author: CUTRER, Judge.

text:
    MARYLAND CASUALTY CO., Plaintiff-Appellant, v. Kirk Edward BOLLICH, et al., Defendants-Appellees.
    No. 8532.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Mouton & Jeansonne, Charles Foret, Lafayette, for plaintiff-appellant.
    Pucheu & Pucheu, Jacque B. Pucheu, Eunice, Guglielmo & Lopez, James C. Lopez, Opelousas, for defendants-appellees.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This suit was filed by Maryland Casualty Company against Dr. F. J. DeRouen, Jr., American Employers Insurance Company, Kirk E. Bollich, Donald Bollich and Rock-wood Insurance Company. The purpose of this suit was to recover workmen’s compensation benefits paid, or to be paid, to the survivors of Russell Gaspard who was killed on September 27, 1978, while combining soybeans. The plaintiff seeks indemnity or contribution from the defendants. The trial court rendered summary judgment dismissing plaintiff’s claim against Dr. De-Rouen and his insurer, American Employers Insurance Company (American). The plaintiff appeals. We affirm.

In our consideration of a motion for summary judgment we must keep in mind that LSA-C.C.P. art. 966 provides that a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, show no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. Only when reasonable minds must inevitably concur, as a matter of law, on the facts before the court is a summary judgment warranted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976); Clement v. Taylor, 382 So.2d 231 (La.App. 3rd Cir. 1980). Any doubts as to genuine issues of material fact are resolved against the granting of summary judgment and in favor of a trial on the merits. Clement v. Taylor, supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

In support of the motion for summary judgment, the depositions of Dr. DeRouen, Steven Zaunbrecher and Kirk Bollich were introduced into evidence. No evidence was introduced in opposition to the motion.

The facts are not disputed. Dr. De-Rouen, a medical doctor, was the owner of 540 acres of land near Elton, Louisiana. In 1978, Dr. DeRouen orally leased the land to Donald. Bollich for the purpose of farming rice and soybeans. As consideration for the lease, Dr. DeRouen was to receive 40% of the proceeds from any rice harvested and sold and 20% of the funds from any soybeans harvested and sold. In addition to the land and water, Dr. DeRouen agreed to pay his percentage of the fertilizer, seed and costs for dispensing fertilizer by airplane. Dr. DeRouen played no part in the actual farming operations. Kirk Bollich, the son of Donald Bollich, attended to the farming operations on behalf of his father. Bollich made all decisions as to what to plant, time of planting, harvesting operations and sale of the rice or soybeans. Bol-lich furnished all the labor and machinery for such farming operations. Authority to hire and discharge labor rested completely with Bollich. The only connection that Dr. DeRouen had with the operations was to furnish the items set forth above. In return, he would receive his respective percentage of the funds of the crops sold. This type of lease arrangement (crop-sharing) is typical for rice and soybean farmers.

Near the farm operated by Bollich was a farm operated by Steven Zaunbrecher. It was common practice for the farmers in the area to assist each other in the harvesting of their crops. Such an arrangement existed between Bollich and Zaunbrecher. On September 27, 1978, Zaunbrecher sent a combine to assist Bollich in the harvesting of soybeans. Zaunbrecher assigned one of his employees, Russell Gaspard, to operate the machine. Gaspard was operating the combine on the Bollich farm when he was killed by becoming entangled in the auger of the combine.

Maryland Casualty Company (Maryland), the workmen’s compensation carrier for Zaunbrecher, began making compensation payments to the dependents of Gaspard. Maryland then filed this suit against the Bollichs, their insurer, Dr. DeRouen, and his insurer, American, seeking contribution or indemnity for the compensation- payments paid and to be paid.

The first contention of plaintiff in this appeal is that Gaspard was a “borrowed employee” of Dr. DeRouen and, as such, Dr. DeRouen and his insurer are liable for contribution or indemnity. The depositions clearly' reflect that Dr. DeRouen was a lessor of Donald Bollich. Dr. DeRouen had no control over any labor used in the farming operations of Bollich. Dr. DeRouen furnished no funds for the payment of labor. He was a lessor, participating in the operation of the farm only to the extent of furnishing the land, water and his respective percentages of the costs of seed, fertilizer and distribution of fertilizer. Such a relationship does not categorize Dr. DeRouen as a direct employer of any labor used on the Bollich farm, nor does it make him a special employer of Gaspard at the time of the accident. The authority cited by plaintiff, which compels co-employers to bear their share of compensation payments, is inapplicable to Dr. DeRouen.

Plaintiff further contends, alternatively, that Dr. DeRouen derived a substantial economic benefit from the farming operations, therefore, Dr. DeRouen must be classified as a “statutory employer” (principal) of Gaspard under the provisions of LSA-R.S. 23:1061. This provision reads as follows:

“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
“Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.” (Emphasis added.)

In view of the provisions of the last paragraph set forth above, it is unnecessary for us to determine whether Dr. DeRouen was a “principal” within the meaning of this section. This statute specifically provides that in the event a person is declared to be a principal or statutory employer, and, as such, makes compensation payments, the principal shall have a cause of action for indemnity against any person with whom he contracts for the performance of work. In the case at hand, if Dr. DeRouen paid compensation payments to Gaspard’s dependents as a statutory employer, Dr. De-Rouen would have a cause of action for complete indemnity for such payments against Gaspard’s employer or co-employer. With such a statutory right of indemnity existing in favor of Dr. DeRouen, neither the employer nor co-employer of Gaspard would have any corresponding cause of action against Dr. DeRouen for contribution or indemnity. As a matter of law the motion for summary judgment must be granted in favor of Dr. DeRouen.

Having come to the conclusion that Dr. DeRouen has no liability for workmen’s compensation payments, it is unnecessary for us to determine whether American Employers Insurance Company provides coverage for Dr. DeRouen. The motion for summary judgment was correctly granted in favor of this defendant.

For the reasons assigned, the judgment of the trial court granting the motion for summary judgment filed by Dr. DeRotien and his insurer is affirmed. The suit is hereby remanded to the district court for further proceedings according to law. Plaintiff-appellant is to pay all costs of this appeal.

AFFIRMED AND REMANDED.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Roy A. PUCKETT, Plaintiff-Appellant, v. CAROLINA CASUALTY INSURANCE COMPANY, Defendant-Appellee.
    No. 8533.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Davis & Murchison, James D. Davis, Alexandria, for plaintiff-appellant.
    Bolen & Erwin, Gregory S. Erwin, Alexandria, for defendant-appellee.
    Before FORET, SWIFT and LABORDE, JJ.
   LABORDE, Judge.

This suit involves a claim by plaintiff, Roy A. Puckett, against defendant, Carolina Casualty Insurance Company, under a motor truck cargo policy. Puckett’s suit alleged that the incident in question which caused his trailer to spill rice was caused by a “collision” or an “upset” within the meaning of the policy. The trial court rendered judgment in favor of the defendant, from which plaintiff now appeals. We affirm.

The issue on appeal is whether the trial court properly interpreted the policy language in light of the facts of the case.

On September 11, 1980, C. J. Paul, Jr., who was employed by Roy Puckett, was hauling a 1972 Wilson Trailer loaded with 50,000 pounds of rice near Beaumont, Texas on Interstate 10. Plaintiff’s driver, Paul, had picked up his load in Welsh, Louisiana and was to deliver it to Houston, Texas. Paul had just negotiated a left sloping curve on the interstate when a following motorist informed him over a CB radio that he was losing rice out of the side of his trailer. He immediately pulled off the interstate and stopped his vehicle. Puckett contends that the truck and trailer ran over a “dip” in the highway which caused the right side of the trailer to split and spill the rice. Plaintiff’s truck and trailer were insured by defendant against collision, upset and other losses. Puckett claims $5,500.00 for the repair of the trailer, $819.00 for temporary trailer repairs, $200.00 for the cost of picking up the rice, and $618.02 for the lost rice.

At issue is the liability of the defendant insurer under the terms and conditions of the policy. It must be determined whether the incident constitutes a peril as described in Paragraph V(c) of the insurance policy: “overturning or upset of the truck while on land”. Since there was no actual overturning, the dispute centers on a definition of the term “upset”.

Words and phrases employed in a contract of insurance are to be construed, interpreted, and defined in their ordinary and popular sense, rather than in a technical, philosophical or limited sense.

Such words and phrases are to be construed liberally in favor of the policyholder, and all ambiguities are likewise to be resolved in favor of the policyholder. If the words or terms used in the insurance policy are subject to more than one accepted meaning, then such words must be construed in the sense which is more favorable to the insured, unless such interpretation would lead to absurd results. LSA-C.C. Articles 1957 and 1945(3); Carney v. American Fire and Indemnity Company, 371 So.2d 815 (La.1979); and Hidalgo v. Allstate Insurance Company, 374 So.2d 1261 (La.App. 3rd Cir. 1979).

“Upset” is defined in Webster’s New International Dictionary as, “To overturn, overthrow, or overset, as to upset a carriage”. Webster’s Third New International Dictionary expands on that definition so as “to force out of the usual upright, level or proper position: Capsize ... to disturb the equilibrium of . . . the object”.

The trial court made two key findings of fact in its well written reasons for judgment. First, the court concluded that there was no upset within the meaning of the policy; and, second, that “the evidence tends to indicate, on the contrary, that normal wear and tear or rusting had weakened the structural integrity of the vehicle”.

