text:
    Charlotte P. SAMPY, Plaintiff-Appellee, v. ROY YOUNG, INC. and William S. Reams, Defendants-Appellants.
    No. 82-336.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Onebane & Associates, Mark L. Riley, Lafayette, for defendants-appellants.
    Rubin & Keller, Edward D. Rubin, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries arising out of a collision between an automobile driven by the plaintiff, Charlotte P. Sampy, and an 18-wheel truck driven by the defendant, William S. Reams. The accident occurred on August 8, 1980, which was after the effective date of Act No. 431 of 1979, amending LSA-C.C. Article 2323 and adopting the doctrine of comparative negligence in Louisiana. The district judge found the accident was caused by the negligence of both drivers, 40% being attributable to the plaintiff and 60% to the truck driver. The court found further that plaintiff suffered general damages in the sum of $25,000, which reduced by 40% resulted in an award of $15,000 in general damages. There was also an award for special damages which was reduced in the same proportion. Defendants appealed. Plaintiff has neither appealed nor answered the appeal.

The issues are: (1) Was the accident caused 60% by the negligence of defendant truck driver? (2) Was the finding of $25,-000 in general damages excessive? (3) Did the trial court err in its method of calculating the award of general damages under LSA-C.C. Article 2323?

GENERAL FACTS

The accident occurred on Highway 167 in Lafayette Parish. The highway was under construction to provide two northbound lanes and two southbound lanes with a median between. Near a construction site the two southbound lanes lead into a detour to the west. Both vehicles were going south.

Plaintiff and the defendant truck driver gave different versions of the accident. The plaintiff testified she was thoroughly familiar with the road and was driving at a slow speed in her left-hand lane and was slowing down as she approached the detour which turned off to her right. She says she saw the 18-wheéler behind her, also in the left-hand lane and coming up “real fast.” Her testimony is that the truck could not slow its speed sufficiently, and that it drove partially onto the east shoulder in an attempt to avoid striking her from the rear, but the right front of the truck struck the left rear of her automobile before she reached the detour.

The defendant truck driver testified plaintiff was traveling in the left-hand lane and he was following her in the right-hand lane at a speed of 40 to 45 MPH. He says plaintiff attempted to change lanes twice, and that on the second attempt she crossed the center line into his path. He states he applied his brakes and went onto the shoulder in an effort to avoid the accident, but the front of the truck struck the rear of the automobile.

Both the plaintiff and the defendant introduced the testimony of experts in accident reconstruction. Plaintiff’s expert testified that based on the physical facts the defendant’s truck driver was proceeding at a speed in excess of the 45 MPH speed limit posted in the construction area. The defendant’s expert expressed the opinion it was physically impossible for the accident to have occurred in the manner described by plaintiff.

The trial judge found as a fact that defendant’s version of the accident was correct insofar as the plaintiff’s vehicle being in the left-hand lane and the truck in the right-hand lane as they approached the detour. The trial judge concluded the truck driver was negligent in traveling at an excessive speed under the circumstances and not keeping a proper lookout as to the actions of the plaintiff as she was attempting to change lanes. The judge concluded that plaintiff was also negligent in changing lanes when it was not safe to do so.

NEGLIGENCE ATTRIBUTABLE TO DEFENDANT

The first issue is whether the trial judge erred in attributing to the defendant 60% of the negligence which caused the accident. Defendant argues that under LSA-R.S. 32:104(A) “No person shall .. . move right or left upon a roadway, unless and until such movement can be made with reasonable safety.” Defendant also cites LSA-R.S. 32:79 for the rule that when a roadway is divided into two or more lanes for traffic in the same direction, a driver must remain as nearly as practical in the same lane and shall not move from such lane without ascertaining that such a movement can be made with safety. Jurisprudence is cited for the rule that a heavy burden is placed on a motorist who changes lanes. Deumite v. Westbank Contractors, 343 So.2d 289 (La.App. 1st Cir.1977).

In their brief, defendants state it is unclear whether the assessment of percentages of fault is a legal or a factual question. See Professor Alston Johnson, Comparative Negligence and The Duty Risk Analysis, 40 La.L.Rev. 319. In the present case, which was bench tried, we find it unnecessary to decide this question. If the apportionment of negligence is a question of fact, the trial judge was not clearly wrong because the evidence amply supports the apportionment made. If the question is one of law, we find no error by the trial judge.

In her appellate brief, plaintiff argues the defendant truck driver had the last clear chance to avoid the accident so comparative negligence does not apply. These issues are not properly before us because the plaintiff neither appealed nor answered the appeal.

IS THE FINDING OF $25,000 FOR GENERAL DAMAGES EXCESSIVE?

Defendants contend the finding of $25,000 in general damages is excessive. The injuries diagnosed immediately after the accident were mild cervical and right shoulder strain with possible mild low back strain and injuries to the right hand. She recovered from the cervical, shoulder and low back injuries within about one month. However, the right hand became infected from a splinter of some kind.

The principal argument as to quantum is that the trial judge erred in finding a causal connection between the accident and a heart attack suffered by plaintiff thereafter while in her doctor’s office. About six weeks after the accident, she was in the doctor’s office and he was extracting some purulent material from the wound in her hand. She became weak and had an apparent heart attack. Since she had a previous diagnosis of cardiac problems and high blood pressure, an ambulance was called and she was taken to the hospital where she remained for about three weeks. The hospitalization was for the heart condition.

The defendants argue that the award should be no more than $2,000 for the cervical, low back and shoulder strains from which plaintiff recovered in about one month. They argue further that there is simply no causal connection between the injury to the hand and its subsequent infection and treatment and the heart attack.

We find no manifest error in the trial court’s conclusion that there was a causal connection between the accident and the heart attack which required about three weeks of hospitalization. The treating physician testified plaintiff had cardiac problems before the accident and that the treatment of the hand in his office was the cause of the heart attack. There is no evidence to the contrary. For a similar case in which the court held there was a causal connection between the accidental injury and a subsequent aneurysm of the aorta, see Austin v. Otis Elevator Company, 336 So.2d 914 (La.App. 4th Cir.1976).

TRIAL COURT’S APPORTIONMENT OF DAMAGES

Defendants contend the trial court erred in its method of calculating the amount of general damages for which defendants are liable. LSA-C.C. Article 2323 reads as follows:

“Art. 2323. Computation of damages. When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss. (Amended by Acts 1979, No. 4S1, § 1.)”

At the conclusion of the trial, the judge gave oral reasons which are transcribed in the record. The controversy arises over certain language used by the court in these oral reasons. First the judge stated that taking into consideration the new rules of comparative negligence, the plaintiff was entitled to an award of $10,000 for general damages. Counsel then pointed out to the court that the law required her to make an assessment of the total amount of general damages and then reduce that amount in proportion to the percentage of negligence attributable to the plaintiff. The court then stated that plaintiff would have been entitled to $25,000 in general damages if in fact she had not been guilty of any negligence. Counsel then pointed out to the court that 60% of $25,000 is $15,000, rather than the sum of $10,000 previously mentioned by the judge. At this juncture, the judge stated that she concluded the award of general damages should be $25,000, of which 60% is $15,000, and that the judgment for general damages should be in the sum of $15,000. The judgment appealed shows that plaintiff received an award of $15,000 in general damages.

Although there appears to have been some misunderstanding or miscalculation by the trial judge while giving oral reasons, there is no question as to the court’s final determination that the amount of general damages was $25,000, and that in accordance with the statute this should be reduced in proportion to the percentage of negligence attributable to the plaintiff, i.e., 40%, resulting in an award to the plaintiff of general damages in the sum of $15,000. Clearly, this was a correct method of calculation under the statute quoted above.

DECREE

For the reasons assigned, the judgment appealed is affirmed. All costs, of this appeal are assessed against the defendants-appellants.

AFFIRMED.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    John Sheldon TOOMER and Joseph Lowenthal, Plaintiffs & Appellants, v. CHARLES CINEMA, INC., J. Randolph Ogden, Gordon C. Ogden, Jr., Guy Ogden, Mrs. Margaret R. Faulk, Earl Perry, Sr., Earl Perry, Jr., Kenilworth Cinema, Inc. and Ogden-Perry Theaters, Inc., Defendants & Appellees.
    No. 82-340.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.

      Newman, Thibodeaux & Marshall, H. Gayle Marshall, Lake Charles, for plaintiffs-appellants.
    Robert L. Royer and Edward G. Randolph, Alexandria, for defendants-appellees.
    Before CULPEPPER, DOUCET and YELYERTON, JJ.
   CULPEPPER, Judge.

The plaintiffs are the lessors and the defendants are the lessees and lessees’ individual guarantors in leases of land in a shopping center for construction and operation of motion picture theaters and parking areas. The plaintiffs constructed additional parking areas outside the leased premises for which they now seek additional rent in the amount of $3,920.40 per month. They argue that their right to rentals arises out of and dates from a compromise agreement which terminated litigation by a third party in which essentially all of the parties in this suit were defendants. Additionally, plaintiffs seek to recover $1,420 as defendants’ share of work yet to be done on a parking area pursuant to the terms of the compromise agreement in question.

The defendants answered the plaintiffs’ demands with a general denial and a recon-ventional demand for damages in the amount of $9,637,000 for plaintiffs’ unreasonable refusal to permit alterations which would have converted each of the three theaters into a twin theater.

