author: CULPEPPER, Judge. STOKER, Judge,

text:
    Bryan J. SLOANE, Jr., Plaintiff and Appellant, v. Edward Mike DAVIS, d/b/a Tiger Oil Company, Defendant and Appellee.
    No. 8079.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Dubuisson & Dubuisson, James G. Du-buisson, Opelousas, for plaintiff and appellant.
    Camp, Carmouche, Palmer, Barsh & Hunter by A. J. Gray, III, Lake Charles, for defendant and appellee.
    Before CULPEPPER, FORET and STOKER, JJ.
   CULPEPPER, Judge.

This is an action to enforce an employment contract. Plaintiff, Bryan J. Sloane, Jr., a geologist, seeks to compel his former employer, Edward Mike Davis, d/b/a Tiger Oil Company, an independent oil operator, to assign to him certain overriding royalty payments from the “Mecom prospect”. Plaintiff’s claim is based on the provisions of a written employment contract made with defendant. Upon joint motion of counsel, the trial of this matter was severed and heard solely on the question of liability under the contract. The question of damages, if any, was to be tried at a later date. After two days of testimony, the district court rendered judgment in favor of defendant and dismissed plaintiff’s suit. Plaintiff appeals. We reverse and remand.

The trial judge held the written contract is ambiguous as to the provisions at issue, thus permitting consideration of parol evidence to show the intent of the parties. Moreover, the judge held that even if the contract is not ambiguous, plaintiff cannot recover because the Mecom lease was not acquired as the result of services performed by plaintiff or a co-employee in his office. On appeal, defendant does not contend the contract is ambiguous. He contends plaintiff did not comply with the contract as written.

On October 5, 1973, plaintiff was hired as a geologist by the defendant, Edward Davis. The terms of the employment contract were provided in a letter agreement signed by plaintiff and defendant. Under the agreement, plaintiff was to receive a minimum salary of $1800.00 per month for a minimum term ending no sooner than December 31, 1974. In addition to the base salary, plaintiff was granted an option to purchase an overriding royalty on any mineral leases acquired by the defendant in certain instances. The pertinent provisions of the October 5, 1973 contract provide:

“Furthermore, employer hereby grants to employee the option of purchasing an overriding royalty on all oil, gas and mineral leases acquired by employer as a result of employee’s services or as a result of efforts of other members of the office wherein employee renders his services. Employee’s cost of said overriding royalty shall be $10 per prospect.
“The amount of overriding royalty available to employee is described by the following paragraphs:
“(1) On prospects generated by employee he shall be entitled to acquire 1% of %ths overriding royalty.
(2). On prospects generated by any member of South Louisiana Division other than employee, employee shall be entitled to acquire 0.5% of %ths overriding royalty.”

In the spring of 1975, plaintiff’s employer, Davis, entered into discussions with John Mecom, Sr., concerning oil and gas exploration on property owned by Mecom’s family in Cameron Parish, Louisiana. Defendant assigned plaintiff to conduct a geological study of the area to determine the feasibility of the venture. Plaintiff was also instructed by defendant to consult with Mr. Lee Morgan, a geologist in New Orleans working for Mr. Mecom. Plaintiff met with Mr. Morgan in New Orleans and obtained certain geological. maps which Morgan had already prepared. These maps designated several oil and gas prospects on the land. Based on this information and on additional geological information prepared by plaintiff, plaintiff made several maps of the subsurface area.

After his geological study was complete, plaintiff submitted a written report to Joe Freeman, his immediate supervisor in the Lake Charles office, recommending that Tiger Oil Company join Mr. Mecom in the drilling venture. After consideration of plaintiff’s proposal, which was concurred in by Joe Freeman, Tiger Oil Company and John Mecom entered into a mineral lease on August 14, 1975. Drilling was commenced soon thereafter on one of the prospects and production was obtained.

On March 16, 1976, in a letter agreement signed by plaintiff and defendant, the October 5, 1973 employment agreement was changed. The opening paragraph of the March 16, 1976 agreement provides:

“This letter will supersede and replace that certain Letter Agreement dated October 5, 1973, by and between Bryan J. Sloane, Jr. (hereinafter referred to as ‘employee’) and Edward Mike Davis (hereinafter referred to as ‘Davis’). All terms and conditions hereinafter set forth shall be effective as of October 5, 1973.”

Under the second agreement, plaintiff’s salary remained at $1800.00 per month. The conditions necessary to acquire an option to purchase an overriding royalty, however, were changed by the amended contract which now reads in pertinent part as follows:

“Furthermore, Davis hereby grants to employee the option of purchasing an overriding royalty on all oil, gas and mineral leases acquired by Davis as a result of employee’s services or as a result of efforts of other members of the office wherein employee renders his services. Employee’s cost of said overriding royalty shall be $10 per prospect.
“At any time that over $150 per acre bonus or consideration is paid for acquiring leases, then the overriding royalty amount to be received by employee shall be negotiated between employee and Davis. However, it shall never exceed 1% of 8/8ths. The amount of overriding royalty available to employee is described by the following paragraphs:
“(1) On prospects generated by employee, he shall be entitled to receive 1% of %ths overriding royalty, so long as the royalty and/or overriding royalty interest (excluding the employee’s overriding royalty) shall not exceed a Vith total royalty. If Davis gives more than a Vsth royalty and/or overriding royalty interest, then the overriding royalty interest herein-above provided for shall be proportionately reduced.
“(2) On any prospect reviewed and interpreted by employee, other than his own original prospects, as defined in paragraph 1 above, located in South Louisiana which, for purpose of this letter, shall embrace an area located on the northern boundaries of Beauregard, Allen, Evangeline, St. Landry, Point Coupee, West Feliciana, East Feliciana, St. Helena, Tangipahoa and Washington Parishes, Louisiana, to the southern boundary of Zone 1, employee shall receive a xh of 1% of 8/8ths overriding royalty interest. However, any prospect, whether it be self-generated and be deemed the prospect of employee, or any other prospect reviewed and interpreted by employee not being his prospect, shall be sent by registered mail to Davis for his approval by the division manager. Such prospect shall include the terms and conditions of the entire prospect, delineated by section, township and range, or by outline, along with the amount of overriding royalty to be received by employee. Should Davis concur, he shall return a copy to the division manager, appropriately signed, and retain a copy in the Houston Office.”

The parties agree it is this agreement, rather than the October 5, 1973 agreement, which is now controlling. Moreover, plaintiff makes no claim under paragraph number (1) above, since he admittedly did not “generate” the Mecom prospect. Plaintiff only claims under paragraph (2) that he “reviewed and interpreted” the Mecom prospect, and that Davis acquired the Me-com lease as a result of plaintiff’s services.

On November 4, 1976, plaintiff mailed a letter to defendant seeking assignment under the above agreement of overriding royalty “earned” by him under the Mecom lease and under another lease in St. Landry Parish. Plaintiff was informed by a letter of date November 15, 1976 from defendant’s attorney in Houston that Davis agreed to assign to plaintiff an override under the lease in St. Landry Parish, which plaintiff “generated”, but that defendant refused to assign to plaintiff any royalty from the Mecom lease for two reasons. The first was that the lease had been generated solely through the efforts of Davis himself. The second was that the conditions of paragraph (2) of the March 16 agreement regarding notice by registered mail had not been complied with.

Since the defendant does not contend on appeal that the 1976 contract is ambiguous as to the provisions at issue, we will not discuss this question. We will only say in passing that we have carefully studied the trial judge’s written reasons and we find the contract free of ambiguity or contradiction as to the provisions on which plaintiff relies, which provisions are discussed below.

Since the 1976 contract is not ambiguous, we will not consider the parol evidence introduced for the purpose of showing the intent of the parties was that the Mecom prospect was excluded from plaintiff’s employment contract. LSA-C.C. Article 2276 provides:

“Art. 2276. Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

In Capizzo v. Traders & General Insurance Company, 191 So.2d 183 (La.App. 3rd Cir. 1966) we construed Article 2276 as follows:

“The general rule is that when the provisions of a written contract are clear and unambiguous, the contract cannot be varied, explained or contradicted by parol evidence, and the meaning or intent of the contracting parties must be sought within the four corners of the instrument. One of the exceptions to this general rule is that when the terms of a written contract are susceptible of more than one interpretation, or where there is uncertainty or ambiguity as to the provisions of the contract, or where the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguities and to show the intentions of the parties. LSA-C.C. art. 2276; Gulf States Finance Corp. v. Airline Auto Sales, Inc., 248 La. 591, 181 So.2d 36; SnowWhite Roofs, Inc. v. Boucher, 182 So.2d 846 (La.App. 4th Cir. 1966); Marcann Outdoor, Inc. v. Hargrove, 140 So.2d 815 (La.App. 3d Cir. 1962).”