The record reveals that there was not even a minimal loss of equilibrium and therefore there can be no recovery for loss due to upset. Mr. Donald Coleman, manager of the Beaumont office of Crawford & Company Insurance Adjusters, testified in his deposition that there was nothing particularly noteworthy about that particular stretch of road either in terms of curves, bumps, or uneven surfaces. Mr. C. B. Simmons, the owner of the salvage company who did the repair work on plaintiff’s trailer, stated in his deposition, that the curve was sharp enought to require a reduction in speed to thirty-five or forty-five miles per hour; however, his testimony does not indicate anything particularly unusual about the curve beyond the necessity of slowing down to negotiate it. There was no direct testimony as to the angle of the curve, the nature of the “dip” or rough highway surface, or any proof that plaintiff’s truck had in any way tilted or lost its equilibrium.

Contrary to plaintiff’s allegations, the evidence indicates that the loss was caused more by the condition of the trailer. Both Mr. Coleman and Mr. Simmons testified that they noted some rust at the site of the break. Such loss is expressly excluded from coverage in Paragraph VI (a) of the insurance contract.

The trial court, in rejecting plaintiff’s demands, was not satisfied that plaintiff had presented sufficient evidence to sustain his demands. An examination of the record does not reveal that the trial judge was clearly wrong in rejecting plaintiff’s demands.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the plaintiff-appellant, Roy A. Puckett.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Rene Allen BEGNAUD, Plaintiff-Appellant, v. PEDESTAL CRANE, INC., et al., Defendant-Appellee.
    No. 8543.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Onebane & Associates, Mark L. Riley, Lafayette, for intervenor-appellee-appel-lant.
    Michael Skinner, Lafayette, for plaintiff-appellant-appellee.
    Gachassin & Capretz, Nicholas Gachassin, Jr. and Carey T. Jones, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOMENGEAUX, Judge.

In this tort suit plaintiff alleges that on May 7,1980, he received accidental personal injuries caused by the negligence of defendant, Pedestal Crane, Inc. (Pedestal). Pedestal answered alleging that it was plaintiff’s statutory employer, thus relegating his remedy to workmen’s compensation. United General Insurance Company, the workmen’s compensation carrier for the plaintiff’s employer, B & S Heavy Haulers, Inc. (B & S) intervened to recover any amounts that it had paid or would become obligated to pay to plaintiff in compensation benefits. Ultimately Pedestal filed a motion for summary judgment which was granted by the trial court. It was held that plaintiff’s exclusive remedy herein is in workmen’s compensation and consequently his suit was dismissed.

Plaintiff appeals and we affirm.

The pleadings and other summary judgment documents show that at the time of the accident plaintiff’s employer, B &' S, had contracted with defendant Pedestal to transport a boom section of a heavy crane belonging to Pedestal. Pursuant to this contract, plaintiff was standing on the back of one of his employer’s flatbed trucks at Pedestal’s place of business, when a large industrial crane owned or leased by Pedestal fell on the bed of the truck on which plaintiff was standing. In an attempt to jump out of the path of the falling crane, plaintiff injured his right foot.

There is only one issue before us: Is there any genuine issue of material fact as to whether the work undertaken by plaintiff’s employer, B & S for defendant Pedestal was an integral part of Pedestal’s regular business, so as to preclude the use of summary judgment?

LSA-C.C.P. Article 966 provides that a motion for summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.

On a motion for summary judgment, the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence that material facts are still at issue, and only at this point may he no longer rest on the allegations and denials contained in his pleadings. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980).

In consideration of this motion for summary judgment, our review of the record indicates that there is no genuine issue of material fact. The mover in this action, through affidavits and interrogatories, has shown there is no genuine issue of material fact concerning whether the activity undertaken by B & S was a part of the regular business of Pedestal, within the meaning of LSA-R.S. 23:1061.

The affidavit and interrogatories establish that Pedestal is in the business of building and selling industrial cranes. John Hudson, its President and General Manager, in his affidavit states that Pedestal is in the business of building and selling industrial cranes. He further states that an essential and integral part of Pedestal’s business is the transportation of both its finished product and any replacement parts necessary to maintain and repair the equipment sold to its customers.

The conclusion that the work undertaken by B & S was part of the regular business of Pedestal is further supported by the answers to the interrogatories propounded to Pedestal. The interrogatories propounded to Pedestal contained the following questions and answers:

“INTERROGATORY NO. 1
Q. How many times during the year 1980 did Pedestal Crane, Inc. hire B & S Heavy Haulers to transport equipment, parts or any other item?
A. B & S Heavy Haulers operated through Roy Young, Inc. up to May, 1980. Pedestal Crane hired B & S (Roy Young) approximately 40 times up to and through the month of April, 1980. From May, 1980, B & S operated through Kay-Lease, Inc. From May, 1980, through December, 1980, Pedestal Crane utilized B & S (Kay-Lease) approximately 100 times. This would include a wide variety of items ranging from hand carryable parts transported by half-ton rated pick-up trucks up to large steel structures requiring trailer trucks.”

T. B. W. Industries, Inc., the parent corporation of Pedestal keeps a fleet of trucks which are available for use to Pedestal on a regular basis. The interrogatories provide the following information:

“INTERROGATORY NO. 3
Q. How many times during the year 1980 did Pedestal Crane, Inc. use the trucks allegedly maintained by T. B. W. Industries to transport equipment, parts, or any other item?
A. Estimated; 250 to 350 times. Detailed records on movement of all size trucks are not maintained.
INTERROGATORY NO. 6
Q. Where are the trucks allegedly maintained by T. B. W. Industries garaged?
A. Various trucks of various sizes:
Pedestal Crane, Inc. 228 Thruway Park Broussard, Louisiana P. 0. Box 53813, OCS Lafayette, Louisiana 70505 T.B.W. Industries, Inc. SMATCO Warehouse La. 659
Gray, Louisiana 70359 P. O. Box 4036 Houma, Louisiana 70361 (Other locations deleted)”

It is therefore clear that Pedestal had in house trucking capabilities and was required on numerous occasions to supplement this capability with contract haulers, such as B & S.

Plaintiff contends that Pedestal has not proved that there is no genuine issue of material fact. We think he has. Plaintiff-appellant has filed no counter-affidavit nor has he informed the court of any other facts which would be determinative of this issue before us. It is clear that the transportation of both the finished product and any necessary parts is an integral part of Pedestal’s business.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . Article 966 reads as follows:
      “The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
      The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

      . LSA-R.S. 23:1061 provides as follows:
      “Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”


text:
    Buster C. SAUCIER, d/b/a MacArthur Village Beauty Shop, Plaintiff-Appellee, v. JOHN-CLAI COMPANY, et al., Defendants-Appellants.
    No. 8551.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Provosty, Sadler & deLaunay, LeDoux R. Provosty, Jr. and P. Rae Swent, Alexandria, for defendant-appellant.
    Broussard, Bolton.& Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-ap-pellee.
    Before FORET, SWIFT and LABORDE, JJ.
   LABORDE, Judge.

This case involves the interpretation of a non-competition clause in a contract of lease. Plaintiff-lessee, Buster C. Saucier, d/b/a MacArthur Village Beauty Shop, filed this suit against his former lessors, alleging breach of the non-competition clause in his contract of lease. The trial court found for plaintiff and awarded him a total of $6,648 in damages plus interest. Defendants appealed. Plaintiff answered the appeal.

The issues involve the interpretation of the lease’s non-competition clause and the award of damages based on that interpretation. We amend and affirm.

FACTS

One of the defendants, John Clai-Compa-ny (John-Clai), is a partnership that owns and operates the MacArthur Village Shopping Center, a shopping mall located in Alexandria, Louisiana. The other defendant is Dr. John W. Deming, a partner in the Company. On June 1, 1972, John-Clai entered a ten-year lease agreement with Saucier for the purpose of Saucier operating a beauty salon in the shopping mall. This lease contained a non-competition clause, the interpretation of which is the focus of this appeal.

On February 15,1977, Gus Kaplan, another of John-Clai’s lessees located in the same shopping mall as Saucier, increased the size of its rented premises by amending its existing lease. In March of 1978, Saucier learned that Gus Kaplan was preparing to open a beauty salon in part of this new area. After failing to secure enforcement of the non-competition clause from John-Clai, Saucier filed this suit on June 21,1978. On September 7, 1978, a competing beauty salon, located on the premises leased by Gus Kaplan and operated by its sub-lessee, opened for business.

INTERPRETATION OF THE CONTRACT

The dispute between the parties centers around the following provision of the lease contract:

“COMPETING BUSINESSES: Lessor shall not lease during the primary term of this lease or any renewals or any extensions thereof any space in MacArthur Village Shopping Center to any person, firm, or corporation for the purpose of carrying on the business of a Beauty Shop, and sales and services generally carried on in conjunction with such business.”

John-Clai urges that the trial court erred in failing to interpret the contract according to its clear and unambiguous terms. In this connection, John-Clai underscores the language “Lessor Shall not lease ...” and argues that because the competing beauty shop was sub-leased by Gus Ka-plan instead of being directly leased by it, the lease provisions were not violated. We find no merit in John-Clai’s contentions.

Agreements legally entered into have the effect of law on those who have formed them and the courts are bound to give legal effect to such agreements according to the true intent of the parties. LSA-C.C. arts. 1901, 1945 and 1963. The intent of the parties is to be determined by the words of the contract and when they are clear and explicit, the terms of the contract must prevail. Sleet v. Gray, 351 So.2d 286 (La.App. 3rd Cir. 1977).

