author: COLE, Judge. PER CURIAM.

text:
    Jimmy W. WHEAT v. FORD, BACON AND DAVIS CONSTRUCTION CORP., et al.
    No. 82 CA 0105.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    Writs Denied March 4, 1983.

      Donald Fendlason, Bogalusa, for plaintiff.
    Iddo Pittman, Jr., Hammond, for Ford, Bacon & Davis and Aetna Cas. and Sur. Co.
    John W. Anthony & R. Bradley Lewis, Bogalusa, for defendant H.L. Richardson and Commercial Union Ins. Co.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

This is a workers’ compensation suit in which plaintiff seeks compensation benefits for total disability from his former employers, Ford, Bacon & Davis Construction Corporation and H.L. Richardson d/b/a H & L Construction Company, and their insurers. At issue are the questions of whether plaintiff is disabled, either partially or totally, and if so, whether the disability resulted from a work-related accident with Ford, Bacon & Davis or H & L Construction Company or both.

The plaintiff is a thirty-four year old man who obtained a high school equivalency degree through the G.E.D. testing process. Plaintiff also attended Pearl River Junior College in Poplarville, Mississippi where he completed one year of training in welding and two years of training in auto mechanics. He subsequently used this training to make a living in the construction industry as a welder working out of New Orleans for Local 60, Plumbing and Steam Fitters Union. In October 1978 he was employed by Ford, Bacon & Davis as a pipe welder on a construction project at Crown Zellerbach Corporation in Bogalusa, Louisiana. On October 5,1978 plaintiff hurt his back while he and a fellow employee were lifting a piece of pipe which weighed five or six hundred pounds. The accident was reported to his foreman and an accident report was prepared. Though plaintiff did not immediately seek medical attention, the pain increased within the next day or two to the point where plaintiff was required to see his family physician, Dr. Rogelio Casa-ma. Dr. Casama diagnosed the condition as a lumbosacral strain. Dr. Casama prescribed some muscle relaxers for plaintiff to take, and permitted him to return to work with instructions to “take it easy.” Following his return to work, he was given light duties and his work was restricted. By November 1978 his movements were better, but he still sustained sharp pains upon bending and doing any heavy lifting. Near the end of 1978 the job was completed and plaintiff returned to the union hall to seek further employment.

Plaintiff’s next job brought him back to the Bogalusa Crown Zellerbach plant where he was employed by Forbes Construction Company as a working foreman. This job was completed in approximately two weeks. Again, plaintiff found another job in the Bogalusa plant, this time with H & L Construction Company as a pipe welder. When he started this job, plaintiff was still having back pain, but it was somewhat better than it had been during the Ford, Bacon & Davis job. The job with H & L began on February 5, 1979, and plaintiff was required to cut large pieces of pipe and drag them out of a tank. Plaintiff testified he began the day without much pain, but by the end of the day he was hurting badly and could hardly bend over. Plaintiff told Mr. Richardson, his employer, of his previous back injury and told him he was going to see a doctor. He took off the following day to see a doctor, but was unable to get an appointment. The following day was the last day on the H & L job and plaintiff was given light duty.

When plaintiff finally reached Dr. Casa-ma he was referred to Dr. Luis Matta, an orthopedic surgeon in Covington, Louisiana. Dr. Matta first saw plaintiff on February 8, 1979. His preliminary diagnosis was that plaintiff had a residual injury to the area of the supraspinal ligament at the level of the L4 interspace. Dr. Matta stated he felt this injury had resulted from the October 5, 1978 accident and was probably aggravated by the work plaintiff had performed on February 5, 1979 with H & L. Plaintiff again saw Dr. Matta on February 19, 1979. At this time, plaintiff was improving. His pain was no longer localized, but encompassed most of his lower back. On March 5, 1979 plaintiff visited Dr. Matta for a third time. His condition was still improving, though he was somewhat sore, had some restriction of motion in flexion, and had a mild spasm of the musculature in the lumbar area. On plaintiff’s fourth visit to Dr. Matta on March 19, 1979, he was doing much better. He had no spasm and was exhibiting a full range of motion of the back. At that time, he was discharged by Dr. Matta, who felt there were no clinical findings on which to base a disability rating.

After the H & L job, plaintiff was off work approximately three and a half months. After reporting the pain he encountered on February 5, 1979 on the H & L job to Ford, Bacon & Davis, their insurer, Aetna Casualty and Surety Company, paid plaintiff six weeks of compensation benefits, including Dr. Matta’s bills, until plaintiff was discharged by Dr. Matta in late March of 1979.

Plaintiff returned to work in May of 1979. This time he was able to obtain employment with Gaffney Construction Company in the Bogalusa paper mill, and he continued his job with Gaffney until the job was completed almost two years later. Plaintiff’s job with Gaffney was originally in the capacity of a pipe welder, but after about two months he became a working foreman. Plaintiff testified he worked in pain with Gaffney in order to support his wife and son. He claimed the pain, which was now radiating to his right hip and leg, continued to increase to the point where he could no longer perform his household repairs nor could he ride his horses. The pain finally forced plaintiff to return to Dr. Mat-ta in January of 1980, who scheduled a myelogram for plaintiff. The myelogram was performed on February 14,1980, and it revealed a herniated disc at the L4-L5 in-terspace on the left side. However, Dr. Matta did not recommend surgery; he told plaintiff to lift with his legs rather than his back, and to return if he began having symptoms again. Plaintiff returned to work out of economic necessity and continued his job as foreman with Gaffney until April 1981. At this time, Gaffney transferred him to Norco, Louisiana, where he was required to work as a pipe fitter. The bending, stooping, tool work, and the vehicular trip aggravated his condition to such an extent that he could no longer continue in this line of work, so he quit the Norco job after four days.

The trial judge found the plaintiff disabled to the extent he could no longer perform work as a pipe fitter or as a foreman for a pipe fitter’s crew. However, the trial judge felt the “odd-lot” doctrine was inapplicable since he believed Mr. Wheat was an intelligent and industrious individual who, despite persistent pain, could find other available jobs in the Washington Parish area which he could physically perform. The plaintiff was therefore held to be a partially disabled employee entitled to compensation benefits at $141.00 per week for 444 weeks, six weeks of which had already been paid. The trial court also found plaintiff’s injury resulted from the accident of October 5, 1978 and that only Ford, Bacon & Davis Construction Company and its insurer were responsible for the compensation benefits. Thus, H & L Construction Company and Commercial Union Insurance Company were dismissed from the suit.

Ford, Bacon & Davis Construction Corporation and its insurer, Aetna Casualty & Surety Company, appealed suspensively this judgment. On appeal, they deny the plaintiff has any disability as a result of the alleged accident of October 5, 1978. In the alternative, they contend if plaintiff is found to be disabled, the disability results at least in part from an accident on February 5,1979 which plaintiff had while working with H & L, and that both employers should be responsible. Plaintiff filed an answer to the appeal seeking to be declared totally rather than partially disabled and asking for relief against both sets of defendants.

We first address the issue of the extent of plaintiff’s disability. La.R.S. 23:1221(1), (2) state essentially an employee is totally disabled when he cannot engage in any gainful occupation for wages. In contrast, an employee is deemed partially disabled if he is unable “to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience....” La.R.S. 23:1221(3).

However, the Louisiana Supreme Court has recently adopted the “odd-lot” doctrine as the controlling test in determining whether an employee is totally and permanently disabled. In Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), this doctrine was formulated as follows:

“In order to determine whether the plaintiff fits within this category of odd-lot workers, he must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factor, that he ‘cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity.’ If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd-lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with ‘a gainful occupation.’ ” (Citations omitted.) 390 So.2d at 1323-24.

The “odd-lot” doctrine has also been applied to working-in-pain cases. Lattin v. Hica Corp., 395 So.2d 690 (La.1981). Although the law does not generally require a person to work in substantial pain, the Lattin case requires a claimant in substantial pain to prove his pain appreciably limits the type of work available to him and greatly diminishes his ability to compete in the labor market before a prima facie showing of odd-lot status is established. However, if a worker cannot perform the same work he did prior to his injury due to substantial pain, but has the mental and physical capacity to perform other available jobs, then he should be considered partially disabled. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980).

In the action before us, appellant Ford, Bacon & Davis contends since plaintiff continued to work after the two incidents to which the injury could be attributed, he is not even partially disabled. Indeed, the record shows plaintiff’s income actually continued to increase following his back injury, except in 1979. Though plaintiff has had no difficulty in locating employment, the evidence establishes plaintiff was working in substantial and appreciable pain out of economic necessity. Even his work as a foreman, which continued through April of 1981, was performed in pain. When he was forced to return to work as a pipe fitter, the pain was so unbearable plaintiff quit his job.

Plaintiff returned to Dr. Matta on January 14 and April 21, 1981 complaining of pain. X-rays taken on January 14, 1981 showed a marked decrease of the L5-S1 interspace, which could have resulted either from the process of aging or from his disc injury. A report from Dr. Richard Levy, a neurosurgeon who examined plaintiff indicated muscle atrophy in one of plaintiff’s legs. From these developments which indicated plaintiff’s condition had worsened, Dr. Matta determined plaintiff should no longer continue work as a pipe fitter-welder, since such work could result in continued degeneration of his back. Dr. Matta further stated plaintiff should avoid any type of work that will require persistent bending, stooping, climbing, squatting, or lifting more than ten pounds.

