text:
    L. D. OLIPHANT et ux., Plaintiffs and Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellant.
    No. 7628.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Writ Refused Sept. 12, 1980.

      Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellants.
    James D. Kirk, Asst. Dist. Atty., Natchi-toches, for intervenor-appellee.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiffs-appellees.
    Michael Henry, Natchitoches, for interve-nor-appellee.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Daisy Oliphant, was employed by the Natchitoches Parish School Board (School Board) as a cook at Natchitoches Central High School. During the course of her employment on September 14,1977, she was removing from an oven a large tray upon which lay “French curlers” (pastries) to be later served as breakfast to students of Natchitoches Central High School where Daisy worked. As she walked to a counter holding the tray approximately chest high, her right foot became “tangled up two times” in what was later identified as a milk dolly. This dolly was the property of Michels Foremost Distributors and was being used to transport crates of milk from the delivery truck to the cafeteria’s refrigeration unit.

After plaintiff’s feet became entangled in the dolly, she stumbled to the floor injuring herself. She sued her employer, the School Board, for workmen’s compensation benefits and was awarded benefits of $82.07 per week for each weekly period from June 1, 1978, continuing through the period of disability, not to exceed a total of 450 weeks. Thereafter, plaintiff sued State Farm Fire & Casualty Insurance Company (State Farm), Michels Foremost Distributors’ liability insurer, for damages allegedly caused by Michels’ employee in negligently obstructing plaintiff’s path with the dolly. The School Board intervened in her tort suit, seeking reimbursement from State Farm for all medical expenses and benefits “past and future” paid (or to be paid) by the School Board to her as a result of the dolly incident.

Prior to trial on the main demand, and with the trial court’s approval, plaintiff settled her claim against State Farm for an undisclosed amount and the main demand was dismissed with prejudice. Trial was then held on the School Board’s incidental demand.

The trial court found that the milk employee placed the dolly in the pathway to the oven while plaintiff was unloading the French curlers from the oven; that the milk employee had a duty to warn persons working in the same area of his presence and the location of the dolly; that this duty was breached because plaintiff was unaware of the location of the dolly when she turned from the oven with the tray and stumbled over the dolly.

The Court implicitly found that plaintiff was free of contributory negligence by believing her testimony that the dolly had been moved into her path between the time that she went to the oven and the time that she tripped.

Judgment was awarded to the School Board and against State Farm and Charles Michels d/b/a Michels Foremost Distributors for $4,185.06 (for compensation benefits paid from June 1, 1978, through May 31, 1979), $682.43 in medical bills paid by the School Board, and $82.07 a week from May 31, 1979, continuing through plaintiff’s period of disability, not to exceed 450 weeks total.

From this adverse judgment State Farm has appealed. After reviewing the evidence, we reverse the trial court’s finding that the milk employee was negligent. Alternatively, and assuming that the milk employee was negligent, then we reverse the trial court’s implicit finding that plaintiff was free of contributory negligence. The trial court’s findings with respect to negligence are contrary to the law and the evidence presented in this case, and as such are manifestly erroneous.

Three persons testified at trial: Plaintiff, Lee Arthur White, a janitor at the school, and Alfred Randall Williams, the milk deliverer. The quality of the recorded testimony was so poor, however, that transcription was impossible. In place of the testimony, the record contains an “agreed narrative of facts” signed by each party’s attorney. This narrative contains a summary of the three witnesses’ testimony.

Of plaintiff’s testimony the narrative reads:

“She testified that on September 14, 1977, she was preparing to serve breakfast and had all the breakfast set up on the counter except for the French curlers which were in the oven. The milk man had his dolly present and was loading milk into the refrigerator. She went over to the oven, got her pads, took the baking sheet out of the oven and started back to the counter when she got her foot ‘tangled up two times’. Afterwards, she found out that she had tripped over the milk dolly and she didn’t remember seeing anything in the way on her way to the oven to get the French curlers. She said that when she passed, the milk dolly had two crates of milk on it and it was up next to the refrigerator and when she came back the dolly was further out in her way and she didn’t notice it. She repeated that nothing was in her way when she went to the stove and someone must have moved the milk dolly while she was taking the curlers out. She said that she did not see White move the dolly and she didn’t see the milk man move it and that she did not move it. She said that when she took the French curlers out of the oven, she held the tray approximately chest high and that she caught her foot in something and tried to ‘clear it’ two times, and on the second time she fell.”

In contrast to plaintiff’s testimony is the sworn testimony of the milk employee. According to the narrative:

“He testified that he did not see the plaintiff fall, that his milk dolly was placed at the same place that he usually stopped it when he delivered milk and that he had his back to the dolly and was moving milk in the refrigerator, getting ready to load the ‘new’ milk. He testified that he had two crates of milk sitting on the milk dolly at the time that plaintiff fell and that he helped her get up. He testified that his normal procedure was to go in in the morning to find out how much milk the plaintiff needed and then to go out to the truck and load the milk on the milk dolly and bring it in. He stopped the dolly immediately in front of the refrigerator because he had to work down on his knees and move the milk that was remaining to one side of the refrigerator and then put the fresh milk, both white and chocolate in the refrigerator. He was in the process of moving the milk with his back to the milk dolly which was immediately beside him next to the refrigerator door, when Daisy fell. He testified that there was ample room for the plaintiff to walk between the dolly and the other equipment in the kitchen. He further stated he ‘thought she fell on the dolly’.”

The testimony of the janitor serves neither to corroborate nor refute the testimony of the other two witnesses. However, he did testify that he did not see the dolly nor did he see anyone else move it.

The trial court found a conflict in the testimony “as to just when the employee of State Farm’s insured placed the dolly before the refrigerator and in the pathway to the oven.” The Court resolved the conflict in favor of plaintiff, but not because the milk employee’s testimony lacked credibility:

“The [milk] employee states the dolly was placed before Daisy approached the oven. This same employee also states he did not see Daisy until she fell and he was attracted by the noise. He further stated he ‘thought she fell on the dolly.’ A careful study of these statements by the employee leads this Court to the conclusion that the employee does not know where Daisy was when he placed the dolly in the above mentioned pathway. This Court finds it was this employee’s duty to warn the persons working in the same area of his presence and the location of the dolly. This duty was breached by the employee.”

Our review of the above-quoted portions of the narrative discloses no such conflict. The milk employee’s ignorance of plaintiff’s whereabouts when the dolly was placed before the refrigerator is unimportant. He testified that when he brought the dolly into the cafeteria he placed it immediately in front of the refrigerator, as he normally did, and proceeded to move the milk already in the refrigerator to one side. When plaintiff fell, the dolly with two crates of milk still upon it, was immediately besides the milk employee next to the refrigerator door, just where he had put it initially. The employee further testified that plaintiff had ample room to walk between the dolly and the other equipment in the kitchen.

When Daisy walked to the oven, she noticed the milk dolly, with two crates aboard, up next to the refrigerator (which is precisely where the milk employee testified he placed it). When she returned with the tray she “didn’t notice” the dolly when she tripped over it but still maintained that it was further away from the refrigerator and more in her pathway. She speculated that “someone must have moved the milk dolly” but did not see anyone move it. Apart from plaintiff’s conjecture, there is no evidence that the milk dolly was moved by anyone after it was placed next to the refrigerator door.

Contrary to the opinion of the trial court, we find that the milkman owed no duty to plaintiff to inform her of his presence or the location of his dolly. The milkman delivered milk to the cafeteria daily. His presence was no surprise to her. On the date in question, plaintiff admitted knowing of his presence and she clearly saw the milk dolly, which stands about four feet high. She knew the dolly was customarily used to transport the milk from the truck to the cafeteria.

Only if the dolly constituted an unreasonably dangerous condition on the premises would the duty to warn arise. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976). Under this set of facts, the milk employee was under no duty to warn, since plaintiff saw the location of the dolly when she went to the oven, and there was no evidence, apart from plaintiff’s conjecture, to show that the location of the dolly had changed.

Assuming, however, that the milk employee was negligent in moving the milk dolly further away from the refrigerator and into plaintiff’s path, plaintiff (and subsequently the School Board), would be precluded from recovering from State Farm because she was contributorily negligent in not exercising reasonable care to notice a condition (i. e. the location of the dolly in her pathway) which should have been observed by her and which was as obvious to her as it was to the milk employee. Shelton, supra. The trial judge fortifies this conclusion by noting in his reasons for judgment that Daisy could have seen the top handle of the dolly as she .turned from the oven with the tray of pastries. Her failure to notice even the top handle of the dolly demonstrates her lack of reasonable care. The fact that the wheels of the dolly would not be in her vision is of no moment because she was aware that the dolly was in the immediate vicinity and if she had exercised reasonable care in seeing the top handle of the dolly then she would certainly have known that the wheels of the dolly were directly beneath the handle.

Since Michels Foremost Distributors is not liable for the accident which injured Daisy, we will not consider appellant’s arguments that the amount of the award was excessive.

For the above and foregoing reasons the judgment of the District Court in favor of the Natchitoches Parish School Board and against State Farm Fire & Casualty Insurance Company and Charles Michels, d/b/a Michels Foremost Distributors, is reversed, and the School Board’s incidental demand is dismissed.

All costs are assessed against the Natchi-toches Parish School Board.

REVERSED AND RENDERED.

      . The party sued originally was inaccurately identified as State Farm Mutual Automobile Insurance Company.


source: Caselaw Access Project

author: GUIDRY, Judge. DOMENGEAUX, Judge,

license: Public Domain

text:
    Malcolm MARTIN and Ruby Bridges Martin, Plaintiffs-Appellees, v. AAA BRICK COMPANY INC., Defendant-Appellant.
    No. 7629.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      George F. Griffing, Jonesville, for defendant-appellant.
    Broadhurst, Brook, Miller & Reed, Lafayette, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   GUIDRY, Judge.