The trial court dismissed the claims of all parties against each other and assessed them equally for all costs of court. From this judgment, the plaintiffs have appealed and the defendants have answered the appeal.

The facts and issues involved in this lawsuit are set out succinctly by the trial court in its written reasons for judgment.

“In 1967 John Sheldon Toomer and Ronald Lockwood Toomer executed a lease to the Charles Cinema interests for the construction of a theater. This lease was amended in 1968. Thereafter in 1972, another lease was executed to substantially the same parties for the construction of a twin theater designated as Cinema II and Cinema III. This lease was twice amended in 1973. The properties described in these lease agreements include areas sufficient only for the buildings to be constructed with only token parking. Both leases however do contain provisions for the nonexclusive use of a parking area on the larger tract of land of which the leased premises form a part. Mention is made in both leases of plans which the owners have for the construction of additional commercial buildings and that the tenants of these will use the parking area in common with the patrons of the theaters. (Paragraph 13 of 1967 and Paragraph 12 of 1973 lease)
“The Finger-Kresge litigation followed the construction and operation of the theaters and was an attempt to secure an injunction against the use of the K-Mart parking lot across the street from the theaters, by the patrons of the theaters. Named as defendants in that litigation were in substance, the present plaintiffs and the present defendants. That litigation was terminated by a compromise agreement which called for the construction of a lighted parking area adjacent to the three existing theaters.”

Additionally, the compromise agreement states that the defendants in the Finger-Kresge litigation, i.e., all parties of this litigation, agree to bear the expense of preparing the parking area in accordance with requirements of the compromise agreement. The compromise agreement in question was entered into on September 21, 1979. The original petition in this matter was filed October 21, 1980.

On appeal, the plaintiffs argue that the trial judge erred in dismissing the claim of the plaintiffs for a fair rental value of the property which the plaintiffs converted into parking area for the defendants as a result of the Finger-Kresge litigation. The defendants base this argument on the articles of Louisiana Civil Code dealing with equity, particularly those dealing with unjust enrichment.

In its reasons for judgment the trial court notes that all of the defendants in the Finger-Kresge litigation had an interest and a gain to be made in effecting a settlement of that litigation. The court goes on to note that neither the compromise agreement nor either of the lease agreements contain any provisions for the payment of additional rent by the defendants to plaintiffs for the use of the parking area. The trial court therefore concludes that there is no contractual basis for the rental claim asserted by the plaintiffs in this suit.

We concur with the trial court’s reasoning. Additionally, we hold that there is no equitable basis for the plaintiffs’ claim.

In their brief to this court, the plaintiffs admit that they entered into the compromise agreement to build additional parking spaces for the theater based on the “threats” by the defendants in this suit that if they did not, litigation would ensue. Additionally, in paragraph 12 of plaintiffs’ original petition, the plaintiffs state that the settlement agreement entered into in the Finger-Kresge litigation was “entered into at the request and insistance (sic) of defendants.”

Louisiana Civil Code Article 3071 defines a transaction or compromise as follows:

“A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.”

The compromise agreement makes no mention of any settlement of future litigation. However, by the plaintiffs’ own admission, part of the cause of entering into the compromise agreement was pressure from the defendants in this lawsuit to provide them with additional parking. Obviously, there had been a parking problem at the cinema area such that patrons of the cinemas had begun to impose a burden on neighboring lots. Therefore, there was adequate cause for the plaintiffs to enter into the compromise agreement of the Finger-Kresge litigation. The defendants in the present suit were not unjustly enriched to the detriment of the plaintiffs.

The plaintiffs’ second demand is for $1,420, which plaintiffs contend is defendants’ share of work yet to be done on the parking area which was built pursuant to the compromise agreement. As to this claim, the trial court notes:

“The evidence indicates the plaintiffs and defendants agree to share the expense of preparing the parking area in accordance with the requirements of the compromise agreement. Plaintiffs now seek to recover one-half of the amount of a bid for finishing the work. However, this work has not yet been performed and plaintiffs have not paid the contractor so that they are not presently entitled to a judgment in their favor for a sum they have not paid.”

We concur with the reasoning of the trial court.

In the reconventional demand, the defendants complain that the plaintiffs have unreasonably refused to permit structural alterations which would have divided each of the three cinemas into twin theaters. Defendants contend that as a result of the plaintiffs’ unreasonable actions, they had been prevented from increasing their income and profits which resulted in damages in the amount of $9,637,000. The evidence at trial revealed that to twin the theaters, a partition would be built down the middle of each of the auditoriums. Defendants claim that this would have doubled their gross for each of the cinemas.

There is no mention in any of the lease agreements as to whether or not such construction is permitted or prohibited under the lease. Likewise, there is no mention of whether permission from the lessor would be necessary for the lessee to make such an improvement. However, based on the findings of fact by the trial court, which we find are supported by the record, it is unnecessary for us to reach the issue of whether or not the defendant would have a right to construct such partition with or without the permission of the plaintiffs. The trial court found as a matter of fact that there was only one request made to the plaintiffs for the construction of such a partition and that this request was only as to one of the three theaters in question. The plaintiffs then suggested a meeting to discuss various items including this request. The defendants chose to construe this reply as an ultimatum which they felt was not acceptable and they did not attend the meeting in question. The defendants then made no further attempt to discuss this issue or pursue the matter. The trial court found as a matter of fact that the defendants abandoned their request and negotiations for a twinning of the theaters before securing a definitive denial. Based on the halfhearted demand and the lack of a definitive denial, the trial court concluded that the reconventional demand was without merit. We agree.

In their answer to the appeal, defendants also contend that the trial court’s ruling that all costs of court would be shared equally between the plaintiffs and defendants is in error. Code of Civil Procedure Article 1920 provides that the trial court may render judgment for costs or any part thereof against any party “as it may consider equitable.” Considering the ruling of the trial court dismissing all claims, we hold that the trial court made an equitable division of these costs within its great discretion.

For the reasons assigned, the judgment appealed is affirmed. Costs of appeal are assessed one-half each to plaintiffs and defendants.

AFFIRMED.


author: LABORDE, Judge.

text:
    Ira K. ELLENDER v. TEXACO, INC.
    No. 82-341.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearings Denied Feb. 4, 1983.

      Stockwell & Associates, Robert W. Clements, Lake Charles, for defendant-appellant-appellee.
    Jones, Jones & Alexander, Glenn W. Alexander, Cameron, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

Ira K. Ellender brings this action under the Jones Act, 46 U.S.C.A. Sec. 688, and General Maritime Law against Texaco, Inc., his employer, for injuries sustained while he was working as a roustabout in Texaco’s East Hackberry Field in Cameron Parish. Joined as a party defendant is American Motorist Insurance Company, the liability insurer of Texaco.

The case was tried before a jury which returned a verdict in favor of Ellender and against Texaco and American for the sum of $700,000.00. Texaco and American appeal this jury verdict. Ellender answers and appeals the lower court’s decision to award legal interest only from the date of judgment rather than from the date of judicial demand. We affirm the verdict rendered by the jury and the court’s decision to award legal interest only from the date of judgment.

The following issues are raised in this appeal:

1) Whether the jury erred in concluding that Ellender sustained an injury as a result of an accident occurring on October 27, 1977?
2) Whether the jury erred in concluding that the M/V “Bret B” was unseawor-thy and that such unseaworthiness was a legal cause of Ellender’s accident?
3) Whether the jury erred in concluding that Texaco was negligent and that such negligence was a legal cause of Ellender’s accident?
4) Whether the jury erred in concluding that Ellender was not negligent?
5) Whether the jury erred by rendering an excessively high award in favor of Ellender?
6) Whether the trial court erred by allowing legal interest only from the date of judgment rather than from the date of judicial demand?

FACTS

Ira K. Ellender was employed by Texaco as a head roustabout in Texaco’s East Hackberry Field situated in Cameron Parish. The East Hackberry Field is comprised almost entirely of an area within Calcasieu Lake. The field contains a large number of producing oil and gas wells, compressor stations, a tank battery, connecting flow lines and pipelines.

Most of the work done in this field is performed on the water. Texaco uses a 45 foot-long workboat, the M/V “Bret B” to perform work on the water. In addition, a 50' X 100' roustabout barge is provided with the M/V “Bret B”.

On October 27, 1977, Ellender was the head roustabout in a crew that had been assigned the job of replacing a 27/s" flowline from Well No. 69 to a separator station. The well was located in the middle of the lake and the flowline ran in a southwesterly direction from the well to the edge of the spoil bank where the Calcasieu Ship Cannel had been dredged out over the years. At the edge of the spoil bank the line made a turn to the north along the edge of the lake and went northerly towards the separator station which was situated off the spoil bank in the water.

The flowline to be replaced was approximately 5,000 feet in length, with the last 800-1000 feet lying along the spoil bank in an area that was hilly or sandy in some areas and marshy, muddy and boggy in others. The lines consisted of joints of steel tubing 27s" in diameter, measuring 30-31 feet in length, threaded on each end with the successive joints of pipe being screwed into each other. The pipe weighed approximately 190-210 pounds per joint.