We will now review plaintiff’s contention that he has complied with the contract as written. Plaintiff first points out that in the original 1973 contract, Sloane was to receive an overriding royalty on all leases acquired by Davis as a result of Sloane’s services or as a result of efforts of other members of the office wherein Sloane renders his services, the amount of royalty being (1) 1% of %ths on prospects generated by Sloane and (2) 0.5% of %ths on prospects generated by any member of the South Louisiana Division other than Sloane. Plaintiff admits that the Mecom prospect was “generated” by Davis himself, not by Sloane or any member of the South Louisiana Division. Thus, plaintiff admits he would not have been entitled to any overriding royalty on the Mecom lease under the 1973 contract.

However, plaintiff points out that the 1976 contract changes the agreement as to the provisions at issue here, i. e., as to prospects not generated by Sloane. Under the 1976 letter agreement, Sloane was entitled to overriding royalty of xh of 1% of % ths “(2) On any prospect reviewed and interpreted by employee (Sloane), other than his own original prospects.” (emphasis supplied) It is also important at this point to note that under the express provisions of the 1976 contract it was made retroactive to October 5, 1973, so it covered the time during which the Mecom prospect was reviewed and interpreted by Sloane and was acquired by Davis.

Plaintiff points out that three geologists, other than plaintiff himself, testified they considered the work done by Sloane on the Mecom prospect did constitute “review and interpretation.” In his deposition, Mr. Lee Morgan, the above mentioned geologist for Davis, testified as follows regarding the work which he and Sloane performed on the Mecom prospect:

“A Mr. Sloane showed me the maps that he prepared in that office.
MR. GRAY:
I object. You testified previously that Mr. Sloane had shown you maps.
MR. DUBUISSON:
That is right. Go ahead and answer.
“A I don’t understand. All I can say is that I was shown some maps at the conclusion of the study and during the study by Mr. Sloane while I was in that office with him and that they were an interpretation of the area that we were discussing, the East Mud Lake, the second Bayou and Mud Lake Field areas of Cameron Parish.

BY MR. DUBUISSON:

“Q When you say an interpretation, was that interpretation by you or by someone presenting them for Mike Davis?
“A It was an interpretation that he had prepared there.
“Q When you say ‘he,’ who do you mean?
“A I should have said that Mr. Sloane and Mr. Blades had prepared this together, and Mr. Freeman also collaborated in the early stages of it.
“Q You have used the word ‘interpretation.’ What does that mean in your field?
“A An interpretation is what the geologist believes to occur between specific points where he has information. He has information generally at the well bores, and he interprets what happens between the well bores and shows it by contours, so an interpretation of a geologic map is one which displays the information which is known and then attempts to extend that information over a broader area where the information cannot really be known. It is there for rather a permanent (sic) thing and it’s very rare for two geologists to come up with identical interpretations even though the data is the same.
‘Q Had you yourself prepared an interpretation of this area?
‘A Yes. That was the interpretation or the interpretations. There were several different maps which I showed to the people who were assembled there the second time and to Mr. Sloane the first time.
‘Q Did you consult—
MR. GRAY:
“Who is ‘you,’ please?
BY MR. DUBUISSON:
‘Q Did you, Mr. Sloane, Mr. Blades and Mr. Freeman, when he was there, consult on a joint interpretation of this area?
‘A I was made familiar with their interpretation, but I had no part in preparing it. That was their interpretation. I had my own.
‘Q What I’m getting at is, what did the four of you—
MR. DUBUISSON:
If you want me to name them again—
MR. GRAY:
No, that is satisfactory.
BY MR. DUBUISSON:
‘Q (Continuing) — discuss after Mr. Sloane showed you his interpretation map? Do you recall?
‘A Yes. Although' I cannot recall the specific wording or who said what to whom, but I was left with the impression which overjoyed me — that is why I remember it — that they liked all five drilling prospects, and I was delighted, and I was left with the impression — I can’t say for certain that I was told this specifically, but I was left with the impression, which I phoned to Mr. Me-com, that they liked the prospects and were going to recommend their drilling.
I think this was mostly from Mr. Sloane because Dewey was not much of a talker. He would tell them, ‘Say anything.’ ”
Mr. Adam Sturlese, a consulting geologist, was in court during the trial and heard the testimony of plaintiff as to the work he did. In answer to a question as to whether plaintiff’s work constituted “geological review and interpretation”, Sturlese stated “Yes sir. That would be a geological review and interpretation.”

Also, Mr. Joe Freeman, plaintiff’s immediate superior during the time that plaintiff worked for Davis, testified as follows:

“Q What is the purpose of studying the logs or wells ... existing wells in the are and corings from those areas and any other type of material you might have which would give you information as to the geological structure?
“A If it would please the Court and you, sir, I agree in context with what Mr. Sloane said as far as the interpretation of the logs, what you have to do, the base maps and also with Mr. Adam Sturlese. I have no disagreement with that. I would be repeating what they said, so I agree with them, if it would save time and please the Court.
“Q In other words, you agree that Mr. Sloane reviewed the possibility of discovering oil and gas on the Mecom Tract?
“A Yes, sir.”

From this testimony, it is clear that plaintiff “reviewed and interpreted” the Mecom prospect. There is no testimony to the contrary.

Having determined that plaintiff did “review and interpret” the Mecom prospect within the meaning of the contract, the next issue presented by the parties on appeal relates to the provision in the introductory paragraph of the 1976 agreement quoted above, which states that Sloane is entitled to royalty on mineral leases “acquired by Davis as a result of employee’s services.” Plaintiff contends Davis did acquire the Mecom lease as a result of plaintiff’s services in reviewing and interpreting the prospect. As described in more detail above, defendant called plaintiff in the spring of 1975 from Mecom’s office in Houston. He instructed plaintiff to conduct a geological study of the Mecom property and then to go to New Orleans to discuss the prospect with Lee Morgan, the geologist for Mecom. On returning from the conference in New Orleans with Morgan, plaintiff gathered geological information, prepared maps and recommended strongly to Davis to drill five of the Mecom prospects. Regarding the results of Sloane’s recommendations, Mr. Freeman testified as follows:

“Q Mr. Freeman, did you concur in Mr. Sloane’s recommendations?
“A Yes.
“Q As a result of your concurrence in those recommendations, did you make any recommendations to Mr. Davis or his chief geologist, Mr. Derr?
“A Yes, I did. However, prior to that recommendation I did review the data myself, and reviewed Mr. Sloane’s interpretation and very similar to what he did with his before I made .. . probably didn’t go into the detail, but I did review it myself before I made that recommendation to Mr. Derr and Mr. Davis.
“Q And you made the same recommendation that Mr. Sloane did?
“A That’s correct.
“Q And subsequently, Mr. Davis did proceed to execute a lease with Mr. Mecom; is that correct, sir?
“A That’s correct.”

Defendant argues Davis did not acquire the Mecom lease as a result of Sloane’s service. He stresses the fact that Davis had already initiated discussions with Mecom before Sloane was assigned to study the prospects. In his brief, defendant even states that Mecom and Davis had “made their deal” before Sloane started work on the Mecom property. According to defendant, the services performed by Sloane on the Mecom prospect were simply routine duties for which he received a salary of $1800.00 per month.

We cannot agree with defendant’s position. The contract clearly states that Sloane is entitled to royalty on leases “acquired by employer as a result of employee’s services, or “as a result of efforts of other members of the office wherein employee renders his services.” The evidence, as outlined above, shows that Davis did acquire the Mecom lease as a result of Sloane’s services, or at least as a result of the combined services of Sloane and Joe Freeman. Since Davis himself did not testify, there is no testimony to the contrary.

The final issue urged by defendant in his brief is that plaintiff failed to comply with the notice provision set forth in numbered paragraph (2) of the 1976 agreement, requiring that Sloane notify Davis by registered mail of Sloane’s intent to exercise his option to acquire royalty. The record shows that on November 4, 1976, plaintiff mailed a letter to Davis requesting assignment of an overriding royalty under a lease in St. Landry Parish and also under the Mecom lease in Cameron Parish. Obviously, Davis received this notice, because his attorney answered plaintiff’s request by letter of date November 15, 1976 stating that Davis agreed to transfer to plaintiff an override on the St. Landry lease, which had been generated by plaintiff, but that Davis refused to transfer to plaintiff royalty under the Mecom lease. The contract does not state a time limit within which Sloane was required to give notice. However, it is clear that the notice was given within a reasonable time. In our view, the mere failure of plaintiff to give notice by “registered mail” is not sufficient to defeat the plaintiff’s claim, where the notice was actually received by defendant.