Plaintiffs, Malcolm Martin and Ruby Bridges Martin, filed suit for damages for the unworkmanlike performance of a contract for the construction of a fireplace. The defendant-contractor, AAA Brick Company, Inc., reconvened seeking the contract price and recognition of a lien filed against plaintiffs’ property. From a judgment in favor of plaintiffs, in the sum of $6251.25, which also rejected defendant’s reconven-tional demand, defendant has appealed. Plaintiffs neither appealed nor answered the appeal.

On January 17, 1978, defendant entered into a written contract with Mrs. Martin agreeing to furnish and install a brick-encased 40 inch metal fireplace at plaintiffs’ residence for the consideration of $1600.00. As part of the agreement defendant was to supply approximately one-half of the bricks required for the job. The bricks to be furnished by defendant were to match as closely as possible bricks supplied by plaintiffs which were left over from the original construction of plaintiffs’ home. The inside work was completed on January 18, 1978. The extension of the flue through the roof was accomplished about 10 days later. After the completion of the fireplace plaintiffs experienced a variety of problems. A white powdery residue formed on the surface of the fireplace bricks. The residue, or efflorescence, is the result of salts which are internal in the brick and/or mortar which are brought out to the surface because of water being present. In response to complaints by plaintiffs, defendant sent a man on two occasions to try to clean the bricks. However, after each attempt, the efflorescence returned. When plaintiffs attempted to light a fire in the fireplace, it allegedly smoked excessively. Because of alleged water leaks around the flue where it extended through the roof, plaintiffs had the flue and chimney cap removed and their roof patched. The general dissatisfaction of plaintiffs with the fireplace culminated with the filing of this suit. Plaintiffs alleged that the fireplace is totally useless because of certain defects in its construction. On the basis of the alleged defects plaintiffs sought a recision of the contract and damages in redhibition. In the alternative, plaintiffs sought damages for breach of contract.

After trial on the merits the trial court decided in favor of plaintiffs and against defendant. In doing so, the trial court made the following findings:

“It is the opinion of the Court that the fireplace in question was improperly installed as the Court finds the following defects in its construction: (1) The leaks around the chimney which have the effect of saturating the insulation in the attic and leaking through on the ceiling tile in the room in which the fireplace was constructed, which necessitated the removal of the flue and a patching of the roof in order to stop the roof leakage. Additionally, the Court finds that from the testimony introduced that the fireplace did in fact smoke at the times which it had been used which indicates that the flue had not been extended sufficiently above the roofline to allow proper draft. A viewing of the photographs introduced in evidence indicates to this Court that the chimney as constructed was unsightly as it was not square and that the brick did not match as had been requested by the plaintiffs and that additionally, the courses of the brick were not in line with the preexisting brickwork. Additionally, apparently the efflouresence (sic) which began showing up shortly after the construction of the fireplace continued at least until the date of the trial some year and a half (IV2) later. All of the above are such as to convince this Court that the plaintiffs should be relieved of the necessity for paying the purchase price for the fireplace and accordingly, the Court will order a recision of the sale and award damages to the plaintiffs as follows: The amount of $150.00 which represents the costs of repairs of the roof to eliminate the roof leaking around the flue. Additionally, the Court will award to the plaintiffs for their mental anguish the sum of $2000.00 each. Additionally, the Court will award to plaintiffs the sum of $101.25 for the bill of Fabian Patin, the architect who inspected the workmanship in the fireplace.
The Court will award as attorney fees for bringing this action the sum of $2000.00. The Court will set the fee of Mr. Fabian Patin, who testified as an expert, in the amount of $250.00 and tax the same as costs. All costs of these proceedings to be assessed against the defendant, AAA Brick Company, Inc.
The reconventional demand of AAA Brick Company against the plaintiffs, Malcolm Martin and Ruby Bridges Martin will be dismissed at said reconvenors cost . . .”

Defendant contends the above findings and awards are erroneous and urges their reversal on appeal. Defendant’s arguments in brief, regarding alleged trial court error, address issues solely within the context of an action in redhibition, which the trial court ostensibly found to be properly asserted. The trial court apparently found the contract in question to be a sale pure and simple and, accordingly, applied the legal principles as set forth in LSA-C.C. Article 2520 et seq. in fashioning its judgment. We disagree with the trial court that the present action involves a sale whereby an action in redhibition could be properly maintained. The contract in question did not involve merely the sale and delivery of a fireplace or the materials for its construction. The contract contemplated the installation and erection of a fireplace at plaintiffs’ residence by defendant, with the latter furnishing the materials and necessary labor and skill in the performance of the job. Our conclusion is that the contract entered into between defendant and Mrs. Martin was not one of mere sale, but a construction contract.

LSA-C.C. Article 2756 defines a construction contract as follows:

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

Our jurisprudence has consistently held that a contract involving work to be done on the owner’s land or building is a building contract within the definition of Article 2756 even though the undertaker is required to furnish some of the materials.

For the foregoing reasons, we conclude it was error to apply the sales articles pertaining to redhibitory defects to the case at hand and we reverse the trial court’s judgment in as much as it held the present action is one in redhibition and to the extent said judgment differs from our holding today. Further we conclude that the rights and obligations of the parties under the contract in question are governed by the legal principles set forth in Book III, Title IX of the Civil Code under Section 3 which is entitled “Of Constructing Buildings According to Plots, and Other Works by the Job, and of Furnishing Materials”.

The legal principles derived from the above cited code section concerning construction contracts and applicable in the present suit were set forth in Neel v. O’Quinn, 313 So.2d 286 (La.App. 3rd Cir. 1975), in which we stated:

“It is implied in every building contract that the work of the builder be performed in a good workmanlike manner, free from defect either in material or workmanship. Nichols Ford Co.. Inc, v. Huarhes. 292 So.2d 345 (La.App. 2nd Cir. 1974).
The basic law in regard to a contractor’s liability for failure to properly perform a building contract is found in LSA-C.C. Art. 2769, as follows:
‘Art. 2769. Contractor’s liability non-compliance with contract.
If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the ■ time he has agreed to do it, he should be liable in damages for the losses that may ensue from his non-compliance with his contract.’
This codal provision has been construed by the courts to mean that when a contractor has ‘substantially performed’ a building contract, even though certain defects are present, he is entitled to recover the contract price, and the owner is relegated to having the price reduced by the amount necessary to perfect or complete the work, i. e., damages attributable to the breach. Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961).
In turn, if ttie building contract has not been substantially performed, the contractor’s recovery is limited in quantum meruit. In the same regard, if the defects are such that cannot be corrected except by removing and replacing the construction, under the jurisprudence the owner may require the contractor to remove the object from his land and restore the premises to their prior condition. In addition, the owner is entitled to damages. National Water-Purifying Co. v. New Orleans W. W. Co., .48 La. [Ann.] 773, 19 So. 865 (1896); Toepfer v. Thionville, 299 So.2d 415 (La.App. 4th Cir. 1974); Scott Fence & Insulation Co., Inc. v. Boudro, 252 So.2d 458 (La.App. 4th Cir. 1971); Montague v. Milan, 67 So.2d 351 (La.App. Orl. Cir. 1953); Home Services v. Marvin, 37 So.2d 413 (La.App. Orl. Cir. 1948).”

In the instant suit the trial court made no determination whether or not the defendant has “substantially performed” the contract in question. Nor did the trial court fix liability under Article 2769. The determination of liability under the afore-stated principles must now be fixed by this court. In doing so, we accept the factual finding as set forth in the trial judge’s written reasons that the fireplace was improperly installed for the reasons given, supra. From our review of the record we conclude that the latter conclusion is supported by the evidence and clearly not erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The improper installation of the fireplace was a breach of the warranty of good workmanship implicit in every building contract, and in the instant ease, of the explicit guaranty provisions of the written contract. The only testimony adduced at trial regarding the amount necessary to remedy the flaws in workmanship was given by an architect, Mr. Fabian Patín. Mr. Patín opined that in order to completely repair the fireplace it would be necessary to demolish the entire fireplace and replace it with a new system which would cost about one and a third times the cost of the original construction. In view of this evidence, we hold that defendant is not entitled to recover under the contract for the work performed. Plaintiffs received no benefit whatsoever from the construction of the defective fireplace. In order to remedy said defects, the entire structure as built must be removed. Plaintiffs are therefore entitled to have the fireplace removed and their premises restored to their original condition. Plaintiffs are also entitled to damages which ensued from the breach of the construction contract by defendant. LSA-C.C. Article 2769.

As shown supra, the trial court awarded damages for the amount required to patch plaintiffs’ roof, for the inspection' fee of the architect, and for mental anguish. The award for having the roof patched was clearly proper. The leaks and the necessity of their repair resulted from the failure of defendant to install the fireplace flue in a workmanlike manner. As to the award of the architect’s fee for the examination of alleged defects, we are of the opinion that same must be disallowed. Such a fee is a cost of preparing the case for trial and it is well established that expenses incurred in preparing a law suit are hot recoverable as damages. Acme Steel Company v. A. J. Warehouse, Inc., 212 So.2d 271 (La.App. 4th Cir. 1968); Womack v. Travelers Ins.. Co., 258 So.2d 562 (La.App. 1st Cir. 1972), writ denied 261 La. 775, 260 So.2d 701. Likewise we find that the trial court erred in awarding damages for mental anguish. The award of non-pecuniary damages for breach of contract is the subject of LSA-C.C. Article 1934(3). Said article was interpreted by our Supreme Court in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976) as follows:

“. . . Where an object, or the exclusive object, of a contract, is physical gratification (or anything other than intellectual gratification) nonpecuniary damages as a consequence of nonfulfillment of that object are not recoverable.
On the other hand, where a principal or exclusive object of a contract is intellectual enjoyment, nonpecuniary damages resulting from the nonfulfillment of that intellectual object are recoverable. Damages in this event are recoverable for the loss of such intellectual enjoyment as well as for mental distress, aggravation, and inconvenience resulting from such loss, or denial of intellectual enjoyment.”