The line was laid over a period of 2 or 3 days with the use of the M/V “Bret B” and roustabout barge. The pipe was first loaded onto the barge by use of a winch truck located on the barge and then hauled to the well-site where the line originated. It was laid off the back end of the barge and lowered into the water one joint at a time. As the boat and barge were moved forward, another joint of pipe was screwed into the last one which was strung off the barge. Then the vessel would move forward again and another joint would be screwed in. This operation continued until the boat and barge had proceeded southwesterly toward the spoil bank as close as they could in the progressively shallower water — approximately 1200 feet from the bank.

When the vessel could go no further because of the low water depth, another mechanical operation was commenced to continue stringing the pipe toward the spoil area. In this operation, the barge and vessel were first spudded securely into place so they would not move. The pipe was then pushed toward the bank by use of the winch truck. Two empty drums were strapped to the first joint of pipe for flotation. Then additional joints were screwed on and, as each joint was connected, the line was pushed on out into the water by use of the winch truck and line and a block and tackle system.

Finally, after the string of pipe was as close to shore as it would go and this part of the operation was completed, there remained approximately 800-1000 feet of line to lay from the edge of the spoil bank, across the marsh, to the separator station, which was out in the water.

Texaco provided no mechanical equipment to complete this last portion of the assigned job. Instead, a contract labor crew of four laborers was hired to work with Ellender and one other Texaco roustabout. Ellender and his co-workers were required to lift the 190-210 pound pipe to their shoulders and then haul the pipe across the marsh. Halfway through this portion of the job, Ellender stumbled while carrying a joint of pipe. Ellender felt a stinging sensation down his leg and across the lower part of his back but he was able to continue his work. At the end of the working day, Ellender reported the accident to the Texaco foreman on duty. An accident report was completed that afternoon.

Over the next couple of days, Ellender began experiencing increasing pain in his back. He went to the emergency room of West Calcasieu-Cameron Hospital but was not admitted. Ellender consulted his family physician who referred him to an orthopedic surgeon. Over the next two years Ellender had three major surgeries performed on his back including a disc removal, a fusion and finally a decompressive laminectomy.

Ellender instituted this suit on November 15, 1979, under the Jones Act and General Maritime Law to recover damages for the injuries he suffered. After a four day jury trial beginning on February 17,1982, a verdict was returned in favor of Ellender and against Texaco and its liability insurer, American Motorists Insurance Company.

Texaco and American appeal this adverse verdict assigning five errors in the jury’s verdict. Ellender answers this appeal and appeals the ruling of the trial court which denied legal interest from the date of judicial demand.

SCOPE OF REVIEW

We recognize at the outset our limited role in reviewing this jury verdict. Although this court is constitutionally authorized to review both the law and the facts in civil cases, under Federal Law and jurisprudence, which we must apply in cases applying Federal Statutes and federal maritime law, the jury’s finding of facts cannot be disturbed by an appellate court unless there is no reasonable evidentiary basis for the jury’s conclusions. Rains v. Diamond M. Co., 396 So.2d 306 (La.App. 3rd Cir.1981); Trahan v. Gulf Crews, Inc. 260 La. 29, 255 So.2d 63 (La.1971). Noting this scope of review we proceed to consider the assignments of error urged by defendants, Texaco and American.

ASSIGNMENT OF ERROR # 1

Texaco’s first assignment of error is that the jury erred in its finding that Ellen-der sustained an injury as a result of an accident occurring on October 27, 1977. Texaco relies heavily on the testimony of Harold Fry, Ellender’s co-worker. Fry testified that he did not see Ellender experience any difficulty during the entire period Ellender was carrying the pipe nor did El-lender tell him that he had hurt himself in any way. Texaco asserts that no one person corraborated Ellender’s claim that he had hurt himself on the job on October 27, 1977.

Contrary to Fry’s testimony was Ellen-der’s testimony. Ellender described the procedure of hauling the heavy pipe over the somewhat treacherous terrain. He described how the marsh was full of bog holes, ruts and muddy spots and he further described how he stepped into a hole or rut which almost caused him to stumble. When Ellender adjusted or caught himself to keep from stumbling he felt the burning sensation in his leg and back.

Ellender’s credibility was bolstered by the testimony of Jack Lambert, the Texaco foreman on duty. Lambert testified that he believed Ellender got hurt just like he said. Another Texaco employee, Francis Lyons, who was not in the crew hauling the pipe but who was at the dock the afternoon Ellender and his crew came in, testified that he saw Ellender coming up the steps of the M/V “Bret B” holding his back like he had a catch in it. When Lyons asked Ellen-der what happened Ellender replied, “he’d slipped while carrying a joint of pipe”. Finally Dr. Williams G. Akins, Ellender’s treating physician, testified that the accident as related to him by Ellender, was consistent with the injuries found.

We conclude that this testimony forms a reasonable evidentiary basis for the jury’s conclusion. For this reason Texaco’s assignment of error is without merit.

ASSIGNMENT OF ERROR # 2

Texaco’s second assignment of error is that the jury erred in its finding that the M/V “Bret B” was unseaworthy and that such unseaworthiness was a legal cause of Ellender’s accident and injury.

Under admiralty and general maritime law a shipowner owes the duty to furnish a vessel reasonably safe and fit for its intended purpose. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed. 941 (1960). This duty to prevent un-seaworthy conditions is absolute, continuing and nondelegable. Allen v. Seacoast Products, Inc., 623 F.2d 355 (5th Cir.1980). This duty includes the obligation to provide necessary appliances, gear and equipment. Webb v. Dresser Industries, 536 F.2d 603 (5th Cir.1976).

Texaco asserts that at the time of Ellender’s accident the M/V “Bret B” was only being used to transport men and supplies to and from the worksite. Texaco concludes that since the M/V “Bret B” fulfilled this purpose the jury’s conclusion that the M/V “Bret B” was unseaworthy is contrary to the evidence in the record.

We find that this assertion by Texaco construes the purpose of the M/V “Bret B” too narrowly. The M/V “Bret B’s” intended purpose was not just to transport men and supplies to and from the worksite, but its purpose was to lay a flowline from a wellsite to a separator station. This purpose necessarily included the job of transporting men and supplies to and from the worksite.

The record shows that the M/V “Bret B” was well equipped to lay the flowline from the well to the shoreline. Even when the M/V “Bret B” reached a point where the water was too shallow for it to operate, the vessel was equipped with mechanical devices which enabled it to continue laying the flowline. But when it came down to laying the final 800-1000 feet of the flow-line, no equipment was provided to aid the crew in this difficult task.

It is clear that an integral part of the M/V “Bret B’s” functions included the laying of the line from the lake to the land. Texaco was aware of the work that would be required of the crew on the land. Texaco also knew of the conditions that the marsh would present. Despite this knowledge Texaco did not provide a marsh buggy, bulldozer or other equipment to aid their crew in this part of the operation.

As stated earlier, the failure to provide the proper equipment and gear for the completion of a vessel’s intended purpose can form the basis for a finding of unseaworthiness. After hearing the testimony in this case the jury concluded that the failure to provide Ellender with proper equipment and gear rendered the M/V “Bret B” un-seaworthy. We find that the testimony contained in the record forms an evidentia-ry basis for this conclusion. We reject Texaco’s argument to the contrary.

ASSIGNMENT OF ERRORS # 3 & # 4

Texaco’s third assignment of error is that the jury erred in its finding that Texaco was negligent and that the negligence was a legal cause of Ellender’s accident and injuries. Texaco further asserts that the jury erred in its finding that Ellender was not negligent.

The Jones Act grants to any seaman a cause of action for personal injury caused by negligence of his employer. 46 U.S.C.A. Sec. 688. Ellender’s status as a seaman within the meaning of the Jones Act is not disputed, neither is the fact that Texaco is Ellender’s Jones Act employer.

As Ellender’s Jones Act employer, Texaco was under a duty to provide Ellen-der with a reasonably safe place to work. Rains v. Diamond M. Co., supra; Spinks v. Chevron Oil Company, 507 F.2d 216 (5th Cir.1975). This broad duty is such that if Ellender can show his injuries were the result of even the slightest negligence of his employer, liability follows. Rains v. Diamond M. Co., supra; Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir.1977).

The record reveals that evidence was presented from which the jury could have reasonably inferred negligence by Texaco. First there is the testimony of Stanley Day, a safety expert. Day testified that from a safety standpoint, the load that Ellender and his co-worker was required to carry was too heavy for the conditions to which they were exposed. Dr. Akins testified that carrying a pipe in the manner required of Ellender was not recommended from an orthopedic standpoint. Dr. Akins further testified that performing this activity for several hours makes it progressively more dangerous. The testimony of Dr. Norman Morin, Texaco’s medical expert, supported the testimony of Dr. Akins and Day. Dr. Morin testified that he would not recommend that anyone perform the type work Ellender was performing for several hours.

This testimony presents a reasonable evi-dentiary basis from which the jury could conclude that the procedure Ellender and his co-workers was following was unsafe. The jury could reasonably conclude that Texaco’s failure to provide equipment or machinery necessary to perform the work safely constituted negligence. There is no dispute that machinery and equipment were available which would have made the job safe. We therefore conclude that there is sufficient evidence which supports the jury’s finding of negligence on the part of Texaco.

Texaco also asserts that the jury erred in its finding that Ellender was not negligent.