We agree with the trial court plaintiff’s back condition precludes further work as a pipe fitter or pipe welder. However, we believe it erred in holding the “odd-lot” doctrine to be inapplicable. Under the facts in the record, Mr. Wheat has shown his physical impairment and pain has limited appreciably the types of work available to him and has diminished his ability to effectively compete in the job market. Not only does plaintiff’s physical impairment and pain prevent him from doing work as a welder, it also prevents him from performing work as an auto mechanic, the only other type of work for which he is trained. Any other work which plaintiff might perform is greatly limited, since almost any job involving primarily physical labor requires persistent lifting and bending. Since plaintiff presented a prima facie case of “odd-lot” status, the burden of proof shifted to the employers to show other available jobs which plaintiff could physically handle and which could provide him a steady income. The employers produced no such evidence and, therefore, we conclude plaintiff is permanently and totally disabled. See, Crockett v. St. Paul Ins. Co., 413 So.2d 949 (La.App. 1st Cir.1982).

We next address the issue of what accident resulted in plaintiff’s disability. The trial court, as mentioned above, held the plaintiff’s disc injury was sustained on the Ford, Bacon & Davis job and plaintiff did not sustain an industrial accident on the H & L Construction Company job. Rather, the trial court found plaintiff’s painful back and restricted movement following the day’s work on February 5,1979 was a result of his pre-existing disc injury which resulted from his October 5, 1978 accident. This factual finding cannot be disturbed unless it is clearly wrong or manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The evidence clearly supports the finding that the disc injury resulted from a work-related accident which plaintiff suffered on October 5, 1978 while working with Ford, Bacon & Davis. All of plaintiff’s back trouble began with a sudden and unforeseen event which occurred on that date. As he lifted a piece of heavy pipe on that day, his fellow employee testified he stated “I hurt my back.” This accident was reported to plaintiff’s foreman and an accident report was prepared. Plaintiff testified his back has hurt him continuously since this accident. Dr. Matta also stated, based upon the case history as given to him by plaintiff, he believed plaintiff’s ruptured disc was originally caused by the October 5 accident from which he never completely recovered. We therefore hold plaintiff’s disability, at least in part, was caused by a work-related accident which occurred while he was working with defendant Ford, Bacon & Davis.

However, defendant Ford, Bacon & Davis contends they should not be solely responsible for the compensation benefits, since any disability which plaintiff has resulted not only from the October 5, 1978 accident, but also from the February 5, 1979 accident which occurred while plaintiff was working with H & L Construction Company. It is well settled that workers’ compensation benefits are payable when an occupational accident aggravates or accelerates a pre-existing condition and produces disability. Crawford v. Al Smith P. & H. Service, Inc., 352 So.2d 669 (La.1977); Chism v. Kaiser Aluminum & Chemical Corporation, 332 So.2d 784 (La.1976). Therefore, part of the compensation should be paid by H & L if the trial court was erroneous in its finding that there was no employment accident on February 5, 1979.

La.R.S. 23:1021(1) defines “accident” as “an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.” Yet this statute has been construed liberally. It has been held that “when the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown, the statutory requirements for an accidental injury are present.” Ferguson v. HDE, Inc., 270 So.2d 867, 869 (La.1972), remand 274 So.2d 783 (La.App. 3d Cir.1973). Nor must the accident be “unexpected” or “unforeseen,” since employees whose injuries are quite predictable due to pre-existing conditions are protected as completely as normal workers by the Act. Crawford, supra; Chism, supra. Nor must the injury be immediately revealed by objective symptoms, since strain injuries seldom reveal such symptoms at the time of the injury, though they are clearly covered by the Act. See Melder v. Century Tel. Enterprises, 413 So.2d 1325 (La.App. 3d Cir.1982); Scanlan v. Bernard Lbr. Co. Inc., 365 So.2d 39 (La.App. 4th Cir.1978).

We conclude plaintiff did suffer a work-related accident on the H & L Construction Company job in that his pre-exist-ing back injury was aggravated by the strenuous work in which he was engaged. Though plaintiff could not attribute the severe pain which he suffered by the end of the day to any specific event, clearly the continuous lifting of heavy sections of pipe led to an aggravation of plaintiff’s back condition. After all, this is precisely the same type of work which initially led to plaintiff’s rupture. Though plaintiff testified it felt like a reoccurrence of the Ford, Bacon & Davis injury, he related the pain was much more severe following the H & L injury. Plaintiff’s severe pain was reported to Mr. Richardson, who let plaintiff have the next day off to see a doctor. Plaintiff was then referred to Dr. Matta, who saw plaintiff for the first time a few days after the H & L incident. Dr. Matta later opined that, based upon what plaintiff told him, his disc condition resulted from both of the interrelated injuries, the latter of which enhanced the previous injury. The fact that plaintiff received compensation benefits for six weeks after his injury on February 5, 1979, though paid by Ford, Bacon & Davis’s insurer, also supports the finding that plaintiff aggravated his back condition on that day.

We therefore hold both accidents were contributing causes of plaintiff’s ultimate disability. In such a case, both employers and their insurers are solidarity liable for the payment of compensation. Lachney v. Employers Com. Union Ins. Co., 337 So.2d 624 (La.App. 4th Cir.1976); Scott v. Hartford Accident & Indemnity Company, 302 So.2d 641 (La.App. 3d Cir.1974); Carter v. Tri-State Insurance Company, 259 So.2d 433 (La.App. 2d Cir.1972).

The appeal in this case was taken by defendant Ford, Bacon & Davis and its insurer. Plaintiff answered the appeal, but failed to perfect a separate appeal against defendant H & L Construction Company and its insurer. H & L filed a motion to dismiss the appeal by Ford, Bacon & Davis and also moved to dismiss the plaintiffs answer, insofar as the appeal and the answer related to them. This Court denied the motion to dismiss the appeal, holding that an appeal by a defendant cast in judgment brings a co-defendant responsible in solido, if at all, before the appellate court even though no third party demand has been filed. However, the motion to dismiss the answer to the appeal insofar as it attempted to secure relief against H & L and its insurer was granted, since an answer to an appeal is effective only as to an appellant. Wheat v. Ford, Bacon and Davis Const. Corp., 414 So.2d 823 (La.App. 1st Cir.1982).

The appeal taken by Ford, Bacon & Davis and its insurer, having brought defendant H & L Construction Company before this Court, is tantamount to filing a third-party action. Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963); Vidrine v. Simoneaux, 145 So.2d 400 (La.App. 3d Cir.1962). We therefore can property hold H & L liable for contribution to Ford, Bacon & Davis as a solidary obligor. See La.Civ.Code art. 2103, as effective at pertinent times. In such a case, it is not proper to reserve unto Ford, Bacon and Davis the right to demand contribution from H & L in a separate proceeding, since all interested parties were represented on the merits at trial and no useful purpose would be served by requiring a separate procedure to determine an issue which is being resolved here. See Vidrine, supra, at p. 406. However, we cannot render a judgment against H & L directly in favor of plaintiff, since his failure to perfect a separate appeal against H & L has allowed the trial court judgment dismissing H & L to become final against him. Roy v. Edmonson, 221 So.2d 583 (La.App. 4th Cir.1969).

For the reasons assigned, the judgment appealed from is amended to the extent plaintiff’s benefits are increased to compensate him for total disability. It was stipulated in this court plaintiff’s wages were such as to entitle him to the statutory maximum provided in La.R.S. 23:1202. Since the trial court found plaintiff’s disability began on April 10,1981, plaintiff is entitled to $163.00 per week, the maximum weekly compensation rate for the year beginning September 1,1980. Appellants Ford, Bacon & Davis and its insurer, Aetna Casualty and Surety Company, are hereby condemned to pay this weekly rate of compensation, together with judicial interest thereon until paid, for the duration of the disability. The judgment against appellants Ford, Bacon & Davis and Aetna is affirmed in all other respects, including the order for a lump sum payment of the compensation due since April 10, 1981 with legal interest thereon from the date of judicial demand, for past and future medical expenses, and for expert fees and costs. The judgment of the trial court is, however, hereby reversed insofar as it dismissed H & L Construction Company and Commercial Union Insurance Company. These parties are condemned, as soli-dary obligors with appellants, to contribute to appellants one-half of the amount to be paid by appellants to plaintiff and to share equally in the payment of all costs with appellant.

AMENDED IN PART; AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

ON REHEARING

PER CURIAM.

In applications for rehearing both employers have correctly pointed out we awarded the wrong rate of compensation. We found the accidents which occurred on October 5, 1978 and February 5, 1979 both combined to produce plaintiff’s disability which began on August 10, 1981. We then awarded the maximum rate of compensation based upon the rates in effect during the period from September 1, 1980 until September 1, 1981. Although the compensation award does not begin until the pain resulting from the accident becomes disabling (see Melder v. Century Tel. Enterprises, 413 So.6d 1325, 1329 [La.App. 3d Cir. 1982]), the rate of compensation is based upon when the injuries occurred. La.R.S. 23:1202. Since both injuries occurred in the compensation year beginning September 1, 1978, the proper rate of compensation is the maximum rate for that year which is $141.00 per week. We thus amend the original judgment of this court to change the rate of compensation from $163.00 per week to the sum of $141.00 per week. Finding no merit in the other contentions asserted in the applications for rehearing, the original judgment of this court is affirmed and all applications for rehearing are denied.

REHEARING DENIED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Ronald G. WOLF, et ux et alia v. Ronald L. WHITNEY et alia.
    No. 82 CA 0124.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

      Jonathan C. Harris, Baton Rouge, for plaintiffs-appellees Ronald G. Wolf, et ux.
    William L. Taylor, R. Craig Smith, Baton Rouge, for defendants in reconvention-ap-pellees Woodall J. Didier, et ux. and Edwin McKnight.
    George W. McHugh, Jr., St. Martinville, for defendant-appellant.
    Stanley R. Aaron, Michael A. Patterson, Baton Rouge, for defendant and third party plaintiff-appellee James H. Kidd.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

This is a suit for declaratory judgment. Mr. and Mrs. Ronald G. Wolf and Mr. and Mrs. Woodall J. Didier seek a judgment declaring their titles to immovable property in East Baton Rouge Parish valid and unassailable vis-a-vis Ronald L. Whitney and other defendants named herein. Whitney answered with a general denial and reconvened, asking to be recognized as the owner of an undivided one-half interest in the subject properties. From judgment in favor of plaintiffs, on the main demand, and dismissing the reconventional demand, defendant Ronald L. Whitney has filed a sus-pensive appeal.