During oral argument before our Court, defendant made an additional argument that plaintiff’s failure to formally object to certain parol evidence introduced at trial regarding the intent of the parties to exclude the Mecom lease from the contract, constituted a waiver of plaintiff’s right to rely on the written contract alone. This contention has no merit. Jurisprudence construing LSA-C.C. Article 2276 holds that even though not objected to, parol evidence cannot be used to vary or add to the terms of an unambiguous written agreement. Vales v. Doley, 297 So.2d 532 (La.App. 4th Cir. 1974); Cookmeyer v. Cookmeyer, 274 So.2d 739 (La.App. 4th Cir. 1973); and Little v. Haik, 246 La. 121, 163 So.2d 558 (1964).

For the reasons assigned, the judgment appealed is reversed and set aside. This case is remanded to the district court for further proceedings, in accordance with the stipulation of the parties for a bifurcated trial and in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendant-appellee. Assessment of costs in the trial court must await a final judgment there.

REVERSED AND REMANDED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I concur in the result reached in the majority opinion but with respect disagree with certain conclusions stated by the majority in reaching that result. The majority opinion finds that the contract of March 16, 1976 (Second Letter Agreement) was free of ambiguity or contradiction. With this I do not agree, as the second contract appears to me to be quite ambiguous and contradictory.

In other respects I agree with the views of the majority. There can hardly be any question but that the Mecom prospect was “generated” by Davis himself rather than Sloane or any member of the “office wherein employee (Sloane) rendered his services.” I am also satisfied that the evidence establishes that Sloane did review and interpret the Mecom prospect. Under these circumstances it seems to me to be reasonable to hold that the Mecom contract was “acquired by Davis as a result of employees’ (Slone’s) services.” These conclusions which I share with the majority form the basie facts of this ease. The issue as I see it is in interpretation of the contract in question, that is, the second contract of employment entered into March 16, 1976.

The second contract is ambiguous but because it was drafted by Davis or his representatives, it should be construed against him. It is possible, in considering the provisions of the contract within its four corners, to construe it as urged by either party. The intent of the parties as reflected in the writing itself can be found to be as the majority opinion finds. This interpretation restricted Sloane insofar as the new contract required that he perform services (review and interpret) with respect to leases he did not generate. However, it broadened Sloane’s opportunities insofar as it extended his option rights to leases generated by Davis, his employer.

We derive no help from any parol evidence seeking to establish what was understood at the time Mecom and Davis negotiated. Such parol predated the amended second contract. Therefore, it could not have related to how the second contract was to be construed. No parol evidence is directed to the intention of the parties in confecting the second contract or as to how it should be construed. However, since the second contract came after the Mecom-Da-vis negotiations, it may be construed as affecting all leases generated by Davis without aid from any employee. The amended contract was made retroactive to the date of the original contract. Therefore, it can reasonably be assumed that the amended contract was made with the Me-com-Davis lease or contract in mind, and it was intended to give Sloane rights in that contract which he did not have under the original option contract.

      . The Mecom-Davis discussions occurred in the spring of 1975. The lease between Mecom and Tiger Oil Company (Davis) was entered into on August 15, 1975. The second letter agreement relating to options to purchase overriding royalties was entered into by Davis and Sloane on March 16, 1976. Its terms and conditions were made effective as of October 5, 1973, that is, retroactive to that date.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Robert BREAUX, Plaintiff-Appellee, v. ROY YOUNG, INC. et al, Defendants-Appellants.
    No. 8160.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Voorhies & Labbe, Patrick A. Juneau, Jr., Lafayette, for defendants-appellants.
    J. Minos Simon and Ronald Dauterive, Lafayette, for plaintiff-appellee.
    Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for intervenor-appellee.
    Before CULPEPPER, FORET AND STOKER, JJ.
   FORET, Judge.

This is an action ex delicto in which Robert Breaux (plaintiff) seeks to recover damages for personal injuries he suffered in a vehicular collision. The named defendants are the driver of the other vehicle, Wayne Lee, and his employer and the owner of that vehicle, Roy Young, Inc., a Louisiana corporation.

Defendants filed a third party demand against Albert Mata (a state policeman involved herein). Rockwood Insurance Company (Rockwood) intervened in the principal action, seeking recovery of workmen’s compensation benefits and medical expenses paid to or on behalf of the plaintiff. Defendants appeal from the judgment of the trial court rendered against them and present three issues:

(1) Whether the trial court erred in recalling its order granting defendants a trial by jury;
(2) Whether the doctrine of “sudden emergency” is applicable here to absolve defendants from any liability to plaintiff; and
(3) Whether the evidence supports the various awards of damages.

FACTS

Plaintiff was driving a 1975 GMC dump truck loaded with Th tons of asphalt for his employer, the Louisiana Department of Transportation and Development, on the morning of April 2, 1979. Plaintiff was south-bound on U.S. Highway 167 and had reached a point approximately lh mile from Abbeville, Louisiana. Wayne Lee was driving a 1974 GMC truck belonging to his employer, Roy Young, Inc. and was also south-bound on U.S. Highway 167 behind the plaintiff.

It was approximately 8:28 A.M. and the highway at the point of collision was relatively straight. Plaintiff noticed a northbound state policeman pull into the southbound lane of travel with his lights flashing and siren operating at a distance somewhere between 200 feet to 300 feet in front of him. Plaintiff then gradually pulled his vehicle to the shoulder of the highway to allow the emergency vehicle to pass.

• Defendant, meanwhile, failed to notice the oncoming state police vehicle until plaintiff had pulled nearly all the way off the highway, and, in an attempt to avoid a headon collision, rammed into the rear of plaintiff’s vehicle, knocking it some 18 feet from the point of impact.

Plaintiff suffered minor physical injuries as a result of the collision. However, plaintiff began to develop psychological injuries which would become quite severe in the months following the accident.

Plaintiff instituted this action on July 12, 1979, alleging that, as a direct result of the negligence of Wayne Lee, he had become totally and permanently disabled.

Defendants then filed a third party demand, which contained a request for a trial by jury, against Albert Mata (the driver of the state police vehicle mentioned above) alleging that the accident had been caused by his negligence in traveling in the opposing lane of traffic. The trial court granted a motion for summary judgment in favor of the third party defendant, Albert Mata, dismissing defendants’ third party demand against him.

Rockwood was the workman’s compensation insurer of the Louisiana Department of Transportation and Development. It intervened in the principal action and sought to recover from defendants the amounts which it had paid or would have to pay in the future to plaintiff for the injuries he suffered in the accident.

The principal action and the intervention were tried without a jury and the trial court rendered judgment in favor of plaintiff and Rockwood against the defendants.

Defendants were granted a súspensive appeal from that judgment.

JURY TRIAL

Defendants argue that the trial court erroneously recalled its order granting them a trial by jury and that this Court should reverse and remand this matter back to the trial court with instructions that it be tried by a jury. It is defendants’ contention that the request for a trial by jury made in their petition setting forth their third party demand against Albert Mata was timely and proper and extended to the issues raised in both the principal action and the intervention.

We find that LSA-C.C.P. Article 1732 is controlling here as it provides that:

“A party may demand a trial by jury of any issue triable of right by a jury in a pleading filed not later than ten days after the service of the last pleading directed to such issue.” (Emphasis ours.)

The record reveals that defendants filed their answer on August 6, 1979; and that they then filed their third party demand against Albert Mata (the state trooper) on October 6, 1979, requesting a trial by jury.

A review of the petition of third party plaintiffs (defendants in the principal action) convinces this Court that the only issues raised therein are those directed to the third party demand. Therefore, for purposes of LSA-C.C.P. Article 1732, supra, the last pleading directed to the issues raised in the principal action was defendants’ answer.' Defendants’ request for a trial by jury was made some two months after service of their answer and for that reason, was untimely with respect to those issues. Defendants made no request for a trial by jury of the issues raised in the intervention.

We have reviewed the numerous cases cited by defendants which they allege support their position and we find all of these cases to be inapposite.

Defendants’ next contention is that the trial court erred in refusing to allow defendants to file an amended answer pleading the affirmative defense of assumption of the risk, which pleading also contained a request for a jury trial. The trial court, in its reasons for disallowing defendants to file their amended answer, stated that it found that defendants were attempting to circumvent the time limitations contained in LSA-C.C.P. Article 1732.

The court, in Barberito v. Green, 275 So.2d 407 (La.1973), stated, at page 410, that:

“There is within the provisions of the Code of Civil Procedure the necessary safeguard against any abuse of the provisions of Article 1732 by the filing of amending pleadings. The trial judge, in the exercise of discretion may not allow the filing of such amending pleadings which he finds are proffered for the purpose of circumventing the limitations in this article. See C.C.P. Article 1151.”