The contract entered into by the parties, in particular the portion above quoted, expressly prohibits John-Clai from leasing any space in the shopping center to anyone for the purpose of operating a beauty shop during the life of the lease. The trial court, after reviewing the contract, resolved the issue in plaintiff’s favor concluding that the terms of the lease were not ambiguous and they clearly obligate the lessor not to rent any space in the shopping center that will be used to compete with plaintiff’s business. Finding no clear error in this determination, it must be affirmed.

John-Clai’s other arguments under this assignment of error were advanced in the alternative this court found that the terms of the contract were ambiguous and resorted to evidence beyond its written terms to determine the parties’ intent. Due to our holding above, no further discussion is necessary.

DAMAGES

The trial court awarded plaintiff $4,500 in lost profits, and $1,068 and $1,080 representing return of rentals paid for the non-competition clause and for the premises respectively. John-Clai appeals and urges that the damages awarded were unwarranted and alternatively that they were excessive. Saucier answered the appeal asking that the awards be increased.

We begin with the award for loss of profits. Defendant contends the record does not support the trial court’s conclusion that Saucier’s losses resulted from the opening of the competing beauty salon in the shopping center. We disagree. Although there is evidence in the record indicating that Saucier’s business was not a big money-maker for him and that the area near his salon housed several competing salons which may have contributed to Saucier’s waning profits — we nonetheless feel that the lower court’s award was supported by the record. For example, both Saucier and his wife who worked in the Salon testified regarding a noticeable slump in business immediately after the competing shop opened in Gus Kaplan’s. In addition, plaintiff’s Certified Public Accountant, Bruce Stagg, testified in that capacity and some of the records he kept were also introduced into evidence for the court’s consideration. The trial court, in its written reasons for judgment, concluded:

“Although Mr. Saucier’s business was only marginally profitable over it’s lifetime, it did suffer a sudden and precipitous decline in profits once it faced competition from Gus Kaplan and that loss can only be explained in terms of loss of business to that new competition. This Court realizes that a beauty shop currently occupies the area once occupied by plaintiff’s shop and that this business is doing quite well but that does not alter the fact that competition, from which plaintiff had contracted to protect himself, did cause his business to finally fail. Damages in the amount of $4,500.00 are reasonable for this loss of profit.”

Based on our thorough review of the record, we cannot say that the trial court abused its “much discretion” in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Reck v. Stevens, 373 So.2d 498 (La.1979).

The record likewise supports the trial court’s conclusion that Saucier paid additional rental for the insertion of the non-competition clause and we find no abuse of its “much discretion” in allowing a refund of these monies paid as an element of Saucier’s damages.

However, we cannot agree with the lower court that Saucier is entitled to a refund of the rent paid for October through December, 1979. The law is clear that a lessee cannot recover rent paid as damages for breach of contract of lease where he had the use of the premises during the period for which the rent was paid. Finnin v. Balter, 168 La. 527, 122 So. 716 (1929). The record indicated that even though Saucier closed his business in October of 1979, he stored his equipment on the premises until December of the same year. Thus, he is not entitled to recover the amount of rent paid for those months.

For the above reasons, the judgment of the lower court is amended to exclude the award of rents paid to defendant. In all other respects, it is affirmed. Costs of this appeal are assessed one-half to defendants-appellants and one-half to plaintiff-appel-lee.

AMENDED, AND AFFIRMED AS AMENDED.

      . This case was previously before this court on appeal from the lower court’s granting of defendants’ motion for summary judgment. Saucier v. John-Clai Co., 371 So.2d 1240 (La.App. 3rd Cir. 1979). The summary judgment was reversed and the case was remanded for a full hearing on the merits from which this appeal followed.


author: SWIFT, Judge.

text:
    Kinman Paul GOUX, Plaintiff-Appellant, v. Delores Smith GOUX, Defendant-Appellee.
    No. 8555.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      William Yarno, Jr., Marksville, for plaintiff-appellant.
    Knoll & Knoll, Jeanette Theriot Knoll, Marksville, for defendant-appellee.
    Before FORET, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

In this case the plaintiff, Kinman Paul Goux, was granted a divorce and ordered to pay to his wife, Delores Smith Goux, to whom custody of their four children was granted, child support in the amount of $275.00 per month for each child, plus medical and dental expenses. From the judgment the plaintiff has appealed. We affirm.

The sole issue before this court is whether or not the trial judge abused his discretion in fixing the child support.

At trial the financial situations of both parents were developed. Delores Goux offered into evidence budgets which she said she had prepared for both herself and her children to substantiate their actual total monthly expenses of $1,023.00 and $1,658.00 respectively. She acknowledged receiving slightly over $58,000.00 cash in a partial community property settlement. Fifty thousand of this was invested in a money market certificate to earn interest from which she supports herself and contributes to the financial support of the children. Mrs. Goux also received $3,300.00 as a lease bonus or a royalty sale after the separation. She is not employed and is responsible for rearing the four minor children, ages ten, eight, five and three. The three oldest attend private schools with the father’s consent.

Kinman Goux is a self-employed pharmacist who owns a ,one-half interest in the Clinic Pharmacy of Marksville, Inc., and is paid a weekly salary of $500.00. The company records reflected retained corporate earnings in excess of $5,000.00 for the five months preceding December 31, 1980. A ten per cent growth in business is estimated. Mr. Goux received approximately 210 acres of improved farm land in the partial community property settlement with his wife, from which he earns or has earned income by renting land for farming, by raising approximately 100 head of cattle for sale and personal consumption, by selling hay and by leasing the property for mineral exploration. However, Goux testified his indebtedness on the farm amounts to approximately $230,000.00. The financial statement which he presented reflects a gross monthly income of $2,250.00, with a net of $1,511.35. His monthly living expenses are also listed thereon in the total amount of $1,110.00, leaving $401.35 available for child support. In 1979 his income was in excess of $44,000.00.

LSA-C.C. Art. 227 provides that fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children.

This court in Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3 Cir. 1980), writ denied, 383 So.2d 782 (La.1980), said:

“A mutual obligation of support, maintenance, and education of children is imposed by our law on both parents. The degree of support required of each is determined by the needs of the children and the circumstances of those who are obliged to pay it. LSA-C.C. Articles 227, 230 and 231; Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir. 1978); Marcus v. Burnett, 282 So.2d 122 (La.1973); Strickland v. Strickland, 377 So.2d 537 (La.App. 3rd Cir. 1979). The customary duties performed and services rendered by a mother on a daily basis contribute substantially to the mutual obligation of support. Ducote v. Ducote, 339 So.2d 835 (La.1976).

Additionally, it is well settled that the trial court is vested with wide discretion in fixing child support. Fellows v. Fellows, 267 So.2d 572 (La.App. 3 Cir. 1972).

Our review of the record reveals that the amount of the trial court’s award in this case was not an abuse of the wide discretion accorded him. Although both parents owe a mutual obligation of support to their children, the needs of the children and the circumstances of each of the parents determine the amounts thereof. The trial court was obviously convinced that Mr. Goux can afford to contribute more money to the support of the children than Mrs. Goux. He earns a good salary and owns various income-producing assets. His ability to pay support far outweighs that of Mrs. Goux, whose only income is the interest from the investment of the community property settlement. She spends her time performing the daily duties and services of a mother to the four children and this substantially contributes to the mutual obligation of support. Although the amounts which Mrs. Goux testified she spent on the children were certainly not meagre, this family apparently lived comfortably and well before their separation and we are unable to say that the financial needs of the children are not substantiated in the record. We conclude therefore that the trial court was not manifestly erroneous in its determination of the child support the plaintiff is obliged to pay in this instance.

For the assigned reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


author: LABORDE, Judge. FORET, Judge,

text:
    Audrey DESORMEAUX, Plaintiff-Appellant, v. Ray BRIGNAC, Defendant-Appellee.
    No. 8564.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Corne & Block, Louis M. Corne, Lafayette, for plaintiff-appellant.
    J. Burton Willis, St. Martinville, for defendant-appellee.
    Before FORET, SWIFT and LABORDE, JJ.
   LABORDE, Judge.

On February 17, 1981, Audrey Desor-meaux instituted this suit seeking a separation from bed and board from her husband, Ray Brignac. Incidental to the suit, Audrey prayed for alimony pendente lite. After the March 27, 1981, hearing on the rule, the trial judge ordered defendant to pay alimony pendente lite to the plaintiff in the amount of $545 to be paid April 1,1981, and $545 to be paid May 1, 1981, and thereafter terminate. In addition, Audrey was granted use of the family house and Ray was ordered to make the monthly payments on the house and to keep it fully insured. Ray was ordered to continue permitting Audrey to use an automobile belonging to a corporation he managed and to keep the automobile fully insured. Finally, the court ordered Ray to maintain hospitalization insurance on Audrey.

Audrey appeals claiming that the trial judge committed error in granting alimony for a two (2) month period and refusing to award her alimony pending the litigation. We affirm. Our review of the record reveals no abuse of discretion by the trial judge.