FACTS

The real properties in the instant controversy devolved to the plaintiffs as follows:

On January 21,1979, a partnership agreement was signed by Ronald L. Whitney, Edwin B. McKnight, and Steve T. Simo-neaux, forming a partnership known as “Whitney, Simoneaux & McKnight.” The partnership agreement was filed and duly recorded with the Clerk and Recorder for East Baton Rouge Parish on January 22, 1971.

On January 27,1971, James P. Golden, Jr. executed four acts of sale with assumption of mortgage, transferring lots 55, 61, 62 and 63 of University Park Subdivision to the partnership.

On May 7, 1971, Home Savings & Loan Association sold to Ronald Whitney, Edwin McKnight, and Steve Simoneaux lot 64 of University Park Subdivision.

On November 24, 1971, Steve T. Simo-neaux transferred to Ronald Whitney his 33V3 percent interest in the partnership. On April 2, 1973, Whitney transferred to Edwin McKnight a part of his interest in the partnership, resulting in each having a fifty percent interest therein.

On March 15, 1974, Ronald L. Whitney and Edwin McKnight executed an instrument wherein Whitney allegedly transferred to McKnight his interest in the partnership. The instrument provided:

“For one dollar & other consideration I, Ronald L. Whitney transfer my 50% interest in the partnership of Whitney & McKnight to Edwin McKnight. The property in question is recorded in the record books of East Baton Rouge Parish, Louisiana as Original 99, Bundle 7486, Original 1, Bundle 7487, Original 3, Bundle 7487, Original 5, Bundle 7487 & Original 93, Bundle 7584.”

The recordations cited above refer to the following described property now in the hands of the plaintiffs: Lots 55, 61, 62, 63 and 64 of University Park Subdivision of East Baton Rouge Parish. The transfer of fifty percent interest in the partnership from Whitney to McKnight was filed with the Clerk and Recorder for East Baton Rouge Parish on August 15, 1978.

Subsequently, on February 1, 1979, Edwin McKnight sold lots 61 and 62 of University Park Subdivision to James H. Kidd and Peggy Langlois Kidd who, on May 17, 1979, transferred the same lots to Mr. and Mrs. Woodall J. Didier, plaintiffs herein.

On February 5, 1979, Edwin McKnight sold lots 55, 63, and 64 of University Park Subdivision to WCS Partnership, which at that time had as partners Ronald G. Wolf, I. Randolph Creel, Jr., Richard L. Creel, and Ernest Cleveland Slayton, Jr. Subsequently, Ronald G. Wolf, on behalf of his wife and himself, acquired his partners’ interest in WCS Partnership, and Wolf and his wife are plaintiffs herein.

TRIAL COURT

On the basis of the above-mentioned documents, plaintiffs asked the court to declare their titles to the lots in University Park Subdivision to be valid and unassailable visa-vis the defendants. Whitney claimed in reconvention that the transfer of his partnership interest was “a fraud” and that no consideration was paid therefor.

The trial court found that the instrument transferring Whitney’s partnership interest to McKnight was sufficient to transfer title to real estate, and that “one dollar and other valuable consideration” was a sufficient consideration. On this basis, the trial court rendered judgment for plaintiffs and dismissed the reconventional and third-party demands.

SPECIFICATIONS OF ERRORS

Defendant-appellant Ronald L. Whitney does not assign precise specifications of errors, but argues generally that the trial court erred in finding the instrument which purportedly transferred his fifty percent interest in the partnership to McKnight was a valid and non-voidable transfer of title of the lots in University Park Subdivision.

The issues involved herein can be summarized as follows:

1) Did the transfer of fifty percent interest in the partnership from Whitney to McKnight pass title to the subject real estate?

2) Was such transfer valid?

I

Complicating the issue of the sufficiency of the transfer document is the fact that title to four of the five lots now in the hands of plaintiffs was taken in the name of the partnership “Whitney, Simoneaux, & McKnight.” Under Louisiana jurisprudence, a partnership is a separate entity distinct from its partners, and the partners are only owners of the residuum which may be left, following dissolution, after partnership debts have been discharged. See Johnson v. Johnson, 235 La. 226, 103 So.2d 263 (1958); and Trappey v. Lumberman’s Mutual Casualty Company, 229 La. 632, 86 So.2d 515 (1956) and cases cited therein.

As such, the partnership itself held title to all real estate composing partnership property. Of the real properties involved herein, title to lots 55, 61, 62 and 63 of University Park Subdivision was taken in the name of the partnership. Title to lot 64 was taken in the names of individual partners. Nonetheless, the transfer of fifty percent interest from Whitney to McKnight refers to specific properties owned by the partnership by citing where same are recorded. The transfer document refers to Original 93, Bundle 7584, and the document recorded therein is the sale of lot 64, with the names of the partners appearing as vendees. Apparently Whitney and McKnight considered lot 64 as partnership property. We therefore presume that all of the lots involved herein were owned by the partnership at the time of the transfer of fifty percent interest from Whitney to McKnight.

Prior to the revision of the Civil Code Articles pertaining to partnerships, the Louisiana jurisprudence was split as to whether the withdrawal of a partner terminated the partnership. See discussion in Edco Properties v. Landry, 371 So.2d 1367, 1372-1374 (La.App. 3rd Cir.1979); writ den. 375 So.2d 945 (La.1979). If the partnership was so dissolved, McKnight would take ownership of all property of the partnership after satisfying partnership debts.

Yet, even assuming arguendo that Whitney’s withdrawal did not dissolve the partnership, the fact remains that McKnight was the sole remaining partner; thus, he could sell immovable property on behalf of the partnership on his own volition. Therefore, the fact that Edwin McKnight was named as the vendor of property which was owned by the partnership is of no consequence, if the transfer of partnership interest was valid.

A transfer of partnership interest is not a sale of specific property of the partnership or an interest therein, Posner v. Little Pine Lumber Co., 157 La. 73, 102 So. 16 (1924); Shalett v. Brownell-Kidd Company, 153 So.2d 425 (La.App. 1st Cir.1963); writ ref. 244 La. 1004, 156 So.2d 57 (1963). Thus, a transfer of fifty percent interest in the partnership was not a sale of the partnership’s immovable property. However, for a partnership to own immovable property, its articles must be put into writing and recorded, see former La.Civ.Code art. 2836. Additionally, contracts of partnership involving lands and other immovables cannot be proved by parol evidence, Gantt v. Gantt, 6 La.Ann. 677 (1851), Walsh v. Texada’s Syndic 7 Mart. (N.S.) 231 (1828). We therefore are of the opinion that for the sale of an interest in a partnership which owns immovables to be upheld as valid, the sale must meet those requisites of form which apply to sales of immovable property. We find the following articles of the Civil Code applicable:

“Art. 2275. Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.
“Art. 2440. All sales of immovable property shall be made by authentic act or under private signature.
“Except as provided in article 2275, every verbal sale immovables shall be null, as well as for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.
“Art. 2240. All acts may be executed under private signature, except such as positive laws have ordained to be passed in presence of a notary.
“Art. 2241. It is not necessary that those acts be written by the contracting parties, provided they be signed by them.
“Art. 2242. As act under private signature, acknowledged by the party against whom it is adduced, or legally held to be acknowledged, has, between those who have subscribed it, and their heirs and assigns, the same credit as an authentic act.”

The transfer document is a writing executed before two witnesses and signed by McKnight and Whitney on March 15, 1974. On February 25, 1980, Diana Drost, a witness to the act of transfer, appeared before an ex-officio notary public and acknowledged witnessing the signing of the instrument by Whitney and McKnight. Additionally, both Whitney and McKnight stipulated the authenticity of their signatures. Thus, the transfer document was sufficient in form as a transfer of interest in a partnership owning immovable property. The question which remains, however, is whether the transfer was valid or can be voided by Ronald Whitney.

II

Whitney alleged in his pleadings that he never intended to divest himself of his partnership interest. Answers to interrogatories, which were filed in the suit record, indicated that McKnight told Whitney that a transfer on paper was necessary for McKnight's protection because Whitney was having marital difficulties. The answers to interrogatories also stated that McKnight promised Whitney that the transfer document would not be recorded in the public records, and that when asked about the transfer document, McKnight told Whitney it had been destroyed or lost. For these reasons, Whitney alleges and contends that the transfer was “a fraud” and that the consideration recited in the transfer document evidences this and affects third parties accordingly, citing Hearon v. Davis, 8 So.2d 787 (La.App. 2nd Cir.1942).

Whitney maintains that the sale must fall because of failure of consideration, and that the recited consideration of “one dollar and other valuable consideration” was of such a nature to alert plaintiffs that a defect existed in the chain of title. What Whitney apparently argues is that the purported sale of partnership interest is a simulation, which is a pretended or feigned sale clothed with the formalities of a valid sale. In ascertaining whether a sale is simulated, the courts must determine whether the parties acted in good faith, whether there was an actual intention to transfer title, and whether any consideration was given for the transfer. Phillips v. Nereaux, 357 So.2d 813 (La.App. 1st Cir. 1978), and on denial of rehearing, 361 So.2d 228 (La.App. 1st Cir.1978).

