author: SAMUEL, Judge.

text:
    LOUIS DREYFUS CORPORATION v. CONTINENTAL GRAIN COMPANY.
    No. 11392.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Writ Refused April 27, 1981.
    Monroe & Lemann, W. Malcolm Stevenson and Michael R. O’Keefe, III, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Charles Kohlmeyer, Jr., Alan H. Goodman, and Peter L. Koerber, New Orleans, for defendant-appellee.

      Before SAMUEL, BARRY and SAR-TAIN, JJ.
   SAMUEL, Judge.

This proceeding arises out of the alleged breach by the defendant of its April 8,1971 six year contract with the plaintiff. As will be seén below, the contract provided in part for defendant to load grain aboard oceangoing vessels for plaintiff for export at defendant’s grain elevator located in West-wego, Louisiana. The alleged breach is represented to be a telex dated January 17, 1977 from defendant to plaintiff by which defendant cautioned plaintiff it could not guarantee availability in February, 1977 of suitable grain to load a vessel nominated by plaintiff because of ice jams in the upper Mississippi River and invoked the contract’s force majeure clause.

Plaintiff previously had filed a suit for specific performance and damages, but the requested relief was denied on the ground that plaintiff had an adequate remedy at law.

On remand, plaintiff amended its petition to seek damages of $1,785,000 for losses sustained by defendant’s actions. Defendant answered, denied plaintiff’s allegations, and reconvened for a declaration of impossibility of performance, damages for unpaid interest under the contract, and other matters not pertinent here. In due course, the pleadings were amended to raise the issue of plaintiff’s liability to defendant for “elevation charges” pursuant to increases in defendant’s grain handling tariffs.

After an extensive trial on the merits, judgment was rendered in favor of plaintiff and against defendant for $15,354.77, representing a finding of damages in favor of plaintiff for defendant’s breach in the amount of $97,988.77, offset by interest due defendant by plaintiff in the amount of $82,634. Plaintiff has appealed from this judgment, and defendant has answered the appeal seeking reversal of the judgment in favor of Dreyfus and also seeking damages in addition to the $82,634 awarded it by way of setoff.

Both plaintiff and defendant are dealers and exporters of grain and participate in national and international trade. Both are large corporations with a great deal of experience in the grain handling business. Both own grain elevators, and both are fully cognizant of the problems inherent in the gathering, purchase, delivery, loading, and export of grain. During the negotiation and confection of the contract in suit, as well as during the years of its execution, both companies were represented by able executives, employees, and legal counsel. Consequently, the record reflects no evidence of any error or mistake on the part of either party in the incidents leading to the present dispute.

In December, 1976 and January, 1977, the central portion of the United States experienced a severe winter. The Mississippi River froze between St. Louis, Missouri and Cairo, Illinois, bringing river traffic to a virtual standstill. This situation was made official by the closing of the river to navigation by the United States Coast Guard between January 14 and February 17,1977.

Simply stated, the contract between plaintiff and defendant on its face called for plaintiff to sell various quantities of grain in the form of corn or soybeans to defendant C.I.F. barge or rail Westwego, Defendant then sold like quantities and qualities of grain back to plaintiff F.O.B. plaintiff’s designated vessel at Westwego. Defendant charged plaintiff the exact price it originally had paid plaintiff for the grain plus a charge per bushel for using its elevator to load the ships (elevation charge), and interest at the rate of 1% over the prime rate at First National City Bank in New York for a period between the payment by defendant to purchase the grain and the payment back to plaintiff to repurchase it.

While the river was frozen, plaintiff took the necessary steps under the contract to sell 20 or 21 barges of grain to defendant in anticipation of exporting a like quantity from defendant’s grain elevator at Westwe-go in February. When plaintiff made the sale, its executives and employees knew the barges containing the grain thus sold were icebound and could not reach New Orleans in the normal period of time.

In addition, the executives and employees of both companies knew sufficient quantities and qualities of grain to load the vessels to be nominated by plaintiff were available in the New Orleans area by rail or barge in the spot market. However, both parties also knew that the relative scarcity of grain caused by the freezing of the river called for a spot market price of $0.30 over the future’s contract price for March delivery grain of $7.45 per bushel. Neither plaintiff nor defendant wanted to bear the burden of paying the $0.30 per bushel premium price in order to fulfill its obligations under the contract. Consequently, defendant sent the telex mentioned above warning of the potential impossibility of loading plaintiff’s ship in February and invoking the force majeure clause in the contract. On January 18, representatives of plaintiff and defendant discussed the possibility of providing defendant with sufficient quantity of grain from other sources, but plaintiff chose not to take such action because it felt it was not obligated to do so under the contract.

Instead, plaintiff diverted the M/V Ogden Importer, originally scheduled to be loaded in February at the Westwego elevator, to a grain elevator in Mobile, Alabama. Plaintiff had already scheduled loading of the M/V World Ares for that period in Mobile, and the diversion of the Ogden Importer to take the place in line at the elevator of the World Ares in Mobile required diversion of the World Ares to a grain elevator in Baltimore, Maryland. The arrival of the World Ares in Baltimore likewise caused the diversion of plaintiff’s M/V Lucy, which in turn displaced the M/V Stream Dolphin to another grain elevator, which in turn displaced the M/V Tete 01-dendorff to another elevator, which in turn displaced the M/V Fadura to another elevator, which in turn displaced plaintiff’s M/V Marco Verde to still another elevator. Plaintiff claims that each of these diversions resulted in delays, demurrage, extra stevedoring fees, cleaning fees, and a host of other items of damage for each displacement.

Both parties attempt to justify their respective positions and actions (and thus pass the loss for the price differential between icebound and free grain to the other) by characterizing the contract of April 8, 1971 in different ways. Plaintiff contends the 1971 agreement merely established the framework for a series of separate and independent purchase and sales transactions which are totally unrelated to each other. Based on this hypothesis it argues the purchase by defendant of icebound grain prior to the scheduled February F.O.B. shipment period in Westwego was totally unrelated to defendant’s obligation to load vessels nominated by plaintiff for loading in February. Consequently, plaintiff argues defendant was obligated to procure the necessary grain from whatever source was available in order to comply with its contract in February, and that defendant breached its contract by invoking the force majeure clause.

On the other hand, defendant argues the seemingly separate purchases and sales to and from each other were placed in the contract to ease the burden of grain handling, and the contract is in fact a document known in the grain business as a “through-put” contract. Defendant explains a “through-put” contract is an agreement in which the owner of grain intending to ship for export through a grain elevator delivers the quantity of grain to be exported, the elevator takes the grain from the delivering vehicle (whether barge or rail car), and loads it aboard an ocean-going vessel for a charge, known as an “elevation charge”. Defendant argues that because grain is fungible and within certain limits and grades one quantity of grain can be substituted for another quantity, “throughput” agreements no longer are confected on an “identity preserved” basis in which the identical grain delivered by the exporter is loaded aboard the ocean-going vessel by the grain elevator with title remaining at all times in the seller-exporter. Identity preserved contracts are no longer in fashion because elevators handle different types of grain in different loading sequences, so that record keeping and demurrage charges are so burdensome it is impractical to preserve the identity of the grain, particularly in view of its fungible nature.

Defendant finally argues the most recent innovation in “through-put” agreements is the type now at issue, by which the exporter sells the grain to the elevator owner, and the elevator owner obligates itself to load equal amounts and qualities of grain aboard the vessels. This variation in contractual procedure allows the grain elevator operator more freedom in controlling the amount of grain which comes to his elevator at any given time by selling off various barges or rail cars of the fungible grain to other purchasers as it descends the river in order to avoid a glut of grain at any given time at the elevator. Such a glut, if it is in excess of the elevator’s capacity, results in increased demurrage charges for using rail cars and barges as storage facilities and increases record keeping. Defendant argues, in effect, that passage of title to the elevator owner with the right to sell off quantities of grain in transit or after arrival merely assists both exporter and elevator operator in controlling the flow of grain to the elevator in an expeditious and economical way. The contract is thus not changed in basic character; it remains a “throughput” agreement, which presupposes the delivery of grain for export before the date of vessel loading, even though the identity of the grain loaded may be different from that of the grain actually shipped.

In his Reasons for Judgment the trial judge found the contract between the parties was not ambiguous and thus not subject to explanation by parol evidence. He concluded the contract on its face was one to purchase and sell grain and not a “through-put” agreement. Our examination of the contract leads us to a contrary conclusion, and we hold parol evidence was admissible to explain the nature of the contract.

The preamble to the contract contains the first ambiguity in need of explanation. It reads as follows:

“Continental operates a grain elevator at Westwego, Louisiana (the ‘Elevator’) and Dreyfus desires to make use of such facility. The parties, in the interests of the most expeditious handling, desire to handle grain by way of purchases and sales between themselves and will establish customary grain contracts to suit transactions.” (Emphasis ours).

The statement that plaintiff desires to make use of defendant’s grain elevator belies the argument of a series of separate contracts to purchase and sell. On the contrary, a “through-put” agreement presupposes payment by an exporter for the use of the elevator in taking grain from land or water conveyances and putting it through the elevator to load aboard a vessel. And the words of explanation indicating the parties “desired to handle grain by way of purchases and sales” may indicate the parties have chosen a special method by which plaintiff was given the opportunity to make use of the elevator.

The preamble seems to be a logical lead into Section 1 of the contract, termed “Coordination of Transactions.” The final paragraph of this section provides as follows:

“1.1 Dreyfus will, from time to time, purchase from Continental hereunder grain for a 15 day shipping period FOB vessel (such shipping period hereafter called the ‘FOB Shipping Period’), and Dreyfus will sell to Continental like quantities (30,000 bushels more or less for each contract, any such excess or deficiency to be settled at market price on day of last tender), varieties and qualities of grain CIF or track Westwego, all as more fully set forth herein.”