We find that the affirmative defense of assumption of the risk was clearly unavailable to defendants under the facts giving rise to this action.' Therefore, we find no abuse of discretion by the trial court in its denial of defendants’ motion to file an amended answer. See Arbmahla High Corporation v. North American Company, 345 So.2d 1291 (La.App. 3 Cir. 1977).

Defendants finally argue that the trial court erred in denying their motion to reset the trial on the merits which also contained a request for a jury trial on all issues. The trial court, in denying defendants’ motion, stated that it had informed all parties that the court would give the case a preferential fixing once defendants’ application for supervisory writs to this Court had been acted upon. Further, the trial court found that defendants were seeking a trial by jury of the issue of whether this case should be tried by a judge or jury, which issue is clearly one that a jury is unable to try.

We find that the trial court properly denied defendants’ motion and that there is no merit to any of defendants’ contentions.

LIABILITY

Defendants argue that the trial court erroneously refused to find that the “sudden emergency” doctrine was applicable to this case and, therefore, wrongfully held that .defendants were liable to plaintiff.

The Court, in Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972), restated the “sudden emergency” doctrine on page 389, where it said:

“One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. This rule for testing the standard of care imposed by law upon actors in a tort situation has been applied by this Court in Dane v. Canal Insurance Co., 240 La. 1038, 126 So.2d 355 (1961), and Commercial Standard Insurance Co. v. Johnson, 228 La. 273, 82 So.2d 8 (1955).
The principle embodied in this rule enjoys almost universal acceptance in the courts of the nation, founded as it is upon common sense and a proper recognition of prudent standards in human conduct. 65A C.J.S. Negligence § 123; 57 Am. Jur.2d, Negligence, § 90. The rule applies to the defendant’s as well as the plaintiff’s conduct; it is, therefore, appropriate in a consideration of fault as it bears upon contributory negligence.”

(Emphasis ours.)

Wayne Lee testified that he first saw plaintiff’s vehicle after they had both traveled a few miles south of Maurice, Louisiana, on U.S. Highway 167. Lee testified that he was traveling at approximately 55 miles per hour and began to slow down when he noticed that plaintiff was traveling at a slower rate of speed. Lee further testified that he continued to overtake plaintiff and that it was his intention to pass plaintiff if possible. Lee’s testimony at trial was to the effect that he was approximately 65 feet to 70 feet behind plaintiff’s vehicle when plaintiff gradually began to pull off of the highway.

However, the state trooper who investigated the accident testified that Lee told him that he was approximately 40 feet behind plaintiff’s vehicle when it began to move onto the shoulder of the highway. Lee, under cross-examination, admitted that there was no obstruction to his vision with respect to the highway in front of him once plaintiff had begun to pull off of the roadway. Lee also admitted that he focused his attention on plaintiff’s vehicle rather than on the highway itself.

We find that Lee was negligent in failing to keep a lookout as to the condi- • tions on the highway ahead of him, and in following so closely behind the plaintiff that he was unable to bring his truck to a safe stop.

Therefore, the emergency in which defendant, Wayne Lee, found himself was brought about solely by his own negligence and the “sudden emergency” doctrine is unavailable to defendants to absolve themselves from liability to plaintiff.

QUANTUM

Defendants argue that the trial court’s awards of damages to the plaintiff are excessive and unsupported by the evidence.

This Court is bound by the methodology of appellate review of trial court awards as set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), at pages 335-336.

“We do re-emphasize, however, that before a Court of Appeals can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

Thus, our initial inquiry is whether the trial court award for the particular injuries and their effects on this particular injured person is a clear abuse of the trier of fact’s “much” discretion. Reck v. Stevens, supra; LSA-C.C. Article 1934(3).

The evidence is clear and there is no dispute as to the fact that plaintiff’s physical injuries were relatively minor. It is also clear to this Court that plaintiff, unfortunately, suffered a severe “mental injury” as a result of the accident.

Defendants’ main contention is that the trial court, in awarding damages to plaintiff, assumed that there would be little or no improvement in plaintiff’s condition in the future. They argue that, plaintiff failed to prove to a reasonable medical certainty the fact that his injuries were permanent and that there would be very little improvement in the future.

Dr. Thomas Latour, a psychiatrist practicing in Abbeville, Louisiana, had treated plaintiff since the accident occurred and was seeing plaintiff on the average of once a week. Dr. Latour testified that as of the time of trial, plaintiff was unable to work because of his severe mental condition and that he believed that plaintiff would lapse into psychosis if he stopped taking his prescribed medication. It was Dr. Latour’s opinion that the chances for plaintiff's full recovery were rather poor in light of his failure to respond to treatment up until this time. Dr. Latour felt that plaintiff might be able to return to work in the future but it would have to be in a very sheltered, very non-stressful, and non-challenging work environment, performing only simple tasks.

Dr. Michael Berard, a clinical, psychologist practicing in Lafayette, Louisiana, examined plaintiff once and administered a battery of psychological tests on him in an attempt to ascertain plaintiff’s mental condition. It was his opinion that plaintiff was experiencing a significant neurotic disorder with significant symptoms of depression and anxiety as a result of the traumatic episode of the accident. Dr. Berard felt that he was unable to predict whether plaintiff would be permanently impaired based solely on the one examination he had made. However, in response to a hypothetical question based on the assumption that plaintiff had failed to improve from the date of his examination to the date of trial, Dr. Berard stated that he felt that there was little chance that plaintiff would respond to treatment in the future.

Dr. James Blackburn, a psychiatrist practicing in Lafayette, Louisiana, testified on behalf of defendants. He had also examined plaintiff only once and felt that plaintiff was suffering from a post-traumatic neurosis with components of severe anxiety and depression. He too concluded that this injury resulted from the accident. Dr. Blackburn stated that, while he believed it would be improper to classify plaintiff as a “psychological basket case”, plaintiff was as close to being one as the Doctor would like to see anyone.

Dr. Blackburn was of the opinion that the chances for plaintiff’s recovery were fairly good, based on plaintiff s good state of mental health prior to the accident. He believed that other forms of therapy like electric shock treatment or in-patient hospitalization at a psychiatric hospital should be undertaken before declaring plaintiff to be permanently impaired. There had been fears expressed by the other medical experts that these alternate forms of therapy may actually cause further damage to the plaintiff. However, Dr. Blackburn felt that the risk that plaintiff would lapse into psychosis was about the same with or without the other forms of therapy.

Drs. Berard and Latour had also testified that they felt that some of the modes of therapy suggested by Dr. Blackburn were improper and would not benefit plaintiff because of his low intellectual potential.

We hold that the trial court correctly found that plaintiff would be unable to achieve a complete recovery in the future.

The trial court awarded plaintiff $60,-000.00 for past and future mental and physical pain and suffering. Defendants argue that this is excessive and an abuse of discretion by the trial court.

The record reveals that prior to the accident plaintiff was the father and husband of a stable family group. He and his wife worked and were providing their children with a college education. Plaintiff finished the eighth grade and had quit school to begin working. The evidence leaves no doubt that the plaintiff was determined to provide a better life for his children and had been steadily employed before the accident.

The accident changed all of this. Defendants’ own witness, Dr. Blackburn, described the pain that plaintiff had suffered and continues to suffer from with one word, “excruciating”. Dr. Blackburn even went so far as to testify that it may have been better to allow plaintiff to lapse into psychosis because he then would have been unaware of the changes in his mental health and the effects which they were having on him and the persons around him. We hold that the trial court’s award of $60,000.00 to plaintiff for mental and physical pain and suffering, past and future, is clearly supported by the record.

Defendants next argue that the trial court’s award of $141,516.83 for plaintiff’s loss of earnings, past, present and future is excessive and an abuse of that court’s discretion.

The trial court based its award on what plaintiff would have earned from the date of the accident to the date of the trial had he been able to continue working. At the time of trial, plaintiff was 42 years of age. It then based its award of future loss of earnings on the assumption that plaintiff would be able to return to work and earn at least the minimum wage at some future time. The court used the sum calculated by plaintiff’s expert economist based on the above mentioned assumption.

We have found, as did the trial court, that plaintiff has proved to a reasonable medical certainty that the best that can be hoped for is a return to a very limited range of employment.

We hold that the trial court correctly assessed damages for plaintiff’s loss of earnings, past, present and future.

Finally, defendants argue that the trial court abused its discretion in awarding plaintiff $49,000.00 for past and future medical expenses. Defendants contend that plaintiff offered no evidence to show that the medical expenses which he had incurred to the date of trial were reasonable and necessary.