Whitney’s version of the circumstances surrounding the transfer would militate against a good-faith intention by the parties to transfer partnership interest. We note, however, that although Edwin McKnight was present at trial, Whitney did not call him to testify in his defense. Inasmuch as the burden of proving a simulation rests with the party whom alleges it, the fact that Whitney did not call his supposed participant in simulation to testify creates a presumption that McKnight would have given testimony contrary to that of Whitney. See Pearlstine v. Mattes, 223 La. 1032, 67 So.2d 582 (1953); Morgan v. Matlack, Inc., 366 So.2d 1071 (La.App. 1st Cir.1979); writ den. 369 So.2d 1352 (La.1979).

Whitney also admitted on cross-examination that in response to a phone call from plaintiffs’ counsel, he had originally maintained that his signature on the transfer document was forged. At trial, the signatures on the transfer were stipulated authentic. This prior inconsistent statement reflects poorly on the veracity of Whitney, and his failure to call McKnight to testify militates against Whitney’s version of circumstances surrounding the transfer.

The record further indicates that on the same day of the transfer, March 15, 1974, McKnight wrote a check for $1,920.00, payable to the order of Ron Whitney, and Whitney admitted that this check was given to him. Whitney contends that this amount was loaned to him by McKnight so that he could keep his car from being repossessed. However, the record reflects no attempt by Whitney to pay either principal or interest on the amount loaned to him, nor is there any existing memorialization of the purported loan. Whitney testified that he had not repaid McKnight because he could never find him; however, the record indicates that Whitney knew McKnight’s home address and phone number at all times pertinent hereto. The trial judge was apparently of the opinion that the check for $1,920.00 given by McKnight to Whitney on March 15, 1974, was a part of the “other valuable consideration” for the transfer of partnership interest, and under the facts demonstrated in the record, we agree with this conclusion. Apparently Whitney had not only marital problems at the time but also financial problems, and we are of the opinion that McKnight gave Whitney, in exchange for Whitney’s share in the partnership, the amount Whitney needed to keep his immediate creditors at bay. A transaction will not be set aside as a simulation if any consideration, no matter how small, supports the transaction, because the reality of the transfer is thus established. Russell v. Culpepper, 344 So.2d 1372 (La.1977); Hysmith v. Coleson, 421 So.2d 402 (La.App. 1st Cir.1982). Of course, as additional consideration, McKnight assumed all outstanding liabilities of the partnership. We find that the act under private signature which purported a transfer of fifty percent interest in the partnership has not been proven a simulation by Whitney. For this reason, plaintiffs are entitled to judgment declaring their titles to properties in University Park Subdivision valid and unassailable vis-a-vis Ronald Whitney, Edwin McKnight, and James Kidd.

DECREE

Therefore, for the above and foregoing reasons, judgment of the trial court in favor of plaintiff on the main demand, and dismissing the reconventional demand and all incidental demands is hereby affirmed. All costs, both in this court and in the trial court, are assessed to defendant-appellant Ronald L. Whitney.

AFFIRMED.

      . The Wolfs obtained their property from WCS partnership, which in turn purchased from Edwin McKnight, named as a party defendant. The Didiers named Edwin McKnight and James J. Kidd, who bought some of the subject property from McKnight and sold it to the Didiers, as parties defendant, their claim against Kidd being a call in warranty. „

      . Whitney’s reconventional demand was filed not only against plaintiffs, but also against McKnight and Kidd. Kidd filed third party demands against McKnight for breach of warranty and against Whitney, in subrogation of the rights of McKnight against Whitney.

      .The trial court held that the recoventional demand could not be brought in response to a suit for declaratory judgment. The incidental demands mentioned in Footnote 2, supra, were also dismissed. These rulings are not at issue on appeal.

      . Book III, Title XI of the Louisiana Civil Code of 1870, “Of Partnership,” has been revised by Acts 1980, No. 150, effective January 1, 1981.

      . The revision of the codal provisions on partnership produced a new La.Civ.Code art. 2826, which provides in part that a partnership is terminated by the reduction of its membership to one person. Moreover, Article 2826, as amended by Act 797 of 1981, applies to all partnerships existing on the effective date of the amendment (September 11, 1981). Thus, even assuming that the partnership was not dissolved by Whitney’s selling his fifty percent interest to McKnight, the effectuation of new Article 2826 would have terminated the partnership as of the effective date of the amendment. In such case, under the doctrine of “after-acquired title,” plaintiffs would be entitled to judgment, if the transfer of partnership interest was valid.


author: CARTER, Judge.

text:
    Charlie W. JORDAN v. Raymond T. SUTTON, Commissioner of Conservation, State of Louisiana.
    No. 82 CA 0162.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Bobby L. Culpepper, Jonesboro, Hal R. Henderson, Arcadia, and Burton Paul Guidry, Stephen Edwards, Baton Rouge, for plaintiff-appellant Charlie W. Jordan.
    Veil David Devillier, Eunice, for defendant-appellee Ray T. Sutton.
    Robert T. Jorden, Kerry M. Massari, Paul B. David, Lafayette, for intervenor-appellee Southern Natural Gas Co.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is an appeal from a judgment of the trial court in favor of defendant, Raymond T. Sutton, Commissioner of Conservation, State of Louisiana, and intervenor, Southern Natural Gas Company, (hereinafter referred to as SNG), and against plaintiff, Charlie W. Jordan, dismissing plaintiff’s suit. The trial court found that plaintiff was guilty of unreasonable and inexcusable delay in filing suit, which delay prejudiced the defendant and intervenor, and therefore, the doctrine of laches was applicable.

The plaintiff appeals assigning as error the trial court’s application of the doctrine of laches to this case and the trial court’s findings of fact. This matter was previously on appeal and we concluded that the Administrative Procedure Act and LSA-R.S. 30:12 provided alternate and parallel forms of judicial review for persons aggrieved by orders of the Commissioner of Conservation and that the prescriptive period provided in the Administrative Procedure Act is not applicable to judicial review under LSA-R.S. 30:12. After granting a rehearing on the question of laches, the case was remanded for the taking of testimony from witnesses to be produced by plaintiff, defendant, and intervenor, for receipt of other evidence on the reasonableness of Jordan’s delay, and for proof of prejudice to defendant or a third party. Jordan v. Sutton, 401 So.2d 389 (La.App. 1st Cir.1981).

On remand, the trial judge dismissed plaintiff’s suit in its entirety finding that plaintiff was guilty of unreasonable delay in filing suit under LSA-R.S. 30:12 and that the Commissioner of Conversation and SNG were prejudiced by that delay. It is this decision that the plaintiff is now appealing.

The doctrine of laches, sometimes referred to as equitable estoppel, provides that a person, through his voluntary conduct, is barred and precluded, both at law and in equity, from asserting rights against another person who relies on such conduct. It arises when a person, by his acts, representations or admission, or even by his silence when it is his duty to speak, intentionally or through culpable negligence, induces another to believe that certain facts exist and the other person rightfully relies and acts upon his belief in those facts and will be prejudiced if the former is permitted to deny the existence or the truth of such facts. Since the application of laches to a particular case depends upon the facts and circumstances of that case, careful examination of time and sequence of events which ultimately led to plaintiff’s suit will be made.

Following a harsh winter in 1976-1977, SNG began plans for an underground storage reservoir for natural gas piped in from various areas which would alleviate shortages previously experienced and insure to the consuming public a constant supply of natural gas during periods of great demand. Pursuant to this plan, SNG chose Reservoir A, Pettit Limestone Formation, of the Bear Creek Field in Bienville Parish, Louisiana, on the basis that this reservoir was substantially depleted and that it was in close proximity to SNG’s pipelines. In April of 1977, SNG authorized $6,000,000.00 in expenditures for the storage project so that options from 75% of the owners in interest could be acquired as required under LSA-R.S. 30:22. This was necessary before SNG could apply to the Department of Conservation for an order establishing an underground natural gas storage reservoir.

Plaintiff Jordan is a landowner and mineral owner of properties in the Bear Creek Field who years earlier had executed a mineral lease to SNG. After receiving notice of SNG’s application to the Commissioner of Conservation for a public hearing to establish the storage area, plaintiff had his attorney contact DeGolyer and MacNaugh-ton, SNG’s petroleum consultants, requesting information about condensate which remained in Reservoir A of the Pettit Limestone Formation.

The Commissioner of Conservation originally scheduled the public hearing for January of 1979, but at the request of plaintiff and some other landowners, the hearing was postponed until February 22, 1979. Prior to the hearing, plaintiff’s attorney was successful in obtaining some information relating to the Pettit Limestone Formation.

At the February 22, 1979 hearing, plaintiff was present and represented by counsel, but his participation was limited to questions concerning the remaining condensate and royalty payments thereon. After the hearing, the Commissioner of Conservation issued Order No. 78-F-4 on April 20, 1979, (a copy of which is appended hereto as Appendix A) which authorized the creation of the underground storage area. Plaintiff was not convinced that the field was depleted of condensate and examined the Commissioner of Conservation’s records and logs of wells in the Pettit Limestone Formation. The plaintiff, to his own satisfaction, confirmed his suspicions that the Pet-tit Limestone Formation consisted of two different strata completely void of natural porosity and permeability between the two, and that at least one of these strata continued to be capable of producing commercially recoverable hydrocarbons. Being so convinced, plaintiff had his attorney draft a letter to both the Commissioner of Conservation and SNG contending that SNG had presented fraudulent and misleading information to the Commissioner in order to obtain Order No. 78-F-4. Plaintiff suggested to the Commissioner that SNG be required to test the two separate zones by drilling a test well through the Pettit Limestone Formation in order to prove that SNG had not deceived the landowners and other owners in interest in the area. In March and April of 1979, plaintiff and his attorney had meetings with the Commissioner of Conservation and SNG concerning his claims that there were two completely separate zones and recoverable condensate and other hydrocarbons in the Pettit Limestone Formation. At an April, 1979 meeting, SNG agreed to test the well being drilled in connection with the storage project, Well No. 1-3; however, SNG concedes that this well was never tested, but claims it was not tested because on April 24, 1979, plaintiff filed a $1.5 million dollar damage suit against SNG for its alleged drainage of his acreage.