The applicable law is set out in LSA-C.C. art. 148, which provides:

“Art. 148. If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”

In making an award for alimony pendente lite, the court must take into consideration the needs of the claimant spouse and the means of the other spouse. The actual needs for the maintenance and support of the wife must first be determined, and if the amount needed is proportionate to the husband’s means, that amount should be awarded. If her needs exceed the husband’s ability to pay, then alimony penden-te lite should be fixed at a sum which will be just and fair to all parties involved. Frederick v. Frederick, 379 So.2d 808 (La.App. 4th Cir. 1980); Shepard v. Shepard, 334 So.2d 745 (La.App. 3rd Cir. 1976).

The fixing of the amount of alimony pendente lite which the husband should be required to pay his wife is largely within the sound discretion of the trial judge and his conclusions as to the amount of the award will not be disturbed on appeal unless there has been a clear abuse of discretion. Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir. 1980); Gravel v. Gravel, 331 So.2d 580 (La.App. 3rd Cir. 1976); Bernard v. Bernard, 300 So.2d 499 (La.App. 3rd Cir. 1974); Vidrine v. Vidrine, 402 So.2d 793 (La.App. 3rd Cir. 1981), our Docket Number 8350, rendered July 30,1981 and Manning v. Manning, 406 So.2d 285 (La.App. 3rd Cir. 1981).

Audrey claims that by granting alimony for only two (2) months the trial judge is forcing her to gain employment during that period of time. She admits that she has been employed as an executive assistant or executive secretary and a real estate broker during most of her nine year marriage to Ray. According to her testimony she earned approximately $13,000 in 1979. At the time of trial she was drawing unemployment benefits of $95.00 per week. Audrey urges our adoption of the holding in Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2nd Cir. 1980), where the court held that the capability of the claimant spouse to obtain employment producing some income at a future time was not an appropriate consideration in determining the sum to which the claimant spouse was entitled.

Our reading of the trial judge’s reasoning for judgment leads us to a contrary conclusion. Even if he did consider Audrey’s capacity for employment and did quote from Smith v. Smith, 382 So.2d 972 (La.App. 1st Cir. 1980), which held that where there was no impediment to claimant’s employment, she was' not entitled to alimony pendente lite unless it was apparent that she was unable to find employment. We conclude that he limited the alimony award because another hearing between the litigants was scheduled for April 30, 1981, at which time he would review his judgment. The trial judge said “that does not preclude Mrs. Brignac from coming back to court, however, depending on what the circumstances are at the time. I am not saying she will not be able to get alimony beyond that date. I’m simply saying that’s as far as my order goes”.

Ray testified that he was employed by the State of Louisiana and that his income was $2,379 per month. He listed ordinary and regular monthly expenses including $300 monthly rent for an apartment. In addition to the alimony award, the trial judge awarded Audrey possession of the family home and an automobile and ordered Ray to maintain hospitalization insurance on Audrey and insurance on the house and car. He said “now, I’m mindful that the amounts I’m awarding for alimony put Mr. Brignac in a deficit situation. It’s the best I can do with what I have to work with and it’s not an order that’s made for any great duration of time.”

A review of the respective incomes and expenses of the litigants in light of the statutory authority and its judicial interpretation does not establish that there has been any abuse of discretion on the part of the trial judge.

For the above and foregoing reasons the decision of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.

FORET, J., concurs with written reasons.

FORET, Judge,

concurring.

I concur in the result reached by the majority, although my personal preference would be to follow the First Circuit’s Smith case cited in the majority opinion, in that case’s holding that where there is no impediment to the claiming spouse’s engaging in gainful employment, as is the case here, that she would not be entitled to alimony pendente lite unless it is apparent that she was unable to find employment, or that she might be entitled to an award over and above what she might reasonably be expected to earn.

      . Ray also filed suit on February 9, 1981, for separation from bed and board. We assume the cases were consolidated for hearing although no hearing was held on a rule to consolidate or on an exception of lis pendens filed by Ray.


text:
    Faye O’QUINN, et vir., Plaintiffs-Appellees, v. STATE, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
    No. 8567.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Warren D. Ponder, Baton Rouge, for defendant-appellant.
    Eugene P. Cicardo, Alexandria, for plaintiff-appellee.
    Before FORET, SWIFT and LABORDE, JJ.
   SWIFT, Judge.

Plaintiffs, Faye O’Quinn and her husband, Milton O’Quinn, filed this suit against the State of Louisiana, through the Department of Transportation and Development, seeking damages from a one car accident which occurred when Mrs. O’Quinn attempted to enter a highway from her driveway. Concluding that the defendant was liable under either La.C.C. Articles 2315 or 2317, the trial court rendered judgment in favor of Faye O’Quinn. The defendant has appealed.

The following facts are not in dispute. The plaintiffs reside on U.S. Highway 71 near Lee Heights, Louisiana. Vehicles travel to and from their house on a gravel driveway which connects with the paved highway. On July 29, 1978, Mrs. O’Quinn accompanied by her daughter, attempted to drive from their residence to go to a grocery store. When she reached the intersection of the highway and her driveway, she stopped her car to observe any approaching traffic. There being none, she eased her front wheels onto the paved portion of the highway which was approximately six to eight inches higher than the shoulder. She then turned her steering wheel to the right and attempted to drive her back wheels onto the pavement. However, the back wheels hung on the dropoff and spun around, somehow causing the steering wheel to spin. Mrs. O’Quinn’s arm was caught by the turning steering wheel, resulting in a fracture to her left wrist.

Mrs. O’Quinn was required to stay in the hospital for six days. A cast was applied. The diagnosis was a Colles fracture of the left wrist with no anatomic deformity except the minute ossicle. The assessment of her disability was approximately five per cent of the extremity as a whole.

The medical records reveal the cast was removed August 18, 1978. However, Mrs. O’Quinn testified this was in error, and the cast remained on her arm for three months. The trial court awarded Mrs. O’Quinn $12,-000.00 as general damages and $2,102.56 for special damages. There is no complaint as to the latter.

The issues on appeal are: 1) Whether the defendant1 was liable under either La.C.C. Articles 2315 or 2317; 2) Whether Mrs. O’Quinn was guilty of fault; and 3) Whether the award of $12,000 in general damages was excessive.

First, the appellant argues that the scope of protection afforded by La.C.C. Article 2315 did not encompass the danger encountered by the plaintiff, Mrs. O’Quinn. We disagree.

The Supreme Court in Sinitiere v. Lavergne, 391 So.2d 821 (La.1980) established the scope of the duty that the Department of Transportation and Development owes motorists in keeping the highways and shoulders safe. The Court said:

“It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.
“Since road shoulders are only designed for temporary use when a motorist finds himself off the roadway, the Department’s duty of care is generally discharged at a level of construction and maintenance less than that required for the primary road surface. However, an implicit necessity for the functional use of a shoulder is a connection between the roadway and shoulder that allows for safe gradual movement from one to the other.
“The duty to maintain reasonably safe highways and shoulders extends to the protection of those people who may be foreseeably placed in danger by an unreasonably dangerous condition.” [Emphasis added.]

In the instant case, the plaintiffs’ driveway was connected to the shoulder of Highway 71. This driveway was the only means of ingress and egress to the plaintiffs’ house. It was foreseeable that Mrs. O’Quinn and others would use this driveway and shoulder to enter and leave the highway and also that the motorists using these would be placed in danger by the existence of an unreasonably dangerous condition at this location. Therefore, the Department owed a duty to such motorists, including the plaintiff, to maintain the highway and shoulder in the area in a manner which would allow for the safe gradual movement of a vehicle from the shoulder to the highway.

The undisputed testimony of the plaintiff established that the paved highway was six to eight inches higher than the shoulder and that the plaintiff had previously warned the defendant’s employees of this condition. Considering this evidence, we find no manifest or clear error in the trial court’s conclusions that the elevational difference between the paved highway and the shoulder was unreasonably dangerous and that the Department had at the very least constructive notice of the dangerous condition of the shoulder and the highway.

Employing the “but-for” test to determine cause-in-fact, we can only conclude that the plaintiff’s accident would not have occurred had the shoulder been substantially even with the paved portion of the highway.

For these reasons the trial court did not. err in determining that the defendant’s negligence was the cause of the accident under La.C.C. Article 2315. Having reached this conclusion, it is unnecessary to consider whether there is also liability under Article 2317.

The defendant further contends the trial court should have found that Mrs. O’Quinn was also at fault or contributorily negligent in causing the accident, since she was aware of the dangerous condition. We are unable to agree.

It is true that a motorist who is aware of a hazard has a duty to exercise a higher degree of care than a motorist who is unaware of the hazard. A driver who is aware of the existence of a low shoulder area has a duty to exercise extreme caution. Rodgers v. State, Department of Highways, 376 So.2d 1295 (La.App. 2 Cir. 1979).

In the present case, Mrs. O’Quinn knew of the dangerous condition of the elevated pavement. The undisputed testimony also reveals that Mrs. O’Quinn came to a stop before easing her front tires onto the highway and that she never “gunned,” accelerated or “jerked” the car onto the paved portion of the highway. Instead, she attempted a safe gradual movement from the shoulder to the highway. Undoubtedly, Mrs. O’Quinn used extreme caution in her attempt to enter the highway. Since it was the only means of vehicular travel from her home, we cannot say that she did not exercise the care of a reasonable and prudent person under the circumstances. It might also be reasoned with some basis that while she was aware of this obstacle, she did not know and appreciate the danger involved in driving over same. Guillotte v. Houston General Ins. Co., 368 So.2d 1026 (La.1979).