The evidence presented by plaintiffs does not suggest that the object of the construction contract was anything other than the building of an improvement on an immovable. We conclude that the record does not establish that intellectual enjoyment was a principal or exclusive object of the contract entered into between defendant and plaintiffs. Nonpecuniary damages as a consequence of the breach of said contract are not recoverable. LSA-C.C. Article 1934(3). Ostrowe v. Darensbourg, 377 So.2d 1201 (La.1979).

The award of attorney’s fees to plaintiffs must also be reversed. It is well established in this state that unless particularly authorized by statute or by contract between the parties, attorney’s fees are not allowed. Plaintiffs neither cite statutory authority nor did they adduce contractual evidence in support of their prayer for attorney’s fees. Such an award must therefore be denied.

Because this case was erroneously presented and decided in redhibition, the evidence necessary to render a proper judgment under article 2769 is not in the record. Specifically, the cost of the removal of the fireplace and the restoration of the premises to its condition prior to defendant’s beginning of construction is unknown. Therefore, we will remand this case to the trial court for the purpose of receiving further evidence limited however to the cost of removing the fireplace from plaintiffs’ home and the restoration of said premises to its former condition.

For the above and foregoing reasons the judgment of the trial court is affirmed in part, reversed in part and remanded. Accordingly it is ordered, adjudged and decreed that:

1. There be judgment in favor of plaintiffs, Malcom Martin and Ruby Bridges Martin, and against the defendant, AAA Brick Company, Inc., recognizing plaintiffs as entitled to a monetary judgment sufficient to remove from their premises the fireplace constructed by defendant and to restore said premises to the condition prior to defendant’s starting performance of the construction contract in question; this matter is remanded to the trial court for the purpose of receiving additional evidence to fix such monetary award with exactness;

2. There be judgment in favor of plaintiffs and against defendant, condemning the latter to pay to plaintiffs the amount of $150.00 which represents the costs of repairs to plaintiffs’ roof;

3. The judgment of the trial court awarding $101.25 for architect’s fees, $4000.00 for mental anguish, and $2000.00 for attorney’s fees is reversed and plaintiffs’ demands for such sums are rejected and dismissed.

4. The judgment of the trial court condemning defendant to pay all costs at the trial level, including the expert witness fee of architect, Fabian Patín, is affirmed;

5. The judgment of the trial court dismissing defendant’s reconventional demand is affirmed; and,

6. Costs of this appeal are to be paid one-half by defendant and one-half by plaintiffs.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurs.

Under Meador and Ostrowe, we are precluded from awarding plaintiffs damages for mental anguish in this contract action. However, I am in agreement with Justice (now Chief Justice) Dixon’s dissent in Mea-dor. He concludes that there is no logical reason to allow recovery for mental anguish in tort cases and yet deny recovery of similar damages in contract cases. He suggests that non-pecuniary damages are recoverable under the plain terms of La.C.C. 1934(1).

Plaintiffs had a right to expect that defendant would have performed its job well. It did not. A sloppy job invariably results in aggravation, distress and inconvenience to the injured party, for which he should be allowed damages. Such damages are reasonably within the contemplation of contracting parties at the time the contract is entered into, and should, as says Chief Justice Dixon, be compensable.

Were I not bound by Meador and Os-trowe, I would affirm the $4,000.00 award to the Martins for mental anguish resulting from their frustrating experience in connection with defendant’s poor performance here.

      .The defects alleged in plaintiffs’ petition are as follows:
      1. excessively large amounts of efflorescence on the surface of the brick;
      2. the bricks used contained excessive water soluble salt, as did the mortar mix;
      3. the roof leaks at the chimney cap;
      4. the left side of the fireplace brickwork was installed two inches out of square in a distance of thirty inches from front to back;
      5. the mortar used in the chimney was approximately four values lighter than the original mortar on a value scale of ten;
      6. the horizontal coursing of the new brickwork is one-half course out of alignment with the existing brickwork;
      7. the fireplace opening is not centered within the front face of brickwork;
      8. the mantel support bolts had not yet been installed;
      9. the flue opening is only twelve inches above the roof;
      10. the chimney housing is not installed securely;
      11. the flashing of the chimney housing does not overlap the shingle roof with the lower flange;
      12. proper fire protection installation instructions were not followed;
      13. the bricks supplied by defendant do not match the bricks in plaintiffs home; and,
      14. the fireplace projected into an adjoining doorway making it impossible to use said door.

      . Regarding the distinction between the sale of a thing and the letting and hiring of industry, see Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961); Papa v. Louisiana Metal Awning Co., 131 So.2d 114 (La.App. 2nd Cir. 1961); and, The Work of the Louisiana Appellate Courts for the 1977-1978 Term — Sales, 39 La.L.Rev. 705.


author: LABORDE, Judge.

text:
    Mrs. Effie Lee JOHNSON, Plaintiff-Appellant, v. COCA COLA BOTTLING COMPANY, INC., Defendant-Appellee.
    No. 7650.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Watson, Murchison, Crews & Arthur, William P. Crews, Jr., Natchitoches, for plaintiff-appellant.
    Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for defendant-appellee.

      Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   LABORDE, Judge.

The plaintiff-appellant, Mrs. Effie Lee Johnson, brought this suit against the defendant-appellee, Coca-Cola Bottling Company, Inc., for damages and attorney’s fees caused by a bursting bottle of coca-cola. Plaintiff brings this appeal seeking attorney’s fees and an increase in the amount of damages awarded by the trial court. We affirm.

The facts reveal that on September 4, 1978, the plaintiff was grocery shopping in the A&P Grocery Store in Natchitoches, Louisiana. During the check-out process she placed three 32 oz. bottles of Coca Cola on the counter. One of the bottles burst shortly after being placed on the counter.

Originally plaintiff sued in tort and claimed damages as a result of the bottle bursting and injuring her left eye. She later amended her petition in order to sue in redhibition and asked that she be given judgment for the purchase price of the bottle of Coca-Cola, 57 cents, and for her attorney’s fees.

In his written reasons, the trial judge stated:

“Plaintiff’s suit is for personal damages and by amended petition she seeks to set aside the sale of the Coca Cola and asked for 57 cents damages, plus attorney fees. The plaintiff’s case falls far short of any proof that the Coca Cola bottle and its contents had been paid for. Therefore, she is not entitled to have the sale set aside and the defendant to pay attorney fees.
“It is abundantly clear that the tort for the explosion of the bottle was proved and that the defendant is liable for this.
“The medical evidence shows that there was no doubt that the plaintiff was injured but falls short of proving grave injuries as suggested by the plaintiff.
“The Court awards the plaintiff the sum of $3,000.00 plus the following special damages:
Medical bill of Dr. Wheat.$650.00
Bill of Dr. Hall . 80.00
“Plaintiff also claims travel expenses total $171.38, being $125.00 for 25 trips in the City of Natchitoches at $5.00 each and 2 round trips to Shreveport of 144 miles each. The testimony of the plaintiff was that in most cases she would get a friend to take her to see Dr. Wheat and her proof is not sufficient to justify travel expenses to the local doctor. Plaintiff’s Exhibit, P-6, claims 2 trips to Shreveport, but Dr. Hall’s report, P-3, claims only 1 trip, that of January 29, 1979. Plaintiff is entitled to travel expenses of $23.19.”

The plaintiff argues on appeal that the trial judge erred in his factual determination that the bottle of Coca-Cola had not been paid for at the time of its bursting. Whether or not the bottle had been sold at the time of the bursting is of great importance. If the bottle had been sold, the plaintiff’s remedy in redhibition would be recognized with a right to recovery of attorney’s fees. If the sale had not yet taken place, the cause of action would be based on a tort theory which does not grant the recovery of attorney’s fees.

The standard of review in a factual dispute such as the one before us is explained in Canter v. Koehring, 283 So.2d 716 (La.1973):

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

In Arceneaux v. Dominigue, 365 So.2d 1330 (La.1978), the Supreme Court defined manifestly erroneous as meaning clearly wrong.

Our review of the record does not reveal that the trial judge’s determination, that the bottle had not been sold, was manifestly erroneous.

The plaintiff also argues that the trial judge was too conservative in his estimate of the general damages. An increase to $7,500.00 is sought.

Dr. R.R. Sills examined the plaintiff at the Natchitoches Parish Hospital shortly after the incident took place. His examination revealed a medical corneal abrasion of the lower V4 of the left eye. Dr. Sills supplied the patient with an eye patch and recommended that she see Dr. R. D. Wheat the next day.

Dr. Wheat’s report indicates that the corneal abrasion healed in about a week. He stated that by November 15, 1978, her symptoms had subsided and she had 20/20 vision in both eyes. As the plaintiff continued to complain, Dr. Wheat referred her to another eye specialist, Dr. Ronald L. Hall of Shreveport. Dr. Hall’s report stated that the plaintiff had normal, healthy eyes.

Regarding this issue, we observe Civil Code Article 1934 which provides that, in the assessment of general damages, “much discretion must be left to the judge or jury

In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), the Supreme Court stated:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court thát the record must clearly reveal that the trier of fact abused its discretion in making its award.”

This standard of review was also discussed in Reck v. Stevens, 373 So.2d 498 (La.1979), where the Supreme Court stated:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion’, La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977), Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”

We do not believe that the trial judge’s award of $3,000.00 constitutes an abuse of his discretion.