On March 5,1979, plaintiff filed a second suit against SNG and both suits were subsequently removed to Federal Court. Various attempts were made at compromise of these suits, but all were to no avail. Portions of the Federal suits were dismissed on May 30, 1980, and a final dismissal was granted May 26, 1981. SNG began exercising its options for the storage area in June 1979. Upon obtaining subleases or storage agreements from 75% of the owners in interest, the Commissioner of Conservation issued a supplement to Order No. 78-F-4 on July 3, 1979, which declared all of the provisions of the order fully effective.

In August of 1979, SNG commenced expropriation proceedings against all parties who were unwilling to voluntarily sign agreements. This included an expropriation proceeding against plaintiff which was tried in October of 1980. The record does not reflect the present status of that proceeding. In January and February of 1980, plaintiff was in constant contact with the Commissioner or one of his staff expressing his suspicions that there was recoverable oil in a lower zone of the Pettit Limestone Formation.

On February 21,1980, plaintiff and other landowners met with the Commissioner of Conservation and SNG. At this meeting, plaintiff presented his theories of two separate zones and of oil in the lower zone of the Pettit Limestone Formation. The possibility of a rehearing was discussed by the parties. From the February 21, 1980 meeting until the next meeting on May 12,1980, plaintiff or his attorney contacted the Commissioner or his staff several times concerning plaintiff’s claim of fraud. On May 12, 1980, there was a meeting between the Commissioner, plaintiff and other landowners, SNG and their attorneys. At this meeting plaintiff requested a test of the Cummings # 1 well, but SNG agreed only to drill stem test two wells being drilled as injection-withdrawal wells for the storage reservoir (Nos. 1-6 and 6-1). SNG contends that they only agreed to test these wells to accommodate the plaintiff and to try to put his and other landowners’ objections to rest. SNG contends that because of cement bond trouble on Well No. 1-6, it could not be tested. Only Well No. 6-1 was tested. The test performed on No. 6-1 revealed a bottom hole pressure of 1,388 lbs. On June 4, 1980, the Cummings No. 1 well inexplicably began flowing oil. SNG immediately shut the well off and posted 24-hr. guards on the well for approximately six months. Then, the guards were removed in November of 1980, and the well was plugged and abandoned.

On July 21, 1980, plaintiff filed the instant suit against the Commissioner of Conservation alleging that Order No. 78-F-4 was based on erroneous, false and misleading information; particularly on false, erroneous and misleading information supplied by SNG that the Pettit Limestone Formation, Reservoir A of the Bear Creek Field was a single reservoir and that the reservoir was depleted of oil capable of being produced in paying quantities. Among numerous allegations made by plaintiff, the more significant are the following: That the Pettit Limestone Formation consists of two different strata completely void of natural porosity and permeability between the two; that the lower Pettit zone was first tested by SNG on or about August 17, 1944 in the Cummings No. 1 well and that well has been produced by SNG from that zone and depth since first production without definition of proper allowable by the Commissioner of Conservation; and, that the Cummings # 1 well was capable of producing oil in paying quantities at the time this suit was filed and that the lower Pettit zone would produce oil in paying quantities in an area immediately south of the Cummings No. 1 well. The plaintiff further avers that the upper Pettit zone is productive of clear white distillate of an approximate gravity of 60 and the lower Pettit zone is productive of oil of a gravity of approximately 42, and that SNG had for many years been producing a combination of these hydrocarbons from the R.L. Jordan # 1 well (the well to the south of Cummings No. 1). Plaintiff also alleges that false Deliverability Test Reports were filed by SNG with the Commissioner of Conservation which failed to show production from dually perforated intervals until this was made known to the Commissioner by plaintiff. In essence, plaintiff contends that he has been “strung along” without being.furnished needed information which is available from defendant and intervenor, and that such information will establish misrepresentations and other fraudulent activities on the part of SNG.

In the instant case, plaintiff sought the following: (1) A mandamus against the Commissioner of Conservation ordering and directing him to perform or cause to be performed such tests on the Cummings # 1 well as the court may direct to determine its capabilities for producing oil in paying quantities; (2) An order directing the Commissioner to produce and allow inspection by plaintiff, his attorney, and his geologist, of all electric logs, porosity logs, drilling histories and work resume reports of all wells drilled in certain sections of the Pettit Limestone Formation; (3) Answers to certain interrogatories propounded to the Commissioner; (4) An order declaring null and void the Commissioner of Conservation’s Order No. 78-F-4 creating an underground gas storage area in the Pettit Limestone Formation, Reservoir A, Bear Creek Field; (5) An injunction restraining the Commissioner of Conservation from issuing any orders in furtherance of the underground storage facility of SNG in the Pettit Limestone Formation.

On July 25, 1980, SNG intervened in the proceeding, joining with the Commissioner of Conservation in resisting plaintiff’s demand.

The Commissioner of Conservation and SNG contend plaintiff was guilty of unreasonable delay in waiting 15 months following the issuance of Order No. 78-F-4 to file his law suit on July 21, 1980. It is argued that for the first nine months of this 15 month period, plaintiff failed to even contact the Commissioner regarding his objections to the order. In the remaining six months, numerous communications were had between the plaintiff, his attorneys, the Commissioner and SNG, but suit was not filed until July 21,1980. The Commissioner and SNG argue that a reasonable excuse has not been asserted by the plaintiff for the further delay in filing suit after communicating his objections to the Commissioner of Conservation beginning in January of 1980. These parties assert that it was reasonable for them to assume and to rely upon their assumption, that plaintiff was not going to contest Order No. 78-F-4, since 15 months had passed without any proceeding being filed on behalf of plaintiff.

Stated succinctly, SNG contends that plaintiff delayed filing the instant suit, that SNG spent millions of dollars on the facilities, and that by this suit, plaintiff seeks to effect a beneficial remunerative compromise of worthless and unsupported claims. It is plaintiff’s position that he has attempted to obtain his day in court through various suits, including the two suits filed in Bienville Parish, which were subsequently removed to Federal Court where they were dismissed, SNG’s expropriation suit, and finally the present action.

We have been cited no cases and are aware of none in which laches has been applied to judicial review of an order of the Commissioner of Conservation under LSA— R.S. 30:12. The concept of laches, however, has been applied to petitions seeking judicial review of orders of other administrative bodies and in other cases. See e.g. State v. Sewerage and Water Board, 179 La. 117, 153 So. 533 (1934).

In Triangle Oil Co. v. City of New Orleans, 5 So.2d 558, 561 (La.App.Orl.1942), the Court stated:

“In Corpus Juris, Vol. 21 Section 211 at page 210, is found the following:
‘Laches in a general sense is the neglect, for an unreasonable and unexplained length of time, under circumstances permitting diligence, to do what in law should have been done. More specifically, it is inexcusable delay in asserting a right; an implied waiver arising from knowledge of existing conditions and an acquiescence in them; * * *; such delay in enforcing one’s rights as works disadvantage to another.’
In constituting a defense, the doctrine of lack of vigilance is based on, and in part resides in, the injury which might be occasioned, the injustice that might result from the enforcement of long neglected rights, the difficulty and in many instances the impossibility, of ascertaining the truth of matters in controversy and doing justice between the parties, and in part on grounds of public policy, its aim being the discouragement, for the peace and repose of society, of stale and antiquated demands. It is equally well recognized, however, that the doctrine cannot be in voked to defeat justice and will be applied only where the enforcement of the right asserted would work injustice.
There is no absolute rule as to what constitutes laches or staleness of demand, and each case must rest upon its own peculiar circumstances. It must be conceded that laches is not, like fixed periods of prescription, a mere matter of time. It resolves itself, rather, into principally a question of the inequity of permitting the claim to be enforced, an inequity which takes into consideration some intermediate change in conditions.” (Emphasis by the Court).

Two elements must be proved by the defendant to establish that plaintiff was guilty of laches: (1) Unreasonable delay on the part of the plaintiff in filing suit; (2) Harm that would be suffered by the defendant or a third party resulting from defendant’s or a third party’s actions based on reasonable assumption, occasioned by the delay, that the plaintiff would not seek further legal redress. Jordan v. Sutton, supra.

In considering whether the first element of laches, namely whether unreasonable delay was established, it is necessary to determine when Order No. 78-F-4 became final. From the language of the order, it appears that it became final on April 20, 1979, to be followed by supplemental orders to carry it out. The pertinent language of Order No. 78-F-4 provides:

“1. The Pettit Limestone Formation Reservoir A, reference Definition No. 1 above, is hereby approved and adopted as an underground reservoir for the injection, storage and withdrawal of natural gas; and the total storage area, including the Pettit Limestone Formation, Reservoir A, and the necessary adjacent lands, is hereby established and designated as the Pettit Limestone Gas Storage Area,
2. Southern Natural Gas Company is hereby designated as Operator and as the party exclusively authorized to use said Pettit Limestone Gas Storage Area for the purposes herein set forth, ...” (Emphasis by the Court)

The doctrine of laches will be discussed as to each item of relief sought by plaintiff in his petition of July 21, 1980.

The primary items of relief requested in plaintiff’s petition seek to have declared null and void Order No. 78-F-4 of the Commissioner of Conservation and any supplemental orders which might thereafter issue concerning the storage facility in the Pettit Limestone Formation and seek in-junctive relief in connection therewith.

