text:
    Deanna Lewis SKLAR v. Charles B. SKLAR.
    No. 13497.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Alan S. Fishbein, Baton Rouge, for plaintiff-appellant, Deanna Lewis Sklar.
    Cordell H. Haymon, Baton Rouge, for defendant-appellee, Charles B. Sklar.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

The marriage of the parties to this action was beset with strife for a number of years, culminating with the husband’s departure from the matrimonial domicile on April 17, 1977. During the following seven months, the parties made numerous efforts to resolve their differences, attending social gatherings together, taking a trip together, and engaging in sexual intercourse on a number of occasions. These efforts at reconciliation ceased in November 1977. Thereafter, the husband filed suit for separation based upon cruel treatment, and, in a separate suit, the wife sought the same relief on the grounds of cruel treatment and abandonment. After a lengthy trial, the judge dismissed the husband’s suit and awarded the wife a legal separation. However, the court also concluded that the wife was guilty of fault, a determination which would bar her right to permanent alimony under La.Civ.Code art. 160. The only issue on appeal is whether the judge erred in finding the wife was guilty of such fault.

There is strong evidence in the record that the wife was guilty of fault between November 1977, when the parties ceased all attempts at reconciliation, and June 1979, when this matter was tried in district court. She began seeing another man, who became a frequent visitor at her home, doing yard work and engaging in other activities with her that made their relationship visible to friends and neighbors. They went on a camping trip together with her child and others, and shared a tent, although the evidence indicates the child also slept in the same tent. They went on bicycle tours together, and he took Mrs. Sklar and Gloria, the Sklars’ daughter, to concerts at which both Mr. and Mrs. Sklar were playing. While there was no proof of adultery, these activities certainly constitute such cruel treatment as to render insupportable the parties’ living together. La.Civ.Code art. 138. The record also is replete with evidence of fault chargeable to the wife prior to November 1977, the time at which all efforts at reconciliation apparently ended. Appellant wife argues that this fault can not be used to bar her claim to alimony, because the parties reconciled thereafter. We find this argument without merit. Since there was sufficient evidence of the wife’s fault subsequent to November 1977, evidence of her fault prior to that date is corroborative. See, e. g., La.Civ. Code art 153. Even if the wife’s acts after November 21, 1977-the date on which all efforts at reconciliation ceased-were not sufficient to constitute alimony-barring fault, the court is not convinced that a reconciliation took place between April 17, 1977, the date on which Sklar left the matrimonial domicile, and November 21, 1977, the date on which all efforts at reconciliation ceased.

A reconciliation takes place when there is forgiveness on the part of the injured spouse and an acceptance by the offender, together with a restoration and renewal of the marital relationship. Whether these factors have occurred must be determined by all of the circumstances of the given case. Martin v. Martin, 151 La. 530, 92 So. 46 (La.1922). See, also Garrett v. Garrett, 324 So.2d 494 (La.App. 2d Cir. 1976), and the cases cited therein.

During the period in question, the husband lived with one child in an apartment, and the wife remained at the family home with the other child. He made frequent visits and stayed overnight on several occasions, but there apparently never was a commitment by both parties, at the same time, to live together again in an effort to make their marriage work. Their reunions often were accompanied by sex but seldom, if ever, by a discussion of their marital problems and the ways in which such problems might be resolved. The picture is one of a couple which loved each other and were not happy living apart, but which also could not live happily together and knew that they could not. The law should not discourage efforts at reconciliation by confusing such efforts with real reconciliation.

We have not overlooked the fact that the husband’s suit for separation on the grounds of cruel treatment was dismissed by the trial judge on a finding that a reconciliation had taken place. That judgment has no effect upon the holding in this case. The husband failed to appeal, and that suit is not before us; thus we are not faced with inconsistent holdings in consolidated suits in the same court, as was present in Thornton v. Moran, 341 So.2d 1136 (La.App. 1st Cir. 1976), writ granted and judgment reversed, La., 343 So.2d 1065, 1066; on remand La.App., 348 So.2d 79. The judgment in the husband’s suit is final, but it does not preclude a finding by this court in this suit that a reconciliation did not take place. Res judicata does not apply, because the “causes”-a suit for separation of the ground of abandonment and a claim for alimony in a different suit for separation of the ground of cruel treatment-are not the same. La.Civ.Code art. 2286. Collateral estoppel does not apply in Louisiana, Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978), and the doctrine of Fulmer v. Fulmer, 301 So.2d 622 (La.1974) is inapplicable in this case.

We conclude the trial judge was not plainly wrong when he determined the wife was guilty of fault which precludes her from recovering alimony under La.Civ.Code art. 160. Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by appellant.

AFFIRMED.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harold L. LEWIS v. BATON ROUGE OIL & CHEMICAL WORKERS UNION et al.
    No. 13506.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Johnnie A. Jones, Baton Rouge, for plaintiff s-appellants, Harold L. Lewis, James C. Mathews, Elmo W. Morgan, Ronald J. Matthews and Johnnie A. Jones.
    James D. Thomas, II, Baton Rouge, for defendants-appellees, Baton Rouge Oil and Chemical Workers Union, James R. McDowell, J. B. McLaughlin, Jr., Thompson A. Cannon, Michael L. Barras and J. J. Polito.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   PER CURIAM.

This is a suit by five persons who allege a publication issued by the Baton Rouge Oil and Chemical Worker’s Union defamed them. We have carefully read the record, and find the written reasons of the trial judge, a copy of which is attached, correctly dispose of the factual and legal issues presented by this case.

For the reasons expressed by the trial judge, which we adopt as our own, the judgment appealed is affirmed, at the cost of appellants.

AFFIRMED.

WRITTEN REASONS FOR JUDGMENT

On January 13, 1978, the news publication of the Baton Rouge Oil and Chemical Workers Union (Union) carried two stories concerning the progress of litigation filed by certain persons against the Union. The first article was entitled “Federal Suit Against Union and Company Dismissed” and read as follows:

“Many of the fellows who get fired by the companies run to some shyster lawyer who files a law suit against the Union and Exxon. From the lawyer’s office, they rush to E.E.O.C. and file charges of some type of descrimination [sic] and ask for huge sums of money.
“To salve their conscience or line their pockets.
“We take great pride in our accomplishments over the years for all our members. We work hard to make sure we treat every member the same. This position has paid off for the Union. Every law suit tried so far has been decided in our favor.
“In the latest court action, Ronald Matthews, fired by the Company, filed suit against the Union and. the Company. The case was dismissed by the Court.”

The second article bore the caption “A Big Case on the Stove ” and it read:

“We are charged by former Union member Harold Lewis, who was fired, and two others still working of discriminating in the matter of jobs. The case was supposed to be heard Jan. 13, 1978, but action was postponed until Jan. 14, 1978.
“We feel the Union should not have been included in the suit, but then Harold and his lawyer will take money from any source if they can get it, and the Union’s money spends as well as the Company’s.
“However, we know we are not guilty, and Harold and his lawyer are going to be in for a tussle before they get our money.
“Harold and his friends get a free lawyer. We have to pay ours. Sorta hard to take, but we have no choice.”

In due course, suit was filed by the plaintiffs in this action alleging that the articles had libeled them and seeking $8V2 million dollars as damages. Defendants McLaughlin, Cannon, Barras, and Polito were dismissed from the lawsuit by stipulation, leaving as defendants the Union and James R. McDowell.

The basic facts are not seriously in dispute. The articles in question were contained in the defendant Union’s “Newsletter” of January 13,1978. Defendant McDowell is the president of the Union and editor of the “Newsletter.” The publication is available to Exxon’s some 2,600 Union employees at the Baton Rouge refinery. It is also mailed to the Company’s annuitants and is available on a fairly limited basis to others such as selected public officials. It is possible and the Court finds that some of the copies undoubtedly fell into the hands of members of the general public.

Ronald Matthews was the only person referred to by name in the first article. He had in fact been dismissed by the Union, he had filed a suit, and the suit had been dismissed. Plaintiff Johnnie A. Jones had been his lawyer in the proceedings. He had not in fact gone to the E.E.O.C. Matthews offered no evidence whatsoever as to the effects of the article on him other than to say that he observed a standoffish attitude on the part of some people with whom he had had contact.

Harold Lewis, who was mentioned by name in the second article, testified, as did the two others involved in the suit which was the subject of the second article but who had not been mentioned by name— James C. Mathews and Elmo W. Morgan. The latter two are also plaintiffs in this action. They are still working and in fact have been promoted. Several other parties testified on behalf of plaintiffs, mostly persons who had also appeared as witnesses in the federal proceeding, and their testimony was basically that they felt the articles were libelous.

The evidence also showed that Johnnie A. Jones had since July 29, 1974, been counsel of record for the plaintiffs, Harold L. Lewis, James C. Mathews and Elmo W. Morgan, in Civil Action No. 74,212, entitled “Harold L. Lewis, et al. v. Exxon Corporation, et al.” and since May 27, 1977, had been counsel of record for the plaintiff Ronald J. Matthews, in Civil Action No. 77,184, entitled “Ronald J. Matthews v. Exxon Corporation, et al.” both on the docket of the United States District Court for the Middle District of Louisiana.