The parties entered into a stipulation before trial that Rockwood had paid $9,773.16 in medical expenses for plaintiff. However, defendants argue that there was no stipulation that these medical expenses were “reasonable and necessary”.

Rockwood argues that it was obligated to pay only those medical expenses which were reasonable and necessary as provided in the Workmen’s Compensation Law. Therefore, Rockwood argues that the burden fell upon defendants to show that these medical expenses were unreasonable and unnecessary. We agree with Rockwood and the trial court and find that it would be illogical to conclude that the compensation carrier would pay these amounts to plaintiff if there were no basis for his claim. Further, we find from the copies of the drafts which were introduced into evidence and made a part of the record that plaintiff did in fact incur these medical expenses as a result of the injuries he suffered in the accident.

Defendants also argue that there was no evidence introduced to substantiate plaintiff’s claim for future medical expenses. Dr. Latour testified that it was his opinion that plaintiff would incur future medical expenses somewhere between $20,000.00 to $30,000.00 and that plaintiff’s outlay for prescription drugs necessary to his treatment would range from $150.00 to $200.00 per month.

Dr. Blackburn testified that plaintiff’s future medical expenses could total as much as $15,000.00 to $20,000.00 for some of the modes of therapy he suggested.

We find that the evidence supports the conclusion that plaintiff will incur great expense in attempting to obtain medical treatment for his injuries and that there is no guarantee that any one of these will be successful to any significant degree.

We hold that the trial court properly awarded plaintiff $49,000.00 for medical expenses, past and future.

AMENDMENT OF JUDGMENT

Plaintiff answered this appeal and seeks to have the judgment of the trial court amended to allow him legal interest on the amounts awarded from the date of judicial demand. We therefore amend the judgment to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that plaintiff, ROBERT BREAUX, do recover from the defendants, jointly, severally, and in solido, and defendants hereby are condemned to pay to ROBERT BREAUX the sum of TWO HUNDRED FIFTY THOUSAND FIVE HUNDRED SIXTEEN AND 83/100 ($250,516.83) DOLLARS, together with legal interest (seven (7%) per cent from date of judicial demand to September 12, 1980, and thereafter at the rate of ten (10%) per cent per annum), thereon from date of judicial demand until paid.

LSA-C.C. Article 2924 provides, in pertinent part, that:

“Art. 2294. Rates of legal and conventional interest; usury
Art. 2924. Interest is either legal or conventional. Legal interest is fixed at the following rates, to wit:
At ten percent on all sums which are the object of a judicial demand. Whence this is called judicial interest:
And on sums discounted at banks at the rate established by their charters.
The judicial interest of ten percent per annum shall apply to all lawsuits filed after September 12, 1980. Suits pending on or before September 12, 1980, shall be computed at seven percent per annum from the date of judicial demand until September 12,1980, and thereafter at the rate of ten percent per annum.”

Therefore, the judgment of the trial court should be amended to allow plaintiff the above rates of legal interest from date of judicial demand until payment.

Rockwood also answered the appeal and seeks to have the judgment amended to provide for legal interest on the amounts owed it by defendants. Rockwood is entitled to reimbursement for all sums paid as workmen’s compensation benefits pending a final judgment in this action and is entitled to legal interest on that amount. Lachney v. Motor Parts and Bearing Supply, Inc., 357 So.2d 1277 (La.App. 3 Cir. 1978); Willis v. Stauffer Chemical Company, 349 So.2d 1390 (La.App. 3 Cir. 1977), writ denied, 352 So.2d 1047 (La.1977).

For the above and foregoing reasons, the judgment of the trial court is further amended to decree that Rockwood Insurance Company, intervenor, shall be paid by Wayne Lee and Roy Young, Inc., by preference and priority out of the sums awarded to plaintiff, Robert Breaux:

(1) the full amount which Rockwood actually paid up to and including December 4, 1979, the date of the petition of intervention, to or in behalf of Robert Breaux, as weekly workmen’s compensation benefits and medical expenses, plus legal interest thereon at the rate of 7% (seven percent) per annum from the date of judicial demand, December 4, 1979, until September 12,1980, and thereafter at the rate of 10% (ten percent) per annum until paid; and
(2) the full amount which Rockwood actually has paid or will have paid to or in behalf of Robert Breaux, as workmen’s compensation benefits and medical expenses, from December 4,
1979, until this judgment becomes final, plus legal interest on the amount of each such payment from the date the payment was or will have been made at the rate of 7% (seven percent) per annum until September 12, 1980, and thereafter at the rate of 10% (ten percent) per annum until paid.

The judgment of the trial court is affirmed in all other respects.

Costs of this appeal are assessed against defendants-appellants.

AFFIRMED AS AMENDED.

      . Defendants make much of the fact that plaintiffs motion to recall the order for a trial by jury was filed on the morning of the date set for trial. However, the record does show that the motion was presented to the trial judge on April 3, 1980, some 4 days before trial and that an attached rule to show cause was signed on that same date ordering defendants to show cause on the morning of the trial why plaintiffs motion should not be granted. Plaintiff states in brief that the trial judge’s law clerk telephoned counsel for defendants on April 3, 1980, and advised them of the existence of the motion and offered to deliver a copy to them. However, plaintiff further states that counsel for defendants refused to accept it.

      . Defendants applied for supervisory writs with this Court seeking a review of the trial court’s decision to recall its order granting defendants a trial by jury. We denied writs on May 7, 1980, stating that there was no abuse of discretion by the trial court in the ruling complained of.


text:
    STATE of Louisiana, ex rel. Johnny Lee SULLIVAN v. STATE of Louisiana.
    No. 81-KH-0255.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Johnny Lee Sullivan, applying for remedial writs. Orleans Parish. No. 276-394.

Denied.


text:
    STATE of Louisiana, ex rel. Mack E. FORBES v. CADDO PARISH SHERIFF DEPARTMENT.
    No. 81-KH-0328.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Mack E. Forbes, applying for supervisory writs. Parish of Caddo. No. 104937.

Denied.


text:
    STATE of Louisiana, ex rel. Joseph MALATESTA v. ORLEANS PARISH CRIMINAL COURT.
    No. 81-KH-0517.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Joseph Malatesta, applying for remedial writs. Parish of Orleans. No. 273-727.

Denied. Appeal pending.


text:
    STATE of Louisiana v. Joseph John JONES.
    No. 81-K-0609.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Joseph John Jones, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Caddo. No. 115756.

Denied.


text:
    STATE of Louisiana v. Davis COOPER.
    No. 81-K-0274.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Davis Cooper, applying for writs of certiorari, prohibition, mandamus and review. Parish of Avoyelles. No. 44180.

Dismissed on motion of relator.


author: CULPEPPER, Judge.

text:
    Doyle SCAIFE, Plaintiff and Appellee, v. Richard G. LIGHTFOOT, Defendant and Appellant.
    No. 8028.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Robert E. Plummer, Mansfield, for defendant-appellant.
    Davis & Simmons, Kenneth N. Simmons, Many, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   CULPEPPER, Judge.

This is 'an action for breach of contract. Plaintiff sues to recover the contract price of $6,384 paid for asphalt paving work performed by defendant. The petition alleges the material and workmanship furnished by defendant were defective, causing cracks and holes to form in the asphalt parking lot. From a judgment in favor of plaintiff, defendant appeals.

The sole issue presented by the parties on appeal is whether plaintiff is entitled to recover the price paid defendant under the contract.

Plaintiff owns a shopping center near Many, Louisiana on Louisiana Highway 6. After construction of a new Danbi’s Pizza Restaurant in the shopping center, plaintiff contacted defendant to pour an asphalt driveway and parking lot in the contiguous area. Defendant, a licensed asphalt contractor, had done similar work for plaintiff on previous occasions.

The agreement between the parties was entirely oral. No prior specifications as to the type, thickness or amount of asphalt needed were made, nor was any agreement reached concerning the contract price until after the work was completed and the sum of $6,384 paid.

Prior to the laying of the asphalt, plaintiff employed another person to grade and level the area to be paved. Before defendant started laying asphalt, he spread some loads of iron ore around the base area, although the exact amount and location was never clearly established. While defendant was laying the asphalt, it began to rain. The base became muddy, causing their equipment to bog down and more grading was necessary to relevel the area. Defendant testified that at this point he became aware that the soil in the base lacked sufficient iron ore and would not support the asphalt.