Texaco attempts to shift the responsibility of providing a safe place to work from itself to Ellender. Texaco argues that El-lender, as head roustabout, had the authority to determine and request whatever supplies, equipment or manpower necessary to carry out the assigned job and that his failure to request any heavy equipment constituted negligence. This argument is made despite the fact that the record shows that the Texaco production foreman, through the district office in New Iberia, had the actual authority and responsibility to obtain the necessary equipment and supplies for a given job. The record also shows that in the past Ellender had requested heavy equipment for similar jobs but his requests were denied by his production foreman. We find no error in the jury’s conclusion that Ellender was not negligent.

ASSIGNMENT OF ERROR # 5

Texaco’s final assignment of error is that the jury erred in rendering an excessively high award in favor of Ellender.

Texaco contends that the medical testimony shows that there is absolutely nothing to prevent Ellender from returning to work as a head roustabout. Therefore, Ellender is not entitled to damages for loss of future income.

The record shows that Ellender has undergone three major back surgeries. He continues to take medication to relieve pain. Dr. Akins testified that Ellender can do no lifting, bending or stooping. Any long term standing or walking will cause him increased pain. Dr. Akins also feels that Ellender would be able to do certain jobs for only spurts of three to four days but then he would have to take off due to the increase in pain and discomfort.

Jury awards under Maritime Law and the Jones Act must stand unless the appellate court finds there is no law and no evidence to sustain them. Rains v. Diamond M. Co., supra; Trahan v. Gulf Crews, Inc., supra. We conclude that there is evidence from which the jury could reasonably conclude that Ellender is entitled to damages for loss of future wages.

Expert testimony presented at trial calculated Ellender’s future wage loss, including an inflation factor, at $615,035.06. Added to this figure was the wage loss from the date of the accident to the time of trial which gave Ellender a total loss of wages in the amount of $695,999.30.

Texaco asserts that it was error to include inflation as a factor in determining future wage loss. We ruled on this very issue in Rains v. Diamond M. Co., supra, where we stated:

“Defendant contends it was error to include inflation as a factor in determining future wage loss. The rule in the Fifth Circuit, established in Johnson v. Penrod Drilling Company, 510 F.2d 234 (5th Cir.1975), was that inflation and cost of living increases should not be used to determine future pecuniary losses due to the speculative nature of these factors. Recently, however, in Norfolk & W. Ry. Company v. Leipelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980), these very factors were approved by the Supreme Court in the determination of future wage losses. This recent ruling of the Supreme Court is controlling.”

We reject Texaco’s argument that inflation was improperly included as a factor in determining future wage loss.

Ellender also suffered other losses in addition to loss of wages. The record shows that Ellender’s activities have been severely limited. Prior to his accident Ellender held Little Britches Rodeos in the arena behind his house. Since the accident Ellender has been unable to continue this practice. El-lender has also been unable to continue showing livestock at livestock shows throughout the state. He has been forced to give up his garden since he cannot operate his tractor which was used to maintain the garden. Also, his social activities have been greatly curtailed.

The jury’s award of $700,000.00 is only a few thousand dollars greater than Ellen-der’s total loss of wages. After reviewing this and the other evidence presented, we cannot say that the jury award was excessive.

PRE-JUDGMENT INTEREST

After the jury rendered its verdict, Ellender filed a rule to show cause seeking an award of pre-judgment interest. The trial court refused to award pre-judgment interest relying on Rains v. Diamond M. Co., supra, and Morris v. Transworld Drilling Co., 365 So.2d 46 (La.App. 3rd Cir.1978).

We affirm the lower court’s decision to deny prejudgment interest although we do not feel that Rains and Morris are the exact statements of the law in the present situation.

In Morris, the trial court refused to grant pre-judgment interest on a claim based solely on the Jones Act and tried to a jury. In Rains, it appears that the jury rejected the plaintiff’s maritime claim but found liability solely under the Jones Act. In both Morris and Rains this court properly held that pre-judgment interest is not allowed in a suit brought against ones employer under the Jones Act and tried before a jury. These decisions are in keeping with the federal jurisprudence which denies prejudgment interest in Jones Act claims brought on the law side of the court.

In the present case, the jury specifically found liability under the Jones Act and under general maritime law. Therefore, the issue is whether pre-judgment interest is precluded on the general maritime claim since it was tried to a jury with the Jones Act claim. Neither Ellender nor Texaco has cited authority which explicitly rejects, mandates, or allows an award of pre-judgment interest in a case of this posture. Neither Rains nor Morris address this issue. In fact, this Court in Rains stated, “Whether pre-judgment interest is allowed under General Maritime Law is not before us.”

The U.S. Fifth Circuit Court of Appeal had an opportunity to address this issue in Doucet v. Wheless Drilling Company, 467 F.2d 336 (5th Cir.1972), but declined to do so. Doucet involved a claim under the Jones Act and maritime law. The plaintiff in Doucet initially began his action on the law side of the court. Three days prior to trial the plaintiff waived his request for a jury trial. The trial court treated this waiver as an election to proceed in admiralty rather than in law and thereby awarded pre-judgment interest. Defendant-appellant argued that since the necessary pleading requirements were not followed the action remained on the law side of the court, therefore, interest was not available. Plaintiff argued that based on its maritime law discretion the court, on the law side, could grant pre-judgment interest against the defendant because the defendant was charged with and found liable for unseaworthiness.

The Fifth Circuit upheld the decision of the trial court that plaintiff had elected to proceed in admiralty and affirmed the award of pre-judgment interest. Therefore, it was unnecessary to address plaintiff’s argument that pre-judgment interest could be awarded even on the law side of the court.

Since Doucet, the Fifth Circuit has allowed the award of pre-judgment interest in a maritime claim tried on the law side of the court. Havis v. Petroleum Helicopters, Inc., 664 F.2d 54 (5th Cir.1981). In Havis, the Court concluded that where a maritime cause of action is tried solely to a jury, the grant or denial of pre-judgment interest must be submitted to the jury.

Although Havis is not dispositive of the issue of whether pre-judgment interest is precluded on a general maritime claim tried with a Jones Act claim before a jury, it does hold that the grant or denial of such interest in a general maritime claim tried to a jury is a decision to be made by the Jury.

In the present case, as was the case in Havis, nothing was mentioned about prejudgment interest when the case was submitted to the jury as the trier of fact. No instructions were given to the jury by the court and no evidence was introduced on the subject. The interrogatories submitted to the jury in reaching its verdict did not contain a specific question of whether or not pre-judgment interest was to be awarded. Under the particular facts of this case we must affirm the decision of the trial judge, since the question of pre-judgment interest was not presented to the jury for its determination.

For the foregoing reasons the judgment of the lower court is affirmed. All costs are to be paid by defendants, Texaco, Inc. and American Motorists Insurance Company-

AFFIRMED.


author: YELVERTON, Judge.

text:
    Gregory FUSELIER, Plaintiff-Appellee, v. Joseph E. COMEAUX, et al., Defendant-Appellant.
    No. 82-345.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      A. Gaynor Soileau and John Saunders, Ville Platte, for defendant-appellant.
    J. Jake Fontenot, Mamou, for plaintiff-appellee.
    Diane Sorola, Lafayette, for defendants-appellees.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

By act of sale dated December 5, 1979, Allen Berzas conveyed to Joseph Comeaux and his wife, under full warranty, a certain tract or parcel of land, together with all improvements thereon, in the Town of Mamou, described as the east 50' of the west 60' of Lot 2 of Block 3 of the Duos-Du-hon Subdivision. The declared price was $16,000.

There were no improvements on the property at the time of the sale, but the price included a 20' X 30' house already constructed and then located elsewhere. Not only did the price include both the lot and the house, but it also covered the obligation of Berzas to move the house onto the lot. It also covered the obligations of Berzas to erect an addition onto the house once it was placed on the lot, and to install a septic tank on the property. It was part of the agreement that Berzas was to place the 20' X 30' house in the exact center of the property.

The obligations undertaken by Berzas were, in due course, accomplished to the satisfaction of both parties. Berzas staked out the property lines of the lot, determined the center, staked out the precise location of the house, moved it on the property and set it down, built the addition, and installed the septic tank.

After the Comeauxs moved in, they constructed a driveway along the eastern side of the property, built a garage onto the house on that side, and put in a garden from one side to the other in the back.

Then Gregory Fuselier bought the subdivision lot east of the Comeauxs. In addition, he bought the east 20' of the lot out of which the Comeauxs’ property had been carved and thus became their next door neighbor. He had a survey made. The result of that survey, later accepted as correct by the trial court in a petitory action and trespass damage suit brought by Fuse-lier against the Comeauxs, was; the discovery that some of the Comeaux improvements encroached on Fuselier’s property. Other improvements encroached within the prohibited zoning distance next to Fuselier’s property.

In his lawsuit against the Comeauxs, Fuselier won a judgment ordering them to move the house and pay him damages totaling $1100.

This judgment is now final, no appeal having been taken by either party.
In the same proceedings the Comeauxs filed a third party demand against Berzas, and the latter filed a third party demand against Gilbert and Lillian Guillory, Berzas’ vendors of the 50' lot. The trial court granted the third party demand of the Co-meauxs against Berzas but rejected the latter’s third party demand against the Guillo-rys.