The efficiency of the operations of administrative agencies and the effectiveness of administrative decisions require prompt judicial review of administrative orders. The Commissioner of Conservation testified that a lengthy delay in the finality of his orders would cause uncertainty in the oil industry in the State of Louisiana and would in turn cause drilling in the state to come to a halt. He emphasized that such a delay would cause his office to be in chaos. In addition to this uncertainty, he further testified that there would be instability in recovery of the state’s natural resources and serious prejudice to mineral owners, lessors, lessees, and all persons in the oil industry if his orders are allowed to be challenged months after their issuance.

SNG contends that it would be prejudiced if Order No. 78-F-4 could be attacked months after its issuance. Concerning the storage facility involved in this case, during the 15 months between the issuance of the order and the subsequent suit by plaintiff, SNG and its partners entered into complicated business transactions and made large expenditures to develop the storage facility in reliance upon the validity of the Commissioner’s order. Expropriation proceedings have been filed and in some cases reduced to judgment. Rights have been acquired. Pipelines have been built and the entire facility has been constructed and is in operation. $97,859,149.00 had been expended as of the date that this suit was filed, and presently, $163,977,211.00 has been expended on construction of the facility. Numerous members of the consuming public that are in need of the natural gas in storage in times of severe weather conditions would also be prejudiced. The very nature and operation of the oil and gas industry requires that the orders of the Commissioner be challenged without delay.

In short, the two elements necessary for defendant to establish that plaintiff was guilty of laches concerning finality of the order of the Commissioner, namely unreasonable delay in filing a direct suit against the Commissioner and harm that would be suffered by defendant and SNG resulting from their actions occasioned by the delay, are clearly present, and the trial judge correctly so held.

Therefore, for the above reasons, we find that the doctrine of laches does apply to bar those items of relief of plaintiff’s suit attacking the finality of Order No. 78-F-4 and seeking to enjoin the issuance of any supplemental order in connection therewith. We agree with the holding of the trial court in this respect.

Although we have held that the order is final and unassailable as to the establishing of the underground storage facility, and its use, operation, and service, we find merit in the appellant’s argument that the other items of relief are not barred by laches. The doors of the courts of this state will not lightly be closed against a litigant’s day in court. Laches can never be invoked to defeat justice. 30A C.J.S. § 115, p. 42; Triangle Oil Co. v. City of New Orleans, supra. As stated in Shirey v. Campbell, 151 So.2d 557 (La.App. 2d Cir.1963), at page 560:

"... It is equally well recognized, however, that the doctrine cannot be invoked to defeat justice and will be applied only where the enforcement of the right asserted would work injustice.
‘There is no absolute rule as to what constitutes laches or staleness of demand, and each case must rest upon its own peculiar circumstances ...’”

Plaintiff’s seeking of an order directing that tests be performed on the Cummings # 1 well to determine its capabilities for producing hydrocarbons in paying quantities is not barred by laches. The trial court’s action in applying the doctrine of laches to this portion of the suit is in error. Contrary to assertions by the Commissioner and SNG that plaintiff was silent for nine months after the order became final, plaintiff has sought productivity information of the Cummings # 1 well since he received notice of the hearings to establish the proposed storage facility. Throughout all his suits (including the Federal Court suits) and the negotiations involved therewith, plaintiff has contended that commercially recoverable condensates and/or other hydrocarbons still exist in the Cummings # 1 well and in areas adjacent thereto for which he should receive royalty payments. All of the plaintiff’s requests to test Cummings # 1 well were refused by SNG, even requests for tests plaintiff offered to perform at his own expense. Finally, SNG agreed to test well No. 1-3, but such tests were not performed. According to the testimony of Mr. Bledsoe, employee of SNG, this test was not performed because of the damage suit filed by plaintiff against SNG. This excuse is not plausible, because a proper testing of this well with results favorable to SNG and adverse to plaintiff would most likely, at that time, have put all of plaintiff’s claims to rest. Thus, it cannot be said that plaintiff sat idly by without asserting his rights, and by so doing caused the Commissioner of Conservation and SNG to detrimentally rely on the Order. From day one, plaintiff has been attempting, without success, to obtain productivity information concerning Cummings No. 1 well. Even if unreasonable and inexcusable delay were found on the part of plaintiff in regard to this portion of this suit, we can see no prejudice whatsoever that could result to the Commissioner of Conservation. If SNG is prejudiced because the results of these tests substantiate plaintiff’s claims, the prejudice suffered will be a result of their own activities and not the result of any delay by plaintiff. Therefore, even if the first element of lach-es should be found, the second element, namely prejudice to the defendant or a third party caused by the delay, is clearly not present.

Plaintiff also contends as the next item of relief, that an order should be issued directing the Commissioner of Conservation to produce and allow plaintiff to inspect all electric logs, porosity logs, drilling histories and work resume reports of wells in the Pettit Limestone Formation compiled since February 22,1979. Plaintiff seeks this information in order to attempt to verify his theory that Pettit Limestone Formation is two separate and distinct reservoirs, rather than one interconnected reservoir, as SNG presented to the Commissioner of Conservation in the February 22, 1979 hearing. This information would also be relevant in establishing plaintiff’s theory of commercially recoverable hydrocarbons remaining in the lower zone of the Pettit Limestone Formation. From the beginning, the obtaining of pertinent information has been a main objective and the right to the information has been asserted by Jordan since the first notice of plans for a storage reservoir. At the public hearing, at the meetings between the parties thereafter, and during virtually every communication between plaintiff and the Commissioner and SNG, plaintiff has requested relevant testing information or has discussed his theories of commercially recoverable hydrocarbons and the existence of two separate zones, and has requested information which would prove (or disprove) his theories. Therefore, we cannot in the name of equity say that plaintiffs claims for testing information is barred by laches, when the circumstances of the case show that both the Commissioner of Conservation and SNG were aware, long prior to the filing of this suit, that plaintiff actively sought this information.

We do not believe that it will work an injustice to allow plaintiff to proceed with a trial on the merits on this portion of his claim. Both the Commissioner of Conservation and SNG have been aware from the outset of plaintiff’s desire to be supplied with the requested information in order to prove the existence of the claims. The Commissioner of Conservation and SNG, for reasons best known to themselves, have consistently refused to obtain and supply this information.

As stated in Shirey v. Campbell, supra, at page 562:

“It was further observed that a party setting up an estoppel must have acted in reliance upon the conduct or representations of the parties sought to be estopped, and that, as a general rule, it was essential that he should not only have been destitute of knowledge of the real facts as to the subject matter of the controversy, but should have also been without convenient or ready means of acquiring such knowledge. See also, Harvey v. Richard, supra, and the authority therein cited.”

Neither the Commissioner of Conservation nor SNG can seriously contend that they were without knowledge of the subject matter of this portion of the litigation. Both had the information or had convenient or ready means of acquiring such information. The Commissioner testified as follows:

“Q. Mr. Sutton, are the same witnesses available to you now that would have been available had Mr. Jordan filed his suit ten days after 78F4?
A. I can’t think of one that would be different.
Q. All right. And would the same evidence that you could gather today be available to you as would have been available had Mr. Jordan filed his suit ten days after your order was issued?
A. The information we have now I don’t think is any different at that time.”

From the above, it is clear that the doctrine of laches is not applicable to this portion of plaintiff’s suit, and the trial court clearly erred in holding it applicable.

Another portion of plaintiff’s suit to which the trial court applied the doctrine of laches was the order that the Commissioner be required to answer interrogatories. For the reasons set forth in the prior discussion, this request cannot be barred by laches since these interrogatories request the same type of information the plaintiff had been requesting from the outset. The Commissioner cannot be prejudiced by having to now answer interrogatories concerning information which plaintiff has been requesting since January of 1979. Additionally, it would appear that most of the information requested in these interrogatories only involves a study of the present records and tests in the possession of the Commissioner. We are not called upon in this proceeding to decide the relevancy or appropriateness of particular interrogatories and are only holding that the doctrine of laches as applied to this portion of plaintiff’s suit by the trial court is clearly erroneous.

Therefore, for the above reasons, the decision of the trial court is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this opinion. All costs shall await final determination of the matter.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

APPENDIX A

OFFICE OF CONSERVATION, STATE OF LA. TO SOUTHERN NATURAL GAS CO.

Order concerning creation of an underground gas storage area and for regulations covering ¿he injection, storage and withdrawal of natural gas in and from the same, all relating to the Pettit Limestone Formation, Reservoir A, in the BEAR CREEK FIELD, Bienville Parish, Louisiana.

Pursuant to power delegated under the laws of the State of Louisiana, and particularly Title 30 of Louisiana Revised Statutes of 1950, and after a public hearing originally scheduled for January 18, 1979, and then continued to and held under Docket No. 79-36 in Shreveport, Louisiana, on February 22,1979, upon the application of Southern Natural Gas Company, following legal publication of notice and notice to all known interested parties by posting and publishing in accordance with rules prescribed by the Commissioner of Conservation, the following order is issued and promulgated by the Commissioner of Conservation as being reasonably necessary to conserve the natural resources of the State, to prevent waste as defined by law, to avoid the drilling of unnecessary wells, and otherwise to carry out the provisions of the laws of this State.

DEFINITIONS

(1) The Pettit Limestone Formation, Reservoir A, in the Bear Creek Field, is hereby defined as being that certain geological stratum or formation occurring in the Bear Creek Field, Bienville Parish, Louisiana, and encountered between a depth of 6,968 feet and a depth of 7,080 feet as shown on the electric log on the Southern Natural Gas Company Hodge-Hunt Well No. D-l located in Section 7, Township 16 North, Range 5 West, Bienville Parish, Louisiana.