Sections 3.1 and 3.2 of the contract likewise lead us to conclude parole evidence is admissible:

“3.1 Price of Grain Sold by Dreyfus
a. Except for the requirement of settlement at the market as provided in subsection 1.1 hereof, the price to be paid by Continental for a shipment of grain sold hereunder by Dreyfus shall be the market price as agreed upon by the parties, and reduced by the discounts set forth in Subsections 2.2 and 3.1 b.
* * * * * *
3.2 Price of Grain Sold by Continental
a. Except for the requirement of settlement at the market as provided in subsection 5.2 hereof, the price for a shipment of grain sold by Continental hereunder shall be the aggregate of the contract prices per bushel of the CIF or delivered Westwego grain sold by Dreyfus to Continental for all quantities of grain purchased by Dreyfus up to the contract quantity, to which aggregate there shall be added the sum of:
(1) 2V4 cents per bushel for such quantities for in and out elevations;
(2) the charges for inbound inspection and weighing and for outbound inspection and weighing as per New Orleans Board of Trade rates for such quantities.”

These provisions are significant in that they validly establish the price of grain to be sold by defendant to plaintiff F.O.B. plaintiff’s nominated vessel. Defendant has no right under the terms of the contract to vary the price charged on the F.O.B. sale, even though the contract deals with commodities, the price of which fluctuates daily, and sometimes violently, on both the spot and futures markets. The abandonment of the right to sell at whatever the market will bear is inconsistent with a series of independent sale and purchase contracts. This ambiguity is further heightened by the provisions of Section 3.2 c:

“3.2 c. In addition to all sums paid under Subsections a and b of this Section 3.2, Dreyfus shall pay an interest charge of 1% over the prime rate of First National City Bank, New York, New York, on the amounts paid by Continental in the usual manner for grain purchased from Dreyfus for the period between such payments and the payments by Dreyfus in the usual manner for the corresponding grain sold by Continental to Dreyfus. The period between payments shall be computed from the date Dreyfus receives funds in payment for grain purchased by Continental to the date Continental receives funds in payment for grain purchased by Dreyfus.”

This provision creates an ambiguity and undermines the concept of separate and independent purchase and sale contracts. It requires the payment of 1% over prime on the money used by defendant to make the original purchase of grain from plaintiff in anticipation of its loading for export. The operative word in the paragraph is “corresponding”. By the terms of this provision, interest is computed on the time between defendant’s purchase of grain from plaintiff and the payment by plaintiff to defendant “for the corresponding grain .... ” The word “corresponding” clearly implies the parties anticipate loading F.O.B. in Westwego of, at a minimum, a like amount of grain previously shipped by plaintiff. If the other situation were contemplated, so that the grain would be loaded prior to delivery of a corresponding amount of grain from plaintiff, then the clause would appear to be rendered meaningless and would have no place in the agreement.

Finally, appended to one of the copies of the contract in the record are several letter agreements extending the effective date for its commencement. One of these letter agreements is dated July 23, 1971 and was sent by Bernard Steinweg, senior vice president of Continental Grain Company, to William Louis Dreyfus, on behalf of Louis Dreyfus Corporation. The first paragraph of this letter reads as follows:

“This is to confirm our agreement regarding a two month extension to be afforded your company under the contract between us dated April 8, 1971, relating to the thruput of grain at Continental’s Westwego elevator, as follows ...” (Emphasis ours).

This document, which forms an addendum to and part of the contract of April 8, 1971, was approved in writing by an executive of Louis Dreyfus Corporation and leads us to the conclusion that the contract on its face is ambiguous and requires the introduction of parol evidence to explain its nature.

Fortunately, the trial judge referred all objections to admissibility of parol evidence explaining the nature of the contract “to the effect” and allowed the evidence to be taken subject to plaintiff’s objection, a procedure which affords us the opportunity to decide the matter at this time without the necessity of remanding for further evidence.

Several witnesses testified with regard to the nature of the contract. One of the more important was Donald J. Bain, Continental Grain Company’s vice president in charge of compliance. Bain, admitted to the bar of the State of New York, worked as an assistant general counsel for Continental on several drafts of the proposed contract prior to its confection. His duties in connection with the contract were to assist in its negotiation and drafting.

According to Bain’s testimony: The earliest document pertaining to the proposed contract which could be found was dated November 23, 1969. The Westwego contract basically was desired by plaintiff, and it was negotiated together with a similar document wanted by defendant Continental for use on the St. Lawrence River. The contract was set up as a “through-put” agreement without “identity preserve” to avoid expense, especially demurrage, and to allow Continental to sell off barges before they reached the Westwego elevator in order to control the flow of grain to coincide with boat arrivals and other Continental commitments. The original proposals offered by both parties concentrated on a C.I.F.-F.O.B. “through-put” contract, with plaintiff’s proposal having more detail. He pointed out a document dated June 18,1970 contained a proposal for a minimum commitment of 18 million bushels per year because in reality the contract was one for the use of defendant’s elevator. He also produced a letter of July 22, 1970 which contained a clause to the effect that plaintiff should not be deemed in default of its delivery requirements when shipments were delayed for reasons beyond its control. This, together with a proposed clause that defendant should have no obligation to advance grain for the account of plaintiff, were replaced by the force majeure clause invoked by defendant in this case.

Bain’s testimony on cross examination was more revealing than that on direct. He was confronted with the other agreement negotiated simultaneously with the West-wego contract, which the parties referred to as the Port Cartier agreement. The Port Cartier agreement defined itself expressly as a “through-put” agreement, and when questioned why the same verbiage was not used in the Westwego agreement Bain explained that the term was expressly used in the Port Cartier agreement because it covered two distinct situations, one in which grain from the Canadian Wheat Board was handled, with title changing on loading, and the other involving United States origin grain on vessels “tendered” by defendant. He insisted, however, that the same concept was embodied in the Westwego agreement by the sequence of timing of each event. The contract first calls for a sale to defendant by plaintiff, then for a purchase and sale by defendant, and finally by a purchase by plaintiff from defendant’s grain elevator. This, in effect, is the factual concept of a “through-put” agreement, and we tend to agree.

Other significant testimony with regard to the nature of the contract was offered by Kurt Horn, a former employee who had retired after working forty years with defendant. He testified he was in charge of logistics for the-East Gulf region, and in the summer of 1970 he met with representatives of plaintiff to arrange for a “throughput” agreement. He was quite emphatic with regard to the nature of the agreement and insisted it was a “through-put” and not a series of separate and independent sales. The parties early discarded the identity preserve concept because it was impractical to both and decided on the use of the purchase and sale concept in order to save demurrage and record-keeping expenses. Horn further testified he was involved in the day-to-day administration of the contract, and shed light on its contemporaneous interpretation by the actions of the parties. He stated that in December of 1972, when the Mississippi River had become frozen and closed to traffic, plaintiff had three barges icebound, which could not be delivered to New Orleans in time for export loading. After consultations with defendant’s representatives, plaintiff agreed to take the barges back even though technically it had sold them to defendant. He further related that in June of 1973 a federal grain embargo threatened to prevent export of any grain out of the Port of New Orleans. Plaintiff then agreed to stop shipping barges of soybeans if the federal embargo in fact prevented ships from leaving port.

Throughout his testimony, Horn emphasized the agreement was carried out in a pragmatic way, and problems were solved on a case-by-case basis. Typical of his testimony is the statement that each of the parties would help the other if it did not result in harm to themselves.

On cross examination Horn stood firm with regard to the advantages of the purchase and sale procedure over any other form of “through-put” agreement. He used the graphic example of loading a thirty thousand ton ship without the use of purchase and sale contracts. In such a situation, grain shipments would arrive at the elevator in barges and often also in cars. Thus, the elevator would have to keep track of approximately thirty barges, maintain stock records, be obliged to ascertain the origin and composition of the grain being shipped, be obliged to know what type of grain was needed and the correct time to schedule unloading for proper binning and ship scheduling. This, he testified, is simplified into a workable form by using the purchase and sale contracts as vehicles for record keeping.

Horn reaffirmed the position of defendant that the sale to it from plaintiff had as its primary objective the control of the flow of grain into the elevator by moving or selling excess grain elsewhere. Moreover, because cleaning and demurrage were performed by defendant under the contract, it had to be able to move the grain from the elevator to keep demurrage charges under control. He further testified that while technically title to the grain may have been in defendant, the grain was treated as plaintiff’s grain, and it was anticipated that plaintiff would ship grain as a precedent to its being loaded by defendant at the West-wego elevator.

Other employees of defendant testified, and their testimony basically conforms with that of Bain and Horn.

On the contrary, plaintiff offered the testimony of John Finlayson, one of its chief executives whose function was, in part, to deal with the Westwego contract. Finlay-son defined “through-put” agreement as a contract between a grain elevator and a shipper for use of the elevator to load the shipper’s grain, with the shipper keeping title and risk of loss before the grain entered the elevator, while it was in the elevator, and after it was aboard ship. He admitted that identity preserve is not needed for a “through-put” agreement, but nevertheless insisted the Westwego agreement was not such an agreement.

Finlayson’s testimony was weakened by several things. He admitted liability for payment of insurance premiums on the grain while in the elevator was for negotiation as part of each individual contract. He also did not know who paid for screening of grain in what he called a “through-put” agreement. He admitted the shipper “might” pay for drying and cleaning, but implied this also was negotiable. He did not know, under his form of “through-put” agreement, who is obliged to make claim for damage to cargo, and only stated that “normally” the shipper retains title to the grain. He also stated that “normally” the shipper is obliged to have someone check the cargo as it comes out of the rail car or barge if the contract is “other than” for one month or “a couple of cargos.” By stating these things “normally” occur in the manner he related, he implied rather strongly that these items are not written in stone and are subject to negotiation in all “through-put” agreements. Likewise, he admitted the cost of shrinkage of grain in the elevator between the weight put in and the weight outloaded was negotiable. Consequently, by admitting so many of the items normally provided for in a “throughput” agreement are subject to negotiation and different treatment in each “throughput”, his original unequivocal testimony regarding the nature of “through-put” agreements and his insistence that the Westwego contract was not a “through-put” agreement were substantially weakened.