From this point there is a conflict in the testimony. Defendant testified he told plaintiff the asphalt would not hold, but that plaintiff instructed defendant to continue to lay the asphalt, and they would patch any holes later. Defendant testified as follows:

“Q. When you laid the asphalt for Mr. Scaife, did you expect it' to hold?
“A. No, sir.
“Q. And why not?
“A. Just the soil conditions.
“Q. Did you tell Mr. Scaife that?
“A. Yes, on several occasions.
“Q. More than once?
“A. Yes sir.
“Q. What did you tell Mr. Scaife?
“A. Well, just in general terms, more or less complaining about it and I said ‘it is not going to hold up’, and he said ‘don’t worry about it, we will come back and patch it later’.
“Q. Are you certain that he said ‘don’t worry about it’ ?
“A. I am certain of that.
* * * * * *
“Q. If you were of the opinion that the asphalt would not hold up, why did you keep on doing the job and laying the hot mix?
“A. Well, he was under pressure and he led me to believe that there would be no hard feelings if it did fall in. He just said that he had to get Danbi’s open for business. It was my impression that the contract was almost up or that he had a deadline on it.”

Plaintiff admits that he wanted the job completed as quickly as possible, but he denies that defendant informed him that the asphalt would not hold, nor does he recall ever discussing with defendant the condition of the base.

Plaintiff testified that he began having problems with the asphalt soon after defendant had completed the job. There was much rain during this time of the year and cracks and holes soon began appearing in the asphalt. Plaintiff eventually contacted defendant to see if patching could alleviate the problem. Defendant admits that when he saw the lot it was in “bad shape”, and that the only way to guarantee the job would be to redo it completely.

Appellant’s defense rests primarily on the doctrine of equitable estoppel. Although aware that the asphalt would not hold, appellant claims he relied to his detriment on plaintiff’s assurances that the base was hard and had iron ore on it and that it was agreeable to plaintiff that the lot could be patched if it became necessary.

One of the fundamental elements of equitable estoppel is that the person against whom it is urged is aware of the facts relied upon. United Gas Pipeline Company v. Bellard, 286 So.2d 109 (La.App. 3rd Cir. 1973). Our review of the record convinces us that plaintiff was not familiar with the technical aspects of laying asphalt. Plaintiff himself testified that he knew nothing about asphalt, whereas defendant was very experienced in this area. We quote from the trial court’s well reasoned opinion with which we are in full accord:

“It is obvious to this Court that Mr. Scaife was unaware of the extent of the problem. Mr. Lightfoot, on the other hand, had considerable expertise in this specialized field of paving with asphalt. He was licensed by the State of Louisiana, following a written examination, to perform this type of construction work. He had, by his own testimony, during the four years he has engaged in this work, worked for some 170 different customers, and used 10,000 tons of asphalt (hot-mix) in this type of construction.
“He knew he was doing defective work. “At the most Mr. Scaife expected to have to fill up some pot holes at some later date.
“Mr. Lightfoot proceeded to perform this doomed undertaking, for which he was paid $6,384.
“He has suggested rather strongly that Mr. Scaife knew what the outcome would be but simply did not care.
“There is nothing in the evidence to indicate that Mr. Scaife incurred this expense frivolously, and that he did not care whether the work held up or not. Common sense and exercise of common prudence would dictate to the contrary.”

The issues are factual and depend largely on the credibility of the parties. The trial judge was not clearly wrong in his findings of fact.

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

AFFIRMED.


author: WATKINS, Judge.

text:
    Dalton L. LaBORDE v. Charles H. HAYNES, Jr., et al.
    No. 13535.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Dalton L. LaBorde, Baton Rouge, in pro. per.
    Donald Zuber, Baton Rouge, for defendants-appellees Brian Williams and Todd Gremillion.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by Dalton L. LaBorde in proper person against Charles H. Haynes, Jr., vendor of a tract of land to plaintiff, and Brian Williams and Todd Gremillion, attorneys at law. LaBorde later obtained as part of an apparent settlement a voluntary dismissal with prejudice of Haynes as a party defendant. Williams and Gremillion then filed a peremptory exception of res judicata and/or no cause of action, which was sustained. LaBorde appeals. We reverse and remand for further proceedings.

LaBorde is not a lawyer, and his pleadings are not stated clearly or, in some places, in legal terms. However, the basis of his contplaint is quite apparent from his original and supplemental petitions. We will assume the allegations of plaintiff’s petitions are true in relating the facts and rendering our decision.

LaBorde and Oran Smith bought a tract of land purportedly located in East Baton Rouge Parish from Haynes, the act of sale being dated February 8, 1978. The purchase price was $2,000.00. Williams and Gremillion were practicing attorneys at 842 Main Street, Baton Rouge. They prepared a title opinion before the act of sale was passed which stated that Haynes had valid title. The title opinion was later found to be mistaken, and the title to be non-existent. LaBorde in his amended petition states that Haynes “possibly may have committed fraud” after stating in his original petition that Haynes had committed fraud. He sues for return of the purchase price, and damages for loss of a resale for $20,-000.00 for the land purportedly conveyed to him by Haynes.

Haynes reconvened seeking damages of $150,000.00 for libel. The record reveals that on June 8, 1979, Haynes on motion of his attorney voluntarily dismissed his recon-ventional demand and LaBorde dismissed his suit against Haynes with prejudice, the motion to dismiss stating “all rights (are) reserved against other defendants” and the judgment stating that suit “be dismissed as against Charles H. Haynes, Jr., only. . . ” There was also apparently an act of compromise and settlement but the act of compromise and settlement is not in the record.

Williams and Gremillion then filed a peremptory exception of res judicata and/or no cause of action, which was sustained without reasons being assigned.

The appellees contend that the sustaining of the peremptory exception was proper because (1)_ Haynes, Williams, and Gremil-lion were debtors in solido, and the release of one effected a release of all, even though the judgment on the motion to dismiss Haynes reserved LaBorde’s rights against the other defendants, and (2) LaBorde obtained a sum greater than his loss in his settlement with Haynes, and, thus, has suffered no damages.

With regard to the first contention, a vendor who failed to convey unburdened title under a warranty deed and a lawyer who rendered an incorrect title opinion that failed to reflect a pipeline servitude with regard to the same tract were held to be subject to distinct causes of action, the vendor for breach of warranty and the lawyer in tort. Collins v. Slocum, 317 So.2d 672 (La.App. 3rd Cir. 1975). LaBorde seeks to recover on the ground of fraud.- However, an allegation that an act of sale was entered into through fraud apparently embodies a cause of action in contract. See LSA-C.C. arts. 1881,1882, 2438. Thus, LaBorde’s petitions asserted two distinct causes of action, against Haynes in contract, and against Williams and Gremillion in tort for malpractice. Haynes, Williams and Gremil-lion were not joint tort feasors and the liability is not solidary. As the causes of action were entirely distinct, and as the alleged liabilities were not solidary, the dismissal of Haynes as a defendant did not operate a release of Williams and Gremil-lion.

As we have so held, it is unnecessary for us to decide whether or not LaBorde made a valid reservation of rights against solidary obligors in his motion for voluntary dismissal with prejudice. The act of compromise and settlement, as we have said, is not in the record and cannot be considered.

With regard to appellee’s second contention, that LaBorde has obtained full restitution of his loss in his settlement with Haynes, we note that the act of compromise and settlement is not annexed to plaintiff’s petitions nor is it in the record. As the second contention clearly embodies an exception of no cause of action, we must accept the allegations of plaintiff’s petitions as true, and not consider documentary evidence not made part of the petitions. American Cresote Co. v. Springer, 257 La. 116, 241 So.2d 510 (1970). As we do not know the extent of the damages sustained by LaBorde, and as we do not know judicially the settlement amount, the act of compromise and settlement not being made part of plaintiff’s petitions, or the settlement amount stated therein, we find defendants’ second contention with regard to the sustaining of the peremptory exception to be without merit.

Accordingly, the judgment of the trial court sustaining defendants’ peremptory exception is reversed and set aside, the objection is overruled and the matter remanded for further proceedings. All costs shall await final determination on the merits.

REVERSED AND REMANDED.


author: CUTRER, Judge.

text:
    Zita Sias HENRY, Plaintiff-Appellant, v. TRAVELERS INSURANCE CO., et al., Defendants-Appellees.
    No. 7937.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Boagni & Genovese, James T. Genovese, Opelousas, for plaintiff-appellant.
    Pugh & Boudreaux, Donlon Pugh, Lafayette, Dubuisson & Dubuisson, Edward B. Dubuisson, Opelousas, for defendants-appel-lees.
    Before FORET, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

This is a suit to recover damages for personal injuries received in a collision between a taxicab and a train. Mrs. Zita Sias Henry, a passenger in the taxicab, sued the taxicab driver, Gerald Cormier, Sr., his employer, Hilliard Bordelon, the employer’s insurer, Travelers Insurance Company, and Missouri Pacific Railroad Company. The trial court found the taxicab driver to be the sole tort-feasor. Judgment was rendered in favor of plaintiff against all defendants except Missouri Pacific Railroad Company. The trial court awarded general damages of $2,500.00 and special damages of $3,514.10. Plaintiff appealed after the trial court denied her motion for a new trial. We amend and affirm.