None of the evidence or testimony directed itself to any specific damages suffered by any of the plaintiffs, and only the very slightest of testimony related to the effect of the article upon their standing with their fellow employees. In fact, it is not clear whether the possibly adverse attitude of their fellow employees was the result of their filing of the suits involved or was in anywise attributable to the two articles. There is no evidence that Messrs. Jones, Morgan, Lewis, Mathews, or Ronald Matthews were well known in the group to which the publication was directed and there was no testimony by any of the plaintiffs that they had any general reputation in the group to which the communication was addressed. Similarly, there was no proof offered at the trial of any reputation or professional competency enjoyed by Mr. Jones. He personally testified that he had been suspended from the practice of law by the Louisiana Supreme Court for unprofessional conduct in mishandling moneys belonging to his clients, but testified that he either had applied or would apply for a writ to the United States Supreme Court and that the Louisiana Supreme Court had stayed his suspension pending that application.

Mr. McDowell testified that he had no particular lawyer in mind when he wrote the first article and although he had been a fairly active participant in the litigation involved, that he did not know at the time of the article that Mr. Jones was the attorney for Ronald Matthews. Although the Court was impressed by the candor and forthrightness of Mr. McDowell in his testimony as a whole, it finds that Mr. McDowell knew or should have known that Mr. Matthews was represented by Mr. Jones.

The law of libel in Louisiana is fairly well settled. “Defamation is a statement which exposes a person to contempt, hatred, ridicule or obloquy.” McGowen v. Prentice, (La.App. 3rd Cir., 1977) 341 So.2d 55. The elements of defamation are: (1) Defamatory words; (2) Communication to a person other than the person claiming the defamation; (3) Falsity; (4) Malice, actual or implied; and (5) Resulting injury. Lees v. Smith, (La.App. 3rd Cir., 1978) 363 So.2d 974. A qualified privilege is granted for a publication made in good faith, on a subject matter in which the communicator has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty. Toomer v. Breaux, (La.App. 3rd Cir., 1962) 146 So.2d 723. All of this is in addition to the law established by the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, relative to the first amendment guaranteeing freedom of speech and its application to false statements about public officials.

The principal questions in this lawsuit are: (1) Was the publication defamatory?; (2)Was the publication privileged?; (3) Was the publication directed with sufficient certainty to all or any of the plaintiffs?; (4) What injury was suffered by the plaintiffs?

Without going into the details of the testimony adduced at the trial, the Court finds that a fair reading of the second article does not show it to be defamatory. Although fairly rough, it is not libelous per se and would appear to fall within the realm of fair comment. Certainly, there is no significant misstatement of fact contained in it and although the plaintiffs in the action who were involved in the “Big Case on the Stove” contended that the fair implication of the phrase “will take money from any source” was that they would rob, cheat or steal, the Court finds that read in the context of the entire article the phrase obviously referred to anyone from whom they might recover in a lawsuit — in this instance the Company or the Union. The Court therefore finds that no one was libeled by the article entitled “A Big Case on the Stove.” For that reason it does not have to direct its attention to the question of privilege, publication, identification or injury.

With regard to the first article, the two parties who could have been libeled if the article were indeed libelous would have been Mr. Matthews and Mr. Jones. As counsel for defendants points out, the first three paragraphs (the second of which is actually an elliptical sentence) are comments by the editor of a general nature. The last paragraph is factual. Even if the article be taken as a whole and the worst implications read into it, the Court finds nothing which would tend to expose Mr. Matthews to contempt, hatred, ridicule or obloquy, or which would tend to cause him to be avoided or deprived of public confidence, or to cause him injury in his occupation or to otherwise injure his reputation. Madison v. Bolton, (La.1958) 234 La. 997, 102 So.2d 433. Certainly, plaintiff Ronald Matthews failed to prove by a preponder-anee of the evidence that any of these things resulted from the article.

With reference to plaintiff Mr. Johnnie Jones, had there been an identification of him as a shyster lawyer in the article as there had been an identification of the specific lawyer involved in Madison, supra, or Kennedy v. Item Co., Inc., (La.1948) 213 La. 347, 34 So.2d 886, or Greenberg v. DeSalvo, (La.App. 4th Cir., 1968), 216 So.2d 638, the article would have been libelous per se under the doctrine enunciated by these three cases. However, he was not so mentioned by name in the article. Our courts have early recognized the principle that “the defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff.” Hyatt v. Lindner, (1913) 63 So. 241. It is true that in the case of Nailhaus v. Louisiana Weekly Publishing Co., Inc., (La.1932) 176 La. 240, 145 So. 527, cited by the plaintiff, the Court allowed recovery even though the plaintiff was not mentioned by name. However, that case is clearly distinguishable from the case at bar since the Court found the principal injury to have been done to the business and that the name of the owner thereof was well known, saying:

“It is argued for the appellant that the plaintiff could not have suffered any injury to his name or reputation, because his name was not mentioned in either of the publications. It is well known in the neighborhood, however, that the plaintiff, Carl Naihaus, was the proprietor of the New Orleans Clothing Store, the advertising matter or business cards of which establishment bore his name as proprietor. That is a matter of little or no importance, because the principal injury done by the publications complained of was done to the business, of which the plaintiff was the proprietor.”

In any event, there was no credible testimony at the trial establishing that it was well known that Mr. Jones was the lawyer for Ronald Matthews. Considering the fact that Mr. Jones was not named as the attorney for Mr. Matthews, was not referred to in the paragraph containing the references to “shyster lawyer,” the general nature of the comments contained in that paragraph, and the lack of evidence concerning either general or special damages suffered by Mr. Jones, it is the conclusion of the Court that Mr. Jones was not libeled by the article.

In summary, the Court finds that the second article in question was not defamatory. With reference to the first article, it concludes that it was not defamatory with reference to Mr. Jones or Mr. Matthews, and that if it were, although published (as well as the second article), there was no significant falsity, no malice, actual or implied (other than as is implicit in the use of the word “shyster”), no identification of an ascertained or ascertainable person insofar as Mr. Jones is concerned, and last, but not least, no proven injuries to either Mr. Matthews or Mr. Jones.

For these reasons, plaintiffs’ suit will be dismissed at their cost.


author: ELLIS, Judge.

text:
    Leon HORTON and Emily Winn Mitchell v. Jesse BUTLER.
    No. 13465.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      Vanue B. Lacour, Baton Rouge, counsel for plaintiffs-appellants William Eugene Horton, Audrey Mae Horton, Leon Horton, Jr., Clifton E. Horton, Hattie Horton, Eva Thea Horton.
    Robert W. Stratton, Baker, counsel for plaintiff-appellant Emily Winn Mitchell.
    Walton J. Barnes, Baton Rouge, counsel for defendant-appellee Jesse Butler.
    Stephen Wilson and Joseph F. Keogh, Baton Rouge, counsel for intervenor-appel-lee Walton J. Barnes.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

Dan Winn and Hattie Lipscomb Winn were husband and wife and owners in community of a house in Baton Rouge. Mrs. Winn died intestate on September 21, 1977, leaving as her sole heir at law, Leon Horton, her son by a previous marriage. On January 1,1978, the house was destroyed by fire.

Mr. Winn, who was elderly, was being cared for by Jesse Butler. Someone at the bank where Mr. Winn did business suggested that Mr. Butler get a power of attorney so that he could take care of Mr. Winn’s business, and sign his checks. On about February 14, 1978, Mr. Butler consulted Walton J. Barnes, an attorney, about preparing a power of attorney. Mr. Barnes prepared a standard form general power of attorney and took it to the house where Mr. Winn was staying, where it was executed.

Mr. Butler also testified that Mr. Winn had told him to get a lawyer to help get the proceeds of the insurance policy on the house, because he wanted to build a new house. Mr. Butler also talked to Mr. Barnes about this matter and signed a contingent fee contract for the recovery of the proceeds of the policy, which provided for a 25 per cent fee if settlement was effected without suit. The contract was dated February 14, 1978, the same day as the power of attorney.

However, Mr. Butler testified on one occasion that the contract was, in fact, executed two or three weeks after the execution of the power of attorney. Later, when being examined by Mr. Barnes, he testified that he signed the contingent fee contract before the power of attorney was executed, but on the same day. Mr. Barnes also testified that the contract was signed prior to the power of attorney, but on the same day.

Mr. Winn died on February 26,1978, leaving as his sole heir a niece, Emily Winn Mitchell.

On June 30, 1978, the insurance company paid the amount of the fire loss, $16,835.78, by a check made payable to Jesse Butler and Walton J. Barnes. These funds were deposited in an escrow account and presently remain there.

This suit was filed by Leon Horton and Emily Winn Mitchell to obtain possession of those funds from Mr. Butler. Mr. Barnes has intervened herein seeking 25 per cent thereof as the attorney fee allegedly due him under the contingent fee contract.

After trial on the merits, judgment was rendered ordering Mr. Butler to deliver three-quarters of the fund to plaintiffs, and giving Mr. Barnes judgment against plaintiff for the other one-fourth thereof. From that judgment, plaintiffs have appealed.

The record shows that there was no dispute as to the payment of the loss, although there was a delay in the payment because of personnel problems at the insurance company. The agency which wrote the policy reported the loss to the insurance company. They had no record of any negotiations with Mr. Barnes, but were aware that he had been in touch with the adjuster who appraised the loss, and Mr. Barnes’ name and phone number appeared in their file.

Mr. Barnes testified that he first found the name of the insurer through the appraiser, from whom he also learned the amount of the loss. Apparently no further action on Mr. Barnes’ part was taken or was necessary in order to conclude the matter.

R.S. 37:218 permits an attorney and client to enter into a contingent fee contract. The only limitations which have been placed on such a contract by the courts are that the statute envisions an “earned fee” and that the “collection of excessive amounts for which no commensurate service was performed is not vouchsafed by the provisions of the statute.” Guilbeau v. Fireman’s Fund Insurance Company, 293 So.2d 216 (La.App. 3rd Cir. 1974); Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1978).