Finally, Finlayson’s testimony is further weakened by his telex dated July 22, 1976, addressed to M. Laserson, senior vice president of defendant’s grain division in New York. The telex reads as follows:

“This will confirm our telephone conversation of yesterday. We have mutually agreed that since Westwego elevator will be closed for renovations during the month of September, Dreyfus maximum thruput for the succeeding six (6) months will be increased a total of 2,500,000. The new maximum for the six months of October/November/December 1976 and January/February/March 1977 therefore now becomes 2,916,666 bushels.” (Emphasis ours).

Plaintiff attempts to show defendant’s actions in selling off icebound barges before they reached the Port of New Orleans was a major or contributing factor in its alleged breach of contract. Plaintiff offered testimony which indicated fifteen of the twenty or twenty-one barges sold by plaintiff were in turn sold by defendant in transit prior to their reaching New Orleans. Such evidence might be subject to considerable weight but for the condition of the river at the time the barges were sold to defendant and in turn resold by defendant to third persons. Plaintiff’s proof falls short of establishing that defendant thus caused or contributed to its alleged breach of contract because it did not prove the barges in question could have reached the Westwego elevator in time for February loading. When defendant sold the grain-loaded barges to third persons, they were icebound and the time of their reaching the Port of New Orleans was, at best, problematical. Defendant had the right to sell these barges, and it apparently did so in an attempt to minimize losses under the circumstances.

Considering all of the evidence in the record, we conclude the Westwego contract between plaintiff and defendant dated April 1, 1971 was a “through-put” agreement which provided primarily for the use of defendant’s grain elevator by plaintiff in the transshipment of grain for export. While title to the grain changed to defendant as it made its way down the Mississippi River, defendant was obliged to resell the identical quantity and quality of grain (within practical limits) to plaintiff at the identical price plus a charge for use of the defendant’s grain elevator facilities. Defendant did not have the option of raising the price to plaintiff on its F.O.B. sales for loading aboard ship. And the contract provided for payment of 1% interest over prime on defendant’s money used between the time of purchase by defendant and the time of repurchase by plaintiff at the F.O.B. loading for the “corresponding” grain. Grain being a fungible commodity, it made no difference whether the identical grain was loaded aboard ship, so long as the same quantity and grade was tendered by the elevator for export. If the elevator owner maintained its obligation to supply the proper amount and grade of grain at the end of the shipping route, the mere transfer of title to the grain elevator while the goods were being shipped down the Mississippi River did not change the essence of the contract from a “through-put” to a series of independent purchases and sales.

We also conclude the contract in suit was administered as a “through-put” agreement until so treating it became economically unfeasible to plaintiff. Consequently, the defendant had a right to rely on the prior shipment of grain in sufficient quantities to be sure it could meet its commitments at its end of the shipping lane, and we hold defendant did not violate the contract by invoking the force majeure clause in the face of an ice-choked river which prevented the movement of grain north of St. Louis. We therefore further conclude defendant did not breach its contract and that it is not responsible to plaintiff for damages as a result of not loading plaintiff’s February F.O.B. purchase.

- The parties also take issue with the court’s finding that plaintiff owed defendant $82,634 for interest under the Westwe-go contract. As the contractual provisions quoted above establish the duty of plaintiff to pay defendant interest at the rate of 1% over prime established at the First City Bank in New York, the contract is clear on this point. The trial judge found as a matter of fact the amount owed by plaintiff for interest on corn purchases was $32,036 and on soybean purchases was $50,598, resulting in the total of $82,634.

These figures come from the fact that during January 1 through 25, 1977 defendant purchased from plaintiff 1.9 million bushels of corn and paid Dreyfus therefor the sum of $4,600,400 during the period January 7 through February 9, 1977. The period during which interest accrued under the corn contract ended when Continental sold to Dreyfus the corresponding amount of corn loaded aboard the M/V Jasaka and the M/V Mezada, which purchases were paid on February 17 and March 3, 1977. The facts further are that defendant purchased one million bushels of soybeans from plaintiff between January 12 and March 18, 1977, and defendant claims interest until the beans were loaded aboard the M/V Thorsdrake and paid for by Dreyfus on March 3, 1977.

We do not find error in the trial court’s award of interest. The contract is express and clear on the payment of interest from the date of purchase by defendant until the date of repurchase by plaintiff.

Plaintiff contends the trial court erred in awarding the entire amount of interest claimed because by so doing, it allowed defendant to take advantage of its own breach of contract and that the interest period would have been shorter had defendant not refused to load vessels tendered by plaintiff for shipment of corn and soybeans. As we have found defendant did not breach its contract, the argument that it cannot take advantage of a breach which did not exist is without merit.

The final problem for our consideration is the amount, if any, owed plaintiff by defendant for overpayment of elevation charges. With regard to this dispute the pertinent part of the contract is Section 8.2, which reads as follows:

“8.2 Changes in Tariff Rates
a. Dreyfus recognizes Continental’s rights from time to time to amend the Tariff.
b. In the event that the total of the charges stated in Item No. 1 and Item No. 2A of the Tariff (presently at 2 [cents] and 1 [cent] per bushel, respectively) for in and out elevations, are increased as permitted under Subsection a above and such new charges are at the time in question no higher than the charges of other export, public grain elevators at East Gulf Coast Ports, the additional charge specified in Subsection 3.2a(l), as increased or decreased from time to time in accordance with this Subsection b and Subsection c below, shall be increased by a like amount.
c. In the event that the charges stated in Item No. 1 and Item No. 2A of the Tariff (presently at 2 [cents] and 1 [cent] per bushel, respectively) for in and out elevations, are decreased as permitted under Subsection a, or Continental makes an agreement hereafter during the term of this Agreement with another person (other than agencies of the U.S. government) providing for elevation charges lower than the additional charge specified in Subsection 3.2a(l), as increased or decreased from time to time in accordance with this Subsection c and Subsection b above, such additional charge as increased or decreased from time to time shall be decreased by a like amount or be reduced to such lower charges provided for in such agreement, as the case may be.”

Defendant originally charged 214 cents per bushel for elevation of . shipments through its elevator, which charge was added to the price of each bushel in accordance with the express terms of the contract. On April 1, 1975, defendant raised the rate to 414 cents per bushel; on June 1, 1976, the rate was raised to 5 cents; and on April 1, 1977, the rate was raised to 7 cents.

When defendant changed the rate from 5 cents to 7 cents, plaintiff objected on the basis that defendant was not entitled to such a high rate. In lieu of litigating the matter at that time, both parties agreed without prejudice that plaintiff would pay 6 cents per bushel until the court could decide what rate was correct.

The parties stipulated that if defendant is correct in its position, it is entitled to recover $215,493.05, being the difference between the 6 cent and 7 cent charges made on 21,549,305 bushels of grain handled through the Westwego elevator for plaintiff from April 1, 1977 through December 22, 1977, when defendant’s elevator was destroyed by an explosion and fire.

There is no dispute concerning the fact that defendant raised its rate as stated above. It is also clear Continental amended its tariff to provide for a 7 cent rate per bushel. Moreover, the evidence establishes that grain elevators at Terre Haute, in St. James Parish, and at Port Allen, Louisiana (both owned by Cargill Grain Company) has been charging 8 cents elevation fees since July of 1976.

The dispute between the parties results from the language of the section quoted above which authorizes an increase if “... such new charges are at the time in question no higher than the charges of other export, public grain elevators at East Gulf Coast Ports, ...” Defendant takes the position that so long as its tariff rate is below any of such grain elevators, it is within the meaning of the contract. On the contrary, plaintiff contends the language of the contract means that the charge which defendant may make must be based on the average of the various public grain elevators located in the East Gulf Coast.

The situation is further complicated by the trial court’s finding that there are no “public grain elevators at East Gulf Coast Ports.” In accordance with this finding, the court ruled the elevation charges should remain at 6 cents in accordance with the agreement of the parties to pay and accept that amount unless the court decided the cost should be 5 cents or 7 cents.

The parties offered evidence to show that public grain elevators do exist in East Gulf Coast Ports. Defendant established the rate at the two Cargill elevators mentioned above, each charging 8 cents elevation; plaintiff established the public grain elevator of New Orleans, Inc. charged . 5 cents elevation, and the Alabama State Docks Department, Public Grain Elevator, charged 3!4 cents.

The argument and evidence on behalf of each side of the case presents problems. The Public Grain Elevator of New Orleans, Inc. is no longer a “public” elevator; it is now privately operated by Fox, Peavy & Pike, Inc. The Alabama State Docks Department Grain Elevator, while being run for the benefit of the general Mobile, Alabama area, is not particularly comparable to the other elevators since it primarily handles rail shipments and operates in a manner inconsistent with the other grain elevators in the East Gulf Coast region. Hence, its rates and methods of charging for loading are hardly suitable for comparison purposes in this case.

On the other hand, defendant takes the position that the word “public” should be afforded a liberal construction. It argues that any elevator which files a tariff with the Federal Maritime Commission and is licensed by the Department of Agriculture is a public grain elevator. The filing of a tariff implies that a facility is available for public use, and defendant argues that once this requirement is met, the fact that the owner or operator of the elevator makes use of its full capacity and has very little, if any, demand from the public for its use is not a determining factor. In short, defendant contends its elevator, together with the two Cargill elevators mentioned above, all file tariffs with the Federal Maritime Commission and operate under the warehouse section of the United States Department of Agriculture under the Federal Warehouse Act, and therefore come under the definition of a “public grain elevator”.