The defendant also specifies as error the general damage award to Mrs. O’Quinn. As heretofore mentioned, she suffered a Colles fracture to the left wrist which required six days of hospitalization and casting for several weeks. The trial court found that the plaintiff experienced considerable trouble from the fracture. She could not resume her employment as a nurse’s aide until October 22, 1978, and she testified that she has been unable to fully perform such work in intermittent employment since the accident. She contends that she is still having difficulty with her arm. She has a permanent disability of five per cent of the extremity as a whole. Under these circumstances, we cannot say that the award of $12,000 was beyond the wide discretion accorded the trial judge in regard to awards in personal injury cases.

For the foregoing reasons, the judgment appealed is affirmed. All court costs, including this appeal, which amount to $180.-75 are assessed to the defendant-appellant.

AFFIRMED.

      . See generally Sinitiere v. Lavergne, supra, page 826, wherein the supreme court used a “but-for” test to determine cause in fact of the accident in an elevated pavement situation.

      . In Lecompte v. State, Department of Public Safety, 343 So.2d 449 (La.App. 3 Cir. 1977), this court affirmed an award of $10,000 for similar injuries.


text:
    Harold L. WOOD, Plaintiff-Appellant, v. Perkins LaFLEUR et al., Defendants-Appellees.
    No. 8569.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Francis E. Mire, Lake Charles, for plaintiff-appellant.
    Bass & Bass, Edward Bass, Lake Charles, for defendant-appellee.
    Before FORET, SWIFT and LABORDE, JJ.
   SWIFT, Judge.

This is an action by the plaintiff, Harold Wood, against the defendants, the widow and heirs of Perkin LaFleur and Shirley and Velma Bias, for the balance due on a promissory note and foreclosure of a mortgage securing same. From a judgment sustaining the Bias’s peremptory exception of no cause of action, the plaintiff has appealed.

Plaintiff originally proceeded by executo-ry process and the mortgaged immovable was seized. Mr. and Mrs. Perkin LaFleur and Mr. and Mrs. Bias were named as original defendants. The petition and attached documents reflect that on September 17, 1970, the LaFleurs executed a promissory note payable to “Bearer” for $3200.00 and gave plaintiff, to whom the note was delivered, a second mortgage to secure the payment thereof. The note provides for payment in monthly installments of $60.00 each beginning October 25, 1983, and it also contains the following clause:

“If the maker conveys or disposes of the property secured by the mortgage for payment of this promissory note without written permission of the mortgagees or holder of said note, then said mortgages or holder is granted the option to declare the entire unpaid balance of this promissory note due and exigible.”

This provision does not appear in the second mortgage, nor is it referred to therein. The mortgage simply describes the note, mentions that it is payable in monthly installments beginning October 25, 1983, and says it has been paraphed “Ne Varie-tur” for identification.

On June 4, 1971, the LaFleurs conveyed the property to Shirley and Velma Bias. The consideration for the sale was the vendees’ “assumption and agreement to pay the balance owed” on a first and this second mortgage. The vendees also expressly agreed to pay the installments due on the notes on and after May 20, 1971.

The plaintiff did not give permission for this sale of the property and he has exercised the option to accelerate the note secured by the second mortgage.

Because of the variance between the note and the mortgage, the trial court enjoined the sale by executory process. Subsequently, plaintiff converted this suit to an ordinary proceeding through an amended petition. He has named the widow and heirs of Perkin LaFleur as well as Mr. and Mrs. Bias as defendants and prayed for judgment against the defendants in solido for $3200.00, with interest and an attorney’s fee.

The Bias defendants have filed an exception of no cause of action, alleging the mortgage and mortgage note are not enforceable against them except in accordance with the terms of the recorded mortgage.

The issues presented by this appeal are: 1) whether by assuming the second mortgage the Bias are charged with notice of all provisions of the unrecorded promissory note to which the recorded mortgage refers; and 2) whether the plaintiff states a cause of action against the Bias in his petition and attached documents.

In sustaining their exception of no cause of action the trial judge concluded Mr. and Mrs. Bias are not bound by the acceleration clause in the note, because it was not included in the recorded mortgage which they assumed. He said that their obligations are limited to those disclosed by the public records. Although they are obliged to pay the note when it becomes due, so far as they are concerned it is not yet due. We cannot agree.

Under Louisiana law a vendee who assumes and binds himself to pay a mortgage and obligation placed upon property becomes a codebtor with the original obligor. Simon v. McMeel, 167 La. 243,119 So. 35 (La.1928); Federal Land Bank v. Cook, 179 La. 857, 155 So. 249 (La.1934). The vendee assuming a mortgage also becomes personally bound for the debt, the same as the original mortgagor, and is a party to the mortgage. Neither the inscription nor reinscription of the mortgage are necessary for him to be bound thereby. Hite v. Charbonnet, 193 La. 581, 192 So. 64 (La.1939).

Our jurisprudence is silent, however, as to whether a vendee assuming an existing mortgage is charged with the notice of terms of the promissory note secured thereby which are not set forth in the mortgage. In 59 C.J.S. § 413, pp. 590-591, that publication states:

“A person who assumes payment of a mortgage is chargeable with notice of all its terms and provisions and is bound thereby; and he takes the encumbrance as it stands and subject to all its conditions and limitations excepting such as are inconsistent with the terms of the deed to the grantee. The purchaser is also charged with notice of the terms of the note to which the mortgage refers. If the grantee assumes the mortgage as distinguished from the note which it secures, he is not bound by conditions expressed in the note which do not appear in the mortgage unless the reference in the mortgage to the note is in such terms as to make it a part of the obligation assumed. [Emphasis added.]

In Williams v. Moody, 22 S.E. 30 (Ga.1894), the court was confronted with a somewhat similar factual situation. In that case the purchaser, Williams, assumed the mortgage and interest as part of his purchase price. The note referred to in the mortgage contained an acceleration provision which did not appear in the mortgage. When the mortgagee exercised his option to accelerate the balance, the original mortgagor paid the balance and then filed suit against Williams. Considering these facts, the court stated that by assuming payment of the mortgage as part of the purchase price, Williams became “personally bound for the payment of the mortgage debt,” and also that he was chargeable not only “with notice of terms of the debt as disclosed by the mortgage itself, but by any other papers connected therewith, the existence of which was indicated by the mortgage.”

In the instant case, Mr. and Mrs. Bias assumed and agreed “to pay the balance owed” on the mortgage given by the LaFl-eurs to the plaintiff. Unquestionably, the balance owed on the mortgage was that provided in the promissory note referred to therein. Thus, by this agreement the Bias agreed unconditionally to become personally bound for the payment of the balance of the promissory note according to its terms the same as the original mortgagors. Having become parties to the mortgage by their assumption, the Biases cannot be considered as third parties entitled to protection under the public records doctrine. LSA-R.S. 9:2721 et seq. and La.C.C. Article 2266.

Since the factual allegations of the petition reflect that the acceleration clause in the mortgage note has become effective and we have determined the Bias defendants are bound thereby, the peremptory exception of no cause of action should have been overruled.

For the foregoing reasons the judgment of the district court sustaining the peremptory exception of no cause of action of defendants, Shirley and Velma Bias, is reversed and the case is hereby remanded for further proceedings according to law and consistent with this decision. The costs of this appeal are hereby assessed to the defendants-appellees.

REVERSED AND REMANDED.

      . Incorrectly spelled “Perkins” in the pleadings.

      . The judgment also sustained the LaFleurs’ exception of improper venue and dismissed the suit as to these parties. Plaintiff-appellant has not mentioned this issue orally or in brief. We therefore assume he has no objection to that part of the judgment and it is not before this court.


author: DOUCET, Judge.

text:
    Margaret J. MILLIGAN, Plaintiff-Appellant, v. GLENBURNEY NURSING HOME & Travelers Insurance Co., Defendant-Appellee.
    No. 8573.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Roy S. Halcomb, Ferriday, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendant-appellee.

      Lunn, Irion, Switzer, Johnson & Salley, Frank M. Walker, Jr., Shreveport, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

This is a workmen’s compensation conflicts of law case. The plaintiff’s employment is principally localized in Mississippi and it is there that the injury occurred. The trial judge found the contract of hire to have been made in Mississippi and accordingly dismissed plaintiff’s demands for Louisiana workmen’s compensation benefits due to a lack of subject matter jurisdiction. Plaintiff appeals. We affirm.

Plaintiff is a nurse’s aide residing in Con-cordia Parish, Louisiana. The Glenburney Nursing Home is situated in Natchez, Mississippi, right across the Mississippi River from Concordia Parish. One of plaintiff’s friends who was employed by the nursing home brought to plaintiff an .application form for employment with the nursing home. Plaintiff filled out the application form in Louisiana, and subsequently an interview was arranged, plaintiff went to the nursing home, and additional papers were signed there. Employment was agreed upon, except that plaintiff’s first day of employment could not be determined at the time because she was still on a private duty job in Concordia Parish, which was about to end. Thereafter, plaintiff was called at her home in Louisiana and informed of her beginning day on the new job. When and where the contract of hire was consummated is disputed by the parties.