(2) The Pettit Limestone Gas Storage Area is hereby defined as comprising all of the Pettit Limestone Formation, Reservoir A, reference Definition No. 1 above, together with such adjacent lands as are necessary to be included in the storage area for the protection of the storage reservoir, all as shown on the plat labeled “Southern Natural Gas Company Exhibit No. 7 for Docket No. 79-36”, attached hereto.

FINDINGS

The Commissioner of Conservation finds as follows:

1. That the Pettit Limestone Formation, Reservoir A, in the Bear Creek Field, is a closed reservoir productive of only gas and condensate, and that it is effectively separated from any other reservoir.

2. That the Pettit Limestone Formation, Reservoir A, in the Bear Creek Field, is suitable for the injection, storage and withdrawal of natural gas.

3. That the use of the Pettit Limestone Formation, Reservoir A, in the Bear Creek Field, for the injection, storage and withdrawal of natural gas is reasonably necessary to promote conservation of natural gas, to prevent waste, to insure more uniform withdrawal of natural gas from various gas fields, and to make natural gas more readily available to the consumer, all of which are in the public interest and have a public purpose.

That a reasonable interpretation of the geological and engineering data indicates that the Pettit Limestone Gas Storage Area outlined on the plat labeled “Southern Natural Gas Company Exhibit No. 7 for Docket No. 79-36”, attached hereto, comprises the entirety of the Pettit Limestone Formation, Reservoir A, and such adjacent land as is reasonably necessary to encompass and protect the gas storage reservoir.

5. That a reasonable interpretation of the same geological and engineering data establishes that the Pettit Limestone Formation, Reservoir A, in the Bear Creek Field, is not fully depleted, but that said reservoir, as of November 1, 1978, had a remaining commercially recoverable reserve of only 1,744.6 MMCF of natural gas, and 13,089 barrels of condensate at 60° Fahrenheit and 15.025 psia; said remaining recoverable reserves being divided among the producing units as follows:

6. That while it has been determined, based on all of the available evidence, that the commercially recoverable condensate is as shown in Finding No. 5 above, it is recognized that as a result of the storage operation additional condensate (more than the 13,089 barrels) may be obtained. If this occurs, a portion of the total of such additional condensate (said portion being based on the lease royalty interest applicable as of the effective date of this order) should be allocated to each tract within the productive limits of the Pettit Limestone Formation, Reservoir A, as shown on “Southern Natural Gas Company Exhibit No. 7 for Docket No. 79-36”, on a surface-acre basis, and the proceeds from the sale of such portion of additional condensate should be paid to the owners of said tract, their successors or assigns.

7. That the Pettit Limestone Formation, Reservoir A, in the Bear Creek Field, has greater value or utility for the storage of natural gas than for the production of the remaining volumes of original natural gas and condensate, and that more than three-fourths of the owners in interest, exclusive of any lessor as defined in R.S. 41:1261 of the Louisiana Revised Statutes of 1950, have consented in writing to the use of said reservoir for the underground storage of natural gas by the execution of options to acquire storage agreements or subleases covering the Pettit Limestone Formation, Reservoir A.

8. That the use of the Pettit Limestone Formation, Reservoir A, in the Bear Creek Field, for the storage of natural gas will not contaminate other formations containing fresh water, oil, gas or other commercial mineral deposits.

9. That the methods proposed by the applicant for remedial work on existing wells that have penetrated the Pettit Reservoir, and for the drilling of new wells to the Pettit Limestone Formation, Reservoir A, in connection with the injection, storage and withdrawal of natural gas and water disposal associated with the operation of the gas storage reservoir are reasonable and adequate, and these operations and the proposed storage should not endanger lives or property. |

10. That reasonable regulations should be established for drilling into and through the Pettit Limestone Formation, Reservoir A.

ORDER

NOW, THEREFORE, IT IS ORDERED THAT:

1. The Pettit Limestone Formation, Reservoir A, reference Definition No. 1 above, is hereby approved and adopted as an underground reservoir for the injection, storage and withdrawal of natural gas; and the total storage area, including the Pettit Limestone Formation, Reservoir A, and the necessary adjacent lands, is hereby established and designated as the Pettit Limestone Gas Storage Area, as shown on the plat labeled “Southern Natural Gas Company Exhibit No. 7 for Docket No. 79-36”, attached hereto and made a part hereof.

2. Southern Natural Gas Company is hereby designated as Operator and as the party exclusively authorized to use said Pettit Limestone Gas Storage Area for the purposes herein set forth, with such exclusive right also being vested in the successors and assigns of said corporation.

3. All natural gas which previously had been reduced to possession and which subsequently is injected into such storage area shall at all times be deemed the property of applicant, its successors and assigns; and in no event shall such gas be subject to the right of the owner of the surface of the lands or of any mineral, mineral royalty or mineral leasehold interest therein under which such underground storage reservoir lies or is adjacent to, or of any person other than applicant, its successors and assigns, to produce, take, reduce to possession, waste or otherwise interfere with or exercise any control thereover.

4. The applicant is hereby authorized' to rework such wells and to drill such additional wells as may be necessary in connection with the operation of the storage project, all without further orders of the Commissioner; but this order is issued subject to the right of the Commissioner to issue such further orders, rules and regulations or to call hearings for the issuance of such orders, rules and regulations as may be necessary for the purpose of protecting the storage area herein established and authorized against pollution, drainage or the escape of natural gas therefrom, including such necessary rules and regulations as may pertain to the drilling into or through the storage area.

5. The casing program for wells drilled into the storage area shall be in accordance with the provisions of Statewide Order No. 29-B effective August 1, 1943, and any amendments and revisions thereof, except that Subparagraph 1 of Paragraph E of Section V shall not apply.

6. Within the gas storage area, for any well drilled (1) to the Cotton Valley Formation or to objectives where the abnormally high pore pressures are encountered and recognized in the Bear Creek Field, an intermediate casing string shall be set through the Pettit to a depth that will provide protection from the abnormally high pore pressures or (2) for wells drilled through the Pettit Limestone Formation but not penetrating said high pressure zone, appropriate cementing procedures shall be used for all such wells so that cement shall be placed in the annular space behind the production or intermediate casing, as the case may be, to cover the Pettit Formation to a point 200 feet above and below such formation. The cement bond through the Pettit Limestone Formation shall be evaluated by running a cement bond log survey. If the log survey does not indicate an effective seal, a remedial block squeeze shall be made and evaluated by another cement bond log survey, and this procedure shall be continued until an effective seal has been accomplished. For wells not penetrating said high pressure zone and in the event casing is not run through the Pettit Formation, appropriate procedures shall be used so as to place a cement plug across the Pettit Formation and such plug shall extend 200 feet below and 200 feet above the Pettit Formation. The storage field Operator shall be notified in sufficient time to witness any such cementing procedure and running of cement bond logs and shall be furnished copies of casing and cementing records.

7. The Operator of the gas storage area herein established shall comply with the provisions of Finding No. 6 above.

8. On or before March 1, 1980, the applicant shall file with the Commissioner of Conservation evidence that it has exercised its options to acquire subleases or storage agreements from at least three-fourths of the owners in interest; and upon the furnishing of such evidence, a supplemental order shall be issued, without the necessity of a formal hearing, recognizing that such options have been exercised, and that this order is fully effective.

9. The drilling units created for the Pettit Limestone Formation by the 78-F Series of Office of Conservation Orders shall continue in force and effect until such time as the applicant shall furnish the Commissioner of Conservation evidence that operation of the storage project has commenced, and thereupon, a supplemental order shall be issued, without a formal hearing, declaring that the 78-F Series of Orders and the units created thereby for the Pettit Limestone Formation are null and void and of no further force and effect.

This Order shall be effective on and after February 22. 1979.

OFFICE OF CONSERVATION OF THE STATE OF LOUISIANA

/s/ R.T. Sutton

R.T. SUTTON

COMMISSIONER OF CONSERVATION

Southern Natural Gas Company Exhibit No. 7 for Docket No. 79-36 attached.

      . Shirey v. Campbell, 151 So.2d 557 (La.App. 2d Cir.1963).

      . See Southern Natural Gas Co. v. Poland, 406 So.2d 657 (La.App. 2d Cir.1981). SNG’s expropriation proceeding against Charlie W. Jordan was included in these ten consolidated cases. In this proceeding, our brethren of the 2nd Circuit stated, at page 665:
      “We reiterate that for expropriation of an underground reservoir for natural gas storage, the statute requires only that the petitioner show express approval of the Commissioner, good faith negotiation, and the public and necessary purpose of the expropriation. Whether or not the reservoir is capable of producing oil and in paying quantities, whether or not three-fourths of the owners in interest have agreed to the reservoir being used for the storage of natural gas, whether or not the reservoir is suitable and feasible for the storage of natural gas, and all other determinations set forth in LRS 30:22B which are required to be made by the Commissioner, are matters to be contested before the Commissioner or in an action against the Commissioner, and are not before the court in an expropriation action. The proffered evidence could be weighed and construed by the Commissioner or by a court having jurisdiction to negate a Commissioner’s order, as grounds to modify or reverse the Commissioner’s approval of the use of the reservoir for the storage of natural gas. But neither the lower court nor this court has authority to modify or reverse the Commissioner’s order approving this reservoir for the storage of natural gas on any evidence, including that of fraud, as is alleged by defendants* Assignment 12 presents no error. (Footnote omitted)”
      See Also Footnote 2 in the above cited case, at page 661, which states as follows:
      “Defendant in our docket no. 14,671, Charlie W. Jordan, has questioned the validity of the Commissioner’s Order in an action against the Commissioner in East Baton Rouge Parish. That action is yet pending. See Jordan v. Sutton, 401 So.2d 389 (La.App. 1st Cir.1981). Jordan is represented in that action by the same counsel in this appeal and some of the issues raised are raised here.”
      The record is not clear as to whether this judgment is final. See Shepards, 406 So.2d 657—US Appeal Pending.