However, Mr. Bain, the defendant’s vice president in charge of compliance and an attorney admitted to practice in the state of New York, testified under cross examination that the elevators mentioned were public elevators at the time of the drafting of the contract in suit because they operated by having exporters pay the rates nominated in the tariffs to put their grain through the elevators without the necessity of title to the grain changing. He added, however, that during the past decade nearly all East Gulf Coast grain elevators, with the exception of the one at Mobile, operate under the purchase and sale concept spelled out in the present contract. Perhaps for this reason defendant concedes candidly that the trial judge’s finding that there are no public grain elevators in the East Gulf Coast area “... is completely justified from a de facto point of view in the context of this case.”

Given the conflicting factual evidence presented to the trial judge, the vague wording of the applicable contract provision, and the testimony indicating the Mobile Public Grain Elevator is.not comparable to others in the East Gulf Coast area because of the different purpose and manner of its operation, we cannot overrule the trial judge’s finding of fact that there are no “public” grain elevators in the East Gulf Coast area. Based on this finding, the trial judge was correct in allowing the 6 cents per bushel rate to stand for the period between April 1, 1977 and December 22, 1977 when the defendant grain elevator was destroyed. Had they desired any other result, the parties easily could have achieved the. same by specifically defining what a “public grain elevator” was intended to be in the contract.

For the reasons assigned, the judgment appealed from is affirmed in part, reversed in part, and recast so as to read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment on the main demand in favor of the defendant, Continental Grain Company, and against the plaintiff, Louis Dreyfus Corporation, dismissing said plaintiff’s demand.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment on the reconventional demand in favor of the plaintiff in reconvention, Continental Grain Company, and against the defendant in reconvention, Louis Dreyfus Corporation, in the full sum of $82,634, together with legal interest thereon from judicial demand until paid.”

It is further ordered that all costs in both courts are to be paid by the original plaintiff, Louis Dreyfus Corporation.

AFFIRMED IN PART; REVERSED IN PART.

      . Louis Dreyfus Corp. v. Continental Grain Co., La.App., 348 So.2d 1286.

      . While the answer to the appeal is somewhat ambiguous, we construe it to mean defendant requests an award for elevation charges, to be explained below.

      . The record indicates the period may have been from January 14, 1977 to February 14, 1977, but we do not find this three-day difference to be germane.

      .With regard to the barge shipments, the term “C.I.F.” denotes cargo, insurance, and freight were paid by the seller, Dreyfus. Any rail shipments to Westwego were also paid for by Dreyfus.

      .The contract also provided for plaintiff to pay for inbound and outbound inspection and weighing in accordance with rates set by the New Orleans Board of Trade. Moreover, differences (either upward or downward) between quantities and grades of grain loaded aboard plaintiffs designated vessels were settled by cash reimbursements between the parties.

      . “Spot” sales represent sales of commodities with delivery available within 2 to 5 days.

      . These figures were given for February 18, 1977 and varied somewhat from day to day.

      . The record is unclear as to whether plaintiff tendered and sold twenty or twenty-one barges to defendant.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Vera MURRAY v. HASPEL-KANSAS INVESTMENTS, American Employers Insurance Company, Winn-Dixie of Louisiana, Inc. and Foremost-McKesson, Inc.
    No. 11603.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Vincent J. DeSalvo, B. Ralph Bailey, Leon Aucoin, Metairie, for plaintiff-appellant.
    Christovich & Kearney, Robert E. Peyton, New Orleans, for defendant-appellee Winn-Dixie Louisiana, Inc.

      Moliere, Flanagan & Arceneaux, James S. Arceneaux, Metairie, for defendants-appel-lees American Employers’ Ins. Co., Edward M. Haspel and Maurice S. Kansas and Has-pel-Kansas Investments.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   GULOTTA, Judge.

Plaintiff, Vera Murray, appeals from a judgment of dismissal in a judge trial for damages sustained in a slip and fall on a brick walkway in front of a Winn-Dixie store on Metairie Road in Jefferson Parish, Louisiana. Named as defendants were Haspel-Kansas Investments, owner of the shopping center where the walkway was located, and Winn-Dixie, the store patronized by plaintiff prior to her accident. Dismissal of the action was based on LSA-C. C.P. art. 1810(B), which provides that in a judge trial the court, after presentation of plaintiff’s evidence, may dismiss the action on motion of any party on the ground that upon the facts and the law the plaintiff has shown no right to relief.

In oral reasons, the trial judge rendered a “directed verdict” for defendants. He stated, in those reasons, plaintiff failed to establish “that there was anything wrong with those bricks.”

According to plaintiff, the proper standard for granting a motion for “directed verdict” is whether the plaintiff’s evidence in the case is so insubstantial that reasonable men could not have arrived at a verdict contrary to that entered by the trial court. Because this standard was not properly applied in this case, plaintiff argues the judge erred. We do not agree. The standard referred to by plaintiff applies to jury trials. However, our case is a judge trial. In a judge trial, a different standard applies. As this court stated in Sevin v. Shape Spa For Health & Beauty Inc., 384 So.2d 1011 (La.App. 4th Cir. 1980), in a non-jury case, the trial judge upon a motion, under LSA-C.C.P. art. 1810(B), for a judgment of dismissal (upon completion of the plaintiff’s case) must weigh and evaluate all of the evidence presented up to that point in the trial and must grant a dismissal if plaintiff has not established proof by a preponderance of the evidence.

Applying this standard to our case, we find no error on the part of the trial judge in granting the motions for dismissal.

Before discussing the evidence supporting the conclusion reached by the trial judge, we consider the evidentiary rulings complained of by plaintiff in this appeal. Regarding the first complained of ruling, we find no error in the trial court’s refusal to recognize William W. Stratton as an expert in sidewalk construction competent to give an opinion on construction of the brick walkway in our case. Although Stratton was familiar with the construction of cement sidewalks and had supervised construction in three shopping centers, he had no experience in the construction of brick sidewalks. This testimony was proffered.

We find further, no error in the trial court’s refusal to accept Robert E. Hall as an expert engineering witness by plaintiff. Hall indicated that he had designed and constructed brick walkways and that his firm had made an inspection of the brick walkway in question, although he had not done so personally. Following an objection to Hall’s testimony concerning photographs of the brick walk, his testimony also was proffered.

Discretion in qualifying experts rests with the trial judge and absent an abuse of that discretion the court’s ruling will not be disturbed. Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64 (La.App. 4th Cir. 1979); Maddox v. Percy, 351 So.2d 1249 (La.App. 1st Cir. 1977). Considering Stratton’s lack of experience with brick walkway construction, and the fact that Hall did not personally inspect the sidewalk in suit, we find no such error. Accordingly, we hold that the trial judge properly excluded Stratton and Hall’s testimony.

Nonetheless, even considering the proffered testimony in a light most favorable to plaintiff, we arrive at the same conclusion reached by the trial judge.

Three witnesses testified in plaintiffs case. The injured plaintiff stated that after shopping at Winn-Dixie she had slipped and fallen backward while on the bricked area. She indicated that the “uneven” bricks caused her fall. This testimony differed from her earlier deposition in which she indicated that she did not know what had caused her to slip.

Hall’s testimony was that the brick walk should have been tapered as it rose from the surface of the parking area and that the “curb" created by the walkway should have been eliminated by filling it with asphalt or caulking material so that there would be a gentle incline rather than a “step up”. His testimony has little relevancy since plaintiff clearly fell on the walkway and not on the curb or near the curb. Hall could not tell from the photograph whether the bricks themselves were defective, although he noted that the surface was slightly uneven in that it was not like a smooth concrete area.

Stratton had photographed and measured the brick walkway and had found a 2W “differential” or elevation between the brick walk and the asphalt of the parking lot. He stated that the walkway violated construction standards in that the bricks were laid down on top of an unlevel asphalt surface rather than a sand surface. He noted that the differential in height in the brick and mortar ranged anywhere from one-half to three-quarters of am inch.

On cross examination, however, Stratton indicated that he had not taken any brick up to see that the bed of asphalt was uneven. He claimed that he knew the brick was laid on asphalt since he was familiar with the shopping center. When asked if he thought the bricked area itself was so improperly constructed as to cause someone to fall, he replied affirmatively, depending on the weather conditions and the physical capabilities of the person. Obviously little if any weight can be given to this testimony. The trial judge properly observed that it was “speculative at best.”

Accordingly, having evaluated plaintiff’s testimony, along with the proffered evidence, we are led to conclude the trial judge properly dismissed plaintiff’s suit as permitted under LSA-C.C.P. art. 1810(B). The judgment is affirmed.

AFFIRMED.

      . Although the petition names “Haspel-Kansas Investments” as a party defendant, an answer was filed by Edward M. Haspel, Maurice S. Kansas, and their liability insurer.

      . A third defendant, Foremost-McKesson, Inc., owner of an ice machine in front of the Winn-Dixie store, was dismissed prior to trial and is no longer party to this action.

      . LSA-C.C.P., art. 1810(B) provides:
      “In an action tried by the court without the jury, after plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and the law, the plaintiff is shown no right to relief. Court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”


author: CHEHARDY, Judge. SAMUEL, Judge,

text:
    UNITED STATES DAUGHTERS OF 1812-CHALMETTE CHAPTER v. LOUISIANA DEPARTMENT OF CULTURE, RECREATION AND TOURISM and the Louisiana State Museum Board, Through Its Chairman and The Director of the Louisiana State Museum.
    No. 11601.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Writ Granted April 27, 1981.