Plaintiff allegedly suffered a work-related accident at the nursing home on or about April 20,1979 and this suit followed. Originally named as defendants were Glenbur-ney Nursing Home and Travelers Insurance Company as their Mississippi workmen’s compensation carrier. It was later developed that the former was a mere trade name (nonentity), and that the operation was in fact owned by Mississippi Extended Care Center, Inc., a Mississippi Corporation doing business in Mississippi, Louisiana and Tennessee. In a supplemental petition plaintiff made Mississippi Extended Care, Inc. a party defendant, and additionally named their Louisiana workmen’s compensation carrier, Fidelity and Casualty Insurance Company, as defendant. All defendants excepted to plaintiff’s petition. The trial judge sustained said exceptions being of the belief that neither of the requirements of LRS. 23:1035.1(1) were met inasmuch as the defendant’s employment was located entirely in the State of Mississippi and the contract of hire was consummated in the State of Mississippi. We find that these factual determinations are supported by both the evidence and jurisprudence, therefore we affirm.

In determining whether a contract should be regarded as a Louisiana contract or that of another state in workmen’s compensation cases, the parties’ intent should be paramount. McKane v. New Amsterdam Casualty Co., 199 So. 175 (La.App.Orl. 1940), cert. denied. Boothe v. Universal Tank & Iron Works, Inc., 360 So.2d 1371 (La.App. 3rd Cir. 1978). Among the factors to be considered in determining that intent include the place for performance of the contract, the domicile of the parties, and the nature of the work to be done.

Appellant places reliance upon Stapleton v. Travelers Ins. Co., 359 So.2d 1051 (La.App. 3rd Cir. 1978) where this court dealt with an injury which occurred out of state to an employee who had spent only about three months of his employment in Louisiana and the rest out of the state. In finding that his employment was principally localized in Louisiana we observed that the employee’s salary was paid from an office within this state, his work vehicles were registered and licensed here; he received travel expenses from the Louisiana office for travel to the out-of-state locations; and all of his weekly job reports were filed with the Louisiana office. None of these circumstances appear in the present case.

The result reached herein is in accord with prior decisions of this court such as Thibodeaux v. King-Wilkinson, Inc., 386 So.2d 189 (La.App. 3rd Cir. 1980), and Boothe v. Universal Tank and Iron Works, Inc., supra. In Thibodeaux a friend advised plaintiff that employment might be available with the defendant company in Houston. He received a phone call from Houston suggesting employment and subsequently traveled there to sign a written contract of employment. This court concluded that such was not a Louisiana contract. Similarly, in Boothe, the plaintiff had placed a brief telephone call from this state to the employee seeking information on job openings, then left the state to negotiate further and sign the employment contract. We stated “There is no indication that either the employer or employee ever intended the contract to be a Louisiana contract.” Here, also, the plaintiff seeks to characterize the employment agreement as a Louisiana contract, however, there is no indication that such was the intent of the parties. Indeed the plaintiff stated during testimony that she was hired at the interview in Mississippi; only the beginning work day remained to be decided. Nothing subsequent thereto indicates the relationship had been transferred to another state.

Although in Boothe v. Universal Tank & Iron Works, Inc., supra, we remanded the case to allow the plaintiff therein to attempt an amendment to his petition in order to seek recovery under the compensation laws of the appropriate state, we do not think that procedure is proper here. Only where the administration of another state’s law is compatible with Louisiana procedures and a Louisiana forum can give a claimant complete recovery will Louisiana courts apply another state’s compensation law. Woodham v. Travelers Ins. Co., 161 So.2d 368 (La.App. 3rd Cir.), cert. denied, 246 La. 88,163 So.2d 360 (1964); Jerry v. Young’s Well Service, 375 So.2d 186 (La.App. 2nd Cir. 1979). This Mississippi remedy is so intertwined with Mississippi procedure that a Louisiana court could not fairly resolve the case. Woodham v. Travelers Ins. Co., supra; Mattel v. Pittman Construction Co., 174 So.2d 141 (La.App. 2nd Cir. 1965). Furthermore, this is not a case of forum non conveniens, vis-a-vis the plaintiff having to bring suit in a distant state, as was the case in Smith v. Globe Indemnity Co., 243 So.2d 882 (La.App. 1st Cir. 1971), since the plaintiff resides across the Mississippi River from the defendant employer.

For the reasons assigned, the judgment of the trial court is affirmed. All costs to be borne by appellant.

AFFIRMED.

      .§ 1035.1 Extraterritorial coverage
      (1) If an employee, while working outside the territorial limits of this state, suffers an injury on account of which he, or in the event of his death, his dependents, would have been entitled to the benefits provided by this Chapter had such injury occurred within this state, such employee, or in the event of his death resulting from such injury, his dependents, shall be entitled to the benefits provided by this Chapter, provided that at the time of such injury
      (a) his employment is principally localized in this state, or
      (b) he is working under a contract of hire made in this state.

      . Cobb v. International Paper Co., 76 So.2d 460 (La.App. 2nd Cir. 1954); Gray v. Decker, 229 So.2d 156 (La.App. 2nd Cir. 1969).

      . Babineaux v. Southeastern Drilling Corp., 170 So.2d 518 (La.App. 3rd Cir.), cert. denied, 247 La. 613, 172 So.2d 700 (1965).

      . Abood v. Louisiana Oil Refining Corp., 155 So. 484 (La.App. 2nd Cir. 1934).


author: FORET, Judge.

text:
    Alexander MOTTY, Plaintiff-Appellee, v. VERMILION PARISH POLICE JURY, et al., Defendants-Appellants.
    No. 8448.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Broussard, Broussard & Moresi, Paul G. Moresi, Jr., Abbeville, La. for defendants-appellants.
    Theall & Fontana, Anthony J. Fontana, Jr., Abbeville, for plaintiff-appellee.
    Béfore FORET, SWIFT and LABORDE, JJ.
   FORET, Judge.

Alexander Motty (Plaintiff) sought in-junctive relief and a writ of mandamus against the Vermilion Parish Police Jury (Police Jury) and its secretary-treasurer, Jewitt Hulin, to prevent them from interfering with his right to examine the public records of the Police Jury pursuant to LSA-R.S. 44:31, et seq. Defendants then filed a rule seeking to require plaintiff to post bond for attorney’s fees under the provisions of LSA-R.S. 42:261(E) .

The trial court denied defendants’ request and they appeal. The sole issue is whether the trial court erred in refusing to require plaintiff to post a bond for attorney’s fees.

A trial court’s judgment granting or denying a defendant’s motion based on LSA-R.S. 42:261(E) is an interlocutory judgment. LSA-C.C.P. Article 1841. An appeal may be taken only from an interlocutory judgment which may cause irreparable injury. LSA-C.C.P. Article 2083. This Court has previously determined that such interlocutory judgments may cause irreparable injury and, therefore, are appealable. Iles v. White, 345 So.2d 1304 (La.App. 3 Cir. 1977) and authorities cited therein.

For the reasons assigned in Detraz v. Fontana, 406 So.2d 248 (La.App. 3 Cir. 1981) and Brown v. Aetna Life & Casualty Ins. Co., 394 So.2d 290 (La.App. 3 Cir. 1980), we find that the Police Jury is not a “public official” and that LSA-R.S. 42:261(E) is inapplicable to it. Thus, the trial court correctly denied the Police Jury’s rule based on that statute.

However, as to Jewitt Hulin, Secretary-Treasurer of the Police Jury, we find that he is a public official and that the provisions of LSA-R.S. 42:261(E) are applicable to him. Detraz v. Fontana, supra. Thus, the trial court erred in denying his request that plaintiff be required to furnish bond for attorney’s fees.

Finally, we find no merit to plaintiff’s contention that LSA-R.S. 42:261(E) is unconstitutional. Detraz v. Fontana, supra.

For the above and foregoing reasons, the interlocutory judgment denying the order sought by the Police Jury is affirmed, while that denying the order sought by Jewitt Hulin is reversed. The case is remanded to the trial court for a determination of the amount of the bond for attorney’s fees to be posted by the plaintiff.

Costs of this appeal, $54.00, total, are-assessed equally between the Police Jury and the plaintiff.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . LSA-R.S. 42:261(E) provides:
      “E. Any party who files suit against any duly elected or appointed public official of this state of or any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office other than matters pertaining to the collection and payment of taxes and those cases where the plaintiff is seeking to compel the defendant to comply with and apply the laws of this state relative to the registration of voters, and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorneys fees shall be fixed by the court.
      The defendant public official shall have the right, by rule, to require the plaintiff to furnish bond as in the case of bond for costs, to cover such attorneys fees before proceeding with the trial of said cause.”


text:
    William B. CORLEY, et al., Plaintiffs-Appellees, v. JONESVILLE MOBILE HOME DISTRIBUTORS, INC., et al., Defendants-Appellants.
    No. 8467.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Gold, Little, Simon, Weems, & Bruser, Edward E. Rundell, Alexandria, for defendants-appellants.

      Gist, Methvin, Hughes, & Munsterman, John W. Munsterman, Alexandria, for plaintiff-appellee.
    Davis & Murchison, James D. Davis, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

This is a suit for property damages incurred by plaintiffs, William B. Corley and Tillie Corley, as a result of the destruction of their mobile home by fire. The plaintiffs named as defendants Jonesville Mobile Home Distributors, Inc., vendor of the mobile home, and its insurer, The Travelers Insurance Company, Champion Home Builders Company, manufacturers of the mobile home, and The AEtna Casualty & Surety Company, its insurer. Jonesville Mobile Home Distributors, Inc. and Travelers filed a third party demand against the manufacturer, Champion Home Builders Company and their insurer for any sums for which the seller and its insurer may be cast in the main demand, as well as attorney’s fees incurred by the seller and its insurer in their own defense.