These are the two judgments on appeal. We will now discuss the two claims individually, treating the issues raised on appeal as we reach them.

COMEAUXS AGAINST BERZAS

As stated earlier, Berzas’ sale of the house included the obligation to deliver it and set it down in the center of the Co-meauxs’ “lot”. This “lot” was only 50' wide. The subdivision lots were 80' wide. The Comeaux lot was carved out of Lot 2, Block 3, leaving 10' on the west and 20' on the east unsold. The parcel had not been staked when shown by Berzas prior to the purchase, but the Comeauxs were pointed to its near location. The Comeauxs were illiterate and in failing health. It was understood that Berzas had full responsibility to locate the exact outer perimeters and set the house in the middle.

After the sale and before the house was moved, Berzas went to the premises to determine the boundaries. He asked his vendor of the lot, Gilbert Guillory, to accompany him. These two, armed with tape measure and stakes but no expertise, took some measurements and put down stakes. Ber-zas then moved the house on the lot in accordance with those stakes.

Berzas and Guillory put the west and east line stakes about eight and a half feet east of where they should have been. Thus, when Berzas moved the house to the lot he placed it a like distance east of center. Berzas put the septic tank three feet outside the correct boundary. As a consequence, the septic tank as well as the garage and other structures later added by the Comeauxs actually encroached on their neighbor’s land. The house itself, though not encroaching, was within the prohibited zoning distance from property lines applicable to the subdivision. To remedy these various problems, the trial court in earlier proceedings ordered the garage and other encroachments removed. By means of the later, appealed from judgment, he ordered that the house be moved west to a point seven feet west of the east property line, and he awarded damages to the plaintiff adjacent property owner (Fuselier) in the amount of $1100. The damages consisted of four items: (1) $350 as the cost to remove the septic tank, (2) $300 for deprivation of peaceful possession, (3) $300 for mental anguish, and (4) $150 for malicious prosecution.

The judgment rendered in the third party demand essentially required that Berzas indemnify the Comeauxs to the extent of the judgment rendered against them. The third party judgment added one thing: it required Berzas to pay the cost of re-installation of the septic tank.

Berzas’ main defense to the third party claim is that he owed no-duty to the Co-meauxs under these circumstances. We disagree.

The seller is bound to two principal obligations, that of delivering and that of warranting the things he sells. La.Civ.Code art. 2475.

Delivery is the putting of the buyer in possession. La.Civ.Code art. 2477. As to land, the law considers that delivery accompanies the act of sale. La.Civ.Code art. 2479. This article, however, implies that possession is not complete until physical possession is taken by the buyer. See Marshall v. Armand, 306 So.2d 331 (La.App. 3rd Cir.1975). In the present case the parties obviously contemplated that possession would be delayed until the lot was delineated and the house placed in its center.

La.Civ.Code art. 2491 binds the seller to deliver the full extent of the premises as specified in the contract. Here, Berzas did not deliver possession of the premises as specified in the contract, but delivered a lot deficient by eight and a half feet on the west. Also, he delivered a strip eight and a half feet on the east that he did not own.

The delivery must be made at the place agreed upon. La.Civ.Code art. 2484. Ber-zas did not fulfill his obligation in this regard either as to the house, the improvements he added, or the septic tank.

Therefore, Berzas did not properly perform his obligation of delivery of the things that he sold.

He was also bound to the obligations of warranting the Comeauxs against eviction. La.Civ.Code art. 2501. The Co-meauxs have suffered a partial eviction. The improper placement of the lot and consequently the house, resulting in encroachments on adjoining property, is a breach of the warranty against eviction. Guthrie v. Rudy Brown Builders, Inc., 416 So.2d 590 (La.App. 5th Cir.1982).

We next consider whether it was proper for the trial court to require Berzas to fully indemnify the Comeauxs based on the judgment rendered against them in favor of their neighbor, Fuselier.

There is no special provision for damages among the articles dealing with delivery in the title: Of Sale. However, art. 2438 says that in such a case, the contract of sale is subjected to the general rules established under the title: Of Conventional Obligations. Among the articles dealing with warranty in case of eviction there are special articles dealing with damages. But none apply specifically to the instant facts. Article 2506 provides for damages for a total eviction, which this is not. Nor is this a partial eviction of such consequence as to justify cancellation of the sale envisioned by article 2511. Nor is it a partial eviction such that the purchaser can be restored by proportionate reimbursement of the purchase price as provided by article 2514. However, these articles were, not intended to be the exclusive rules for deciding claims for damages in eviction cases, as article 2516 demonstrates, as follows:

Art. 2516. Damages from non-execution of sale, rules governing
Art. 2516. Other questions arising from a claim for damages, resulting from the non-execution of the contract of sale, shall be decided by the general rules established under the title: Of Conventional Obligations.

Like Katz v. Katz Realty Co., 228 La. 1008, 84 So.2d 802 (1955) and Guthrie v. Rudy Brown Builders, Inc., supra, we find that damages in these circumstances should be based on La.Civ.Code arts. 1926 and 1934(3). In Katz, it was held proper that plaintiffs be reimbursed by their vendor for the amount they paid to purchase a portion of an adjoining landowner’s property which had encroachments of their walls and foundation upon it. The Katz plaintiffs went about solving their potential eviction problems on their own without prior approval of either the court or their vendors. In the instant case, where the eviction was forced upon the Comeauxs and their loss determined by judgment after assertion of the rights and claims of third persons, we perceive no difficulty in holding that the damages required to “fully indemnify the creditor” (La.C.C. 1934(3)) justifies affirming this award. For the same reasons we feel that the imposition of the further burden on Berzas that he pay for the reinstallation of the septic tank, is proper.

Berzas contends that, at least, he should not have to reimburse the Comeauxs for that portion of the trespass damage incurred after their neighbor, Fuselier, told them they were encroaching. This happened about May of 1980. However, there is also testimony in the record that after-wards, Berzas assured the Comeauxs that Fuselier was wrong. This was a factual and credibility question resolved by the trial court in favor of the Comeauxs. We cannot say that the trial judge was wrong in this determination. Therefore, we cannot say that the Comeauxs were ever aware of any title defect sufficient to free Berzas from his obligation of warranty.

We observe, however, that the $150 award for malicious prosecution should not have been passed on to Berzas. We know of no rule of law that authorizes one to charge his deliberate tort to a warrantor or an indemnitor.

For these reasons, except for the item of $150 for malicious prosecution, we affirm the third party judgment against Berzas.

BERZAS AGAINST THE GUILLORYS

Guillory was in the real estate business around Mamou. He and his wife sold the 50' parcel to Berzas which the latter, on the same day, sold to the Co-meauxs. After these sales, Guillory assisted Berzas, at his request, in locating the boundaries. Berzas takes the understandable position that if he is liable to the Co-meauxs, the Guillorys are liable to him.

The trial court rejected this third party demand. No reasons were given but it is apparent from the record that as between these parties Guillory never made any assurances to Berzas that the property lines were properly determined. In fact, he told Berzas that the stakes were at best only an approximation. Guillory was no more a qualified surveyor than was Berzas.

Based on these facts the trial court made the correct decision under the law. When Berzas bought the 50' from the Guillorys, there were no conditions attached concerning the later delineation of its boundaries. When Guillory joined him to try and define the boundaries, it was made clear that Guil-lory did not really know where the boundaries were and that their measurements were only approximations. Thus the delivery and warranty against eviction obligations flowing from Guillory to Berzas were not the same as those owed by Berzas to the Comeauxs, under the circumstances of this case. Berzas knew the risks and took a chance. Where a purchaser is cognizant of a defect in title he is about to acquire, he cannot call upon the vendor to make good the damages resulting from the defect. Harris v. Bourgeois, 272 So.2d 44 (La.App. 4th Cir.1973).

We affirm the judgment rejecting the third party demand of Berzas against the Guillorys.

For the reasons assigned, the judgment of the trial court in favor of Mrs. Eva F. Comeaux and the heirs of Joseph E. Co-meaux, namely Stephen Comeaux, Ruby Comeaux LeJeune, Robertha Comeaux Viz-era, Sherril Comeaux Dies, and Wanda Co-meaux, and against the third party defendant, Allen Berzas, in the amount of $1,100.00, with interest, is amended to reduce the award to the amount of $950, and, as amended, it is affirmed. The judgment ordering Berzas to pay all costs associated with moving the home belonging to the Comeauxs to conform to the ordinances of the Town of Mamou, and also that he pay all costs of reinstallation of the septic tank to be used in association with the Comeaux home on the property belonging to the Co-meauxs, and also that Berzas pay all costs in the proceedings, is affirmed. The judgment rejecting the third party demands of Allen Berzas against Gilbert J. and Lillian Guillory, at Berzas’ costs, is affirmed.

All costs on appeal are to be paid by Allen Berzas.

AMENDED AND AFFIRMED.

      . These — the garage, the driveway, the garden, and the septic tank — were removed pursuant to a mandatory injunction granted in earlier proceedings in the case. The costs of removal of the garage, the driveway and the garden, for a reason not apparent in the record, were not passed on to Berzas in the third party judgment and therefore are not before us on appeal.

      . Mr. Comeaux died during the pendency of these proceedings and his heirs were substituted in his place.