      Stanley E. Loeb, New Orleans, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Asst. Atty. Gen., Eavelyn T. Brooks, Staff Atty., New Orleans, for defendants-appellees.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, United States Daughters of 1812 — Chalmette Chapter (Daughters), appeal a trial court judgment maintaining the exception of no cause of action filed on behalf of the defendants, Louisiana Department of Culture, Recreation and Tourism and The Louisiana State Museum, dismissing plaintiff’s suit for a declaratory judgment and decreeing that each party bear its own costs.

On October 4, 1921, the State of Louisiana acquired from the Daughters an immovable known as the Jackson House, which is situated in the French Quarter in New Orleans. The authentic act evidencing the sale of the property from plaintiff to defendants, also states:

“This sale is made and accepted for and in consideration of the price and sum of Three thousand, Two Hundred and Fifty Dollars, the assumption hereinafter referred to, and the other obligations of the purchaser as herein set forth, and to represent said purchase price the said Mrs. Bankston acknowledges to have received for said Corporation the sum of Two Hundred and Fifty Dollars in cash, and bonds amounting to Three thousand Dollars, described as follows:
Three bonds of par value of $1000.00 each, being Nos. 9015-9016-9017 Northern Pacific Joint 15 year 614% Gold Bonds due July 1, 1936.
“And said Board further agrees to furnish free of charge to the said United States Daughters of 1776 and 1812 while they occupy the lower floor of said property, the use thereof being retained by them as long as they have corporate existence, the necessary current for electric light and when a heating system is installed by said Board, the necessary connections made, and also Janitor service.
“And as a further consideration of said sale, the Board of Curators of the State Museum hereby agrees to give to the United States Daughters of 1776 and 1812, the use of the ground floor of the premises herein conveyed, said use to continue as long as the said Association shall continue its corporate existence, and shall desire to continue to occupy the said premises, subject however, to the condition that no stoves, fires, or other elements liable to increase the fire hazard, shall be used in the said building for cooking purposes, and if the said Board of Curators shall provide a heating system, then none other shall be used for heating purposes; and the said United States Daughters of 1776 and 1812 shall put nothing in the said premises which shall increase the fire hazard; that it shall not use the said premises for other purposes than the exhibition of historic, art and literary objects and especially those pertaining to the wars of 1776 and 1812, and for its meetings, conventions and entertainments.
“It is also agreed that in the event of the destruction of the said premises by a fortuitous event, or for reconstruction, improvement or other purposes, the said Board of Curators shall afford said United States Daughters of 1776 and 1812, meeting and exhibition rooms in the State Museum of equal size and facilities; but no reconstruction or improvement, the effect of which shall be to deprive said United States Daughters of 1776 and 1812 of the permanent right of use herein given, shall be made without their consent, and in any improved or reconstructed building they shall be entitled to the use of rooms equally as suitable for their purposes as herein set forth as the ones now existing.
“It is furthermore agreed that a continued violation of the conditions of the use herein granted for a period of ninety (90) days, after being put in default by the Board of Curators, aforesaid, shall constitute an annullment of the use herein granted.” (Emphasis ours.)

That State now argues that it agreed to give the Daughters a “usufruct” or a “use” as meant in the legal sense, in connection with the first floor of the Jackson House and that since the Daughters are a corporation, and uses or usufructs in favor of corporations are limited to a period of 30 years by LSA-C.C. art. 612, the use or usufruct granted in favor of the Daughters is now expired. The Daughters, on the other hand, argue that the rights granted to them in the authentic act transferring the property are not ones which attach to the property itself, such as a legal use or usufruct, but, rather, represent a contractual obligation on the part of the State.

In the case of Crow v. Monsell, 200 So.2d 700 (La.App.2d Cir. 1967), the court addressed itself to the interpretation of written contracts at pages 701-702:

“A cardinal rule for the interpretation of contracts is that courts must seek for and ascertain, if possible, the mutual intention of the parties. LSA-C.C. Art. 1945; Cooley v. Meridian Lumber Co., 195 La. 631, 197 So. 255 (1940); Chicago Mill & Lumber Co. v. Lewis (La.App.) 68 So.2d 913 (2d Cir. 1953 — cert. denied). Although language employed in contracts is usually interpreted according to the ordinary and customary meaning of the words used, clauses couched in general terms, which, if taken literally, would lead to unreasonable consequences must be construed according to what, under all circumstances, was probably the intention of the parties. Losecco v. Gregory, 108 La. 648, 32 So. 985 (1901); Molero v. California Company (La.App.) 145 So.2d 602 (4th Cir. 1962 — cert. denied). Where the words of a contract are susceptible of more than one meaning, courts must give them the interpretation that carries out the object and purpose of the contract. Robbert v. Equitable Life Assur. Soc., 217 La. 325, 46 So.2d 286 (1950). Even where the words used in a contract are fairly explicit, it is the duty of the courts to refrain from construing them in such a manner as to lead to absurd consequences. LSA-C.C. Art. 1945; Texaco, Inc. v. Vermilion Parish School Board, 244 La. 408, 152 So.2d 541 (1963); Bondio v. Joseph Binder, Inc., (La.App.) 24 So.2d 398 (Orl.1946).”

Furthermore, in Bohm v. CIT Financial Services, Inc., 348 So.2d 132, 134 (La.App. 1st Cir. 1977), writ refused October 7, 1977, the court also held:

“If the agreement between the parties is clear and unambiguous, and will not lead to absurd consequences, the intention of the parties must be gathered from the writing itself. It is only where the agreement is unclear, ambiguous or will lead to absurd consequences that the court should go beyond the written agreement to gather the true intention. * * * ”

Regarding contractual and testamentary interpretation concerning the presence of a usufruct, A. N. Yiannopoulas, Professor of Law, Louisiana State University, also states in his Louisiana Civil Law Treatise, Volume 3, on Personal Servitudes (1968):

“Testators and parties to contracts do not always take care to designate by its proper name the type of right they intend to create. Thus, whenever descriptive language is used, questions arise as to whether a usufruct or another right of enjoyment has been intended. Further, in mortis causa dispositions, questions arise as to whether a permissible disposition of usufruct and naked ownership has been intended or a reprobated substitution.
“These are matters of testamentary or of contractual interpretation governed by the general rules of construction of juridical acts. In general, ‘precise, technical terms are not necessary to create a usu-fruct.’ For example, a quitclaim deed authorizing one ‘to use, without cost, the surface of the south 840 feet’ of a tract of land, a reservation that the donor of property should ‘have and control said property during his lifetime, collecting and disbursing all income ... as may seem just and right to him’, a provision in a will that the named beneficiary should ‘receive all the rents, benefits, and emoluments’ of property, and a contract styled ‘emphyteusis’, have been held to create usufructs. The testator or the parties to the contract may even use common law terminology to describe the function of the right of usufruct they intend to create and still validly establish a usufruct under the civil law. On the other hand, use of the word ‘usufruct’ may not be determinative in the presence of dispositions irreconcilable with the notion of usufruct. And, when the word ‘usufruct’ is used in a will, oral testimony to prove that the testator intended to bequeath ‘ownership’ is admissible if the will is ambiguous.” (Emphasis ours.) Usu-fruct; General Principles, Ch. 1, § 13.

In the present case, therefore, this court holds that the trial court was justified, as is this court, in going beyond the written agreement in order to determine the true intent of the parties regarding the rights of the Daughters to use of the lower floor of the Jackson House. This court also has looked to the applicable articles of the Louisiana Civil Code in effect at the time of the contract in order to aid us in determining their intent and to assist us in properly characterizing the rights which were granted to the Daughters in connection with the Jackson House.

LSA-C.C. art. 533 states:

“Usufruct is the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantages which it may produce, provided it be without altering the substance of the thing.
“The obligation of not altering the substance of the thing takes place only in the case of perfect usufruct.” (Emphasis ours.)

LSA-C.C. art. 544 also states:

' “All kinds of fruits, natural, cultivated or civil, produced, during the existence of the usufruct, by the things subject to it, belong to the usufructuary.”

LSA-C.C. art. 548 further provides:

“The usufruct of a house carries with it the enjoyment of the house, of the profits which it may bring, and indeed of such furniture as is permanently fixed therein, even should the title by which the usu-fruct is established make no mention of the same.”

In the Treatise on the Civil Law, Volume 1, Part 2, Twelfth Edition (1939), as translated by the Louisiana State Law Institute, Marcel Planiol said, at Section 2778, regarding the importance of the usufruct’s right to the fruits under the French Civil Code:

“The right to the fruits is the principal prerogative vested in the usufructuary. It is this that characterizes the usufructu-ary. It is this that differentiates him from the user. The usufructuary very often restricts himself to receiving the fruits. He does not take physical possession of the thing. It remains in the hands of a tenant. Thus the Romans, to abbreviate, spoke of the lfructuarius ’ when referring to the usufructuary. The French language does not permit such abbreviations.” (Emphasis ours.)

A reading of the contract in the present case certainly reveals no rights granted to the Daughters in regard to any profits which might be generated by the Jackson House or to any other “advantage” which might be “produced” in connection with that entity. LSA-C.C. arts. 544 and 548, moreover, reiterate the usufruct’s right to all natural, cultivated or civil “fruits” produced by the property as well as any profits which it may bring, but it is obvious that the subject contract is totally devoid of any such rights having been granted in the Daughters’ favor, nor does the record of testimony reveal that plaintiff at any time received such fruits.

LSA-C.C. art. 555 articulates:

“The usufructuary may enjoy by himself or lease to another, or even sell or give away his right; but all the contracts or agreements which he makes in this respect, whatever duration he may have intended to give them, cease of right at the expiration of the usufruct.”

On examination, once again the contract in question reveals no intent on the part of the parties that the rights of the Daughters should be transferable, a privilege which, if present, would indicate that the Daughters’ occupancy of Jackson House should properly be characterized a usufruct.