The trial court found as a matter of fact that the fire resulted from a defect in the trailer which existed at the time of manufacture by Champion Home Builders Company. In accordance with that finding, the trial court rendered judgment against the manufacturer and the seller and their respective insurers in solido. The trial court further rendered judgment on the third party demand in favor of the seller and its insurer for indemnity for the seller’s obligation in the judgment. Finally the trial court cast the seller and its insurer to pay one-half (V2) of the attorney’s fees awarded to plaintiffs, one-half (V2) of the court costs, and further denied the seller’s and insurer’s claim for their attorney’s fees. Jonesville Mobile Home Distributors and Travelers have perfected this appeal suggesting the trial court erred in denying their claim for indemnity for one-half of the attorney’s fees, one-half of the court costs, and their claim for their own attorney’s fees. We agree and reverse in part.

The issue on appeal in this case is the right of a defendant seller to indemnity for all sums for which it may be cast on a main demand based upon the manufacturing defect in the product sold, together with an award for reasonable attorney’s fees incurred in such defense and prosecution of its third party demand.

The trial judge found as a matter of fact that the cause of the mobile home fire was a defect in the manufacture of the mobile home. He further determined that the defect was hidden and could not be observed by the seller, Jonesville Mobile Home Distributors, Inc. These conclusions are not contested and are not the subject of this appeal.

Defendant-appellant asserts that the trial court erred to the extent that the judgment casts the defendant seller and its insurer for one-half (V2) of attorney’s fees awarded to plaintiff and court costs. We agree. This ruling is clearly contrary to Louisiana jurisprudence. In Gonzales v. Southwest Mobile Homes, Inc., 309 So.2d 780 (La.App. 3rd Cir. 1975) this court made the following comments:

“. . . The broad authority granted to the trial judge under Code of Civil Procedure Article 1920 does not mean that there are no guidelines to govern the taxing of costs. Greenburg v. Fourroux, 300 So.2d 641 (La.App. 3rd Cir. 1974); Johnson v. Marshall, 202 So.2d 465 (La.App. 1st Cir. 1967). In Greenburg the trial judge rendered judgment in favor of the plaintiff, but divided court costs between the plaintiff and defendant. This court reversed and found error on the part of the trial judge in assessing the winning party with part of the court costs. In the present suit ultimate liability is placed upon Champion, the manufacturer of the defective mobile home, and this party should bear the costs of this litigation.”

Defendant-appellant further argues that the trial court erred in denying an award of reasonable attorney’s fees incurred in the defense of this suit. We agree. In Paul v. Ford Motor Company, 392 So.2d 704 (La.App. 3rd Cir. 1980), this court made the following determinations:

“The trial court granted the third party demand of Alexandria Lincoln-Mercury for indemnity against Ford Motor Company. However, the trial court made no mention of attorney’s fees. This is equivalent to a denial of reasonable attorney’s fees. Alexandria Lincoln-Mercury, Inc. contends the trial court erred in failing to award these fees. We agree and reverse on this point. We will award the sum of $2,500 to Alexandria Lincoln-Mercury, Inc. .as reasonable attorney’s fees to include services on this appeal, the judgment to run against the Ford Motor Company. LSA-C.C. Art. 4545; Robertson v. Jimmy Walker Chrysler-Plymouth, [368 So.2d 747 (La.App.)] supra; Laughlin v. Fiat Distributors, Inc., [368 So.2d 742 (La.App.) ] supra; Porche v. Robinson Brothers, Inc., 349 So.2d 975 (La.App. 1st Cir. 1977), writ denied, 351 So.2d 171 (La. 1977); Gonzales v. Southwest Mobile Homes, Inc., 309 So.2d 780 (La.App. 3rd Cir. 1975), writ refused, 313 So.2d 239 (La.1975), and C. T. Boudreaux Lumber Company v. Sherrwood Homes, Inc., 371 So.2d 326 (La.App. 4th Cir. 1979).”

In light of Paul v. Ford Motor Company, supra, and the cases cited therein, judgment should have been awarded in favor of defendant-appellants against the manufacturer and its insurer on its third party demand for reasonable attorney’s fees.

For the reasons assigned, the judgment of the trial court is affirmed in all respects, except with reference to the assessment of court costs and the attorney fees awarded to plaintiff. We reverse to assess all court costs and attorney’s fees awarded to plaintiff against Champion Home Builders Company and its insurer, The AEtna Casualty & Surety Company. We further reverse on the denial of reasonable attorney’s fees to Jonesville Mobile Homes Distributors, Inc. and Travelers Insurance Company for the defense of this suit at the trial level and award attorney’s fees in the amount of $2,250 in favor of defendant-appellant and against Champion Home Builders Company and its insurer, The AEtna Casualty & Surety Company.

Furthermore, the defendant-appellant has perfected this appeal asking for additional attorney’s fees to cover the costs of this appeal. We hereby grant the defendant-appellant an additional award of attorney fees in the amount of Five Hundred and no/100 ($500.00) Dollars.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . This appeal is moot insofar as the claims of Champion Home Builders and its insurer are concerned as a settlement was reached by said parties with plaintiff-appellees. However, this appeal remains viable as to the third party demands of Jonesville Mobile Homes and its insurer against the manufacturer and its insurer.

      . Art. 1920. Costs; parties liable; procedure for taxing
      Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
      Except as otherwise provided by law, .the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.


text:
    Walter L. HENSLEY, Plaintiff-Appellee, v. Clyde MILEY, et al., Defendants-Appellants.
    No. 8497.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.
    Writ Denied March 19, 1982.

      Charles W. Seaman, Natchitoches, for defendants-appellants.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for plaintiff-appel-lee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

This is a suit for breach of contract in connection with the proposed sale of a lumber company in Campti, Louisiana, due to misrepresentations by the seller. The trial judge made a factual determination that there had been numerous fraudulent misrepresentations by the defendant Miley, and, in accordance with this finding, granted plaintiff the relief prayed for. From that adverse judgment the defendants have perfected this appeal, assigning as error the factual conclusions made at the trial level. We affirm.

The record reveals that Walter L. Hensley, plaintiff-appellee, was residing in Houston, Texas during the summer of 1979 and went to Shreveport, Louisiana, in search of a small business to purchase for a livelihood. While in Shreveport, Mr. Hensley and his wife went to the business of Mr. Paul Brown known as Allied Business Brokers of the ArkLaTex. In early May of 1979, defendant Clyde Miley had entered into a listing agreement with Allied Business Brokers, placing the assets of his wholly-owned corporation, Campti Lumber Yard, Inc., on the market. In connection with the listing, Mr. Miley had furnished information in the format of a “Business Profile” which reflected the lumber yard’s 1978 net profit before taxes to be $46,951.00 and that gross sales of the business were approaching $400,000.00. Furthermore, the profile stated the corporation had no debts. Based upon this information and further negotiations, an agreement was reached to sell the business for $25,000.00 plus the value of the inventory. Plaintiff deposited $9,000.00 with defendant Miley, acting as agent for Miley Realty Co., which sum was to be held in escrow. In the event the buyer failed to comply with the agreement within the time specified, the seller was to have the right to declare the deposit forfeited. All of this was reduced to writing on a form furnished by the seller-defendant. Thereafter, a more formal buy and sell agreement was drawn up and signed by the parties, which provided in pertinent part as follows:

1. The seller was obliged to comply with the Bulk Sales Law;
2. The seller was to inventory all merchandise by September 29, 1979;
3. At the date of closing (October 1, 1979), the seller was to have good and marketable title to all of the property transferred, free of all liens and encumbrances;
4. At the date of closing, the seller was to provide the buyer with certified copies of a resolution of its Board of Directors and written consent of all stockholders approving the contemplated sale;
5. The seller was to comply to buyer’s satisfaction with the Louisiana Bulk Sales Law;
6. Seller and buyer were to enter into a lease for a five year period for the rental of the premises occupied by the seller; and
7. The closing date, as stated above, was set for October 1, 1979.

Because of the sellers’ inability to timely comply with certain of the above conditions, an interim operating agreement was executed.

Meanwhile, the plaintiff had a certified public accountant examine the records and financial affairs of Campti Lumber Yard, Inc. As a result of said investigations it was revealed that the corporation’s taxable income for 1978 was $12,104.00, instead of the $46,950.96 represented, and that sales as of August 31,1979 were only $150,733.19, or a decline of 33%, instead of the projected $400,000 annual represented. Additionally, it was learned that it would be impossible for the Small Business Administration to release its chattel mortgage on the inventory and equipment of the lumber yard by the planned date. As a result of this newly acquired knowledge, counsel for plaintiff contacted the seller, declaring the contract to be null and void, assigning as reasons the excessive indebtedness of the operation, the non-completion of the inventory, and the inoperative condition of two trucks, in addition to the aforementioned misrepresentations. Plaintiff’s request for the return of his deposit was rejected. This suit against Miley and his corporation followed, wherein plaintiff sought recovery of the deposit and an additional $2,801.93 representing the value of lumber placed in inventory during the short period plaintiff operated the business pursuant to the interim operating agreement.

After trial on the merits, the trial judge rendered judgment in favor of the plaintiff, stating:

“After careful consideration of the testimony of all the witnesses and review of the documentation, the Court accepts the testimony of the plaintiff in this case as being truthful, honest, straightforward and be-lieveable (sic).
It is the ruling of the Court that had the true financial picture and business experience of the defendant business been revealed to the plaintiff he would not have attempted to purchase the defendant business.”