The issues raised on appeal relate only to quantum. First, plaintiff contends the award of general damages was so inadequate it constituted an abuse of discretion by the trial court. Secondly, the plaintiff contends the trial court erred in not awarding plaintiff the cost of the medical services rendered by Dr. L. H. Boulet, Jr. Additionally, the plaintiff urges this court to cast the defendants with the costs of Dr. Boul-et’s testimony.

At the time of the accident plaintiff was seated in the rear seat of the taxicab. As a result of the accident she was thrown forward, she struck the front seat and then was thrown to the floor of the taxi. Following the accident, plaintiff, was taken to the Opelousas General Hospital. She was seen there by Dr. Alban Williams, her family physician. This physician found “contusions, some sprains in the cervical and lumbar area.” Her principal injury was the lumbosacral sprain which Dr. Williams classified as mild to moderate. Due to plaintiff’s complaints, he admitted her to the hospital.

Plaintiff was very obese, being 5 feet 4 inches tall and weighing approximately 224 pounds. Dr. Williams explained that plaintiff was also very emotional and had a tendency to overreact to pain. The obesity and emotional problem presented difficulties in evaluating plaintiff’s complaints. Dr. Williams stated that, due to the excess weight, he was unable to ascertain the existence or extent of muscle spasm. He called in an orthopedic surgeon, Dr. L. Lá-zaro, III, for consultation. This physician examined plaintiff on three occasions and, according to his reports filed in evidence, could find no objective evidence that would justify her complaints. He could find no orthopedic basis for plaintiff’s numerous complaints. He stated that plaintiff’s responses during examination Were not entirely consistent. Plaintiff was hospitalized for a period of three weeks. Following release from the hospital, plaintiff continued her complaints and reported to Dr. Williams numerous times for ultrasound treatment for her back problem, which treatments continued from the time plaintiff left the hospital until Dr. Williams released her on November 11, 1977. Dr. Williams also prescribed medication during this period. When Dr. Williams last saw plaintiff on November 11, 1977, she was still complaining of pain in the back and legs and continued to do so up until the time of trial in September 1979. She also stated that she had headaches.

The trial court concluded that the effects of plaintiff’s injuries had subsided at the time of release by Dr. Williams on November 11, 1977, which would have been four and one-half months post accident. The trial court awarded medical expenses incurred until that date in the amount of $3,514.10, but refused to allow any medical expenses for Dr. Boulet who treated plaintiff from December 1977 until time of trial in September 1979.

We have carefully examined the record and have concluded that the award of $2,500.00 for general damages, under the circumstances presented, is clearly on the low side or inadequate to compensate plaintiff for her injuries. We come to this conclusion fully cognizant of the limitations placed on the appellate court in changing an award made by the trial court under its broad discretionary power.

The plaintiff was hospitalized and treated for a period of three weeks following the accident. Following hospitalization she continued to receive treatment, practically on a daily basis, from Dr. Williams at his office. Dr. Williams prescribed medication for pain and administered ultrasound treatment. These treatments were administered over approximately a four month period. We also considered the lay testimony which reflects that the injuries received by plaintiff adversely affected her ability to move about and restricted her activities. We also note that plaintiff had not had any back problems prior to this accident.

Dr. Williams testified that plaintiff could possibly be exaggerating her complaints but he couldn’t say that her complaints were without foundation. Considering her obesity, emotional problems and the facts of the trauma received by her, he accepted the complaints and administered the extensive treatment set forth herein. He concluded his treatment approximately four and one-half months after the accident, at which time he felt that he had done all he could to alleviate her problem of the lumbosacral sprain. He felt that she would not have any further residuals as a result of the injuries.

The judges of this panel agree that, considering the facts of this case and similar cases of recent origin as guidelines, an award of $6,000.00 for general damages must be made. We conclude that this amount represents the lowest amount within the range of discretion and we increase the award to that amount.

Appellate review of small damage awards presents difficulty. To decrease or increase such an award would not involve any large sum. Such awards, however, must be reviewed under the same standards as larger awards and where the award of the trial court falls below or above what the appellate court views as the range of discretion, an adjustment must be made.

Next, plaintiff contends the trial court erred in not including the cost of Dr. Boul-et’s services in the award of special damages.

The trial court correctly refused to assess Dr. Boulet’s medical expenses against defendants. After Dr. Williams released plaintiff, she underwent surgery for problems unrelated to the accident. Following this surgery she started seeing Dr. Boulet, a general practitioner. He treated her for her chronic asthma condition, complaints of back pain and for her obesity problem. This physician testified that, since he saw her for the first time six months after the accident, he could not relate her back complaints to the injuries received in the accident. He stated that her extreme obesity could have been the source of the problem at that time. Under these circumstances we conclude that the trial court correctly refused to award the medical expenses attributable to Dr. Boulet’s treatment.

Since plaintiff failed to prove that the medical services of Dr. Boulet were rendered for injuries received in the collision, this court also concludes that the trial court correctly refused to cast the defendants for the costs of Dr. Boulet’s testimony.

For the above reasons, judgment of the trial court is amended by increasing the award of general damages from $2,500.00 to the sum of $6,000.00. As amended the judgment of the trial court is affirmed. The costs of this appeal are assessed to defendants-appellees.

AMENDED AND AFFIRMED.


author: LABORDE, Judge.

text:
    Stephen C. JONES v. MFA MUTUAL INSURANCE COMPANY et al.
    No. 8154.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Brittain & Williams, Joe Payne Williams, Natchitoches, for defendant-relator.
    Davis & Simmons, Kenneth N. Simmons, Many, for plaintiff-respondent.

      John G. Williams, Natchitoches, Harry A. Johnson, Shreveport,, for defendants-respondents.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

On November 14,1980, we granted a writ of certiorari in this case on the application of Standard Fire Insurance Company of Alabama (Standard Fire) to review the correctness of a ruling of the district court overruling Standard Fire’s exceptions of jurisdiction over the person, improper service of process, improper venue, and improper cumulation of actions.

STATEMENT OF THE CASE

On February 20, 1980, Luther Thomas Jones, a resident of Alabama, was fatally injured in a one-vehicle accident on Louisiana Highway 35, in Vermilion Parish. Jones was a guest passenger in the vehicle when the driver lost control of the vehicle causing it to overturn. At the time of the accident, the vehicle was owned by Bobby G. Goss, a resident of Mississippi, and driven by Bonnie T. Williams, a resident of Alabama.

Stephen C. Jones, a resident of Sabine Parish, Louisiana, the plaintiff in the original action, filed suit in Sabine Parish for the wrongful death of Luther Thomas Jones. Subsequently, Edna Lee Jones Os-walt, the mother of the deceased and a resident of Alabama, intervened in the suit filed by Stephen C. Jones, naming Standard Fire Insurance Company of Alabama, Luther Thomas Jones’s uninsured motorist carrier, as an additional defendant. Service of process was made on the Louisiana Secretary of State and on Standard Fire by certified mail.

It is stipulated that Standard Fire Insurance Company of Alabama is a foreign insurance company domiciled in Alabama and is not licensed to do business in Louisiana nor is it in fact doing business in Louisiana, nor does it have any agents or employees living or working in Louisiana.

Standard Fire, as defendant in intervention, filed exceptions of lack of jurisdiction over the person, improper service of process, improper venue and improper cumulation of actions. It seeks supervisory relief from the judgment of the trial court overruling these exceptions.

SUPERVISORY RELIEF

The exercise of supervisory jurisdiction by appellate courts is within their plenary power. La.Const. 1974, Art. 5, § 10. Appellate courts will not exercise such jurisdiction unless an error in the trial court’s ruling will cause the petitioner irreparable injury or an ordinary appeal will not afford an adequate remedy. Supervisory Powers of the Louisiana Courts of Appeal, Albert Tate, Jr., 38 Tul.L.Rev. 429.

Generally, the courts of appeal deny writ applications complaining of the overruling of exceptions on the basis that the relator may win on the merits or may obtain adequate relief on appeal after trial on the merits. However, this policy is not absolute, for the appellate court may, in its discretion, grant applications for supervisory writs in the interest of efficient judicial administration and fundamental fairness to the litigants. Mangin v. Auter, 360 So.2d 577 (La.App. 4th Cir. 1978).