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

AFFIRMED.

GUIDRY, J., concurs in the result.


author: CULPEPPER, Judge.

text:
    Alton TASSIN and Ray Normand, Plaintiffs and Appellants, v. Malcolm SAYES, Defendant and Appellee.
    No. 7671.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Donald R. Wilson, Marksville, for plaintiffs and appellants.
    Ben C. Bennett, Jr., Marksville, for defendant and appellee.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   CULPEPPER, Judge.

This is an appeal from a judgment sustaining an Exception of Res Judicata based on a prior judgment of this Court. In Tassin v. Rhynes, 366 So.2d 580 (3rd Cir. 1978), plaintiffs, Alton Tassin and Roy J. Normand, filed an action captioned “Suit For Declaratory Judgment Establishing Title And Boundaries.” They alleged they were owners of certain property, described as accretion, in Section 29, Township 3 North, Range 4 East, Avoyelles Parish, Louisiana. Defendants were C. A. Rhynes, Malcolm Sayes and Foster J. Johnson. Defendant Sayes denied plaintiff’s ownership and reconvened for recognition of his possession of the disputed area. The district court found the land in dispute is accretion, under LSA-C.C. Article 509, and divided it proportionately among the owners of the frontage on the edge of the river as follows:

Plaintiff Alton Tassin — 15.76 acres
Plaintiff Roy J. Normand — 33.02 acres
Defendant Foster J. Johnson — 1.41 acres
Defendant Malcolm Sayes — 26.22 acres

On appeal, we affirmed the title of Foster J. Johnson and reversed as to the other parties. We found defendant Sayes was in possession of all but 7 acres of the approximately 75 acres in dispute, whether it be accretion under Article 509 or cut off land under Article 518. We held the 7 acres is possessed by plaintiff Tassin. We further found that plaintiff Tassin failed in his burden of proving title good against the world as to any land on the edge of the river or as to any of the land in dispute possessed by defendant Sayes. But Tassin had proved better title than Sayes to the 7 acres of the land in dispute possessed by Tassin. Accordingly, we recognized plaintiff Tassin’s ownership of 7 acres of the land in dispute and confirmed defendant Sayes’ possession of the remainder. We rejected all claims by plaintiff Normand on the basis that he failed to prove perfect title to any part of the land on the edge of the river or better title than Sayes to the property possessed by Sayes. Writs were denied by the Supreme Court, and the judgment became final on December 1, 1978.

On April 16, 1979, plaintiffs Tassin and Normand filed this suit against defendant Malcolm Sayes. Plaintiffs styled their pleadings a “Petition For Recognition As Owner Of Immovable Property And For Partition In Kind Pursuant To The Provisions Of Article 516, Or Alternative Demand For Partition As Recognition Of Owner Of Immovable Property.” They alleged they are owners in indivisión of a tract of land described in their petition as follows:

A certain tract or parcel of land, consisting of 75.0 acres, more or less, situated and lying in Section 29, T3N, R4E, Second Ward of Avoyelles Parish, Louisiana, said property lying South of Red River, and being bounded now or formerly on the North by Red River, on the South by Roy J. Normand, and others, on the West by Alton Tassin, and on the East by Malcolm Sayes, all as more fully shown on Plat of Survey of Louis J. Daigre and Associates dated May 18, 1977, which plat is attached to and made a part hereof by reference.

The described land includes that of which we recognized Sayes’ possession in the prior suit.

Plaintiffs further alleged that they desire to partition the above property, but that defendant Sayes had refused a conventional partition. In the alternative, plaintiff Tas-sin alleged he was owner of Lot 23 and defendant Sayes was owner of Lots 18, 19, 20, 21 and 31 of the same R. J. Johnson partition and that R. J. Johnson was their common ancestor in title.

Defendant Sayes filed Exceptions of Res Judicata and No Cause and No Right of Action based on our prior judgment. The trial court sustained the exception of res judicata.

Defendant-exceptor Sayes contends plaintiffs are precluded from relitigating their demands in this case by principles of res judicata under LSA-R.S. C.C. Article 2286. Our Supreme Court recently stated the general rules of res judicata in Welch v. Crown Zellerbach Corporation, 359 So.2d 154 (La. 1978):

“[1] As a result of our civilian heritage, res judicata under Louisiana law is perceived to be much narrower in scope than its counterpart in common law jurisdictions. See 51 Tul.L.Rev. 611 (1977); Ma-loney, Preclusion Devices in Louisiana; Collateral Estoppel, 35 La.L.Rev. 158 (1974). Louisiana legislative authority for res judicata establishes a presumption of correctness and precludes relitigation of the object of the judgment only when there is (1) an identity of the parties, (2) an identity of ‘cause’ and (3) an identity of the thing demanded. C.C. 2285-2287, 3556(31); Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Sliman v. McBee, 311 So.2d 248 (La.1975); Scurlock Oil Co. v. Getty Oil Co., 294 So.2d 810 (La.1974). The absence of any of these identities is fatal to a plea of res judicata.”

In the present case, there is identity of parties. Plaintiffs and defendant were parties in both suits. Also, there is an identity of the thing demanded by plaintiffs. In both suits, plaintiffs sought to be recognized as owners of the land in dispute. The question is whether there is an identity of “cause.” See Mitchell v. Bertolla, 340 So.2d 287 (La.1976) for a full discussion of “cause.” The court states “cause” is the “juridical facts on which the demand is based.”

In his brief, defendant points out our jurisprudence has recognized certain exceptions to the general rules of res judicata quoted above from Welch v. Crown Zellerbach. In Hope v. Madison, 194 La. 337, 193 So. 666 (La.1940), plaintiff sued her attorney to annul a sale on the basis of LSA-C.C. Article 2447, which prohibits attorneys from purchasing litigious rights. The defendant filed an exception of res judicata, based on a prior suit by Mrs. Hope against Madison to annul the sale on the grounds of lack of consideration and fraud. Mrs. Hope’s demands in the prior suit were rejected. In the second suit, Madison urged res judicata on the grounds that identical issues were raised and decided in the prior case. However, the court noted that although nullity under Article 2447 was argued in plaintiff’s supplemental brief on appeal in the prior case, the issue was neither pleaded nor decided. In overruling the exception of res judicata, the court held the common law rule that res judicata precludes not only everything pleaded in a prior case but also everything that could have been pleaded, does not generally apply in Louisiana. However, the court then stated that there are exceptions. One of these exceptions is set forth as follows:

“. . . that parties litigant in a peti-tory action, whether plaintiff or defendant, must set up whatever title or defense they may have at their command or a judgment on that issue will bar a second action based on a right or claim which existed at the time of the first suit, even though omitted therefrom. Gajan v. Patout & Burquieres, 135 La. 156, 65 So. 17; Succession of Whitner, 165 La. 769, 116 So. 180.”

In the case of Gajan v. Patout & Burquieres, cited in Hope v. Madison, supra, the court made the following statement, which is particularly applicable to the case at bar:

“Again, where two persons litigate titles set up by them, respectively, to particular property, and it is decreed to belong to one of them, though in fact it belongs to a third person not a party to the suit, such third person may thereafter, either sue for the property himself, or may transfer his right to the party cast in the litigation or to another, who may then exercise it, and renew the litigation for the vindication of the title thus acquired. In other words, a litigation is not conclusive as against those who are not parties to it, nor as to rights not possessed by the litigants at the time, save as to persons who are the privies of each other. But a party litigant, whether plaintiff or defendant, is bound to set up whatever title or defense may be at his command or within his knowledge, and is not at liberty to reserve what he pleases and make it the basis of a new litigation. Article 302, C.P., has no application to the case of a third person claiming property, the title to which he has already claimed by a suit which he has lost, unless it be that his new claim is based upon a new title.”

In the recent case of Mitchell v. Bertolla, 340 So.2d 287 (La.1976), the court noted the exceptions stated in Hope v. Madison:

“As with the well established exceptions recognized in Hope v. Madison, supra, there will be areas in Louisiana jurisprudence in which the application of French doctrine, as we perceive it, might result in a conclusion different from that reached by this court in balancing the competing interests. See Fulmer v. Fulmer, 301 So.2d 622 (La.1974) — relitigation of fault in divorce action; McKnight v. State, 68 So.2d 652 (La.App.1st Cir. 1953); XIV La.L.Rev. 901 — master-servant liability. Such cases can not be interpreted as evidence of a return to common law preclusion devices, and can not be understood as withdrawing from the position of Hope v. Madison, supra. The res judicata of C.C. 2286 is not the res judicata of the common law.”

Under the above jurisprudence, the present rule recognized by our Supreme Court is that petitory actions are exceptions to the general civil law rule that res judica-ta precludes relitigation of only causes actually pleaded and decided in the prior case. In petitory actions, res judicata precludes relitigation of not only causes which were pleaded and decided in the prior case, but also causes which the party could have pleaded. The rationale suggested by Gajan v. Patout & Burguieres, supra, is protection of titles to immovables against unnecessary successive litigations. Gajan states a party litigant claiming ownership must plead “whatever title or defense may be at his command or within his knowledge, and is not at liberty to reserve what he pleases and make it the basis of a new litigation.” Any new litigation must be based on a new title.

Although the jurisprudence speaks only of petitory actions, the rationale applies to any type of action seeking recognition of ownership of immovables. Thus, it is immaterial whether both suits are “petitory” actions, as defined in our Code of Civil Procedure, so long as the thing demanded in both is recognition of ownership.

PLAINTIFF TASSIN’S CONTENTIONS

As we understand Tassin’s argument, he contends ownership of the land above described was not decided in the first case. On this premise, he contends that our recognition of defendant Sayes’ possession in the first suit does not bar Tassin’s second suit for recognition of ownership. Tassin alleges no new title.