In this case the record before us reveals an uncontested fire loss. The only services rendered by Mr. Barnes consisted of contacting the insurance company, and accepting the check for the proceeds when it was finally paid, seven months after the fire. The contract would provide a fee of over $4,000.00 for these minimal professional services, which we think is clearly excessive. The collection of a clearly excessive fee is prohibited by Disciplinary Rule 2-106 of the Code of Professional Responsibility. We think Mr. Barnes is entitled to be compensated on the basis of the services actually rendered.

We find plaintiffs’ other attacks on the validity of the contract to be without merit, but, in view of our above finding, see no need for discussion thereof in this opinion.

The judgment appealed from is therefore reversed and set aside, and the case is remanded to the trial court for the purpose of conducting a hearing to establish the value of the services rendered by Mr. Barnes on behalf of plaintiffs herein. All costs of this appeal shall be paid by intervenor Walton J. Barnes, with all other costs to await final determination hereof on its merits.

REVERSED AND REMANDED.


author: CHIASSON, Judge.

text:
    VULCAN FOUNDRY, INC. v. Shirley McNAMARA, Secretary of the Department of Revenue and Taxation, State of Louisiana.
    No. 13454.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    G. William Jarman, R. Gordon Kean, Baton Rouge, for plaintiff-appellee, Vulcan Foundry, Inc.
    Riley F. Boudreaux, Jr., Staff Atty., Baton Rouge, for defendant-appellant, Shirley McNamara, Secretary of the Dept, of Revenue and Taxation, State of Louisiana.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Shirley McNamara, Secretary of the Department of Revenue and Taxation, State of Louisiana (Department), appeals the trial court’s finding that coke utilized by Vulcan Foundry, Inc. is exempt from sales/use tax under the provisions of La.R.S. 47:301(10) and 47:305(4).

Vulcan in the manufacture of ACTM Class 30 Iron used to make “municipal castings” utilizes coke to produce heat for melting scrap iron and to add necessary, though small, quantities of carbon to the iron. Vulcan melts the scrap iron in a cold blast cupola or furnace. The heating cupola is basically a large cylindrical shaped structure in which coke is placed at the bottom and in which charges or loads are made up of layers of iron and coke dumped into the cupola on top of the coke. The coke is preheated and the iron melts, filtering down through the coke and picking up the carbon which must be in the final product. This molten iron is deposited in liquid form at the bottom of the cupola and drained off into a holding ladle prior to casting. Slag waste product is trapped before it enters the holding ladle. Layers of coke must be interspersed between the layers of scrap iron in the cupola so that the molten coke at the bottom of the cupola maintains the same level throughout the melting process. The melted iron in the holding ladle is analyzed to determine whether or not it contains carbon in amounts greater than 2.90% and less than 4.0%. If the carbon level is below this amount, carbon must be added in pure form in order to bring the product up to ACTM Class 30 grade iron. The molten iron is then cast in sand molds in the form necessary for sale.

Every time iron is heated it loses carbon content, some of the carbon being vented off as carbon monoxide and carbon dioxide gases. Therefore, it is necessary that additional carbon be added to the iron either while it is being melted or sometime thereafter.

The basic chemical analysis of the coke used in this foundry is carbon 90.05%, sulfur .71%, ash 9.15%, and the balance made up of moisture and other volatile compounds. The carbon in the coke used for melting the scrap'iron attaches itself to the iron molecules and replaces the lost carbon as well as increases the carbon content of the raw material so that the requisite strength needed is in the final product.

In the trial court Vulcan successfully contended that they were exempt from sales/use tax since coke, a derivative of coal, was purchased for the purpose of . . further processing into articles of tangible personal property for sale at retail . . .,” and for use as a boiler fuel.

On appeal the Department contends “that the coke was purchased not for the purpose of resale or for the purpose of processing into the castings, but for the purpose of use and consumption, and is, in fact, used and consumed by Appellee when it is burned to melt the iron; that the minute amount of carbon which may end up in the castings does not justify exempting any of the purchases of coke, or, alternatively, justifies exempting only that much of the total amount of purchases of coke that could have been expected to end up in the castings;” and that the exemption under La. R.S. 47:305(4) is not applicable because coke is not “coal used as a boiler fuel.”

The applicable law is as follows:

La.R.S. 47:302 provides in pertinent part: “A. There is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined herein, the levy of said tax to be as follows:
(1) At the rate of two per centum (2%) of the sales price of each item or article of tangible personal property when sold at retail in this state; the tax to be computed on gross sales for the purpose of remitting the amount of tax due the state, and to include each and every retail sale.
(2) At the rate of two per centum (2%) of the cost price of each item or article of tangible personal property when the same is not sold but is used, consumed, distributed, or stored for use or consumption in this state; provided there shall be no duplication of the tax.”

The pertinent definitions contained in La. R.S. 47:301 are:

“As used in this Chapter, the following words, terms and phrases have the meaning ascribed to them in this Section, except when the context clearly indicates a different meaning:”
“(10) ‘Retail sale,’ or ‘sale at retail,’ means a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property, and shall mean and include all such transactions as the collector, upon investigation, finds to be in lieu of sales; provided that sales for resale must be made in strict compliance with the rules and regulations. . . . ”
“The term ‘sale at retail’ does not include sales of materials for further processing into articles of tangible personal property for sale at retail, nor does it include an isolated or occasional sale of tangible personal property by a person not engaged in such business.”
“(16) ‘Tangible personal property’ means and includes personal property which may be seen, weighed, measured, felt or touched, or is in any other manner perceptible to the senses. The term ‘tangible personal property’ shall not include stocks, bonds, notes, or other obligations or securities.”
“(18) ‘Use’ means and includes the exercise of any right or power over tangible personal property incident to the ownership thereof, except that it shall not include the sale at retail of that property in the regular course of business.”
“(19) ‘Use tax’ includes the use, the consumption, the distribution and the storage, as herein defined.”

The applicable provision of La.R.S. 47:305(4) is:

“(4) The sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in this state of the following tangible personal property is hereby specifically exempted from the tax imposed by this Chapter: gasoline; steam, water (not including mineral water or carbonated water or any water put in bottles, jugs, or containers, all of which are not exempted); electric power or energy; newspapers; fertilizer and containers used for farm products when sold directly to the farmer; natural gas; fuel oil, wood waste and bagasse and coal when used for boiler fuel; . . . ”

This case is not similar to Traigle v. PPG Industries, Inc., 332 So.2d 777 (La.1976), relied upon by appellant, where the carbon residue found in the final product is useless waste material and of the nature of an impurity.

The evidence in this case clearly demonstrates that the increased carbon content found in the castings is an intended and necessary additive to the scrap iron and that the method of using coke to melt scrap iron is the process by which the intended carbon increase is obtained. We therefore conclude that the coke was purchased for the purpose of further processing into articles of tangible personal property for sale at retail and is exempt from taxation under the provisions of La.R.S. 47:301(10).

We find no merit in appellant’s contention that only that portion of carbon that ends up in the castings, 3.68%, should be exempt. The entire amount of coke used in a specific measure is necessary to obtain the desired carbon increase. Furthermore, the statute does not specify that only that portion of the total amount purchased, which actually ends up in the processed article is exempt. The increased carbon content of the final product forms a component and essential part of the finished product, which is all that is required by the statute to exempt the manufacturer from the tax.

Having so decided we find it unnecessary to determine whether appellee is entitled to an exemption under La.R.S. 47:305(4).

For these reasons the judgment of the trial court is affirmed. All costs allowed by law are to be paid by appellant.

AFFIRMED.


text:
    Troy JORDAN v. Larry LLOYD et al.
    No. 13461.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Stewart E. Niles, Jr., New Orleans, for plaintiff.
    Felicien P. Lozes, New Orleans, for Larry Lloyd, Lloyd Whitehead, and Empire Fire and Marine Ins. Co.
    James F. Holmes, New Orleans, for Standard Gravel Co., Inc. and Fidelity and Cas. Ins. Co. of New York.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This suit arises from a truck-pedestrian accident which occurred on private property. Plaintiff-appellee, Troy Jordan, was struck by a truck being driven by Lloyd Whitehead and owned by Larry Lloyd. The accident occurred on the premises of Standard Gravel Company, Inc. on August 26, 1978 at approximately 8:00 P.M. Suit was filed against the above named persons and their insurers.

The trial court rendered judgment in favor of plaintiff and against all defendants in the sum of $25,000.00 for pain, suffering and disability; $4,000.00 for lost wages; and $2,946.70 for medical expenses. All defendants have suspensively appealed this judgment.

Appellants, Standard Gravel Company, Inc. and its insurer, Fidelity & Casualty Insurance Company of New York, have failed to file a brief or make any appearance herein.

On authority of Rule VII, Section 5(b), we ex proprio motu, consider their appeal as abandoned and order the appeal of these appellants dismissed with prejudice.

Appellants, Larry Lloyd, Lloyd Whitehead and their insurers, Empire Fire & Marine Insurance Company, make the following assignments of error:

1. The trial court erred in finding defendant, Lloyd Whitehead, guilty of negligence;
2. The trial court erred in not holding that the accident was caused solely by the negligence of plaintiff or, alternatively, that plaintiff was contributorily negligent; and
3. Alternatively, the amount awarded in damages is excessive and should be reduced.