      . Part of the indemnity that Berzas owed the Comeauxs is for mental anguish. We are aware that in Guthrie v. Rudy Brown Builders, Inc., supra, mental anguish was held not to be a recoverable damage item under the warranty articles. Of course, in Guthrie the evicted parties were seeking damages for their own mental anguish from their vendors. In the instant case the Comeauxs are not seeking recovery for their own mental anguish, but indemnity for the mental anguish of a third person now reduced to judgment.

      . After the dispute arose following Fuselier’s survey, either the Comeauxs or their daughter caused criminal charges to be filed against Fuselier. These charges were later dismissed by the district attorney.


author: FORET, Judge.

text:
    Francis GUMS, Plaintiff-Appellant, v. DELTA DOWNS, INC., Mid-Continent Underwriters, Defendants-Appellees.
    No. 82-351.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Keaty & Keaty, Ronald W. Malebeck and Kerry Shields, Lafayette, for plaintiff-appellant.
    Woodley, Barnett, Cox, Williams & Fen-et, Robert W. Fenet and Clayton Davis, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   FORET, Judge.

Francis Gums (plaintiff) brought this tort action to recover damages for personal injuries she suffered in a slip and fall, while attending horse races at Delta Downs in Vinton. Named defendants are the owner of the race track, Delta Downs, Inc. (Delta), and its public liability insurer, Mid-Continent Underwriters .

The trial court, after trial on the merits, rendered judgment in favor of defendants and against plaintiff, rejecting plaintiff’s demands.

Plaintiff appeals from that judgment and raises the following issues:

(1) Whether the trial court committed manifest error in finding that plaintiff failed to prove, by a preponderance of the evidence, that certain alleged negligent conduct of Delta was a cause-in-fact of the harm she suffered; and,
(2) Whether Delta rebutted an alleged presumption of negligence on its part by showing periodic maintenance, cleaning and inspection of the floor plaintiff fell on.

FACTS

Plaintiff suffered personal injuries on March 29,1980, when she slipped and fell in a hallway at Delta Downs. She was talking to a friend, when she was informed that she was being paged over the race track’s public address system. She requested assistance from Edward Sonnier, a security guard, in locating a phone where she could take the call. Sonnier was escorting plaintiff down a hallway to the office area when he heard a noise behind him. He turned around, saw that plaintiff had fallen, and immediately helped her up. She was later taken to the race track’s first aid station and treated for her injuries. She was advised by personnel at the first aid station to seek further medical care, and she was taken by a friend to Orange Memorial Hospital in Orange, Texas.

CAUSE-IN-FACT

Plaintiff contends that the trial court committed manifest error in finding that she failed to prove, by a preponderance of the evidence, that any liquid or other foreign material was on the floor of the hallway prior to the accident. In her petition, plaintiff alleged that the accident occurred when she slipped in a puddle of water or some other liquid lying on the floor of the hallway. Plaintiff further alleged that the puddle resulted from overhead pipes leaking onto the floor, or some other cause solely within the control of Delta. Specifically, plaintiff alleged the following acts of negligence on the part of Delta:

(a) allowing the pipes to deteriorate to the point that they leaked;
(b) allowing faulty design or construction of its facility to go uncorrected;
(c) failure to inspect its facilities for such danger;
(d) failure of Edward Sonnier or anyone else to warn her of the presence of the puddle; and, other acts, omissions, or conditions solely under the control of and/or knowledge of Delta.

Plaintiff’s claim is based upon the provisions of LSA-C.C. Articles 2315 and 2316.

The first inquiry in making a determination of liability under these articles is whether any causal relationship exists between the harm suffered by plaintiff and Delta’s alleged negligent conduct. Thus, if plaintiff can show that she probably would not have suffered the injuries complained of but for Delta’s conduct, she has carried her burden of proof relative to cause-in-fact. Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Head v. St. Paul Fire & Marine Ins. Co., 408 So.2d 1174 (La.App. 3 Cir.1982), writ denied, 412 So.2d 99 (La.1982); Wattigny v. Lambert, 408 So.2d 1126 (La.App. 3 Cir.1981), writ denied, 410 So.2d 760 (La.1981).

Edward Sonnier testified that he came upon plaintiff after she had been paged, but was unable to locate a telephone to receive her call. She requested his assistance and he had her follow him. They walked up two flights of stairs and proceeded down a hallway to the office area. Sonnier stated that plaintiff was walking about two or three feet behind him in the hallway, and that they had traveled some fifteen feet, when he heard plaintiff fall. Plaintiff was carrying a cup of beer when the accident occurred, and Sonnier noticed some liquid on the floor after the accident. However, he was unable to tell whether plaintiff had spilled some beer when she fell, or whether the liquid had come from some other source. Sonnier testified that he did not see any liquid on the floor prior to the accident. After the accident, plaintiff failed to indicate to him what she had fallen on. Sonnier stated that there were no exposed pipes in the hallway.

Plaintiff testified that she asked Sonnier for assistance shortly after hearing the page for her. He agreed to show her where to receive her call and she followed him. As she was walking down the hall, her feet slipped out from under her, causing her to fall backwards. Plaintiff stated that she was carrying a cup of beer at this time and implied that she spilled some of it when she fell. A review of plaintiff’s testimony shows that never once did she explain just how she fell or what caused her to fall. She did notice that the floor was covered with white tile which, “... had been buffed real pretty”. However, she never testified that she saw any liquid on the floor prior to the accident.

Raymond L. Farrar, Delta’s Comptroller, testified that there were no exposed pipes in the hallway where plaintiff fell. He was unable to remember whether he had contracted with a plumber to fix any leaking pipes at Delta Downs around the time of the accident.

This was the only evidence presented by plaintiff to show that Delta had engaged in what she alleged to be negligent conduct. In Louisiana tort cases, plaintiff must prove, by a preponderance of the evidence, both the negligence of the defendant and the damages caused by the latter’s fault; the proof need be only by a preponderance of the evidence. This burden of proof may be met by either direct or circumstantial evidence. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance when, taking the evidence as a whole, such proof shows that the facts or causation sought to be proved is more probable than not. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971), and authorities cited therein.

It is our opinion that the trial court’s finding, that plaintiff failed to prove that any liquid or other foreign material was on the floor of the hallway prior to the accident, is correct. Having failed to prove that Delta engaged in the conduct alleged to have resulted in her injuries, plaintiff is unable to sustain her burden of proof relative to cause-in-fact.

PRESUMPTION OF NEGLIGENCE

Plaintiff contends that, under Louisiana law, it is well established that in slip and fall cases involving patrons, a store owner has a duty to protect its customers from foreign substances on the floor by taking reasonable protective measures, including periodic inspections, in keeping aisles and floors free of substances that may cause customers to fall. Once plaintiff establishes that a foreign substance was on the floor, and that he slipped and fell on it, the burden shifts to the defendant to go forward with evidence to exculpate itself from a presumption that it was negligent. Plaintiff cites Kavlich v. Kramer, 315 So.2d 282 (La.1975), and Gonzales v. Winn-Dixie, Louisiana, Inc., 326 So.2d 486 (La.1976), in support her contention.

We find no merit in plaintiff’s contention. The alleged presumption arises only after the plaintiff in a particular case has proven that there was a foreign substance on the floor. In the action sub judice, plaintiff has failed to do this.

DECREE

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

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . We note that plaintiffs petition does not name the North-West Insurance Company as a defendant to this action. However, defendants’ answer states that the North-West Insurance Company is erroneously referred to as Mid-Continent Underwriters in plaintiff’s petition. The trial court’s judgment names Delta Downs, Inc., Mid-Continent Underwriters, and the North-West Insurance Company as the defendants in whose favor judgment is being rendered. Plaintiff introduced an insurance policy in evidence, which shows that the North-West Insurance Company provided comprehensive general liability insurance and personal injury liability insurance to Delta Downs, Inc., on the day of the accident.


text:
    Linda HARRINGTON, Plaintiff-Appellee, v. STARLINE, INC., et al., Defendants-Appellants.
    No. 82-354.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    McBride & Foret, Robert McBride, Lafayette, for defendants-appellants.
    Charles E. Bonnett, Breaux Bridge, for plaintiff-appellee.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

This is a workers’ compensation case. Defendant-employer, Starline, Inc., and its insurer, United States Fidelity & Guaranty Company, are appealing the trial court’s judgment which held plaintiff-employee, Linda Harrington, partially disabled and entitled to workers’ compensation benefits under LSA-R.S. 23:1221(3). We affirm the finding of partial disability.

Linda Harrington was employed by Star-line, Inc. as an assembly worker. She operated a five ton punch press which was used in the cutting of metal “mulls”. These mulls are sections of aluminum or steel approximately 12 feet long and eight inches wide. The plaintiff, assisted by a co-worker, was required to carry the mulls one by one from their stacked location to the press constantly during the day. Although the weight of a mull was not definitely established, it required two persons to lift one. Plaintiff testified that after the metal had been cut she had to “fight it out” of the machine. At the end of each work day plaintiff was also required to clean up the yard by sorting the good mulls from the defective ones. On October 1, 1979 one of the metal mulls fell on plaintiff’s hand causing injury. At trial the parties stipulated that the accident occurred within the course and scope of her employment. They also stipulated that plaintiff received compensation benefits in the amount of $94 a week from October 22, 1979 to June 1,1980 when the benefits were terminated and that the plaintiff was disabled during this period. The issue which confronted the district court was whether the plaintiff continued to be disabled after June 1, 1980. The trial court, evidently finding the plaintiff incapable of performing her prior duties/work due to substantial pain, determined that she was partially disabled under LSA-R.S. 23:1221(3).