We agree with Tassin that there was no adjudication on the issue of defendant Sayes’ ownership. We do not agree, however, that the issue of Tassin’s ownership was not adjudicated. We decided that plaintiff Tassin’s ownership in the disputed property is limited to the 7 acres described in our decree. As to the land possessed by Sayes, Tassin seeks to relitigate the same title which he alleged, and the court rejected in the prior suit. He is clearly precluded by res judicata.

PLAINTIFF NORMAND’S CONTENTIONS

Plaintiff Normand’s principal contention is that the plea of res judicata is inapplicable to him because he has acquired from the Mayeux heirs a new title, not adjudicated in the previous suit. Normand relies on the following from our prior judgment:

“Jurisprudence has established the rule that if, at the time of sale of a riparian estate, the alluvion or batture attached has attained a sufficient elevation to be susceptible of private ownership, the allu-vion does not pass with the riparian land unless it is expressly so stated in the Act of Sale. State v. Richardson, 140 La. 329, 72 So. 984 (1916); Maginnis Land & Improvement Company v. Marcello, 168 La. 997, 123 So. 653 (1929). In the present case, it is clear that the ‘batture’ had formed and was susceptible of private ownership by the Mayeuxs by the time they sold to Normand in 1966. Yet, the Mayeuxs sold to Normand only a specifically described 86.5 acres and did not sell any of the ‘batture’ at issue here. Therefore, we conclude that plaintiff Normand is not entitled to any of the ‘batture’ in dispute. It mav be that the heirs of Charles J. Maveux still have a claim to a portion of the ‘batture’. but they are not parties to the present suit and that issue is not before us.” (Emphasis supplied)

Normand argues the above underlined portion of our decision in the prior case reserved to the Mayeux heirs any claim which they had to the accretion, and that Normand acquired from the Mayeux heirs any right which they had to the accretion. Normand argues he therefore has a new title to the accretion.

Normand’s alleged new title is based on two correction deeds which he obtained from the Mayeux heirs. The first is titled an “Act of Ratification, Acknowledgment and Quitclaim” from the Mayeux heirs to Normand recorded on July 15, 1976 in the Conveyance Records of Avoyelles Parish. This Act of Ratification states that in the original deed from the Mayeux heirs to Normand, executed in December of 1966 conveying 86.50 acres, more or less, the vendors failed to execute the sale before a notary and two witnesses. The purpose of the 1976 Act of Ratification was to correct this deficiency. The 1976 Act of Ratification does not seek to correct the description of the land conveyed in 1966. Clearly, the 1976 instrument is not the basis of any new title.

The second instrument on which Normand relies is an “Act of Correction” from the Mayeux heirs to Normand signed by the respective vendors on different dates during September and October of 1978 and recorded on October 30,1978 in the Conveyance Records of Avoyelles Parish. This Act of Correction was recorded after the judgment of the district court in the prior suit was rendered on June 17, 1977, and after our decision in the prior case became final by the denial of a rehearing on October 16, 1978, but before the Supreme Court denied writs on December 1, 1978. The 1978 Act of Correction described the original 1966 sale by the Mayeux heirs to Normand, and then states:

“That an error was committed in preparing the aforesaid description in that the act inadvertently omitted to include all accretion and or alluvion which has been or may hereafter be allocable to the above said property by accretion or otherwise by changes in the Red River, when as a matter of fact it was the intention of the parties that all riparian rights, accretions and or alluvion allocable to the subject property due to changes in the Red River be included in the description in the .sale.
“That in view of the foregoing and for the same consideration originally recited, the parties have agreed to reform and correct the aforementioned description, so as to have the same read as follows, to wit:
(Then follows a description of the 86.5 acres on the bank of the river)
* * * * * *
“The vendors herein expressly convey to vendee all riparian rights, accretions and or alluvion which has been or may hereafter be allocable to the above described property due to the changes in the course of Red River.”

The question before us is whether the 1978 Act of Correction constitutes a new title in Normand not precluded by res judi-cata. This is a difficult issue. It is res nova in Louisiana. Since in petitory actions the rule of res judicata applicable in Louisiana is similar to that at common law, we also researched decisions from other states, but found no cases dealing specifically with correction deeds urged as new titles. We will attempt to decide the issue in accordance with the rationales expressed by our Supreme Court in the above discussed decisions.

As stated above, petitory actions, or other actions in which the ownership of immova-bles is at issue, are an exception to the general civil law rule of res judicata that only “causes” pleaded and decided in the prior case are precluded in a subsequent case. Our jurisprudence has recognized that in actions involving the ownership of immovables our rule of res judicata is similar to that in the common law states, i. e., res judicata precludes relitigation of not only causes which were pleaded and decided in the prior case, but also causes which the party could have pleaded. Gajan v. Patou t & Burguieres, supra, states that a party litigant claiming ownership must plead “whatever title or defense may be at his command or within his knowledge, and is not at liberty to reserve what he pleases and make it the basis of a new litigation.”

Using the Gajan rationale, Normand should have pleaded in the prior suit whatever title was at his command or within his knowledge. He was not at liberty to reserve any title he had and make it the basis of a new suit.

There is no question that Normand knew or should have known his 1966 sale from the Mayeux heirs did not include any portion of the accretion which had occurred in 1940-44. This is fully discussed in our prior opinion.

We think it is also obvious that any time from 1966 up until the end of the litigation in the district court in the prior case in 1978, Normand had at his command the right to obtain, or at least to seek, from the Mayeux heirs a correction or reformation of the 1966 deed to include all of the vendors’ rights to the accretion. The October 1978 Act of Correction is itself proof that Normand could have obtained such an instrument from the Mayeux heirs before or during the prior litigation. Thus, we conclude that whatever rights to the accretion were acquired by Normand in the 1978 Act of Correction were “at his command or within his knowledge” before and during the prior litigation, and he was not at liberty to reserve this right and make it the basis of a new litigation.

We note that the 1978 Act of Correction is stated to be for the same consideration as the 1966 sale and is merely to “reform and correct” the description in the 1966 deed. Thus, this is an attempt to reform or correct a title which Normand already had during the prior litigation. It is not the sale of a new title for a new consideration.

We conclude Normand has no new title under the Correction Deeds on which he relies.

Normand argues additionally what we understand to be the same contention as made by Tassin, i. e., that his ownership was not adjudicated in the prior suit. This argument has no merit. Normand’s ownership was at issue in the prior suit, and it was adjudicated that he owned no part of the land in dispute.

In his brief, counsel for Sayes mentions that our judgment in the prior suit, granting his reconventional demand for recognition of Sayes’ possession, does not order Tassin or Normand to file an adverse claim of ownership within 60 days, as provided by LSA-C.C.P. Article 3662. The reason we did not order Tassin or Normand to assert any adverse claim of ownership within 60 days or be precluded thereafter, is that Sayes did not pray for such relief, as required by the express language of Article 3662. Comment (b) under Article 3662 explains that the plaintiff in a possessory action may not wish to have the defendant ordered to make an adverse claim of ownership, and, for that reason, such relief must be specially prayed for.

For the reasons assigned, the judgment appealed is affirmed at plaintiffs’ cost.

AFFIRMED.


author: GUIDRY, Judge.

text:
    William Wayne CLARK and Palvest, Inc., Plaintiffs-Appellees, v. Raymond C. DAVIS, Defendant-Appellant.
    No. 7672.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      McClain, Morgan & Greenwald, Joseph W. Greenwald, Lake Charles, for defendant-appellant.
    Levingston, Tynes, Liles & Ezell, Henry R. Liles, Lake Charles, for plaintiffs-appel-lees.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   GUIDRY, Judge.

This is a suit for rescission of a timber sale contract for the alleged breach of material conditions thereof by the vendee and in the alternative on the ground of lesion beyond moiety.

The facts giving rise to the instant controversy are not in dispute.

On June 1, 1977, Joe R. Palermo, Jr. and William W. Clark purchased a twenty acre tract of land in Calcasieu Parish, Louisiana described as S/2 of NE/4 of NE/4 Section 25, T. 10 S.R. 13 W. (hereafter referred to as “subject land”). On June 7, 1977 Clark conveyed a 'Ath interest in the subject land to Palermo. Following the latter sale the subject land was owned %rds by Palermo and Vsrd by Clark. On September 9, 1977, Clark and Palermo sold to the defendant, Raymond Davis, for a consideration of $3500.00, all of the merchantable timber lying or standing or situated upon the subject land with the term for the removal of such timber being fixed as follows:

“It is understood and agreed that the Vendors shall secure written right-of-way agreements and record said agreements with the Clerk of Court. Thereafter, Purchaser shall have Eighteen (18) months from the date of recorded right-of-way agreements within which to re move said timber and at the expiration of such period all of his rights hereunder shall cease and terminate.”

In this agreement, in addition to the cash consideration called for, defendant obligated himself to “construct at his own expense, a roadbed suitable for dedication per' the attached drawing, upon the right-of-way to be secured by vendor”.

Subsequent to the timber sale by Clark and Palermo to Raymond Davis and on October 6, 1977, Palermo conveyed his two-thirds interest in the subject land to Pal-vest, Inc., a Louisiana corporation. It is important to note at this point that the latter sale was made with full and general warranty and without exception as to the timber estate previously sold. On January 4, 1978 the written right-of-way agreements contemplated by the timber sale were secured by Clark and Palvest and recorded in the conveyance records of Calca-sieu Parish, Louisiana. Thereafter, by two deeds dated and recorded January 17, 1978, defendant conveyed a Vitb. interest in the timber estate and all timber cutting rights on the entire estate to one, Ralph W. Sanders d/b/a Sanders Timber Company. The terms of the latter two deeds are unimportant to a consideration of the issues' presented except to observe that it is un-contradicted that as a result of such sales to Sanders defendant received a gross consideration of $26,150.50 and incurred attendant expenses, including initial sales consideration paid to Clark and Palermo, of $8146.50, for a total net profit of $18,004.00.