LSA-C.C. art. 571 reads:

“The usufructuary is bound to make such repairs only as are indispensably necessary for keeping the estate subject to the usufruct in good order.
“Repairs extraordinary are to be made by the owner himself, unless such repairs have become necessary in consequence of the usufructuary’s neglect to make the repairs for keeping the property in good order, since the usufruct has been acquired by him, in which case the usufruc-tuary is bound to make such extraordinary repairs.”

It is also interesting to note the comments of Planiol in the Treatise, supra, regarding obligations of taxes and repairs under the French Civil Code:

“Taxes of all kinds collected by the State, the land tax with the additional centimes due the Departments or the Commune, as well as all other taxes imposed upon real estate, such as the Parisian sweeping tax and taxes on horses, carriages, billards, etc., are all charges incumbent upon the usufructuary (Art. 608). Within this category may also be placed certain expenses, which while not having the regularity of annual taxes, are nevertheless ‘charges on the fruits’, to use the language of Art. 608. Examples of this category are the housing of troops that pass through and the clearing of small water ways.” Taxes, Section 2820.
“Repairs known as upkeep are distinguished from heavy repairs. The former devolve upon the usufructuary (Art. 605), because everybody pays for them out of income. Heavy repairs are drawn from capital.
“To avoid all contestations, the law took the precaution of setting forth in Art. 606 the repairs that should be deemed to be heavy repairs. And it adds: ‘all other repairs are upkeep.’ The idea was a good one. Unfortunately, the law envisaged solely usufructs established on constructions. It says nothing about repairs that may become necessary to ships, machines and the machinery of a factory, etc. A question of fact would then arise. In construing it regard should be had to the spirit of the law. Such repairs as consist in the remaking of an important part and which form an exceptional expense for the owner, may be deemed to be heavy repairs (Paris, Jan. 5, 1905, D. 1905. 2. 23; Paris, June 7, 1926, Gazette du Palais, July 8).” Repairs of Upkeep, Section 2821.

No mention is made in the subject contract of obligations on the part of either party regarding taxes and repairs, the implication being, therefore, that no responsibilities whatsoever in those regards were imposed upon the Daughters. Furthermore, the record of testimony does not reveal that the Daughters ever, at any time, paid any taxes on Jackson House or caused any repairs to be made there.

Regarding the expiration of a usufruct, LSA-C.C. art. 613 states:

“The usufruct expires before the death of the usufructuary, by the loss, extinction or destruction of the thing subject to the usufruct.
“Thus, the usufruct, which is established upon a building, expires, if the building is destroyed by fire or any other accident, or if it falls down through the decay of years.
“In this case the usufructuary would not even have the usufruct of the materials of the building, nor of the place in which it stood; for the usufruct is to be restrained to what is specified in the title. But if the usufruct be assigned upon an estate of which the building is a part, the usufructuary shall enjoy both the soil and the materials.”

Contrary to the provisions of the above article, however, the contract in the present case expressly provides that in the event of destruction of the premises of Jackson House the State agrees to provide the Daughters “meeting and exhibition rooms in the State Museum of equal size and facilities,” a provision which also tends toward characterization of the Daughters’ rights as something other than a usufruct on the Jackson House.

LSA-C.C. art. 605 also states:

“The owner may mortgage, sell or alienate the thing subject to the usufruct, without the consent of the usufructuary, but he is prohibited from doing it in such circumstances, and under such conditions as may be injurious to the enjoyment of the usufructuary.”

In the subject contract there is no mention of continuance of the Daughters’ rights, in regard to the property itself or in regard to the State, in the event of sale of property, a factor which, once again, if present, would tend to indicate that the nature of their rights was one of usufruct.

This court can only conclude, therefore, after analysis of the above articles, as a whole, in conjunction with the cited civil law treatises, that the contract between the State and the Daughters did not create a usufruct on the Jackson House, and, therefore, LSA-C.C. art. 612 is inapplicable to the obligations created by the contract.

We agree with appellant’s statement in its supplemental brief that there is involved, here not a real right but a personal right. The obligation, as stated supra, is a contractual one which should be governed by rules of contract law. Yiannopoulas, Louisiana Civil Law Treatise, supra.

In this regard, plaintiff notes in its supplemental brief, and we agree:

“The public policy underlying the Article of the Code of 1870 limiting the Usu-fruct granted to congregations and certain corporations which are deemed perpetual to thirty (30) years seems to be to prevent the removal of real estate from commerce. That is explained in the case cited on Page 3 of the State’s supplemental brief, Female Orphan Society v. Young Men's Christian Association, 119 La., 279, 44 So. 15, which was decided by the Supreme Court in 1907. Of course, there is no question that in the Female Orphan Society case the Court was dealing with a Usufruct and nothing else. However, such does not apply to the case at Bar because Daughters do not claim a real right affecting The Jackson House. Daughter’s claims are against the State on a personal obligation and no manner of attempting to divert the Court’s attention from those personal obligations will defeat them. The supplemental brief is, in reality, simply a restatement of the State’s original brief. The State cannot deviate from the sole argument that the only rights the Daughters have against the State are real rights rather than personal rights and they continue to beg the question. Your Honors want to know in what manner the Authentic Act between Daughters and State constitutes only a Usufruct and the other provisions of the contract the obligations of the State solemnly undertaken are null and void. There is no explanation in either of the State’s briefs that supports such a contention. Obligations of parties to a contract constitute the law between those parties and they are not easily abrogated.”

The State also argues, in the alternative, that the rights granted to the Daughters can be characterized as a “use” or “habitation.” It further argues that, because LSA-C.C. art. 628 provides that the rights of use and habitation are to be established and extinguished in the same manner as usufruct, the 30-year limitation on granting such a right to corporations, as imposed by LSA-C.C. art. 608, remains applicable in the present case.

A review of the articles in the Civil Code addressed to “uses” and “rights of habitation” reveals the following:

“Use is the right given to any one to make a gratuitous use of a thing belonging to another, or to exact such a portion of the fruit it produces, as is necessary for his personal wants and those of his family.” LSA-C.C. art. 626.
“That which distinguishes the usufruct of a property from the use of it, is this, that the enjoyment of the usufructuary is not confined to what is necessary for his consumption, but he takes all the fruits, and can dispose of them as he pleases.
“The person, on the other hand, who has only the use of an estate, has a right only to such fruits as may be necessary for his daily wants and those of his family-
“But he may claim so much of those fruits as may be necessary to supply the wants of the woman he has married, and of his children born since the use has been granted to him.” LSA-C.C. art. 633.
“The right of habitation is the right of dwelling gratuitously in a house the property of another person.” LSA-C.C. art. 627.
“He who has a right to habitation in a house may reside there with his family, though he may not have been married at the time this right was granted to him.” LSA-C.C. art. 640.
“The word family, made use of in this chapter, is to be understood of the wife, children and servants of the person to whom the right of use or habitation is granted.” LSA-C.C. art 642.

Planiol also states in his treatise, regarding the right of use:

“Use is a real right of the same nature as usufruct. It however is of lesser extent. Of the two elements that make up usufruct, the right to use and the right to receive the fruits, use included formerly but the first. The Romans therefore called it nudus usus, id est sine fructu. Nevertheless, as will be seen, a limited right to the fruits is added.” Definition, Section 2871.
“Strictly speaking, the user should have no right to the fruits of the thing when it is fruit-bearing. But the Roman juris-consults had been forced to add somewhat to the rights of the user in cases where the mere use of the thing would have given him but an insignificant profit. The user of a rural property was entitled to take from it a few minor products necessary for his subsistence: ‘Ut oleribus pomis, floribus, feno, stram-entis, lignis, ad usum cottidianum utatur' (Ulpien, Digest, Bk. VII, Tit. 8, fr. 12; Institutes of Justinian, Bk. II, Tit. 6, § 1). This equitable decision, retained by tradition in the old French Law, was preserved by the Code. Art. 630 permits the user to gather the fruits of the thing ‘to the extent that they may be necessary for his needs or those of his family.’ By ‘family’ is meant all who are supported by the user. This includes his spouse, his children and his servants. Usufruct therefore resembles usufruct more than its title would indicate. It is a little usufruct, limited to the user’s needs.” User’s Right to Fruits, Section 2872.

The rights contractually granted to the Daughters were extremely limited and were confined to plaintiff’s use of the lower floor of the Jackson House only for the purposes of exhibiting historical artifacts and holding meetings of the organization. There was certainly no right given to the society to extract any limited amounts of “fruits” as provided by LSA-C.C. art. 626 or to receive any fruits necessary for consumption by a user or his family, as provided by LSA-C.C. art. 633. This court cannot, therefore, find justification, on analysis of the “use” articles cited above, for characterizing the Daughters’ contractual rights as ones of use. Neither can we find that those rights, which were strictly limited, as stated previously, to use for meetings and exhibits, should be characterized as rights to “habitation,” which we interpret as granting a right of residence, and includes the obligee’s entire family, under LSA-C.C. arts. 627, 640 and 642.

It is our conclusion from a reading of the contract of sale and a review of the previously cited codal articles, as well as the civil law treatises quoted above, therefore, that it was not the intent of either of the parties to the contract of sale that the rights granted to the Daughters should be those of “usufruct,” “use” or “habitation” as used in the Louisiana Civil Code, and thereby subject to the 30-year limitation of LSA-C.C. art. 612. Due to the fact that the Daughters’ rights were very limited in scope and were to continue even in the event of destruction of the property, we. hold that the rights granted to the Daughters were nothing more than a contractual obligation incurred by the State and, consequently, not subject to the 30-year limitation imposed on uses, habitation and usufructs granted in favor of corporations.

Also in support of this interpretation is the fact of the historical significance of the Jackson House, precluding the likelihood of its subsequent sale by the State and therefore also precluding the probability that either party to the contract was concerned with protecting its rights in the event of such a future sale by way of stipulation which would attach to the property itself.