We will not disturb reasonable evaluations of credibility and inferences of fact absent manifest error. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring, 283 So.2d 716 (La.1973); Boustany v. Fluid Dynamics, Inc., 392 So.2d 750 (La.App. 3rd Cir. 1980); Johnson v. Coca Cola Bottling Co., Inc., 386 So.2d 993 (La.App. 3rd Cir. 1980). In the present case we find no manifest error. Indeed the evidence fully supports the trial court’s findings of material misrepresentations and that Mr. Hensley would not have entered into this agreement had he received the correct financial information. The result reached is in total accord with our law and jurisprudence. LSA-Civ.Code Art. 2547; Buxton v. McKendrick, 223 La. 62, 64 So.2d 844 (La.1953); Tauzin v. Sam Broussard, Inc., 283 So.2d 266 (La.App. 3rd Cir. 1973).

For the reasons assigned the judgment of the trial court is affirmed. All costs taxed to appellant.

AFFIRMED.

      . The other defendant was Campti Lumber Yard, Inc., a corporation which was wholly owned by Miley.


author: GUIDRY, Judge.

text:
    LOUISIANA POWER AND LIGHT COMPANY, Plaintiff-Appellee, v. Harry D. ROBERTS, Jr. and Mary Catherine Wishum Roberts, Defendants-Appellants.
    No. 8502.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.
    Patrick L. Durusau, Jena, for defendants-appellants.
    Theus, Grisham, Davis & Leigh, Robert L. Curry, III, Monroe, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

This is a suit instituted by plaintiff, Louisiana Power and Light Company (hereafter LP&L), against defendants, Harry D. Roberts, Jr. and Mary Catherine Wishum Roberts, wherein plaintiff seeks to obtain a permanent injunction prohibiting alleged interference by defendants with a servitude owned by plaintiff for the construction, use, and maintenance of an electric transmission line over certain land situated in LaSalle Parish, Louisiana. Specifically, plaintiff alleges that the construction by defendants of a building within its right of way will significantly interfere with the exercise of plaintiff’s servitude rights. Following trial of the matter, the trial court issued the permanent injunction as prayed for by plaintiff. Defendants appeal from that judgment.

At trial, the parties stipulated to most of the relevant facts. The aforesaid stipulation provides as follows:

(1) LP&L is the owner of a right of way 60 feet in width crossing the property purchased by defendants from the Bodcaw Company (hereafter Bodcaw). Approximately ten years prior to the filing of the instant action, LP&L constructed a 13 K.V. electric transmission line over such property and within the aforesaid right of way.

(2) In December of 1980, defendants acquired the property from Bodcaw subject to LP&L’s servitude.

(3) Construction of the building on the property in dispute began prior to the filing of the instant action, but the most advanced stage of construction achieved by the time of trial was the pouring of the concrete foundation which occurred on Tuesday, April 7, 1981.

(4) Defendants intend to erect a building on the property subject to LP&L.’s servitude, 30 feet in width by 86 feet in length with a front height of 10 feet and a rear height of 8 feet with a sloping flat roof. The proposed building is to be situated within the servitude area and immediately beneath the existing 13 K.V. electric transmission line.

The trial court rendered judgment in favor of plaintiff ordering the issuance of a permanent injunction restraining, prohibiting, and enjoining the defendants from constructing any building or other obstruction on or within the boundaries of the 60 foot right of way acquired by plaintiff from defendants’ ancestor in title, Bodcaw. In rendering judgment the trial court concluded that the right of way agreement did not reserve, either expressly or impliedly, to Bodcaw, or to any successor in title, the right to construct a building within the limits of the 60 foot right of way. Additionally, the trial court, in its written reasons for judgment, concluded that the proposed construction of a building directly underneath plaintiff’s 13 K.V. electric transmission line would substantially impair and inconvenience plaintiff’s use of its right of way.

Defendants contend on appeal that the trial court erred in reaching the aforesaid conclusions.

At the outset, we observe, contrary to defendants’ suggestion, that the servitude agreement does not expressly reserve to the grantor the right to construct a building within the servitude area. Paragraph 6 of the servitude agreement provides:

“It is further understood and agreed that grantor reserves to itself full use of the rights of wav herein granted or any part or parts of them for any purpose or purposes including, but not limited to, exploration thereon for oil or gas or minerals, ingress and egress to any other lands or roads, construction, use and maintenance of roads thereon, cultivation or fencing in any manner thereon, transportation of timber thereon, or any combination of uses provided that no drilling of wells or mining will be conducted thereon unless no other suitable location is available and provided further that grantor will not intentionally interfere with the exercise by grantee of any of the rights herein granted to it.” (Emphasis ours)

Defendants argue that since the grantor of the servitude in question reserved to itself the full use of the right of way granted for any purpose, then such reservation includes the right to construct buildings within the right of way area. Defendants contend that such is the case even if such structure is to be located directly underneath LP&L’s 13 K.V. line. We disagree.

The meaning of the language contained in Paragraph 6 of the servitude agreement as quoted above is clear. It simply provides that the grantor reserves unto itself such use of the servitude area as will not interfere with the exercise by grantee of the rights granted to it. Thus, the issue becomes whether or not the construction by defendants of a building within the servitude area, immediately beneath plaintiff’s existing transmission line, will interfere, inconvenience or diminish the exercise by LP&L of the rights granted to it under the servitude agreement.

The trial court held that such construction would seriously interfere with LP&L’s rights under the servitude agreement. We fully agree with this conclusion.

Expert testimony in the record clearly establishes that the proposed building will seriously interfere with LP&L’s access to the right of way for the purpose of maintaining and repairing its transmission line. Further, such testimony indicates that the proposed structure will constitute an extreme fire hazard which, in the event of a fire, would result in the power lines and equipment being placed out of commission causing considerable expense and delay in the restoration of needed services. Additionally, defendants’ proposed construction will make impossible the use of that portion of the right of way occupied by the building for installation of guywires, bracing poles, concrete foundations, etc. Finally, the proposed construction would completely prevent the passage of vehicles and equipment reasonably necessary and customary for the maintenance of LP&L’s transmission line. The aforesaid rights are clearly granted to LP&L by the servitude agreement and we conclude that to permit defendants to complete the construction of a building within the right of way will not only inconvenience and/or interfere with the exercise by the grantee of such rights but also would effectively deny the exercise of such rights by LP&L.

The trial court’s conclusion is confirmed by the testimony of several experts presented by plaintiff. The record reflects that their testimony is uncontradicted. It is well settled that courts are bound to give proper credit and due weight to opinions and conclusions of experts especially when their testimony is unimpeached, uncontro-verted and based on sound reasoning and on established facts. See Geismar v. General Gas Corp., 182 So.2d 769 (La.App. 1st Cir. 1966) writ denied, 184 So.2d 733 (La.1966). Alvin Calhoun, division land superintendent for LP&L, indicated at trial that the construction of the proposed building would obstruct LP&L’s use of their right of way, pose a fire hazard, and impair LP&L’s ability to properly maintain the electric transmission line. Calhoun also stated that the - location of the building directly underneath the electric transmission line could endanger the occupants of the building should the line move or fall onto the structure. Clifford LaFleur, land and right of way superintendent for Central Louisiana Electric Company, Inc., and Dudley Bertrand, division engineer for LP&L, both corroborated Calhoun’s testimony. LaFleur and Bertrand both indicated that the building would constitute an obstruction to the continuity of service to customers as well as an obstruction to the maintenance and operation of the line. LaFleur stressed that the worst hazard is the possibility of fire and its resulting damage to the line. Additionally, V. L. Tolver, a LP&L serviceman, testified that the construction of the proposed building would impede access to the 13 K.V. electric transmission line in that servicemen could not get their equipment in such a position as to repair a break in the line.

We conclude from the evidence in the record that the construction by defendants of a building within plaintiff’s right of way, and particularly, underneath plaintiff’s existing 13 K.V. electric transmission line will constitute an obstruction to the use and maintenance of the line and will seriously interfere with LP&L’s right of passage over its right of way and its use of the right of way in general. Additionally, the threat of fire posed by construction of the building presents a substantial hazard which would cause further problems in the repair and maintenance of the line as well as result in undue delay in restoration of needed services. The trial court concluded the same and we discern no error in such conclusion. See Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir. 1975).

In addition to the recitals contained in the servitude agreement proscribing interference by the grantor with the rights of the grantee, Louisiana Civil Code Art. 748 provides that the owner of the servient estate may- do nothing tending to diminish or make more inconvenient, the use of the servitude. This codal article is further authority for the judgment rendered by the trial court. See also, Louisiana Power and Light Company v. Bennett, 107 So.2d 468 (La.App. 1st Cir. 1958); United Gas Pipe Line Company v. Bellard, 286 So.2d 109 (La.App. 3rd Cir. 1973); and, Red River, Atchafalaya and Bayou Boeuf Levee District v. Noles, 406 So.2d 294, (La.App. 3rd Cir. 1981).

For the above and foregoing reasons, we conclude that the judgment of the trial court should be affirmed at appellants’ cost.

AFFIRMED.

      . The parties, at time of trial, agreed that they were ready for trial on the permanent injunction and specifically requested that the matter be tried on the issue of whether or not the permanent injunction should be granted.