This suit was instituted on February 6, 1978. On August 15,1978, after trial on the merits, the trial court, for written reasons assigned, rejected plaintiffs’ demand for rescission of the contract for breach of any material conditions thereof but sustained plaintiffs’ plea of lesion and rendered what it terms an “INTERLOCUTORY JUDGMENT” which decreed in pertinent part as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiffs, WILLIAM WAYNE CLARK and PALVEST, INC., and against the defendant, RAYMOND C. DAVIS, in lesion beyond moiety and condemning the defendant to deposit into the registry of the Court any and all revenues received by him or to be received by him for the sale of the timber to Ralph Sanders, on the following described property to-wit: . . .
Such revenue shall remain in escrow to be adjusted by expenses of the defendant incurred in the subject timber transaction and a final judgment shall be rendered herein after completion of the cutting of such timber, or (sic) or before January 1, 1979.”

On November 9, 1979, after removal of all timber from the subject land and pursuant to a rule filed by plaintiffs, the trial court rendered a final judgment in favor of plaintiffs and against the defendant in the sum of $26,150.50, subject to a credit to the defendant for expenses incurred in the subject timber transaction in the sum of $8146.50. It is from this judgment that the defendant has taken this suspensive appeal. Plaintiffs have neither appealed nor answered the appeal of defendant.

In rendering judgment as he did the trial judge relied on O’Brien v. LeGette, 254 La. 252, 223 So.2d 165 (1969) which holds in effect that “. . . in an action based on lesion, when it appears that it is impossible for the original vendee to restore any of the property because it has been sold in its entirety, the vendor is entitled to be reimbursed for the profit the vendee has realized”. Applying the rationale of O’Brien, supra, the trial court rendered an interlocutory judgment decreeing plaintiffs’ plea of lesion to be well founded and held the matter in abeyance until completion of all timber removal in order that a final judgment might set forth with precision and exactness the actual profit realized by vendee. Appellant does not question the procedure followed by the trial court and we do not address this issue. Neither does appellant argue with the legal principles set forth in O’Brien, supra. However, defendant on appeal contends that the trial court erred in (1) denying his exception of no right of action against Palvest, Inc.; and, (2) sustaining plaintiffs’ plea of lesion. These are the only two issues raised on appeal and we will address same in the order set forth above.

EXCEPTION OF NO RIGHT OF ACTION

The exception of no right of action calls into question whether the plaintiff has standing or interest under the law to bring suit. In the instant case the exception filed by appellant questions the right of Palvest, Inc., as successor in title of Palermo, to institute and prosecute an action for rescission of the timber sale from Palermo and Clark to defendant. Appellant argues that once standing timber is sold a separate estate is created and since the timber estate in question was created prior to the acquisition by Palvest of an interest in the property, Palvest has no right or interest to challenge the timber sale. Under the factual circumstances of this case we disagree.

Under our law the right to rescind a sale for lesion beyond moiety is not strictly personal to the vendor. Consequently, such right is heritable, subject to seizure and, as we hold herein, transferrable by the owner of such right. LSA-C.C. Articles 1861 and 2589 et seq.; Belcher and Creswell v. Johnson, 114 La. 640, 38 So. 481 (1905); Rogers v. Read, 355 So.2d 46 (La.App. 2nd Cir. 1978). In Belcher and Creswell, supra, the court considered the right of rescission for lesion to be transferrable to the extent that it allowed creditors to exercise this right when their debtor refused to do so. In so holding the court stated:

“. . . it cannot be inferred that the lawmakers intended to exclude rights of debtors to attack their debtor’s sale for lesion beyond moiety.
It is not a mere personal right. It is subject to seizure.
The right under the authorities cited cannot be classed as mere personal. A creditor can exercise the right of his debtor in all cases in which the debtor’s cause does not fall within the exceptions above referred to relating to mere personal property. That was the view expressed in Spencer v. Goodman & Bradfield, 33 La. Ann. [898] 906.
A similar view is expressed in Forstall v. Association, 34 La.Ann. [770] 775, in which the court, in substance, held that a creditor can exercise all the rights of a debtor not merely personal.
The views of French courts and of commentators upon the subject are direct, and bear with unerring force upon the point. They are: The action in rescission for lesion can be exercised by the creditor if the debtor has sold his property for a vile price. The law then permits the creditor to act where the debtor does not. Carpentier, vol. 15, p. 481, citing Laurent, vol. 16, p. 383; Baudry-Lacantinerie, vol. 2, p. 913.” (Emphasis supplied)

In Rogers, supra, the court concluded that an heir enforcing the right of rescission for lesion beyond moiety did not assert a right of forced heirship but asserted instead a contractual or statutory right of their ancestor. In Rogers, supra, the defendant contended that the action of rescission for lesion was limited to forced heirs and could not be raised by collateral heirs. In rejecting this contention the court stated:

. . The argument might have some merit if rescission for lesion were deemed to be a strictly personal risrht of action, but such is not the ease.
Upon a determination that the right is not a personal one granted only to an individual and which would abate on death, it follows that the right is necessarily one which is heritable and a part of the decedent’s patrimony which passes to his successors at his death. LSA-C.C. Arts. 871, 872. We. therefore, held that the riorht to rescind a sale for lesion beyond moiety may be exercised bv anyone who succeeds to the patrimony of a decedent whether a forced, collateral or legal heir or a testamentary legatee. The right is likewise subject to seizure and exercise by creditors. When a succession is under administration, as in this case, the administrator is the proper party to assert the right of the succession. LSA-C.C.P. Arts. 3191, 3196, 3211.” (Emphasis supplied)

Considering the above we can conceive of no good reason why such right of rescission should not be considered transfer-rable by deed. We hold that it is and that such right if transferred is exerciseable by the transferee.

In the instant case Palermo, following the timber sale to Raymond Davis, conveyed all of his interest in the subject land, without exception, to Palvest, Inc., such sale being made “with full guarantee of title and with complete transfer and subro-gation of all rights and actions of warranty against all former proprietors of the property herein conveyed . . . ”. There being no exception made as to the estate sold to Palvest, the deed was sufficient to convey all rights, not personal, owned by the vendor in the land and timber, whatever those might be, for the ownership of the soil carries with it the ownership of all that is directly above and under it. LSA-C.C. Article 505. In our view, considering the prior sale to Davis, Palvest, by virtue of the warranty sale made to it, had the right to sue its own vendor in warranty or it could choose to exercise such rights as Palermo might have under the timber sale to which it was subrogated, including as we hold the right to demand a rescission of the sale made to Davis because of lesion beyond moiety. For these reasons we conclude that when suit was instituted Palvest, Inc., to the extent of its interest, was vested with a right of action to rescind the timber sale to Davis on the ground of lesion beyond moiety and therefore the exception of no right of action filed by defendant-appellant should be dismissed.

DID THE TRIAL COURT ERR IN SUSTAINING PLAINTIFFS’ PLEA OF LESION?

According to LSA-C.C. Article 2590 in ascertaining whether there is lesion beyond moiety, the immovable must be estimated according to the state in which it was, and the value which it had at the time of the sale.

At trial on the merits plaintiffs presented the expert testimony of Mr. Leonard H. Thomas, a forestry consultant and expert appraiser, who opined that the timber estate had a total value on September 9, 1977 of $48,485.00. Defendant presented no evidence whatever to contradict the testimony of Mr. Thomas or to show the actual cost to him of the construction of a roadbed to the subject land, which was his only obligation as buyer under the timber sale other than payment of the cash consideration of $3500.00. The only evidence as to the cost of constructing the roadbed was that of the defendant who suggested that the cost would be in the neighborhood of $12,000.00 to $15,000.00.

In sustaining plaintiffs’ plea of lesion the learned trial judge stated:

“It is the contention of the defendant that the plaintiff in this case did not meet his burden of proof as required under the law in order to show lesion beyond moiety. This Court would recognize that in order to prove lesion the burden of proof is a heavy one. However, in this case Mr. Leonard H. Thomas, a forest consultant and expert appraiser, testified as to the value of the timber. Mr. Thomas testified that after making a cruise of the timber, he estimated there to be 320,000 board feet of pine sawtimber, 2,000 board feet of hardwood sawtimber, 36 cords of pine pulpwood and 15 cords of hardwood puipwood. It was his impression that the present market stumpage of this timber if sold on the stump would be $48,485. Considering his estimate and the price that Mr. Ralph Sanders paid to the defendant, that sum being $5,000 for a one-fourth interest in the timber, it is clear to the Court that the value of the timber exceeds the sales price by more than one-half which would be necessary to find lesion. Although there was no testimony as to the exact cost of a road which would meet the specifications in the contract, it appears to the Court that even considering this cost the value of the timber exceeds the sales price bv more than one-half.” (Emphasis supplied)

At the hearing prior to rendition of the final judgment in this case defendant for the first time offered to prove the actual cost of constructing the roadbed. The trial judge, reasoning that this offer of evidence came too late since he had previously sustained plaintiffs’ plea of lesion and rendered an interlocutory judgment to that effect on August 15, 1978, rejected this evidence but permitted defendant to make an offer of proof under the provisions of LSA-C.C.P. Article 1636. The evidence tendered by defendant under the proffer is inadmissible hearsay as it consists only of a proposal for the cost of building the roadbed purportedly received from Bi-Co Pavers Inc. The proposal amounts to nothing more than an out-of-court statement made by the author of the proposal who was not in court, under oath and available for cross-examination.

