by Seal Lumber Company, Inc. in No. 82 CA 0147 and by Edward Seal and Clyde Seal in No. 82 CA 0146.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.