Although the State cites the case of Lasyone v. Emerson, 220 La. 951, 57 So.2d 906 (1952), in support of its proposition that the rights of the Daughters must be construed as a use or usufruct in the strict sense, we hold that case distinguishable on the facts. The deed in question in that case was stated at page 907:

“ ‘It is covenanted and agreed, and the vendor and vendee do by these presents covenant and agree, that the Vendee shall have the use, without rental, of the lower story of the two story brick building situated on said property, to assume the upkeep, repairs and improvements of said lower story as needed and as may be necessary for the operation of said business; to extend said lower story, without interference or hindrance to the second story of said building, back on said lot to a distance of One Hundred feet which extended portion of said lower story shall be the individual property of said vendee.
“ ‘It is also covenanted and agreed, and vendor and vendee do by these presents covenant and agree, that the use, without rental, of the second story of said building shall be retained in the Vendor, who shall have the use of same for himself, or to lease, and to maintain the upkeep, repairs and improvements of same.
“ ‘The first or lower story of said building is understood to include from the ground to the second floor and the second story is understood to include from the second floor to the roof inclusive.
“ ‘The vendor also retains the stairway which is to remain intact and kept as means of ingress and egress to second story.’ ”

Obyiously the obligations of upkeep, repairs and improvements, and lack of any reference to any obligations not connected to the property itself (as is the situation in our present case) renders Lasyone, supra, distinguishable from this case. Moreover, the parties in Lasyone, supra, were not the original parties to the above-quoted deed but retained titled to the property through subsequent sales.

Had this court not arrived at the above conclusion, we would also have had to consider the doctrine of equitable estoppel, which is applicable to the state and its subdivisions as well as individuals. Prebensen & Blakstad v. Board of Commissioners, 241 F.Supp. 757 (U.S. Dist.Ct., E.D.La., 1965); State v. Register of State Land Office, 192 So. 519 (La.1939). It is obvious to this court that the State’s voluntary conduct in promising the Daughters use of the lower floor of the Jackson House was justifiably relied on by the Daughters and that' they changed their position, i. e, gave up ownership of the property in reliance upon the State’s promise of the availability of the property for their continuing use, thereby bringing into play the principles of this doctrine and precluding the State from now asserting a bar to performance of their obligation. Prebensen, supra.

From a review of the testimony in the district court given by the chairman of the Louisiana State Museum Board; by the director of the Louisiana State Museum and the assistant secretary for the Office of Culture, Recreation and Tourism of the State of Louisiana, as well as that of several members of the Daughters, who had witnessed the moves of the organization in and out of the Jackson House over the years; and from a reading of the various letters of correspondence written and received by the Daughters, it is also apparent that the only periods the Daughters did not avail themselves of their contractual right to use the Jackson House were those times when the State asked them to abandon the premises for necessary reconstruction, renovation or repairs. It is not demonstrated at the trial, therefore, that the Daughters in any way violated the conditions of use granted to them, nor was it demonstrated that they were ever put in default for any such violation. Neither can we find merit, therefore, to any argument that the Daughters’ rights expired through nonuse; however, this court need not decide that issue since we have determined that the rights granted the Daughters are conventional obligations rather than a use, usufruct or habitation.

For the reasons assigned, the trial court judgment maintaining the defendant’s exception of no cause of action is reversed and judgment is hereby granted in favor of plaintiff, United States Daughters of 1812 —Chalmette Chapter, declaring that they are entitled to use of the ground floor of the Jackson House, subject only to the limitations and obligations imposed upon them by the contract granting them that right. All costs are to be paid by defendant.

REVERSED AND RENDERED.

SAMUEL, Judge,

concurring.

Because I agree with the result reached by the majority opinion and decree, I respectfully concur.


author: STOKER, Judge. DOMENGEAUX, Judge,

text:
    Eraina Highbaugh AUTREY, Plaintiff-Appellant, v. Walter HIGHBAUGH, Jr., Defendant-Appellee.
    No. 8050.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1981.
    Rehearing Denied March 23, 1981.
    Gravel, Robertson & Brady, Anna E¿ Dow, Alexandria, for plaintiff-appellant.
    Cabra, Leach & Tilley, Edwin L. Cabra, Leesville, for defendant-appellee.
    Before DOMENGEAUX, STOKER and LABORDE, JJ.
   STOKER, Judge.

This is a suit for change of custody. The plaintiff-mother seeks custody of her six year old daughter, Kimberly, who is presently in the custody of the defendant-father.

In April 1977 the plaintiff filed a petition for separation against the defendant in which she asked for custody of Kimberly. The defendant answered and reconvened asserting his right to divorce based on plaintiff’s alleged adultery. In October 1977 a judgment was rendered granting defendant a divorce and custody of Kimberly. This judgment did not grant visitation rights to the plaintiff. In September 1978 plaintiff filed a petition for change of custody. Numerous attempts were made to fix a visitation schedule for plaintiff and limited visitation was agreed upon. The plaintiff continued her suit for custody and the matter was set for hearing on August 20,1979. Upon joint motion of counsel this hearing was upset and the matter was not heard until January 21, 1980. Judgment was rendered February 19, 1980, maintaining custody in the defendant-father. Plaintiff filed a motion for a new trial which was denied. Plaintiff appeals.

There are two issues raised by this appeal:

(1) the custody of Kimberly and

(2) whether the trial court erred in failing to grant plaintiff’s motion for a new trial.

I. CUSTODY

LSA-C.C. art. 157 as amended provides the applicable law in this case. This article clearly states that changes of custody are to be made in accordance with the best interest of the child. In discussing the appropriate standard of proof applicable to change of custody cases the Supreme Court in Bordelon v. Bordelon, 390 So.2d 1325 (La.1980) stated “... the best interest of the child, and not the possibility of harm, is the sole criterion applicable to change of custody cases.” Thus the determination to be made in this case is whether it is in Kimberly’s best interest to be in the custody of her mother, the plaintiff, or her father, the defendant.

In reviewing grants of custody the appellate court must give great, weight to the determination of the trial judge. This determination will be overturned only when there is a clear abuse of discretion. Bordelon v. Bordelon, supra. This rule of review is based on the premise that a trial judge is in a better position to evaluate and determine the best interest of the child because he has an opportunity to observe the conduct and character of the parties seeking custody and the child.

We have reviewed the record and find no abuse of discretion. Counsel for plaintiff argues that the trial judge erred in applying the so called “double burden” rule of Fulco v. Fulco, 254 So.2d 603 (La.1971) in this case because the decree of custody was not a considered one. Counsel maintains that it is unnecessary for plaintiff to prove that continuing the present custody is deleterious to the child in order to be entitled to an award of custody. We agree that proof of deleterious circumstances is not necessary in this case, but do not believe the issue of the existence of a considered decree to be decisive. As stated above we are of the opinion that all custody modifications are now governed by the rule of the best interest of the child regardless of the type of initial decree.

Although the trial judge in his written reasons for judgment seems to be applying the rule Fulco v. Fulco, supra, when he states there is no evidence that any deleterious circumstances exist, we find that he also made a determination of Kimberly’s best interest. The trial judge noted the evidence is abundant that Kimberly is happy, provided for and well adjusted in her present situation and that he does not feel it is in Kimberly’s best interest to place her with her mother. Tr. 9, 10. The evidence offered at the custody hearing supports the conclusions of the trial judge. The testimony establishes that Kimberly was born on December 25,1974, and that she has been in the custody of her father since October 1977. In addition the record reveals that Kimberly is happy, well-fed and clothed and that she gets along with her father, mother and their respective spouses and relatives. Accordingly, we find that the trial judge maintained custody in the defendant-father after determining that this was in Kimberly’s best interest and that this determination was not an abuse of discretion.

II. NEW TRIAL

Counsel for plaintiff contends the trial court erred in failing to grant plaintiff’s motion for a new trial. Plaintiff moved for a new trial on the peremptory grounds of discovering since trial, evidence important to the cause, which through due diligence could not have been obtained prior to or during trial. LSA-C.C.P. art. 1972(2).

In her motion plaintiff alleged that since the time of trial defendant and his present wife had separated, that defendant’s sixteen year old sister was pregnant and unwed, and that the living conditions in the trailer where Kimberly lived were crowded. Plaintiff argued that these facts indicate that Kimberly’s present custody is not in her best interest. The trial judge denied the motion for a new trial on the basis that the facts alleged in the written motion along with the evidence presented at the hearing were in and of themselves insufficient to establish plaintiff’s right to a new trial.

Article 1972(2) has been interpreted to mean that a new trial must be granted on the grounds of newly discovered evidence where such evidence is not merely cumulative, would tend to change the result of the case, was discovered after trial, and could not have been discovered before or during the trial. Chauvin v. Chauvin, 297 So.2d 234 (La.App. 3rd Cir. 1974).

It was revealed at the hearing on the motion that defendant and his present wife were not in fact living apart and that they were no longer living in the trailer with defendant’s relatives. Counsel stipulated that defendant’s sister was unmarried and pregnant. This fact alone does not indicate that the present custodial arrangement is not in the best interest of Kimberly.

We do not feel that plaintiff has alleged facts which warrant the granting of a new trial.

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

AFFIRMED.

DOMENGEAUX, J., concurs and assigns brief reasons.

DOMENGEAUX, Judge,

concurring.

I agree with the majority opinion but concur merely to make reference to my brief concurring opinion mentioning the double or heavy burden rule contained in Bordelon v. Bordelon, 381 So.2d 871 (La. App. 3rd Cir. 1980). That case was affirmed by the Supreme Court in November, 1980 (390 So.2d 1325).