Considering that the evidence tendered under the proffer was inadmissible hearsay, we need not consider same nor consider whether the trial judge erred in refusing to receive such evidence at the hearing before final judgment. However, in any event, we observe that, even if admissible, the evidence tendered would not reflect error in the trial judge’s ultimate conclusion that the plea of lesion was valid. The following mathematical computation bears this out:

Value of timber estate. . $48,485.00
Sales Price:
(a) Cash Consideration . . $ 3500.00
(b) Cost of Roadbed .... 13885.00 17.385.00
2 X $17,385.00 = $34,770.00

Since the vendors were aggrieved for more than one-half the value of the timber estate sold, they are clearly entitled to the relief granted.

. For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

      . This road was never constructed. However, defendant contends that he was prevented from doing so by the institution of this suit and the trial court erred in failing to consider the cost of construction thereof in determining whether or not plaintiffs’ plea of lesion should have been sustained. This issue will be fully considered at a later point in this opinion.

      . Defendant filed two exceptions styled “Exception of No Cause or Right of Action”. In the judgment rendered and signed on August 15, 1978, the trial court specifically dismissed the exception of no cause of action but made no mention of the exception of no right of action. Appellees suggest in brief that the exception of no right of action was never brought before the trial court for a decision and that no judgment was ever rendered on such exception from which an appeal could be taken. Irrespective of whether or not the trial court considered the exception of no right of action we may do so since the failure to disclose a cause of action or a right or interest in the plaintiff to institute suit may be noticed by either the trial or appellate courts on their own motion. LSA-C.C.P. Article 927.


author: DOMENGEAUX, Judge.

text:
    Jerry M. POOL, Plaintiff-Appellant, v. KEMPER INSURANCE GROUP et al., Defendants-Appellees, Travelers Insurance Company, Intervenor-Appellee-Appellant.
    No. 7676.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Writ Refused Sept. 19, 1980.

      Woodley, Barnett, Cox, Williams & Fen-et, Robert W. Fenet, Lake Charles, and Jones & Jones, J. B. Jones, Jr., Cameron, for plaintiff-appellant-appellee.
    Meredith T. Holt, Lake Charles, for inter-venor-appellee-appellant.
    Raggio, Cappel, Chozen & Berniard, Fred L. Cappel, Lake Charles, Randolph J. Waits, Francis Emmett, New Orleans, Voorhies & Labbe, John N. Chappuis, Lafayette, for appellee.
    Brame, Bergstedt & Brame, Frank M. Brame, Stockwell, Sievert, Viccellio, Clements & Shaddock, Bernard H. McLaughlin, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   DOMENGEAUX, Judge.

Plaintiff has appealed a judgment dismissing, for want of subject matter jurisdiction, his claim for personal injuries sustained in an offshore oil rig accident.

On July 14, 1977, plaintiff Jerry Pool was employed by General American Oil Company of Texas as a roustabout on an offshore oil platform located in the Gulf of Mexico eight miles south of Cameron, Louisiana. Plaintiff was operating a crane which was mounted on a pedestal attached to the frame of the fixed platform when the crane broke loose from its mounting on the rig and plunged into the Gulf. As a result of the 50-foot drop, plaintiff, who was still aboard the crane, suffered personal injuries for which he is now seeking recovery.

Before a year elapsed plaintiff filed suit in the 38th Judicial District Court for the State of Louisiana. In this state court action plaintiff sued Link-Belt Corporation and FMC Corporation, the manufacturers of the crane, Road Equipment Company d/b/a RECO Crane Company, which maintains and repairs the crane, and the defendants’ respective insurers. By supplemental and amending petition filed September 18, 1979, Trans-Ocean Contractors, Inc., as owner of the barge “Monitor” (which plaintiff was unloading at the time of the accident), and Garber Brothers, Inc., as owner/operator and/or charterer of the tugboat “Chuckie”, were made defendants. Plaintiff has asserted claims under Louisiana Tort Law, General Maritime Law, the Outer Continental Shelf Lands Act (OCSLA), the Jones Act, and unseaworthiness.

Certain defendants excepted to the subject matter jurisdiction of the state court, alleging that the Outer Continental Shelf Lands Act has vested in the federal district courts exclusive original jurisdiction over actions stemming from controversies occurring on fixed offshore oil platforms located on the outer continental shelf. The 38th Judicial District Court sustained the exception and dismissed the case. Plaintiff has appealed.

Plaintiff’s appeal essentially raises three issues:

(1)Plaintiff alleges he is a seaman pro hac vice and is thus entitled to sue in state court under the Jones Act (46 U.S.C.A. § 688) and the “saving to suitors” clause located in 28 U.S.C.A. § 1333.

(2) Plaintiff argues that even if the Outer Continental Shelf Lands Act applies he may sue in state court because OCSLA does not expressly vest exclusive original jurisdiction in the federal district courts.

(3) Plaintiff contends that the state court can hear his unseaworthiness claims against the vessels “Monitor” and “Chuckie” even with a finding of lack of subject matter jurisdiction over the in personam suits. Therefore, the trial court erred in dismissing plaintiff’s state court suits against all defendants.

For reasons which follow, we reject all of plaintiff’s contentions and affirm the trial court’s dismissal for lack of subject matter jurisdiction.

SEAMAN PRO HAC VICE OR PLATFORM WORKER?

Plaintiff alleged in his supplemental petition that he was a borrowed servant and employee of Trans-Ocean Contractors, Inc. and/or Garber Brothers, Inc., and was assisting in the traditional seaman duties of loading and unloading a vessel. He further alleges he occupied the status of a Jones Act seaman pro hac vice in relation to these two defendants.

The Jones Act is a remedy reserved to seamen and expressly provides for concurrent state and federal court jurisdiction. Plaintiff’s ability to sue under the Jones Act is therefore entirely dependent upon his status as a seaman. This matter is before us on an exception to subject matter jurisdiction so plaintiff’s status has not been determined by the trier of fact.

Although the question of whether an injured employee was a Jones Act seaman at the time of his injury is normally a question to be decided by the trier of fact, that is not necessarily so in every case. Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th Cir. 1980). We conclude, based on factual stipulations and plaintiff’s own allegations of fact as expressed in his petition, that plaintiff is not a Jones Act seaman and is therefore not entitled to sue under the Jones Act.

The United States Court of Appeal, Fifth Circuit, recently re-emphasized in Longmire v. Sea Drilling Corp., supra, that to qualify as a Jones Act seaman an injured worker must be able to show that he was permanently assigned to or performed a substantial part of his work on a vessel and that the capacity of his employment contributed to the function, mission, operation, or welfare of the vessel.

In our case, plaintiff maintains that he acquired the status of a seaman pro hac vice because he was, at the time of his injury, assisting in traditional seaman duties of loading and unloading a vessel, even though he admitted he was a roustabout assigned to the fixed drilling rig. He has made no allegation that he was permanently assigned to the vessel or that his employment aided the vessel in any way. Under the Longmire rationale plaintiff would be adjudged a platform worker.

Black’s Law Dictionary (Revised Fourth Edition 1968) defines the term “pro hac vice’’ as meaning “For this turn; for this one particular occasion.” If plaintiff’s new definition of “seaman” is introduced into the law, one seeking to be classified as a seaman would no longer be required to prove that he was permanently assigned to a vessel and that the capacity of his employment contributed in some way to the function, mission, operation, or welfare of the vessel. All he would need to prove is that he was injured while performing the work of a seaman or while temporarily assigned to a vessel. To attribute such a meaning to the term “seaman” would deprive it of its significance in admiralty law. We decline to attribute such a meaning to the word. In so deciding we are merely following the lead of several recent federal decisions.

In Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), the decedent Dore was operating a crane positioned on a stationary platform and was in the process of unloading a barge tied, up alongside the platform. The crane failed and toppled from the platform onto the barge. The plaintiff was in the cab of the crane and sustained injuries which ultimately led to his death when the crane struck the barge below. The negligent act complained of occurred on the platform, although the injury and ultimate death occurred on the barge. The United States Supreme Court nevertheless held that OCS-LA applied.

The factual situation which plaintiff Pool alleges is exactly similar to that which was presented to the United States Supreme Court in Rodrigue. For that reason OCS-LA, and not the Jones Act, controls plaintiff’s claim.

In the Fifth Circuit case of In Re Dearborn Marine Service, Inc., 499 F.2d 263 (5th Cir. 1974) a drilling tender was moored to a platform located on the outer continental shelf. An explosion occurred of the drilling platform, and a fireball enveloped the ship. Various crew members of the vessel, including the captain, were killed. In addition, a platform worker assigned to the platform, but who happened to be on the ship at the time of the explosion, was killed. The Fifth Circuit held that OCSLA controlled as to the platform worker’s rights and remedies against the platform owner and operators, even though he was temporarily assigned to the vessel. The Court also recognized that the crew members of the vessel who were clearly traditional seamen maintained their traditional maritime remedies under the Jones Act, the Death on the High Seas Act and the General Maritime Law.

The factual posture of the Longmire case, supra, more than the factual situation here, favored a finding that the injured employee was a seaman rather than a platform worker. In that case, on the day he was injured, Longmire had spent his entire work shift storing anchor chains aboard a vessel. He was injured when he slipped as he tried to leave the room in which the anchor chains were stored. Longmire, a member of the drilling rig crew, argued that he was a seaman. The Fifth Circuit found that he lacked seaman’s status because he did not show that he was permanently assigned to the vessel. Instead, the Court adjudged plaintiff Longmire to be a platform worker entitled to the remedies provided by OCS-LA for workers on fixed platforms located on the outer continental shelf.