      . After a settlement negotiation meeting between plaintiff and SNG on January 24, 1980, which proved to be unsuccessful, plaintiff began to make numerous telephone calls to the Commissioner of Conservation expressing his concerns about the storage order. On January 31, 1980, February 13, 1980, February 15, 1980, and February 20, 1980, plaintiff placed telephone calls to the Office of the Commissioner of Conservation. Plaintiff was successful in reaching the Commissioner on the first two days, and discussed with him his suspicions that there are two separate zones in the Pettit Formation and commercially recoverable hydrocarbons in the lower of these two zones. Plaintiff also informed the Commissioner of his belief that SNG had supplied fraudulent and misleading information to the Commissioner at the February 22, 1979 hearing in order to obtain the storage order. The plaintiff was not able to speak to either the Commissioner or one of his staff in the last two telephone calls.

      . Between the February 21, 1980 meeting and the May 12, 1980 meeting, plaintiff or his attorney communicated with the Commissioner or his office on a weekly basis. The plaintiff called and spoke to the Commissioner or one of his staff members on February 25, 1980, March 18, 1980, and April 30, 1980. Testimony revealed that the main topic of these conversations was plaintiffs allegations of fraud against SNG in obtaining the order. Letters were also written on behalf of plaintiffs cause by plaintiffs attorney on March 27, 1980 and April 9, 1980.

      . See Footnote 2.

      . See Appendix A appended hereto.

      . See Footnote 2.

      . Harvey v. Richard, 200 La. 97, 7 So.2d 674 (1942).

      . Anticipating contentions that this decision establishing the finality of the order of the Commissioner makes moot the remaining portions of plaintiff’s suit, this court feels compelled to set forth the following: This is not a decision on the merits of any claim by plaintiff or defendant or intervenor. The finality of the Order of the Commissioner is herein established and intervenor will not have its facility destroyed and demolished to the prejudice of the Commissioner, the intervenor, or the hundreds of persons needing supplies of natural gas. The oil industry will not be put in chaos — orderly development of the state’s natural resources can continue unabated and without adverse effect. After a trial on the merits, the Commissioner can be required to furnish, or can require SNG to furnish, necessary information to the plaintiff for the plaintiff to establish whether the now final order was properly issued based on proper evidence or was issued on false information and through fraudulent actions of SNG.


author: WATKINS, Judge.

text:
    Edward WILLIAMS v. UNITED STATES P. & I. AGENCY, INC., et als.
    No. 82 CA 0165.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

      Michael P. Pellegrin, Houma, for plaintiff and appellee.
    James W. Hailey, Jr. and John J. McGuc-kin, Jr., Metairie, for defendants and appellants.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an action for personal injuries sustained by Edward C. Williams, plaintiff, in a collision which occurred on Louisiana Highway No. 1,38 feet south of its intersection with Louisiana No. 943 on December 6, 1977. The collision involved a pickup truck driven by Williams and a farm tractor driven by James Grey. Defendants in the suit are Grey, Peytavin Farms, Grey’s employer, and American Mutual Insurance Companies, liability insurer of Peytavin Farms and Grey. The trial court rendered judgment for Williams in the sum of $220,000.00. We affirm.

Williams was proceeding in a northerly direction behind a farm tractor pulling a wagon loaded with sugar cane on Louisiana Highway No. 1 north of Donaldsonville. The roadway was a two-lane 24 foot wide highway with one lane for traffic going north and one lane for traffic going south. Several other cars proceeding north had passed the tractor and wagon without incident. Finally, Williams, who had followed the tractor for several miles, observed that the southbound lane was free of traffic, and pulled out to pass the tractor. The road was straight for a considerable distance to the north, and the roadway was dry. The weather was clear. The time was approximately 10:15 a.m. The testimony is in conflict as to whether or not a yellow no-passing line was visible in the northbound lane. Also, there is conflicting testimony as to whether or not highway junction signs were posted indicating an intersection with Louisiana Highway No. 943, which intersected with Highway No. 1 to the left, and Louisiana Highway No. 405, which intersected Highway No. 1 to the right. In any event, although Williams was ignorant of this fact, these two highways intersected Highway No. 1 a short distance north of the point at which Williams attempted to pass the tractor and wagon. The tractor attempted to turn to the left to enter Highway No. 943, which led to the Evan Hall Sugar Factory, and collided with the pickup truck driven by Williams, which was parallel to and alongside of the tractor, so that the left front wheel of the tractor struck the cab of the pickup truck behind the right door of the pickup truck. Williams was thrown around the cab of the truck, and sustained a ruptured disc, which necessitated several medical procedures and left him partially disabled. The trial court held for the plaintiff, stating in written reasons that Grey was negligent, and Williams was free from negligence. On appeal, defendants contend that Williams was solely at fault. No issue is raised as to quantum in the event that defendants’ liability is affirmed by this court.

Defendants contend that the intersection was marked with highway junction signs, and that there was a solid yellow line in the northbound lane at the point Williams pulled out to pass. Plaintiff’s witnesses testified that the yellow line was obscured by caked mud and debris in the form of crushed cane stalks. The testimony as to whether there were highway junction signs and, assuming there were, where they were placed, we find is inconclusive and highly contradictory. We thus are unable to determine whether as a matter of fact and law Williams was negligent in pulling out to pass, because of the lack of consistency and definiteness in the testimony. The determination of the trial court should not be set aside unless the trial court’s determination was clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We cannot say that the trial court was clearly wrong in its determination that Williams was free from contributory negligence, as the uncertain nature of the testimony concerning the question of whether or not the yellow line was obscured and the equally uncertain nature of the testimony concerning the presence and location of signs marking the intersection tend to support a finding that Williams was free from contributory negligence. The burden of proof is on the defendant to prove contributory negligence by a preponderance of the evidence. Parker v. Travelers Ins. Co., 400 So.2d 682 (La.App. 4th Cir.1981), writ denied 406 So.2d 590 (La.1981). Given the facts, it is clear that defendants failed to sustain the burden of proof, and that the trial court was not clearly wrong in arriving at its conclusion that Williams was not guilty of contributory negligence.

Furthermore, even if we assume for purposes of discussion that Williams was guilty of contributory negligence, clearly Grey had the last clear chance to avoid the accident. Grey was negligent in not having been aware that he was being passed before beginning to make a left turn, and should have observed the vehicle driven by Williams while Williams was in the act of passing. By attempting to turn left when he should have observed the pickup truck in the act of passing the tractor, Grey was not only negligent, but failed to avail himself of the last clear chance to avoid the accident.

The testimony of Ricky Williams and Eddie Arnold, passengers in the truck driven by Edward Williams, Ricky Williams’ brother, establishes that the cane wagon projected beyond the edge of the tractor so that they were unable to see the tractor driver, who was Grey, until they were past the wagon. The testimony of Grey also indicates that he was unable to see to the rear or rearward to the side because of the width and height of the wagon. In any event, Williams’ testimony suggests he may have looked to the side once, and seen nothing, before beginning the turn. The tractor had no rear-view mirrors. When Williams pulled out to pass, it appears that the tractor’s direction signals were not blinking. Furthermore, if Ricky Williams and Eddie Arnold were able to see Grey mounted on the tractor, Grey was able to see the passing truck. Grey was negligent, and had the last clear chance to avoid the accident. His failure to maintain an attentive view of the passing lane was a breach of his legal duty to vehicles possibly overtaking and passing him, and renders defendants liable.

It is the duty of the driver of a vehicle making a left turn to maintain observation to the rear up to the time he starts to turn. One must look immediately before turning. Washington Fire & Marine Ins. Co. v. Firemen’s Ins. Co., 232 La. 379, 94 So.2d 295 (1957); Evans v. Thorpe, 175 So.2d 418 (La.App. 2d Cir.1965); Bamburg v. Nelson, 313 So.2d 872, 874 (La.App. 2d Cir.1975), writ refused 318 So.2d 57 (La.1975). It was Grey’s duty to have maintained constant vigilance to determine whether or not he was being passed before attempting to make a left turn. As the passengers in the truck saw Grey, Grey was clearly negligent in having failed to observe that he was being passed, and failed to utilize the last clear chance that existed to avoid any accident.

Defendants cite two cases that they contend preclude a finding of negligence on the part of Grey. These cases are Johnson v. Wilson, 239 La. 390, 118 So.2d 450 (1960), and Maurer v. Caballero, 339 So.2d 1313 (La.App. 1st Cir.1976), writ refused 342 So.2d 675 (La.1977). Johnson found negligence on the part of a plaintiff motorist in passing a left turning motorist, defendant in the action, because plaintiff was driving in excess of the speed limit and inattentive. However, the case held defendant also negligent in attempting to turn left after he had in fact observed plaintiff’s car attempting to pass him. Thus, Johnson is inappo-site as Williams in the present case was neither driving in excess of the speed limit nor inattentive. In Maurer a left turning tractor driven by one of the defendants struck a passing automobile operated by plaintiff. The court held plaintiff negligent for passing when a yellow line was clearly visible. The yellow line in the present case was not shown by defendants to have been clearly visible. Furthermore, in Maurer there was no mention of the doctrine of last clear chance. Thus, neither case is similar to the present case.

The matter of quantum is not at issue, as we have stated. The award was amply supported by the evidence. Williams was forced to undergo several spinal procedures including a fusion of vertabrae, and has only a 60% range of motion in his back.

The judgment of the trial court is affirmed, at appellants’ cost.

AFFIRMED.