The only issue on appeal is whether or not the finding of the trial court is clearly wrong.

As this court stated in Kelly v. International Union Operating Engineers, 386 So.2d 1060 (La.App. 3rd Cir. 1980):

[1] Under LSA-R.S. 23:1221(3), an injured workman is partially disabled if, because of his injury, he cannot return to his former employment but can perform gainful employment in another position. Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1 Cir.1977); LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1 Cir.1977), writ denied, 351 So.2d 174 (La.1977). A worker is also partially disabled where he would experience substantial pain when working in his former occupation, but where he could work in other types of jobs without experiencing such pain. McBroom v. Argonaut Insurance Company, 370 So.2d 212 (La.App. 3 Cir.1979), writ denied, 371 So.2d 1342 (La.1979); Conlay v. Houston General Insurance Company, 370 So.2d 196 (La.App. 3 Cir.1979); writ granted 371 So.2d 618 (La.1979).
[2] It is well settled that an injured worker who suffers substantial pain in performing his former job or who cannot engage in any gainful employment without incurring substantial pain is disabled, either totally or partially. Phillips v. Dresser Engineering Company, 351 So.2d 304 (La.App. 3 Cir. 1977), writ denied, 353 So.2d 1048 (La.1978); Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3 Cir.1978), writ denied, 358 So.2d 645 (La.1978); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980).
[3] We note at the outset that physical inability to return to work and inability to return to work due to substantial pain are questions of fact. The determination of fact made by a trial court will not be disturbed when there is evidence before the court, which evidence, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless those findings are clearly wrong. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979).

The medical evidence consisted of the testimony of Dr. Harold Hebert and the depositions of Dr. Ladislas Lazaro, III, and Dr. Terry Cromwell. Dr. Hebert, an orthopedic surgeon, examined plaintiff twice, first on October 9, 1979, shortly after her injury, and the last time on June 2, 1980, following surgery which was performed by another physician. Dr. Hebert stated that plaintiff was experiencing the same degree of pain on the top of her right hand on both examinations. He said her complaints were consistent with her injury. When asked to assume she was still having pain at the time of trial (September 9, 1980), he responded that this also would be consistent for this type of injury. He did not believe the pain would be permanent, but he was unable to place a time limit on how long the plaintiff would experience the pain.

The deposition of Dr. Lazaro reveals that he is an orthopedic surgeon specializing in hand surgery. Plaintiff was referred to him by Dr. Hebert. The plaintiff’s hand as a result of the accident was severely contused on the backside of the wrist and on the thumbside of the hand. There was pain and tenderness on the backside of the hand and wrist. The plaintiff was diagnosed as having radial nerve neuritis with causalgic associated pain syndrone. A neurectomy was performed on April 7, 1980 resulting in a residual loss of sensation on the backside of the hand. Tests performed after surgery showed that plaintiffs gross grip and pinch strength had decreased and she was continuing to have pain and swelling. The doctor felt plaintiff’s pain and swelling would diminish in six to eight months eventually reaching a partial permanent impairment of 12%. The doctor was of the opinion that disuse of the hand tends to intensify the pain and recommended increased utilization of the hand. He explained that pain resulting from this type of injury was always out of proportion to the injury, but he did not feel that the pain was excruciating or severe enough to be incapacitating.

Dr. Lazaro felt that plaintiff could return to her former work duties. In fact, he thought that use of the hand at work would be beneficial and expedite recovery. However, his deposition reveals that Dr. Lazaro did not clearly understand the nature of plaintiff’s work. For example, he mentioned that plaintiff could operate a clothes presser where the power operations are in the foot, or a small drill press that does not require a lot of power, or a conventional sewing machine — work that requires more dexterity than strength in the use of the hand. Plaintiff’s actual work, the operation of a punch press and handling heavy mulls, was much more strenuous than the work examples mentioned by the doctor. The doctor conceded that if she were required to constantly grip more than 20 to 25 pounds then she would suffer pain, and that she should work under restrictions that prevent inflicting further damage to the hand.

Dr. Cromwell, another orthopedist specializing in hand surgery, examined plaintiff on June 17, 1980 for evaluation purposes. She had complaints of pain and swelling and weakness in the right hand. This doctor saw the swelling and noted obvious pain upon movement of the wrist. Testing revealed that plaintiff’s right hand had only half the grip strength of the left even though plaintiff was right handed. Dr. Cromwell felt that plaintiff had been cooperative. His diagnosis was a resultant or residual tenosynovitis involving the ex-tensor tendons on the dorsum of the right wrist and hand and possibly involving the capsule or ligament which hold the carpal bones or the wrist together. The doctor explained that this condition is a reactive inflammation around the tendons caused by the scar tissue staying inflammed, sore and swollen. The doctor agreed with Dr. Lazaro that when she reached maximum recovery she would have a disability of 12% impairment to the hand. At the time of his examination, however, he assessed 100% impairment if heavy lifting was required or anything which demanded a strong sustained grasp. This impairment was due to the pain and loss of grip strength he found in the hand. The doctor stated that her condition would be slow in healing since use of the hands tends to cause reinjury. At some uncertain point in the future the pain will subside. In the meantime, according to Dr. Cromwell, weakness and the dropping of objects are to be expected with this type of crushing injury, and plaintiff will suffer pain and discomfort if required to lift heavy objects on a repetitive basis. She could not do a job that required a strong grip all day. She could do desk work or a little typing or answering a phone.

The plaintiff’s testimony revealed that she has been unable to do housework since the accident due to the pain and swelling in her hand and that she is unable to lift heavy objects without dropping them, again because of pain. She also stated that the pain has caused trouble sleeping. This testimony was corroborated by that of her sister and the stipulated testimony of her mother.

After careful consideration of the evidence presented including both medical and lay testimony, we fail to find error on the part of the trial court in finding the plaintiff partially disabled under LSA-R.S. 23:1221(3). Plaintiff has demonstrated she is incapable of returning to her former employment because of a combination of pain and loss of grip strength.

For these reasons the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . The deposition was taken on September 2, 1980.


text:
    James FRYE, Plaintiff-Appellant, v. TEXAS BRINE CORPORATION, et al., Defendants-Appellees.
    No. 82-356.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Francis E. Mire, Lake Charles, for plaintiff-appellant.
    Plauche, Smith & Nieset, Allen L. Smith, Jr., Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

This is an appeal from the granting of a motion for summary judgment in a personal injury action in favor of the defendants, Stan Lambert, alleged tort-feasor; and his general employer, Texas Brine Corporation.

Finding the existence of a genuine issue of material fact which must be resolved upon the merits, we reverse and remand this matter to the trial court.

The issues presented on appeal are:

1) Whether there is no genuine issue as to material facts, hence, establishing Stan Lambert as a “borrowed employee”;
2) Whether the general employer of an employee remains liable for its employee’s tort, despite the circumstances that the employee had been borrowed to perform services for a special employer at the time of the accident.

This suit arose out of an accident which occurred on April 29, 1981, at Texas United Chemical Corporation’s plant in Calcasieu Parish, Louisiana. On that date, the plaintiff, James Frye, was employed by the Texas United Chemical Corporation. The plant was a new plant and had been constructed by H.E. Wiese Construction Company. During the construction of the plant, Texas Brine Corporation sent two of its specialty employees, Bob Lang and Stan Lambert, to the construction site to coordinate the construction of the plant with the contractor, Wiese. Lambert had been designated by Texas Brine to remain at the plant after its completion to assist Texas United in its start-up operation.

On the day of the accident, Frye was changing out valves on certain lines in the plant. Stan Lambert opened one of the valves which caused acid to be sprayed on Frye and also resulted in him inhaling the fumes. As a result of this incident, Frye asserts he is disabled.

This suit was filed by Frye against Texas Brine and Stan Lambert alleging the negligence of Lambert as a cause of his disability. Texas Brine and Lambert subsequently filed a motion for summary judgment seeking a dismissal of Frye’s suit on the ground that Lambert was a borrowed employee of Texas United at the time of the accident. In such regard, Lambert argues that since he was a borrowed employee of Texas United and thus, a co-employee of Frye, Frye may not maintain the instant action against him since such suits are prohibited by the Louisiana Worker’s Compensation Act, specifically LSA-R.S. 23:1032 . Texas Brine argues since Lambert has no delictual liability it is clear that his general employer, Texas Brine, has none. The trial judge, after examining the evidence, ruled in favor of defendants. Plaintiff appeals from the dismissal of his suit.

The jurisprudence concerning summary judgment is well settled. In Vascocu v. Singletary, 404 So.2d 301 (La.App. 3rd Cir.1981), we made the following observations:

“LSA-C.C.P. Article 9663 provides that a motion for summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
[2] In deciding whether all material issues have in fact been disposed of, any doubt is to be resolved against the granting of summary judgment and in favor of trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Chalson v. Domingue, 372 So.2d 1225 (La. 1979); Employers’ Surplus Line Insurance Company v. City of Baton Rouge, 362 So.2d 561 (La.1978).
[3] On a motion for summary judgment, the court must first determine whether the supporting documents presented by the moving party are súffi-eient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings. Sanders v. Hercules Sheet Metal, Inc., supra.