At the time of the accident appellee was in the process of loading his dump truck under a conveyor belt. The procedure required him to park his truck under the conveyor belt, disembark from his truck and walk to the control shack to activate the controls that energized the conveyor belt. After activating the controls it was necessary to immediately ascertain that the belt conveyor was operating properly. The control shack was very small with a small opening on the side where an entrance road was located. Appellee had entered the shack, activated the controls and took two steps back so he could check the conveyor belt when he was struck by a dump truck being driven by Lloyd Whitehead. Whitehead was familiar with the procedure used for loading at the conveyor belt. He was also aware that to use the entrance road to the left of the control shack required that his truck pass, at most, two feet from the opening in the control shack. An alternative entrance was provided to the right of the lane in which appellee was loading his truck. Contrary to appellants’ contention, this entrance to the right was the one generally used when there was a truck being loaded under the conveyor belt and another one waiting in line, as was the case at the time of this accident. Whitehead had seen the headlights of both appellee’s vehicle and the one behind appellee’s vehicle. He did not use the entrance to the right because passing over the railroad tracks and switches was tough on his truck.

Being fully aware of the loading procedure and knowing that loading was in progress, Whitehead’s choice of passing two feet from the shack door imposed upon him a great duty of care to avoid injuring anyone. Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400 (La.1978). Although he saw appellee back out of the shack with his back towards Whitehead and with a flashlight in his hand looking towards the conveyor belt, he did not have his vehicle under sufficient control to avoid striking appellee.

We concur with the trial court’s holding that Whitehead was negligent under these circumstances.

Nor do we find appellee contributo-rily negligent for not hearing or seeing the Whitehead truck. The record establishes that much noise is generated by gravel falling into an empty truck bed and the running of the equipment. The accident occurred at a time when it was dark. Appel-lee had his back to the Whitehead truck and the lights from his truck were illuminating the control shack area which prevented him from noticing the lights on defendant’s vehicle.

We therefore find no manifest error in the trial court’s holding that appellants are liable to appellee for his injuries. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

As to the amount of damages, appel-lee, as found by the trial judge, “received fractures of his right leg and two fractures of his left foot. He was hospitalized for 11 days and a metal pin was placed in his right leg. This pin was later removed in an operation. As a result of his injuries he was on crutches for several weeks and he had to use a cane for several months. Mr. Jordan at the time of the trial maintained that he was still suffering with weakness in the knee and pain in going about with his work related duties. The Court believes an award in the amount of TWENTY-FIVE THOUSAND AND NO/100 ($25,000.00) DOLLARS for his pain and suffering and his disability will be adequate in this case.” These findings of fact are substantiated by the record.

In the assessment of damages much discretion is vested in the trier of fact. La.CC art. 1934(3). We find that the trial judge did not abuse his “much discretion” and therefore affirm the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

For these reasons the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


text:
    Ciro A. BANGS v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al.
    No. 13468.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Walton J. Barnes, Baton Rouge, for plaintiff and defendant-appellant in recon-vention Ciro A. Bángs.
    A. Clay Pierce, Baton Rouge, for defendant and plaintiffs-appellee, in reconvention Government Emp. Ins. Co., et al.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is a suit for property damage brought by plaintiff-appellant, Ciro Bangs. The trial court denied Bangs recovery and rendered judgment in favor of defendants-appellees, Government Employees Insurance Company and George Sanders, on their reconventional demand for property damage.

The suit arises out of an accident that occurred around 10:30 P.M. on Interstate Highway 110 approximately one mile south of its intersection with Airline Highway in East Baton Rouge Parish. This was an unlighted section of the interstate that did not have a “shoulder" or neutral ground.

A friend of Bangs ran out of gas on the interstate and stopped his car in the far right (westernmost) lane. He called appellant for assistance and when Bangs arrived with the gas he stopped his vehicle, a 1965 Volkswagen, behind the stalled car and left his lights burning. The gas container brought by Bangs did not contain a spout and he was still attempting to pour the gas some fifteen to twenty minutes later when the accident occurred.

Testimony indicates that Reginald Sanders was driving his father’s car southbound at approximately 50 miles per hour in the far right lane of the interstate. He observed the vehicle which he was following in the westernmost lane swerve into the center lane and thereafter noticed the Bangs’ vehicle at a point estimated about twenty feet away. He attempted to change lanes, but was blocked by traffic in the next lane. He then swerved slightly to the left and struck the left rear of the Volkswagen. Both Reginald and a police officer testified that the taillights on the Volkswagen were very hard to see. The officer stated that the lights were so dim that he did not think they were functioning until he walked up to the vehicle.

Bangs brought suit for property damage and defendant-owner and his insurer, as subrogee, reconvened for property damage to defendant-owner’s vehicle.

The trial judge found Bangs negligent and denied him recovery on the principal demand. Influencing the trial judge’s decision were the failure of Bangs to bring a flashlight, an adequate method of pouring the gas, the stopping by Bangs of his vehicle to the rear of the stalled car and thus obscuring the emergency lights on the disabled vehicle, and the dim taillights on the Bangs’ vehicle. Recovery on the reconven-tional demand was permitted. We affirm.

La.R.S. 32:141(C) provides:

“The driver of any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence.” '

It is clear that the mandate of this statute was violated. There is nothing in the record to dispute the trial judge’s finding that the lighting on the Volkswagen was insufficient to warn approaching traffic of the presence of a parked vehicle. We further conclude that violation of this statute constitutes negligence which was the proximate cause of the accident, and bars recovery by Bangs. Jones v. Firemen’s Fund American, 224 So.2d 555 (La.App. 3rd Cir. 1969); Gautreaux v. Pierre, 254 So.2d 476 (La.App. 3rd Cir. 1971); South Texas Lloyds v. Guarantee Ins. Co. of Texas, 299 So.2d 395 (La.App. 2nd Cir. 1974).

Bangs seeks to have a lesser standard of duty applied to him since he was allegedly a “rescuer.” It is true that a rescuer may not be held to the same degree of care as would normally apply. However, this is not a case where a person has acted upon a sudden impulse in coming to the aid of a person in immediate danger and application of the rescuer or Good Samaritan doctrine is not warranted.

Appellant further argues that the doctrine of last clear chance should be applied. For that doctrine to apply, the evidence must show “(F)irst, that the plaintiff was in a position of peril of which he was either unaware or unable to extricate himself; second, that the defendant was in a position to discover plaintiff’s peril; and third that, at such time, the defendant could have, with the exercise of reasonable care, avoided the accident.” Carmouche v. Capitol Transportation Corp., 306 So.2d 907 (La.App. 1st Cir. 1974), writs refused 309 So.2d 681 (La.1975).

It is apparent that Bangs could have extricated himself from the peril by taking appropriate safety measures. Furthermore, under circumstances where there is a dark highway with a lane obstructed by a vehicle with insufficient lighting, we cannot conclude that Reginald should have discovered Bangs’ peril. Nor did Reginald have time to avoid the accident once Bangs’ peril was actually discovered. Therefore, the doctrine of last clear chance is inapplicable.

For these reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Lydia Harrison RYAN, William H. Harrison, Jr., as executor of the Estate of William H. Harrison, Shirley Harrison Hyde, Katherine Harrison and Richard Harrison v. Saviour A. PEKINTO, Edward J. Pekinto, Joseph P. Pekinto, Peter Pekinto, III, Mrs. Peter Pekinto, Alvin Pekinto, Paul Pekinto, Gerald Pekinto, Mrs. Lillie Pekinto, Sprine G. Pekinto, Mrs. William Pekinto, Mrs. Louise Pekinto Starr, Lloyd P. Alombro, Lucien Alombro, Thomas Alombro, Jr., Thomas J. Alombro, III, Joyce Alombro, Clarence Alombro, Raymond Alombro, Dinishes Rayes Alombro, Frances Alombro McGovern, Gerald Alombro, Dave Schouest, Peter Helmer, Mrs. Joseph Helmer, George Helmer, Calvin H. McBride, James D. McGovern, Jr., Joe Revere, Ronald Helmer, Charles Guidry, Joseph Silver, Sr., John Silver, Sr., and Raymond Dufren.
    No. 13335.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      Gary A. Lee, New Orleans, and Donald L. Peltier, Thibodaux, counsel for plaintiffs-appellees Lydia Harrison Ryan, William H. Harrison, Jr. as Executor of the Estate of William H. Harrison, Shirley Harrison Hyde, Richard Harrison, Katherine Harrison.
    James D. McGovern, Jr., New Orleans, counsel for defendants-appellants Saviour Pekinto, Edward J. Pekinto, Joseph P. Pek-into, Peter Pekinto, III, Mrs. Peter Pekinto, Paul Pekinto, Gerald Pekinto, Mrs. William Pekinto, Lloyd P. Alombro, Lucien Alomb-ro, Thomas Alombro, Jr., Thomas J. Alomb-ro, III, Peter Helmer, Mrs. Joseph Helmer, James D. McGovern, Jr., Joe Revere, Ronald Helmer, Charles Guidry.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Defendants appeal a trial court judgment making perpetual a preliminary injunction prohibiting defendants and their agents from trespassing on certain property of plaintiffs. We affirm.

This case is the second round in a most bitterly contested struggle over certain tracts of land in Lafourche Parish. While there are different and additional parties on both sides, the basic opposing lineups remain the same — the Harrisons against various members of the Alombro, Pekinto and Helmer families.