Although the District Judge’s decision in the case at hand came many months before the Supreme Court Bordelon case, nevertheless, it is evident that the District Judge considered the best interest of the child in allowing her to remain in the custody of her father.

      . LSA-C.C. art. 157.
      A. In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent. Such custody hearing may be held in private chambers of the judge. The party under whose care the child or children is placed, or to whose care the child or children has been entrusted, shall of right become natural tutor or tutrix of said child or children to the same extent and with the same effect as if the other party had died.
      B. If subsequent to the granting of a divorce or separation one of the parties to the marriage dies and is survived by a minor child or children of the marriage, the parents of such deceased party may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interests of the child or children.

        (Amended by Acts 1970, No. 436, § 1; Acts 1977, No. 448, § 1; Acts 1979, No. 718, § 1.)


author: DOUCET, Judge. FORET, Judge, SWIFT, Judge,

text:
    James Patrick PATIN, Plaintiff-Appellee, v. STATE FARM INSURANCE CO. and Travelers Indemnity Co., Defendant-Appellant.
    No. 8045.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1981.
    Rehearing Denied March 23, 1981.

      McBride & Brewster, Glynn Rozas, Lafayette, for defendant-appellant.
    Fruge & Vidrine, Jack C. Fruge, Jr., Ville Platte, for plaintiff-appellee.
    Dubuisson & Dubuisson, Edward B. Du-buisson, Opelousas, for defendant-appellee.
    Before FORET, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

James P. Patin brought this suit to recover damages for personal injuries that he sustained in a two-car collision on May 16, 1978 in Opelousas, Louisiana. Plaintiff was driving his brother’s 1974 Ford pickup truck in a southerly direction on Court Street. When he attempted to make a left turn onto Block Street, he was hit by a 1976 Ford automobile driven by Winnie R. Ar-doin, which was in the process of passing him.

Mrs. Ardoin’s liability insurer, Aetna Casualty & Surety Company, paid plaintiff its policy limits of $10,000.00. Subsequently, he filed this suit for additional damages, penalties and attorney’s fees against two uninsured motorist carriers, State Farm Mutual Automobile Insurance Company and Travelers Indemnity Company. State Farm insured the truck that plaintiff was driving, and Travelers insured his personal automobile, which was not involved in the accident.

The issues of liability and damages were tried before a jury, which rendered a verdict in favor of plaintiff and fixed his total damages at $40,000.00. Pursuant to a pretrial agreement, defendants were given a credit for the $10,000.00 that plaintiff had received from Mrs. Ardoin’s insurer, and judgment was rendered in favor of plaintiff and against State Farm in the sum of $25,-000.00 (its policy limits) and in favor of plaintiff and against Travelers in the sum of $5,000.00. The issue of whether plaintiff was entitled to penalties and attorney’s fees under LSA-R.S. 22:658 was decided separately by the trial judge in favor of the defendants.

State Farm appealed, and plaintiff answered the appeal, seeking an increase in his damages and the penalties and attorney’s fees that were denied by the trial judge. Plaintiff later conceded, however, that his damages could not be increased because State Farm’s policy limits have been exhausted, and the judgment against Travelers has not been appealed. Since State Farm has not raised the issue of quantum, the only issues presented for our resolution are State Farm’s liability and plaintiff’s demand for penalties and attorney’s fees.

There does not appear to be any serious dispute about the fact that Mrs. Ardoin was operating her vehicle in a negligent manner at the time of the accident. She attempted a passing maneuver near an intersection when it was obviously dangerous to do so, and she admitted that she was not maintaining a proper lookout. Furthermore, although she could not estimate her speed, the evidence indicates that it was excessive.

State Farm contends, however, that despite Mrs. Ardoin’s negligence, plaintiff should be denied recovery because he was contributorily negligent and/or had the last clear chance to avoid the accident. It relies heavily on plaintiff’s statement in a pre-trial deposition that although he activated the truck’s turn signals 100 feet in advance of the intersection, he did not check his rear-view mirrors for following traffic. Plaintiff retracted that statement at the trial and testified that he had in fact checked for overtaking vehicles. He attributed his inconsistent pre-trial testimony to nervousness or a failure to understand the question.

It is well settled in the jurisprudence of this state that a left turning motorist has a duty not only to give a proper signal, but also to observe oncoming and overtaking traffic to ascertain that his turn can be made safely. Ryder v. Trisler, 367 So.2d 1257 (La.App. 3rd Cir. 1979); Aetna Insurance Company v. Southern Farm Bureau Casualty Insurance Company, 347 So.2d 924 (La.App. 3rd Cir. 1977). If plaintiff failed to fulfill this duty, he was clearly contribu-torily negligent.

Contributory negligence does not bar a plaintiff’s recovery, however, if under the doctrine of Last Clear Chance he can prove: (1) that he was in a position of peril of which he was unaware or from which he could not extricate himself, (2) that the defendant actually discovered or should have discovered his peril, and (3) that after discovering the peril, the defendant had the opportunity to avoid the accident. Pence v. Ketchum, 326 So.2d 831 (La.1976); Marcelle v. Chin-Bing, 364 So.2d 1345 (La.App. 4th Cir. 1978).

After reviewing the evidence in the record, we are inclined to agree with State Farm’s agreement that plaintiff was con-tributorily negligent. However, we also find that the evidence amply supports a finding that Mrs. Ardoin had the last clear chance to avoid the accident. We therefore find no error in the jury’s verdict in favor of plaintiff.

Although the liability issue has been resolved in plaintiff’s favor, we do not agree with his argument that he is entitled to penalties and attorney’s fees under LSA-R.S. 22:658. Serious issues were raised with regard to plaintiff’s right to recovery. We believe that the trial judge correctly concluded that the insurer’s refusal to pay his claim without litigating those issues was not arbitrary, capricious or without probable cause.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the appellant, State Farm Mutual Automobile Insurance Company.

AFFIRMED.

FORET, J., concurs with written reasons.

SWIFT, J., dissents and assigns written reasons.

FORET, Judge,

concurring.

I concur in the result reached by Judge Doucet.

I file this concurring opinion, however, to express my views on two points. Firstly, I am of the opinion that the plaintiff was not contributorily negligent, hence the last clear chance doctrine is not applicable. The record shows that he gave a left-turn signal in ample time to warn the defendant driver that he was going to make a left turn, which he had a legal right to do. On the other hand, assuming, arguendo, that plaintiff was negligent, I believe that his negligence was not a contributing cause of the accident. Obviously Mrs. Ardoin was driving at a speed well in excess of the posted speed limit (she admitted she was late for work at the courthouse); and also, she knew that she was passing at a busy intersection; yet she proceeded to do so with no concern for a left-turning vehicle or even the possibility of a vehicle entering Court Street from Block (the intersecting) Street. In my view, Mrs. Ardoin’s negligence was reckless to the extent of being wanton.

Secondly, I agree with Judge Doucét’s review on the matter of damages for a frivolous appeal requested by plaintiff’s attorney in his brief. Plaintiff-appellee did not answer the appeal, and therefore that issue is not before us. See Official Comments following the text of LSA-C.C.P. Article 2133, which state in part:

“The result is that no answer by appellee is required under Louisiana law unless the appellee desires some modification of the judgment or damages for a frivolous appeal.” (Emphasis provided.)

SWIFT, Judge,

dissenting.

I respectfully dissent, being of the opinion that the plaintiff was contributorily negligent and that the last clear chance doctrine is inapplicable.

      . In his brief, plaintiffs attorney also requested damages for frivolous appeal under LSA-C. C.P. Art. 2164. His request was untimely, however, since his brief was filed more than fifteen days after the lodging of the record. LSA-C.C.P. Art. 2133.


author: REDMANN, Judge.

text:
    AMERICAN MOTORISTS INSURANCE COMPANY et al. v. Carl E. MILLER.
    No. 11479.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1981.
    Dominic J. Gianna, Hammett, Leake & Hammett, New Orleans, for plaintiffs-appellants.
    Jacob J. Amato, Jr., Amato & Creely, Gretna, Thomas L. Giraud, Giraud, Cusima-no, Verderame & Loev, New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   REDMANN, Judge.

The owners of two automobiles that collided sued each other the same day, February 22, 1978. One’s insurer joined him in this suit in New Orleans First City Court. The other owner (defendant in this suit) sued in the Orleans Civil District Court.

This suit resulted in a default judgment on January 4, 1979. On December 4, 1979, defendant brought an action to annul for ill practice, La.C.C.P. 2004. Defendant’s lawyer testified that he had an agreement with opposing counsel to try the Civil District Court suit, and it was not until the day that that suit was to be tried, 11 months after the default judgment, that he learned of the default judgment in this suit.

Plaintiffs now appeal from the judgment annulling the default judgment. Yet plaintiffs’ counsel’s testimony is not that he had no such agreement with defense counsel, but only that he does not remember any; “It could be that I did and have forgotten, or it could be that someone in my office may have talked to him. I had an attorney named Carol Accardo handling this particular case at the time, but this is the only documentation I have in the file of any sort of contact with Mr. Amato.” Plaintiff counsel then produced letters asking for responsive pleadings, including one from Miss Accardo of May 11 saying if they “are not filed within the next seven days, my client has requested we take a default judgment.” But no default was taken until eight months later, and that letter of counsel is not inconsistent with a subsequent agreement, such as defense counsel testified to, during the intervening eight months. A certified-mail letter of September 4 merely requested “Please file responsive pleadings at your earliest convenience.”

A default judgment taken in spite of an agreement not to do so is annullable. Southern Discount Co. v. Williams, La.App. 4 Cir. 1969, 226 So.2d 60; Estelle J. Wilson Mortuary, Inc. v. Waker, La.App. 4 Cir. 1971, 244 So.2d 630; Spitzkeit v. Robinson, La.App. 4 Cir. 1974, 289 So.2d 846.

Affirmed.