BORROWED EMPLOYEE

Whether a person is a borrowed employee is an issue of fact. This fact question is critical in determining if Lambert is immune from liability under LSA-R.S. 23:1032.

Our review of the record reveals the following pertinent facts presented by the movers, Lambert and Texas Brine: Texas Brine had no interest in the operation of the plant at the time of the accident; Texas Brine was receiving reimbursement from Texas United for the amount of wages it paid to Lambert; Texas United paid for all of Lambert’s additional expenses including per diem and expense account charges for living in a motel and travel; Lambert reported to Texas United’s plant manager, Dave Post, for his instructions while on the job; Dave Post testified that the construction of the plant was completed by April 10, 1981; H.E. Wiese Construction Co., therefore, had concluded its work and left the plant site; the plant was in the start-up stage of operation and Lambert was assisting in this start-up when the accident occurred.

In opposition to the motion for summary judgment, Frye filed an affidavit in which he stated the following:

“True, H.E. Weiss Corporation was no longer there but had not completed their contract and Texas Brine was completing it. An outside welder was employed to come in and do some of the work such as constructing walkways for employees to walk over the pipe, and many change orders in the piping were completed by this contract welder. The plant was not in production and other matters such as the filtering process and the automatic control for the filtering process had to be changed and all of this is work that should have been completed by the original contractor but Texas Brine was having this completed by the contractor and Stan Lambert was still there supervising and in the same capacity as during the entire time that Weiss Corporation was constructing the plant.”

Unlike the trial court, we find Frye's affidavit does create a genuine issue of material fact as it contradicts the assertion of Texas United’s witnesses that the construction was completed and that Lambert was assisting Texas United in their operation. With that fact in doubt, the undisputed evidence does not compel the conclusion that Lambert was not working directly for Texas Brine and was a borrowed employee of Texas United. At trial there can be further developments of the relationship between Lambert and Texas United at the time of the accident.

The trial court was in error to weight the conflicting evidence and conclude Lambert was a borrowed employee of Texas United. A summary judgment is not to be used as a substitute for a trial on the merits. The court should not seek to determine whether it is likely the mover will prevail on the merits but rather whether there is an issue of material fact. In ruling on the motion, all doubts as to the propriety of a summary judgment are to be resolved against the mover. The evidence should be liberally construed in favor of the party opposing the motion. Turberville v. Georgia Pac. Chemical Co., 385 So.2d 366, (La.App. 1st Cir.1980).

Due to the holding of this court, the issue of the general employer’s liability is premature.

For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings. Costs will be assessed upon final disposition.

REVERSED AND REMANDED.

      . LSA-R.S. 23:1032
      “The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease....”


author: DOMENGEAUX, Judge.

text:
    Kenneth Dale BOOTHE and Ellen Boothe, Plaintiffs-Appellees, v. Johnnie MAY and Ruth Cox May, Defendants-Appellants.
    No. 82-358.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Writ Denied Feb. 23,1983.
    Reeves & Owens, Jack F. Owens, Jr., Harrisonburg, for defendants-appellants.
    Sturgeon, Gore & Gremillion, Glenn Gremillion, Ferriday, for plaintiffs-appel-lees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

The plaintiffs, Kenneth Dale Boothe and Ellen Boothe, brought suit against defendants Johnnie May and Ruth Cox May, for return of a deposit in the amount of $51,-200.00 allegedly advanced to defendants in lieu of an oral agreement to enter into a contract to buy and sell some 14,079 acres of farm land in Catahoula Parish, Louisiana. From a judgment of the District Court in favor of plaintiffs and against defendants in the amount of $51,200.00, plus interest and costs, defendants have appealed. We affirm.

Our review of the record suggests that some time in the latter part of 1980 and January of 1981, Kenneth Dale Boothe and Johnnie May began negotiating for the purchase and sale of certain farm lands in Catahoula Parish. Negotiations continued for some time but ultimately broke off when Mr. Boothe informed Mr. May that due to his inability to secure crop insurance, as well as other reasons, he was not going to purchase the property. Defendants refused to return the money advanced to them by the Boothes. Thereafter the Boothes instituted these proceedings.

At trial Kenneth Boothe testified that he and Mr. May agreed that before the sale would be consummated; (A) he would be allowed to purchase the property for the sum of $1,080,450.00; (B) he would be able to assume a $650,000.00 mortgage granted to Connecticut General Life Insurance Company on the property at the same interest rate; and (C) he would be able to buy and maintain crop insurance on the aforementioned property. Plaintiffs also testified that they advanced defendants a total of $51,200.00 which would be applied to the purchase price upon consummation of the sale.

Conversely, defendants claim that an agreement to buy and sell was reached between the parties. Defendants further contend that the oral agreement entered into was not subject to any of the conditions alleged by the plaintiffs, and the $51,200.00 advanced to them should be considered as earnest money.

In reasons orally assigned, the trial judge held that although the parties negotiated the possibility of entering into an agreement to buy and sell, they never reached an agreement. Having found that there was no meeting of the minds, the court below concluded there was no contract and consequently the money advanced by plaintiff was not earnest money.

The key issue presented on appeal is whether or not the trial court erred in holding that the parties did not orally agree to the purchase and sale of the farm property-

In order to have a valid contract both parties must give their consent, i.e., the will of both parties must unite on the same point. La.C.C. Articles 1797 and 1798.

In St. John the Baptist Parish Police Jury v. Louisiana & Arkansas Railway Company, 368 So.2d 756 (La.App. 4th Cir.1979) that Court reiterated the deeply entrenched requirement of our law that there must be a meeting of the minds to consummate a binding agreement. That case states in part:

“Both parties must agree to the substantial elements of a contract in order to have a binding agreement.
“Contracts are founded on the agreements of parties and where they misunderstand each other, there is no contract.” (Citations omitted).

The record in this case indicates an absence of mutual understanding between the respective parties. Plaintiffs claim that from the onset of negotiations their interest in purchasing the farmland hinged upon their ability to obtain crop insurance. According to plaintiffs, this was the only way that they could assure payments on the property, and without the insurance they could and would not purchase the land. Defendants agreed that the availability of crop insurance was discussed throughout the negotiations, but they suggest that this was never a serious consideration.

We agree with the district judge who held that the availability of crop insurance was one of the major causes for plaintiffs’ interest in purchasing the property, and, in any event, that the parties failed to reach an agreement. Those who were familiar with the ongoing negotiations testified that the plaintiffs had no desire to purchase the property if they could not protect themselves with crop insurance. In fact, the only one who testified to the contrary was defendant, Johnnie May. Additionally, it appears obvious that the parties still had a lot of elements of the contract to buy and sell to iron out. This is evidenced by the fact that at least five separate documents (purchase agreements) were prepared purporting to put in writing the agreement between the parties, however, failing to find that these instruments met their approval, the plaintiffs refused to sign them. The refusal of plaintiffs to sign the documents time and time again supports their assertion that they never accepted the defendants’ offer to purchase. At best there were several offers accompanied by prolonged negotiations, but no acceptance.

Furthermore, the record indicates that the parties contemplated reducing their final agreement to writing. This however was never done. The jurisprudence of this state is to the effect that when parties agree to reduce their contract to writing, the contract is not perfected, and there is no contract until the writing is duly executed. Brewer v. Loewer, 383 So.2d 1325 (La.App. 3rd Cir.1980); writ refused, 391 So.2d 456 (La.1980).

In finding that there was not a binding agreement between the parties, we feel that the trial judge correctly concluded that the money forwarded by plaintiffs to defendants did not constitute earnest money. La.C.C. Art. 2463.

The record, reflects that the money was advanced by plaintiffs in order to help defendants pay part of a note on the property in question. Although the parties seemed to agree that should plaintiffs purchase the property the advance would be credited towards the purchase price, there was no indication that by so doing the plaintiffs had intended to bind themselves for the purchase or to forfeit the money advanced.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs at trial and on appeal are to be assessed against defendants, Johnnie May and Ruth Cox May.

AFFIRMED.

      . This is not a suit involving specific performance of a contract to sell real property, but rather a suit premised upon an oral agreement to enter into a contract to sell. Therefore, the law pertaining to the necessity for all contracts involving the sale of immovable property to be in writing is inapplicable herein.

      . La.C.C. Article 1797 states:
      “When the parties have the legal capacity to form a contract, the next requisite to its validity is their consent. This being a mere operation of the mind, can have no effect, unless it be evidenced in some manner that shall cause it to be understood by the other parties to the contract. To prevent error in this essential point, the law establishes, by certain rules adapted to the nature of the contract, what circumstances shall be evidence of such consent, and how those circumstances shall be proved; these come within the purview of the law of evidence.”

      . La.C.C. Article 1798 states:
      “As there must be two parties at least to every contract, so there must be something proposed by one and accepted and agreed to by another to form the matter of such contract; the will of both parties must unite on the same point.”

      . La.C.C. Art. 2463 provides:
      “But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise; to wit: he who has given the earnest, by forfeiting it; and he who has received it, by returning the double.”