Plaintiffs filed suit on December 2, 1977, seeking a writ of injunction prohibiting defendants from trespassing on the following property:

All of Fractional Section 1, South of Grand Bayou; all of Fractional Sections 2, 3 and 4; the SW Vi of Sec. 5; the SE Vi of SE V* of Sec. 6; the E Vi of NE Vi of Sec. 7; the W Vi of NW Vi and NW Vi of SW Vi and E Vi of SW Vi and SW Vi of SE Vi of Sec. 8; the E Vi of SW Vi and NW Vi and E Vi of Sec. 9; all of Fractional Sections 10, 11, 12 and 13; the N Vi of E Vi of SE Vi and NW Vi of SE Vi and NE Vi of SW Vi of Sec. 14; the N Vi and S Vi of S Vi of Sec. 15; the N Vi of N Vi and SE Vi of NE Vi and SE Vi of Sec. 21; all of Sections 22, 23, 24, 25, 26, 27; the E Vi of Sec. 28; the E Vi of Sec. 33; all of Sections 34, 35, 36, all in T.19S., R.23E. All of Sections 1, 2, 3, 4, 9, 10, 11, 12, 13, 14, 15, 21, 22, 23, 26, 27, 28, 33, 34 and 35, all in T.20S., R.23E.
Less and except a tract of land sold by Joseph DeFuentes Harrison to Leroy Schultz and Marguerite Brady, wife of Leroy Schultz, on March 22, 1939 (See C.B. 89, p. 575), containing that portion of Sections 2, 11 and 14 in T.19S., R.23E. bounded on the east by a line parallel to and 6,608 feet west of the range line between ranges 23 east and 24 east and on the west by a line parallel to and 8,266 feet west of the said range line bounded on the north by Grand Bayou and extending to and bounded on the south by the northern boundary or line of the S xh of Sec. 14, T.19S., R.23E., comprising 373 acres, more or less.

Plaintiffs sought relief pursuant to LSA-C. C.P. Art. 3663, which provides in part:

“Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right, is available to:
(1) A plaintiff in a possessory action, during the pendency thereof; and
(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right of which he claims the ownership, the possession, or the enjoyment.”

Subsequent to the trial court’s signing of a temporary restraining order, an extensive hearing was held, following which the trial court issued a preliminary injunction on January 30, 1980.

When the matter came up for trial to determine whether a permanent injunction should issue, all testimony and exhibits from the preliminary injunction hearing were adopted and incorporated into the record provided that no objections which had been made and overruled were waived. Additional testimony and exhibits were introduced. Briefs were filed by both parties and the matter was taken under advisement. On July 27, 1979, judgment was signed in plaintiffs’ favor granting the relief prayed for. Defendants have appealed.

Appellants specify that the trial court erred in:

1. overruling defendants’ exceptions.
2.. admitting testimony and documentary evidence over timely objection.
3. finding plaintiffs to be the record owners and to have sufficient title to avail themselves of Art. 3663(2) of the La. Code of Civil Procedure.
4. finding that plaintiffs were in possession for more than one year prior to the filing of this suit.
5. failing to require plaintiffs to show valid title good against the world.
6. finding that defendants did not possess the disputed sections within marked boundaries.
7. finding that defendants were more trespassers than possessors and that the acts of defendants, while amounting to disturbances, did not oust plaintiffs from their possession or evict them from their property.
8. disregarding both defendants’ recorded judgments of possession and the Alombro Cemetery.
9. finding that defendants had always been aware that plaintiffs were the legal owners of the property.

Shortly after suit was filed, exceptions of prescription, no right of action, no cause of action, insufficiency of service of process, insufficiency of citation, lack of jurisdiction over the persons of defendants, lack of jurisdiction over the subject matter, unauthorized use of summary proceeding vagueness, nonjoinder of necessary party, and nonjoin-der of an indispensable party were filed on behalf of some defendants. Other defendants chose not to appear or to be represented by counsel.

Prior to hearing on the preliminary injunction, the trial court screened out all defendants who had not been properly cited and served. They were dismissed from the case.

Defendants’ other exceptions were then considered. From the record, it is evident that the trial court carefully reviewed each of defendants’ contentions before overruling it. We find no error.

We also find no error in the admission of testimony and documentary evidence over the objection of defense counsel.

For much of this trial, it was virtually impossible for either counsel to examine a witness or introduce evidence without facing an objection. One particularly noteworthy example was the direct examination of William H. Harrison, Jr., a plaintiff. During the questioning, Calvin H. McBride, counsel for defendants and a defendant himself, objected no less than fifty-seven times, at least once in a most contentious manner (R 1052-54). Counsel was sustained on only six objections.

A consideration of the incessant legal confrontations, the great number of documents submitted, the inability of many witnesses, particularly defendants, to understand the hearsay rule, and the time period of fifty years during which the events transpired leads to the conclusion that the trial court was truly fair to all parties in these proceedings.

LSA-C.C.P. Art. 3663 provides in-junctive relief in two separate cases: 1) as an ancillary remedy in a possessory action; and 2) as the relief to be granted in an injunction suit brought to enjoin trespassers and other disturbers, and which is neither a possessory nor a petitory action. Official Revision Comments to Art. 3663. Unlike most injunctive relief, Art. 3663 requires no showing of irreparable harm by plaintiff. David v. Dixie Rice Agricultural Corporation, 379 So.2d 62 (La.App. 3rd Cir. 1979); Patin v. Richard, 357 So.2d 1285 (La.App. 3rd Cir. 1978).

Possession is the sine qua non for a party relying on Art. 3663. Babington Children Trusts v. Eimer, 285 So.2d 792 (La.1973). The possession must be for one year prior to the disturbance and suit must be brought within one year of the disturbance. Parkway Development Corporation v. City of Shreveport, 330 So.2d 646 (La.App. 2nd Cir. 1976), affirmed 342 So.2d 151 (La.1977); Ward v. Standard Materials Incorporated, 293 So.2d 885 (La.App. 1st Cir. 1974).

Article 3663 as worded allows a plaintiff to prove ownership as well as possession. Such proof does not constitute an improper cumulation of possessory and peti-tory actions since the action is for an injunction. Manson Realty Company v. Plaisance, 196 So.2d 555 (La.App. 4th Cir. 1967), application denied 250 La. 898, 199 So.2d 915 (1967). Furthermore, a record owner has a lighter burden of proving possession than does a mere trespasser since the owner may rely on the doctrine of constructive possession in which possession of part is possession of the whole whereas the trespasser must corporeally possess within boundaries. LSA-C.C. Arts. 3437, 3498, 3499; Ward v. Standard Materials Incorporated, supra; Manson Realty Company v. Plaisance, supra; Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952). See also Johnson v. LaBokay Corporation, 326 So.2d 589 (La.App. 3rd Cir. 1976).

The act of sale by Leonard A. An-drus and Frank W. Grant to Joseph de Fuentes Harrison, dated August 28, 1929, together with the three judgments of possession introduced by plaintiffs (P 2, 3, 4), clearly establish plaintiffs as the record owners of the 22,000 acres at issue.

Plaintiffs and not defendants were found by the trial court to be in possession of certain contested lands, namely sections 23, 24, 25 and 26 of Township 19 South, Range 23 East. A careful scrutiny of the entire record convinces us that the trial court’s finding was correct.

For many years, plaintiffs permitted trappers to work their property, including the disputed sections. As rent, plaintiffs collected a percentage of the trapper’s sales. Trappers testifying as to their- activities were Roland Duet, Harris Griffin and Mitchell Serigny.

Donald P. Adams, manager of the Harrison Land Company, traveled extensively over the lands in question to collect rents from hunting leases he had executed. Adams only saw a few “no trespassing” signs allegedly placed by defendants.

Roland Guidry, assistant manager for the Harrison property, testified that what signs defendants had placed were not in a line delineating a particular area. Furthermore, Guidry erected “no trespassing” signs for plaintiffs.

Plaintiffs introduced numerous exhibits including paid tax receipts, damage agreements, mineral leases, rights-of-way agreements and various correspondence dealing with the property. William H. Harrison, Jr., gave a detailed chronological history of plaintiffs’ use of the property.

Defendants’ case primarily'consisted of a parade of witnesses reviewing their generally sporadic trapping, trawling, hunting and fishing activities in the area. In addition, they testified to the erection of camps, duck blinds and no trespassing signs. Several judgments of possession from successions and a few business documents also were introduced.

What confronted the trial court were two opposing groups of witnesses and masses of testimony. Each side sought to demonstrate its own extensive activity in the contested areas and a lack of activity by the opponents. Each sought to establish the presence of no trespassing signs belonging to its own party and a dearth of signs belonging to the opponents. Each sought to demonstrate possession via business activity.

The trial judge saw all the witnesses and examined the evidence. He concluded that defendants were more trespassers than possessors and that defendants’ acts amounted to disturbances and not evictions. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975). The record, taken as a whole, supports his factual determinations and will not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (1978).

Appellants urge that plaintiffs should have been forced to prove title good against the world. This is incorrect since title was not at issue. In fact, appellants may yet bring a petitory action.

Defendants’ judgments of possession cannot possibly be construed as conveying just title so as to allow defendants to possess constructively. Every defendant testifying admitted to past knowledge about the property dispute. Some witnesses knew of the dispute for forty years. Furthermore, none of the defendants could honestly believe their judgments of possession transferred ownership from the true owners because no instrument or judgment conveyed ownership to the ancestors whose successions fell to them. Lastly, none of the defendants could believe, in the face of the evidence and Harrison v. Alombro, supra, that their ancestors were owners by acquisitive prescription.

The Alombro Cemetery was properly seen by the trial court for what it is-a small plot occasionally used by defendants in the past but pretty much abandoned.

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by defendants-appellants.

AFFIRMED.