The clear import of the above cases is that a worker with Jerry Pool’s factual history is a platform worker, not a seaman, and a mere allegation that plaintiff is a seaman will not entitle him to the benefits of a seaman when overwhelming circumstances indicate he is not.

OCSLA: EXCLUSIVITY OF FEDERAL COURT JURISDICTION

The trial court found that the Outer Continental Shelf Lands Act, 43 U.S.C.A. § 1333, et seq., applied and dismissed plaintiff’s case because the court lacked subject matter jurisdiction. The court felt that OCSLA vested exclusive original jurisdiction over this dispute in federal district court.

Section 1333 of OCSLA reads in pertinent part as follows:

“(a) (1) The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures which may be erected thereon for the purpose of exploring for, developing, removing, and transporting resources therefrom, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State : Provided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter.
All of such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States.” (Emphasis added).

The case of Gravois v. Travelers Indemnity Co., 173 So.2d 550 (La.App. 1st Cir.1965) specifically upheld the Outer Continental Shelf Lands Act and held that the purpose of the Act was to vest all civil and political jurisdiction in matters involving offshore drilling activities on the outer continental shelf in the federal courts and that such federal court jurisdiction was exclusive. In the Gravois case, the decedent was a platform worker working on a sulphur mine installation seven miles offshore and more than three miles from the shore of the State of Louisiana. The decedent was a regular employee of the sulphur company and a member of the platform crew working on the offshore platform complex. The Court held that the decedent was killed by working on the offshore platform, and since the offshore platform was within the limits of the outer continental shelf, the federal courts had exclusive jurisdiction. In addition, the. Court held that the saving to suitors clause of admiralty jurisdiction law had no application to matters involving the outer continental shelf. The First Circuit stated:

“Had Congress intended to grant concurrent jurisdiction to the State Courts it would have so specified in this Act [OCS-LA] as they did in the Jones Act. The failure to do so shows their intention to retain jurisdiction in the United States Courts.” 173 So.2d at 556.

The reasoning and conclusion of the majority in Gravois is eminently correct, and is wholly applicable here inasmuch as the factual situations are very similar. In the present case the plaintiff, Jerry Pool, was a platform worker and was actually working on a platform when the alleged accident occurred.

In Friedrich v. Whittaker Corp., 467 F.Supp. 1012 (S.D.Texas, 1979), the court held that the exclusive jurisdiction of an action for injuries sustained on a fixed offshore oilfield platform located on the outer continental shelf was in federal court and the state courts are entirely without jurisdiction of such cases. In that case, the plaintiff was a platform worker who was injured while working on a fixed offshore oilfield platform. The court cited with approval the Gravois decision.

The above two cases are the only ones found which specifically deal with the question of whether state courts have concurrent jurisdiction with federal courts over actions arising out of incidents on fixed rigs located on the outer continental shelf with resulting injuries to rig employees. Both favored exclusive original jurisdiction in the federal courts in light of the apparent Congressional intent. We likewise adopt a broad interpretation of the jurisdictional grant and hold that the federal courts have exclusive original jurisdiction over cases similar to the one under review.

A careful reading of these two cases will indicate that OCSLA in no way purports to usurp admiralty or general maritime jurisdiction. The Act simply provides a body of law to protect offshore platform workers. Plaintiffs are not prevented from bringing any other causes of action which they might have in federal court along with their claims under OCSLA.

In Verrett v. Offshore Crews, Inc., 332 So.2d 292 (La.App. 1st Cir.1976), the plaintiff was a seaman who slipped and fell on a boat deck which had been made slippery by materials spilled from the offshore drilling platform onto the boat deck. The plaintiff was not a platform worker, and because he was a seaman, the saving to suitors clause (28 U.S.C.A. § 1333) was applicable to him. The Court observed:

“The very purpose of the Lands Act indicates it was not intended to oust other Federal laws applicable by their own force; it was enacted to fill a substantive and jurisdictional void in our law. The platform workers and their families needed a body of law to protect them. As shown above, seamen and their employers were adequately covered by an extensive body of law. To hold that admiralty and general maritime jurisdiction are ousted by the Lands Act would thwart a long development and evolution of a system of laws designed to govern the peculiar needs of seamen and their employers.”

Thus, the Court recognized that admiralty and general maritime remedies co-exist with remedies available under OCSLA. In essence, the Court held that a seaman who is injured on a boat which was in waters covering the outer continental shelf could still pursue his admiralty and general maritime jurisdiction claims in state court.

The Verrett decision cites the case of Kimble v. Noble Drilling Corp., 416 F.2d 847 (5th Cir. 1969). The plaintiff Kimble was injured twice, each time while working on a drilling platform at sea. The Court held that Kimble’s status as a seaman (which depended on his assignment to and responsibility on a drilling tender which was unquestionably a vessel) allowed him to pursue other admiralty and general maritime law remedies which applied of their own force. Again, the Court in Kimble recognized that OCSLA co-exists peacefully with other.admiralty and general maritime remedies which may be independently available to the plaintiff. However, neither Verrett nor Kimble suggest that a platform worker injured aboard a fixed rig on the outer continental shelf may ignore the language of OCSLA and pursue his claim in state court. Certainly, he is free to join any other remedies to his OCSLA claim in his federal court suit.

Counsel for plaintiff cite the case of Smith v. Service Contracting, Inc., 199 So.2d 36 (La.App. 4th Cir.1967) as authority for filing the claim in state court. However, a careful reading of Smith will show that it is not applicable to the case before us. In Smith, the plaintiff was ordered to go onto the drilling platform to assist in unloading equipment from the vessel to the platform, and he sustained injuries during that unloading operation. There was no question that the plaintiff was a seaman, a member of the crew of a vessel and covered by the Jones Act. The plaintiff was not a platform worker assigned to a platform. The Court held:

“The Outer Continental Shelf Lands Act, 43 U.S.C.A. § 1333(c) (1), specifically excludes members of a crew of a vessel from coverage. Gravois, the case relied on by appellees, is not apposite here. For as the majority opinion carefully points out, the Jones Act was not there applicable. The person for whose death recovery was sought in that suit was not a seaman; he was a member of an installation crew working on a fixed structure in the Gulf of Mexico belonging to his employer, Freeport Sulphur Company. Here the Jones Act, which affords recovery for injury to seamen, and the ‘saving to suitors’ clause of 28 U.S.C.A. § 1333(1), which provides for exclusive jurisdiction in the District Courts of the United States in civil cases of admiralty or maritime jurisdiction * * saving to suitors in all cases all other remedies to which they are otherwise entitled’, are applicable. And, the plaintiff having elected to pursue his remedy in the Courts of the State of Louisiana, those courts do have jurisdiction. [Citations omitted].” 199 So.2d at 38-39.

The Smith decision did not question the validity of the Gravois decision, it simply distinguished the facts in Smith from the facts in Gravois. In the case before us we are not presented with the same type of factual situation found in Smith, because Jerry Pool was not a seaman. Instead, this case presents exactly the type of factual situation presented in Gravois. The Smith and Gravois decisions are therefore reconcilable, and we find the instant case governed by the Gravois rationale, as previously mentioned, and not by the Smith decision.

We surmise that plaintiff Pool’s rationale for appealing the dismissal of his state court claim was that he felt he might not be entitled to a jury trial in federal court. We are not concerned with the merits of that issue. We will not allow plaintiff to circumvent the apparent intent of OCSLA by maintaining his suit in state court simply because he desires a state jury trial. Absent a more compelling reason to sustain state court jurisdiction, the dismissal of plaintiff’s suit must be affirmed.

DISMISSAL AS TO ALL DEFENDANTS

The trial court’s decision to dismiss the suit as to all defendants is also affirmed. Plaintiff has failed to supply this Court with any law or other persuasive authority (and this Court has found none) permitting plaintiff to split his action, with part being heard in federal court and part being heard in state court. Since the federal district court has exclusive original jurisdiction to hear cases arising under OCSLA, it follows that all other issues arising out of the same incident should also be heard in the federal court (See footnote 5). “This would permit,” as plaintiff acknowledges in his brief at page 7, “all issues to be tried in the same court at the same time to the benefit of all parties and the court in the interest of judicial economy.” We adopt as our own plaintiff’s salutary pronouncement on the advisability of conducting all facets of the case in one forum.

DECREE

For the above and forgoing reasons the judgment of the District Court is affirmed. All costs are assessed against the plaintiff.

AFFIRMED.

      . On July 14, 1978, plaintiff filed a similar suit in the United States District Court for the Western District of Louisiana, Lake Charles Division.

      . We express no opinion as to whether such activities are traditional seaman duties or whether they are actually the duties of other classes of employees.

      . We note that plaintiff has provided this court with no authority to substantiate his claim that one in his situation can be classified as a seaman pro hac vice.

      . The Court decided by a 3-1 vote that the state courts lacked jurisdiction because of ex-elusive federal jurisdiction.

      . The case of Fluor Ocean Services, Inc. v. Rucker Co., 341 F.Supp. 757 (E.D.La.1972) is not on point. The case involved a contract to furnish certain barges, equipment, and personnel for use in raising a drilling platform which had sunk to the floor of the outer continental shelf. The issue confronting Judge Alvin Rubin was whether or not the federal court had jurisdiction, under OCSLA, to hear this action, which was only indirectly connected with operations conducted on the outer continental shelf for the purpose of developing natural resources. Judge Rubin found the federal court had original jurisdiction, at least by broadly interpreting the jurisdictional grant of 43 U.S. C.A. § 1333(b). He reached his conclusion after pointing out that the intent of Congress to make activities on the outer continental shelf subject exclusively to the control of the federal government is evidenced by the wording of various sections of OCSLA. However, nowhere in his opinion did he consider whether OCSLA granted concurrent jurisdiction or exclusive jurisdiction.