      . Round one consisted of an action to remove clouds on title. In Harrison v. Alombro, 341 So.2d 1165 (La.App. 1st Cir. 1976), writ denied 343 So.2d 1063 (La.1977), several instruments of defendants found to constitute clouds on plaintiffs’ title were declared null and void and of no effect. The record in Harrison v. Alombro covered some 3600 pages.

      . One incredible exchange between both counsel and the court consumed forty-eight pages. (R 900-48).


author: LEAR, Judge.

text:
    CONCERNED CITIZENS FOR CALCASIEU RIVER AND OLD TOWN BAY v. LAKE CHARLES REFINING COMPANY.
    No. 13336.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Lemuel E. Hawsey, III, Baton Rouge, for plaintiff-appellant, Concerned Citizens for Calcasieu River and Old Town Bay.
    Maurice L. Tynes, Lake Charles, for defendant-appellee, Lake Charles Refining Company.
    Hank Seldon Hannah, Eunice, for defendant-appellee, Commissioner of Conservation.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

This is an action to enjoin the construction of a disposal well in Calcasieu Parish. Plaintiff, Concerned Citizens of Calcasieu River and Old Town Bay, is a nonprofit organization that is comprised of a group of citizens-residents of Calcasieu Parish who have united to do battle on America’s latest legal frontier-the environment. Its organization numbers more than three hundred seventy-five members residing throughout the parish. Its purpose is to protect the wildlife and preserve the river and Old Town Bay for fishing, boating, water skiing and other recreational uses and to prevent the discharge of waste and pollutants into the air and subsurface in the area adjacent to the Calcasieu River and Old Town Bay.

Defendant, Lake Charles Refining Company, is a joint venture or unincorporated association of three Texas corporations, namely: (1) American Western Energy Company, Inc. or “AWECO, Inc.”, (2) C B K, Inc., and (3) Kennedy International Company, Inc. Defendant owns and operates a ten thousand barrel per day crude oil topping unit on the Calcasieu River, northeast of Lake Charles in the Parish of Calcasieu.

On March 19, 1979, defendant applied to the Louisiana Commissioner of Conservation, also a defendant herein, for authority to drill and operate a disposal well. The request was made by J. R. Theaker of Walk, Haydel & Associates, Inc., a firm of consulting engineers, representing Lake Charles Refining Company. In his letter, Theaker stated that the company intended to “ultimately dispose of 150,000 GPD [gal-Ions per day] of waste water having the following composition, through a perforated interval from 3120 feet to 3230 feet:

“Effluent Characteristics “Effluent Limitations Daily Average (Pounds/Day)
“BODS 42.6
“COD 218.7
“TTS 36.66
“Oil and Grease 13.47
“Phenols 0.303
“Ammonia 8.4
“Sulfides 0.228”

Upon receipt of the application for a salt water disposal well by the Lake Charles Office of Conservation, William C. Wilhite, District Manager of the Lake Charles office, forwarded the application to the Baton Rouge office with the following notation attached:

“My interpretation of this application is that it is a waste disposal well as defined by Order 29-N. I told Mr. Theaker that was my interpretation and he said that he had talked to someone in Baton Rouge who said this application might be processed as a salt water disposal well. I told Mr. Theaker I would forward this application to you and he could call you Monday (3/26/79) and get your interpretation on whether this would be a salt water disposal well or a waste disposal well.”

On April 4, 1979, Robert D. Bates, chief conservation geologist, wrote to Wilhite and stated the following:

“It is our opinion that this application cannot be approved as a salt water disposal well and we suggest that the applicant proceed under the rules and regulations established to regulate industrial waste disposal wells.”

Bates’ assessment included an additional letter from defendant’s consultants, Walk, Haydel & Associates, Inc., dated March 28, 1979. In that letter, Theaker said:

“The main source of this wastewater is from the facility’s desalter. Cooling tower and boiler blowdown will contribute to the stream. This wastewater stream will pass through an API separator where free oil will be separated from the water.

It will then discharge into a biological treatment system consisting of two aerated lagoons where it will be treated to remove 85-90 percent of the dissolved organics. The resulting concentration of effluent characteristics in the treated wastewater are tabulated below:

Concentration
“Effluent Characteristics (parts per million)
“Biochemical Oxygen Demand (BOD) 34
“Chemical Oxygen Demand (COD) 174
“Total Suspended Solids (TSS) 29
“Oil and Grease 11
“Phenols 0.24
“Ammonia 6.7
“Sulphide 0.18

“In summary, Lake Charles Refining Company is anticipating it will receive approval from EPA to discharge its treated effluent into the Calcasieu River. However, delays in the permitting process will result in this permit being issued after the scheduled start-up of the facility. Lake Charles Refining is therefore seeking approval to discharged (sic) its treated process wastewater into a disposal well.”

Bates’ letter of April 4, 1979, shows that he was still impressed that the application could not be approved. Nevertheless, the opposition of the commissioner was ostensibly withdrawn and the permit issued without complying with Statewide Order 29-N. No public notice of, nor opportunity to be heard on, the application of Lake Charles Refining Company was ever given. No permit to operate a waste disposal well has been obtained pursuant to Statewide Order 29-N.

At the close of plaintiff's case, the defendants moved for a directed verdict which was granted by the trial judge in a non-jury trial. Plaintiff then perfected this appeal.

It should be observed that the transcription of the proceedings below does not reflect the basis of the motion for directed verdict. Moreover, the trial court gave no written reasons for judgment, nor are any oral reasons transcribed. The briefs filed by the parties, however, suggest that the lower court’s ruling was predicated on the finding that plaintiff was not a party whose interests were “adversely affected” by the violation or threatened violation of “. . .a law of this state with respect to the conservation of oil or gas, or both, or a provision of this Chapter, or a rule, regulation, or order made thereunder . . . ” L.S.A.-R.S. 30:14.

As shown by the testimony and the answers to interrogatories, plaintiff organization draws from a membership living and working in all areas of Calcasieu Parish. The practice sought to be enjoined is an operation which may bear materially on the present and future welfare of those who reside within Calcasieu Parish. The legislature of our state has vested the Department of Natural Resources with the authority to issue permits for and to regulate disposal wells. The commissioner is directly charged with the responsibility to promulgate appropriate rules and regulations. R.S. 30:1(D) and 30:4(C)(16). Statewide Order 29-N was issued under this authority. See Rollins Environmental Services of Louisiana v. Iberville Parish Police Jury, 365 So.2d 497, 500 (La.App. 1st Cir. 1978, en banc panel), affirmed 371 So.2d 1127 (La.). In Rollins, 371 So.2d 1127, our Supreme Court discusses at length the state and federal legislation enacted within the past decade and the provisions for implementation. Compare Costle v. Pacific Legal Foundation, 445 U.S. 198, 100 S.Ct. 1095, 63 L.Ed.2d 329 (1980).

The common thread running through both the federal and state scheme of environmental regulation is the strong desire that the public have input in the decisions concerning elimination of pollution. Surely the residents of Calcasieu Parish and particularly those who, as here, are organized for that expressed purpose, are aggrieved by agency action within the meaning of the relevant statute. Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093 (D.C.Cir.1970).

By its pleadings and its proof, plaintiff, Concerned Citizens of Calcasieu River and Old Town Bay, has in the opinion of this court proven sufficient “affected interest” to meet the test of defendant’s motion for a directed verdict, which, in fact, is really a motion to dismiss under C.C.P. article 1810(B). To hold otherwise would be to subvert one of the clear purposes and intent of virtually all federal and state environmental legislation enacted since 1972, i. e., to ensure public participation in the regulatory process as a safeguard against abuses in the administrative process.

We note, further, that upon remand, the trial court should require the Commissioner and/or Lake Charles Refining Company to present expert testimony establishing the chemical composition of the fluid(s) sought to be injected into the subsurface well. To do less would seriously undermine the judicial function in the scheme of environmental protection.

For the foregoing reasons, the judgment appealed is reversed, and the case is remanded to the trial court for further proceedings consistent with the views herein expressed.

All costs of this appeal are to be borne by the plaintiff-appellees, all other costs to await the final disposition of the case.

REVERSED AND REMANDED.


text:
    Sheila Marie NEWMAN v. DIXIE SALES AND SERVICE et al.
    No. 13,438.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      Stephen M. Irving, Baton Rouge, for plaintiff-appellant-Sheila Marie Newman.
    John L. Delahaye of Borron & Delahaye, Plaquemine, for defendant-appellee-Dixie Sales and Service et al.
    Richard Creed, Jr., Baton Rouge, for de-fendent-appellee-Chrysler Corp.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

Plaintiff, Sheila Marie Newman (Newman), filed suit against defendants alleging redhibitory defects in a 1977 Chrysler Vo-lare purchased from Dixie Sales and Service, Inc. (Dixie), manufactured by Chrysler Corporation (Chrysler). The vehicle was purchased July 27, 1977, and numerous defects were listed, allegedly commencing two days after purchase. Suit was filed on July 17,1978. Dixie filed a general denial and a third party petition against Chrysler; Chrysler filed a general denial and alternatively alleged negligent maintenance and care of the vehicle by the plaintiff. Chrysler further answered Dixie’s third party petition alleging that repairs were not promptly and timely made by Dixie which violated the terms of the agreement between Chrysler and Dixie.

After trial the court gave judgment in favor of both defendants, dismissing plaintiff’s suit, and in favor of Chrysler against Dixie on the third party demand. Thereafter, the court granted a new trial for reargument only, and after reargument, ordered the judgment annulled and set aside insofar as it rejected plaintiff’s demands against Chrysler Corporation and insofar as it cast all costs upon plaintiff. The court then gave judgment in favor of plaintiff, Newman, and against Chrysler in the sum of $450.00, plus attorney fees in the sum of $750.00, and for all costs. Plaintiff, Newman, appeals.

Although the trial judge did not file reasons for judgment, it is obvious from the discussion between court and counsel that the only defect found by the court involved the transmission. Other defects complained of in the petition had previously been corrected by the dealer, Dixie Sales and Service, Inc. The record also shows that plaintiff did not return the vehicle to Dixie for repair of the transmission, although the warranty was still in effect.

The failure in the transmission occurred after the vehicle had been driven more than 11,000 miles. Chrysler contends that the failure was the result of abuse of the vehicle and offered expert testimony to that effect; however, the trial court did not so find. Proof that the defect existed at the time of the sale can be either direct or circumstantial evidence giving rise to the reasonable inference that defects existed at the time, and the standard to determine the sufficiency of the evidence is “when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.” Moreno’s Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975); Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (La.1971).

L.S.A.-C.C. 2520 reads as follows:

“Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

It is inherent in a redhibitory vice that it be latent and it must have existed at the time of the sale. When such vice exists, the buyer may bring an action to rescind the sale and recover the purchase price plus expenses of the sale, or he can institute an action in quanti minoris to have the purchase price reduced.

In a redhibitory action, should the court, based upon the evidence, find only a partial failure of consideration, a reduction in the purchase price may be granted to the buyer. Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir. 1975).

While the evidence in the record may not clearly convince this court that a defect existed in the transmission of plaintiff’s vehicle at the time of sale, the trial judge was convinced and so reduced the purchase price.

The ultimate question of the existence of a redhibitory vice and the amount awarded in quanti minoris are questions of fact for the trial judge which should not be disturbed in the absence of manifest error or abuse of the wide discretion afforded him. Clinkscales v. Superior Pontiac-GMC, Inc., 365 So.2d 895 (La.App. 4th Cir. 1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Chrysler further argues that plaintiff should not have been allowed to maintain an action in redhibition without first providing the seller an opportunity to repair the defect.

Prior to 1974, L.S.A.-C.C. 2531 provided that,

“The seller who knew not the vices of the thing, is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, unless the fruits, which the purchaser had drawn from it, be sufficient to satisfy those expenses.”

In Prince v. Paretti Pontiac Co., 281 So.2d 112 (La.1973), the Supreme Court held that a purchaser is not required to allow a vendor an opportunity to repair a defective thing as a condition precedent to commencing an action in redhibition.

Prince v. Paretti Pontiac Co. was legislatively overruled in 1974 (Acts 1974, No. 673, Sec. 1) when article 2531 was amended to read as follows:

“Art. 2531. The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser had drawn from it.
“In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer — seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”

While we may agree that a manufacturer should likewise be given an opportunity to correct a defect in its manufactured product, this presently is not the law. A manufacturer could never be a “seller who knew not the vices of the thing”, inasmuch as they are presumed to know the defects of their products. Radalec, Inc. v. Automatic Firing Corp., 228 La. 116; 81 So.2d 830 (La.1955).

It might well be argued that since there is no contractual relationship between the manufacturer and the buyer, any cause of action by the buyer against the manufacturer must come from the retailer’s right against the manufacturer by either subro-gation or transmission. If this is so, then the manufacturer’s duty should be no greater than that of the retailer, which is to repair under article 2531.

However, the Supreme Court has not adopted this view and we, therefore, must affirm the trial court.

In view of the above, the judgment of the trial court is affirmed, appellant to pay all costs of this appeal.

AFFIRMED.


author: LEAR, Judge. WATKINS, Judge

text:
    Manuella R. JOHNSON et al. v. Walter J. FOURNET et al.
    No. 13524.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      C. Jerome D’Aquila, New Roads, for plaintiffs-appellants Manuella R. Johnson and James W. Johnson.
    R. Michael Caldwell, Baton Rouge, for defendants-appellees Walter J. Fournet and Aetna Life and Casualty.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

This is a suit for damages arising out of an automobile collision, which occurred on March 16, 1977. Plaintiff-appellants are husband and wife who filed suit against Walter J. Fournet and his liability insurer, Aetna Life & Casualty Company. Initially, appellants filed suit on March 14, 1978, alleging damages in the amount of $21,-913.12.

Defendants, Fournet and Aetna, filed answer on May 10, 1978, denying all liability.

On May 29, 1979, plaintiff-appellants filed with leave of court a supplemental and amending petition alleging additional damages of some $82,500.00, and alleging that the same defendant, Aetna, was additionally liable under the provisions of a policy of insurance owned by plaintiff-appellant which provided uninsured and underinsured motorist coverage.

Defendant-appellee, Aetna, filed an exception of prescription as to the uninsured motorist claim in the amended petition. After a hearing involving argument on the pleadings, the trial court upheld the exception. That court held that La.R.S. 9:5629, which was enacted in 1978, limited the period of time in which plaintiff could assert an uninsured motorist claim and reckoned that eight and one-half months was a sufficient or reasonable time in which to allow plaintiff to assert an otherwise divested contractual right of action.

We are called upon to decide whether La.R.S. 9:5629 may be retroactively applied under the circumstances of this case. We think not and, accordingly, reverse.

In Lott v. Haley, 370 So.2d 521 (La.1979) our Supreme Court was confronted with the retroactive application of La. R.S. 9:5628: prescription in medical malpractice cases. Justice Marcus reasoned that:

“[2,3] La.Civil Code art. 8 provides that ‘[a] law can prescribe only for the future; it can have no retrospective operation.’ Likewise, La.R.S. 1:2 states that no statute is retroactive unless it is expressly so stated. According to this court’s consistent interpretation, however, the general rule of prospective application applies only to substantive laws as distinguished from merely procedural or remedial laws which will be given retroactive effect in the absence of language showing a contrary intention. Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978); General Motors Acceptance Corp. v. [Anzelmo], 222 La. 1019, 64 So.2d 417 (1953). This jurisprudential rule is subject to the exception that procedural and remedial laws are not accorded retroactive effect where such retroactivity would operate unconstitutionally to disturb vested rights. Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972); Succession of Lambert, 210 La. 636, 28 So.2d 1 (1946); Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566 (1940).
“[4-6] It is well established that statutes of limitation are remedial in nature and as such are generally accorded retroactive application. State v. Alden Mills, 202 La. 416, 12 So.2d 204 (1943); Shreveport Long Leaf Lumber Co. v. Wilson, supra; DeArmas v. DeArmas, 3 La.Ann. 526 (1848). However, statutes of limitation, like any other procedural or remedial law, cannot consistently with state and federal constitutions apply retroactively to disturb a person of a pre-existing right. Orleans Parish School Board v. Pittman Construction Co., supra. Nonetheless, a newly-created statute of limitation or one which shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act to assert their rights. Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950); State v. Recorder of Mortgages, 186 La. 661, 173 So. 139 (1937). Moreover, the legislature is the judge of the reasonableness of the time and the courts will not interfere except where the time is so short as to amount to a denial of justice. Cooper v. Lykes, supra. Finally, where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. Burmaster v. Gravity Drainage District No. 2 of the Parish of St. Charles, 366 So.2d 1381 (La.1978).

Then the court proceeded to set aside the lower court’s ruling by holding that:

“. . . La.R.S. 9:5628 is a statute of limitation in that it prescribes fixed time periods for institution of medical malpractice suits. According to the general rule, statutes of limitation are accorded retroactive application. However, in the instant case, La.R.S. 9:5628 operates to eliminate plaintiff’s vested right to sue on his pre-existing cause of action without providing a reasonable period following its enactment to assert his claim. Absent such a provision, we conclude that La.R.S. 9:5628 cannot be retroactively applied in the instant case because to do so would divest plaintiff of his vested right in his cause of action in violation of the due process guarantees under the state and federal constitutions. The court of appeal erred in holding otherwise.”

We hold that the above articulated rules are, analogously, equally applicable in interpreting and applying La.R.S. 9:5629.

Appellants also argue that, notwithstanding La.R.S. 9:5629, any prescription was effectively interrupted when Aetna was cited and served as the liability insurer of defendant, Fournet. Here Aetna was contractually bound to indemnify appellants under the uninsured motorist provision of their policy. Moreover, Aetna, unlike the insurer in Palmisano v. U.S.F. & G., 371 So.2d 386 (4th Cir., 1979), writs granted 364 So.2d 662 (1979), appeal dismissed per settlement, 376 So.2d 155 (La.1979), was properly pleaded as a defendant solidarily liable with Fournet. Though there appears to be merit in this argument as well, we need not reach that question as we are persuaded that La.R.S. 9:5629 may not be applied herein to divest a preexisting right.

For the foregoing reasons, the decision of the lower court is reversed and the cause remanded for further proceedings consistent herewith, appellee, Aetna Life & Casualty Company, to pay all costs of this appeal.

REVERSED AND REMANDED.

WATKINS, J., concurs and assigns reasons.

WATKINS, Judge

(concurring).

An automobile collision occurred on March 16, 1977, which forms the basis of this suit. On March 14, 1978, plaintiffs filed suit against Walter J. Fournet and his liability insurer, Aetna Life & Casualty Co. On May 29, 1979, plaintiffs amended their petition to cite their own liability insurer, which by coincidence was also Aetna Life & Casualty Co., (Aetna) under the uninsured or underinsured motorists coverage of this liability policy.

Even if we assume that the two year prescriptive period for insurer under uninsured or underinsured motorists coverage applies by virtue of the newly enacted LSA-R.S. 9:5629, because plaintiffs in fact had a reasonable period in which to amend, still we believe that under LSA-R.S. 9:5801 which states that “(a)ll prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants . .” by the commencement of the suit, the filing of suit against Aetna as liability insurer interrupted the running of prescription against Aetna under the uninsured motorist clause of plaintiffs’ policy. The same cause of action was involved. Trahan v. Liberty Mutual Ins. Co., 314 So.2d 350 (La.1975), states, “The cause of action is the state of facts which give a party a right to judicially assert an action against the defendant.” Here, the same set of facts and the same alleged tort, was involved in suing Aetna as liability insurer and uninsured motorist insurer. Aetna was clearly placed on notice by the filing of the original petition. One of the purposes behind enacting the two year prescriptive period for uninsured motorist suits is obviously to assure that insurers will be given notice of the alleged accident while the events are still fresh. That purpose was served by suing Aetna as Four-net’s liability insurer. We know of no facts that Aetna would need to know to prepare the defense of which it would not have been apprised by plaintiffs’ original petition. Hence we believe that the trial court was incorrect in upholding the exception of prescription, and in this belief are in agreement with the majority, although for different reasons.

      . § 5629. Uninsured motorist insurance claims
      Actions for the recovery of damages, sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.


author: WATKINS, Judge.

text:
    Edgar W. JOHNSON v. AETNA CASUALTY & SURETY CO. et al. Jessie Mae JOHNSON v. AETNA CASUALTY & SURETY CO. et al.
    Nos. 13403, 13404.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      L. B. Ponder, Jr., Amite, for plaintiff.
    Iddo Pittman, Jr., Hammond, for defendants, Aetna Casualty and Surety Co. and Triangle Timber Co.
    Charles M. Hughes, Bogalusa, for defendant, Crown Zellerbach Corp.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

These are consolidated workmen’s compensation cases brought by Edgar W. Johnson, husband, and Jessie Mae Johnson, wife, to recover benefits for alleged total and permanent disability resulting from a motor vehicle collision which took place July 10, 1978, while driving from work.

The trial court rendered judgment for defendants who were Triangle Timber Co., Inc., Aetna Casualty & Surety Co., its insurer, and Crown-Zellerbach Corp. We reverse.

This case arose from an automobile accident between a pickup truck driven by Mr. Johnson in which his wife, two sons who were employees and a fifth person who was an observer, were traveling from a timber location near Hammond, Louisiana, to Mr. Johnson’s home 12 miles east of Osyka, Mississippi. They were hit head on by a car which was passing a vehicle heading toward them on Morris Road. The defense of Aet-na & Triangle is that the accident did' not occur in the course and scope of Johnson’s employment.

It appears from the facts that Mr. Johnson had two trucks, a pickup truck in which he traveled to and from work and in which he carried his employees and his equipment, including chain saws, gasoline tanks and the like, and a pulpwood truck on which he loaded the timber that he cut. He was a subcontractor for Triangle, which generally cut timber on Crown-Zellerbach land. His wife was allegedly employed by him and, although it is contended that a contract of employment could not have been entered into between them, under the new matrimonial regimes law such a contract is possible. Even if the matrimonial regimes law is inapplicable as it was not in effect on the date of the accident, still the venture was a community venture, and Mrs. Johnson is a co-subcontractor.

The accident occurred while Mr. Johnson was returning home from work. He controlled the route that he took, the hours that he worked, his employees, the. location that he worked in general, the place that he lived, and all other activities connected with his work. He and his employees and the observer drove to a filling station where the pulpwood truck was left, as was customary. It was after 5:00 in the afternoon and, therefore, they did not drive the pulpwood truck to the weighing station, which closed at 5:00. Another reason for not leaving the pulpwood truck at the weighing station was that Mr. Johnson stated that frequently truck equipment such as batteries and so forth were stolen from the pulpwood truck at the weighing station overnight.

In Castille v. Sibilie, 342 So.2d 279 (La.App. 3rd Cir. 1977) it was held that an accident which occurs to a workman going to or from does not take place in the course and scope of his employment and, therefore, it is not subject to compensation benefits. There are exceptions to this rule which are found set out in Castille as follows:

“Normally, an employee injured while in transit to and from the jobsite is not within the course and scope of his employment and is thus not entitled to workmen’s compensation from his employer for injuries sustained at such time. To such general rule, however, there are exceptions. The courts have held employees entitled to workmen’s compensation in those cases in which the employer had concerned himself with the transportation of his employees-he has furnished transportation (Griffin v. Catherine Sugar Co., 219 La. 846, 54 So.2d 121 (1951); Jackson v. Long, 289 So.2d 205 (La.App. 4 Cir. 1974); Gardner v. Industrial Indemnity Co., 212 So.2d 452 (La.App. 1 Cir. 1968); Callihan v. Firemen’s Fund Indemnity Co., 110 So.2d 758 (La.App.1959); and/or the employee is furnished travel expenses or is paid wages for time spent in traveling (Jackson v. Long, supra; Pierre v. Gulf Janitorial Service of Baton Rouge, 277 So.2d 509 (La.App. 1 Cir. 1973), writ denied 279 So.2d 689; Welch v. Travelers Ins. Co., 225 So.2d 623 (La.App. 1 Cir. 1969), writ refused 254 La. 852, 277 So.2d 594; Gardner v. Industrial Indemnity Co., supra)-and in those cases in which the operation of the motor vehicle was the performance of one of the duties of the employment of plaintiff (Stephens v. Justiss-Mears Oil Co., La., 312 So.2d 293 (1975); Jackson v. Long, supra; Fabre v. Travelers Ins. Co., 286 So.2d 459 (La.App. 1 Cir. 1973), writ denied, La., 288 So.2d 646; Pierre v. Gulf Janitorial Service of Baton Rouge, supra; Keller v. Wallace Industrial Constructors, 224 So.2d 31 (La.App. 1 Cir. 1969), writ refused 254 La. 782, 226 So.2d 771).” (342 So.2d 279, 280, 281)

An additional exception is found to this rule in the threshold doctrine, which is discussed in Malone’s Treatise on Workmen’s Compensation, Sec. 172. However, in order for the threshold rule to apply, it is necessary that the hazard be one to which the employee is regularly exposed in the course of his employment and, second, that the accident occur immediately adjacent to the premises on which the worker is employed. Neither of these conditions is found in the present case. An additional exception to the rule is found in Willis v. Cloud, 151 So.2d 379 (La.App. 3rd Cir. 1963), writ refused, 244 La. 623, 153 So.2d 415 (1963). In that case, a worker transported both his fellow workers, his equipment and timber in one truck. The accident occurred while the worker was on his way home from work. It was held the Workmen’s Compensation Statute afforded benefits as the accident occurred in the course and scope of the worker’s employment for the reason that the truck was an instrument of the worker’s trade. In Willis the Court states its reasoning as follows:

“In the instant case, the deceased employee’s duties were such as to require him to furnish his own means of transportation in the actual performance of his work. He used his own truck not only to go back and forth to his work, but also to perform his duties during the course of a day’s work. Thus, in effect, the deceased employee’s truck was an instrument or tool of his trade.” (151 So.2d 379, 381)

We hold that, similarly, the pickup truck in which plaintiffs-appellants were going home was an instrument or tool of their trade. They transported their tools and supplies in it and used it to perform their duties during the day’s work as well as to transport employees. It is drawing an unduly fine line of distinction to say that appellants would have been protected by workmen’s compensation had they been in the larger pulpwood truck but that they were not protected merely because they were in the pickup truck.

The Workmen’s Compensation Statute applies to an employee who “receives personal injury by accident arising out of and in the course of his employment.” LSA-R.S. 23:1031. All provisions of the Workmen’s Compensation Statute are to be liberally construed in favor of claimants. Graver v. Zeeman Enterprises, Inc., 362 So.2d 1228 (La.App. 4th Cir. 1978). To construe the Statute not to apply to the claimants in the present case on the narrow reasoning that had they driven in one truck, they would have been covered, but since they drove in another, they were not, would be to give the Workmen’s Compensation Statute a harsh and illiberal construction, and to violate the traditional view of the Statute. We, therefore, hold that the accident arose in the course and scope of claimants’ employment. The Johnsons were independent (sub)contractors spending a substantial part of their work time in manual work, and are thus covered. LSA-R.S. 23:1021(6); Dupuy v. Parish Contractors, Inc., 275 So.2d 872 (La.App. 4th Cir. 1973).

Mr. Johnson is quite clearly totally and permanently disabled. Although Mrs. Johnson seeks benefits for total and permanent disability, she testified that she was disabled and unable to work for only about four months, or sixteen weeks. She testified that she is seeking $130.00 per week. The testimony as to what the claimants were earning at the time of the accident is inadequate.

As there was a legitimate question as to whether or not the accident occurred in the course and scope of employment which could only be resolved judicially, we deny penalty and attorney’s fees.

Accordingly, we hold that Edgar W. Johnson is entitled to benefits, for total and permanent disability, from Triangle and Aetna and Jessie Mae Johnson is entitled to compensation benefits for sixteen weeks from those parties. The matter is remanded to the trial court for a determination of the precise amount of benefits in each case, to be determined in a manner consistent with our present holding. Crown-Zeller-bach is released as a party defendant.

REVERSED AND REMANDED.

      . See amendment to LSA-C.C. art. 1790 enacted by Act No. 627 of 1978, Sec. 3, which took effect September 7, 1979, and which removes the total incapacity to contract between husband and wife.