ON THE MERITS

Standard Fire has been joined as a defendant to this suit pursuant to the Louisiana Direct Action Statute, LSA-R.S. 22:655. However, this statute merely provides a right of action against insurance companies. Therefore, an independent basis of jurisdiction must exist before a nonresident insurer can be sued under the Direct Action Statute. See Morse v. Hartford Casualty Ins. Co., 301 So.2d 741 (La.App. 3rd Cir. 1974); McKeithen v. M/T Frosta, 435 F.Supp. 572 at 576 (U.S.D.Ct., La.1977). In Morse, supra, at page 743 we stated:

“The quoted statute is not jurisdictional. Instead the cited provisions deal with venue. In Davis v. Hanover Insurance Company, 289 So.2d 292 (La.App. 3 Cir. 1974), we discuss the venue granted by LSA-R.S. 22:655 holding that C.C.P. art. 42 did not incorporate the exceptions provided in C.C.P. arts. 71-83.
. .. The Direct Action Statute is not a legislative grant of jurisdiction. It merely gives claimant a direct right of action and a method for enforcing their right against liability insurers when they have a cause of action against the insured, or where the insured would be liable but for an immunity personal to him. Weingartner v. Fidelity Mutual Insurance Company, 205 F.2d 833 (5th Cir. 1953); Taylor v. Fishing Tools, Inc., 274 F.Supp. 666 (U.S. D.C.La., E.D.1967). There must be an independent legislative grant of jurisdiction which satisfies due process requirements of “minimum contacts”, together with service of process, before a claimant may utilize this right of direct action against the liability insurer.”

It is stipulated that Standard Fire is a foreign insurance company domiciled in Alabama. It is further stipulated that Standard Fire is not licensed to do business in Louisiana nor is it in fact doing business in Louisiana and that it has no agents or employees in Louisiana. It is also stipulated that Standard Fire’s insured, Luther Thomas Jones, was a resident of Alabama and that the policy of insurance was issued and delivered in the state of Alabama.

Jurisdiction over the person is based on service of process. LSA-C.C.P. art. 6. Louisiana’s “longarm” statute, LSA-R.S. 13:3201 , confers personal jurisdiction over non-residents for causes of action arising under the circumstances set forth in the cited statute. In light of the stipulated facts, we conclude that the cause of action asserted by intervenor does not arise under any of the circumstances set forth in the cited statute and therefore such statute cannot be relied upon as conferring in the courts of Louisiana personal jurisdiction over Standard Fire.

Neither can personal jurisdiction over Standard Fire be based on the “Louisiana Motorist Longarm Statute”, LSA-R.S. 13:3474. This statute provides that a nonresident and his insurer, by operating a motor vehicle on the public highways of Louisiana, are deemed to have submitted to the jurisdiction of this state and to have appointed the Secretary of State as their agent for service of process. This statute is inapplicable to the instant case because it has been stipulated that Standard Fire’s insured, Luther Thomas Jones, was not the operator of the vehicle involved, but a guest passenger.

Furthermore, the record reflects that there has been no “minimum contacts” between Standard Fire and the state of Louisiana to satisfy due process requirements. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Adcock v. Surety Research & Inv. Corp., 344 So.2d 969 (La.1977). Standard Fire has had no contact whatever with the state of Louisiana. Its only contact is that it insures persons whom it is foreseeable will travel to Louisiana and will be involved in litigation in Louisiana. The United States Supreme Court in World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), held that “foreseeability” alone does not provide sufficient minimum contacts to support jurisdiction under the Due Process Clause.

For the above reasons the writ of certio-rari issued herein is made peremptory and the judgment of the Eleventh Judicial District Court dated October 23, 1980, overruling Standard Fire’s exception to jurisdiction is reversed and set aside and such exception is hereby ordered sustained and accordingly, it is further ordered, adjudged and decreed that plaintiff in intervention’s suit against Standard Fire Insurance Company of Alabama is dismissed. Costs in this court are taxed to plaintiff in intervention, Edna Lee Jones Oswalt.

WRIT MADE PEREMPTORY, JUDGMENT OVERRULING EXCEPTION TO JURISDICTION REVERSED.

      . § 3201. Personal jurisdiction over nonresidents
      “A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
      (a) transacting any business in this state;
      (b) contracting to supply services or things in this state;
      (c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
      (d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;
      Amended by Acts 1977, No. 734, § 1, eff. July 21, 1977.
      (e) having an interest in, using or possessing a real right or immovable property in this state;' or
      (f) non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the non-resident formerly resided in this state.”

      . Considering our disposition with regard to the exception of jurisdiction, we do not consider the correctness of the trial court’s judgment overruling the exceptions of improper service of process, venue and improper cumulation of actions.


author: SARTAIN, Judge.

text:
    Terry BOURG v. Sam WILEY, Jr.
    No. 11427.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Charles C. Wilson, Hahnville, for plaintiff-appellee.
    Edmond R. Eberle, New Orleans, for defendant-appellant.
    Before BARRY and SARTAIN, JJ.
   SARTAIN, Judge.

This proceeding by ordinary process was instituted by the comaker of a hand note against the collateral mortgagor. From an adverse judgment in the district court the latter has appealed. We annul the judgment and remand.

The facts arose as follows: Althea Toliver and others were charged with the armed robbery of a business establishment owned and operated by plaintiff, Terry Bourg. Following several plea bargaining sessions, Toliver plead guilty to the charge and was given a suspended sentence and placed on unsupervised probation. She was also required to make restitution to the extent of $6,000.00 Her sentencing occurred on April 10, 1975.

On April 9, 1975 Sam Wiley, Jr. executed a collateral mortgage note in the amount of $8,000.00, payable “On Demand” to the order of “Myself” (and endorsed by him) at the American Bank, Hahnville, Louisiana, and stipulating interest at the rate of 10% per annum from date until paid. The note was paraphed for identification with an act of collateral mortgage of the same date which represented a second lien and mortgage on Wiley’s home located in Beltridge Subdivision in Jefferson Parish.

On the same date (April 9, 1975) Sam Wiley, Jr., Althea Toliver and Terry Bourg executed a hand note in the sum of $7,799.40 to the order of American Bank, Norco, Louisiana, payable in 36 monthly installments of $216.65 commencing May 15, 1975, together with interest at the rate of 14% per annum from date of maturity until paid, and in the event of default, attorney’s fees on the unpaid balance at the rate of 25%. The hand note was secured by the above mentioned collateral mortgage note.

The mortgage and hand notes were used to secure a $6,000.00 loan at the American Bank. This sum was placed in Bourg’s operating account with the bank and apparently replaced the sum that was stolen by Althea Toliver and her cohorts. No payments were made to the bank on the hand note. The bank, in suit No. 185-124 in the District Court for the Parish of Jefferson, entitled American Bank v. Sam Wiley, Jr., brought an executory proceeding on the collateral note and mortgage. Wiley was the only named defendant. On motion of the bank this suit was dismissed with prejudice on October 6, 1976.

The instant action was filed on December 9, 1976 by Bourg as the “holder” of the above described mortgage note for the sum of $7,799.40 (the amount of the hand note), together with interest at the rate of 14% from May 15, 1975, and 25% on both as attorney’s fees and for recognition of the lien created by the act of collateral mortgage.

Defendant Wiley’s peremptory exceptions of res judicata and no cause of action based on the dismissal with prejudice in the bank’s suit were overruled by the trial judge. Mrs. Wiley intervened, asserting the unconstitutionality of C.C. art. 2404, which permits the husband to mortgage a community asset — especially the family home. Her claim was also denied. These same issues are raised on appeal.

Following a trial on the merits judgment was rendered against defendant in the amount of $7,799.40, together with interest thereon at the rate of 10% until paid, and 20% on principal and interest as attorney’s fees. The judgment also recognizes and maintains the mortgage. We are not favored with written or oral reasons for judgment.

Bourg testified that when Wiley and/or Althea Toliver failed to make any of the monthly installments he was called upon by the bank to satisfy the loan. He executed a new note to the bank and the bank released to him the above described mortgage and hand notes. He explained the transaction as follows: “I received that note when no payment was made on it. As a cosigner, I had to pay off the note at the bank.”

We agree with the observation contained in Nathan and Marshall, the Collateral Mortgage, 33 La. L. Rev. 497, 498 (1973). “. . . (T)he collateral mortgage has been a source of unfortunate confusion and bizarre litigation.” This case is no exception.

In attempting to resolve the issues herein presented we observe that proper consideration was not given in the trial court to the legal relationship between Bourg and Wiley. Both are comakers of the hand note and their respective rights and obligations should have been resolved pursuant to the codal provisions, statutes, and jurisprudence relative to solidary obligors. The primary issue as between these two litigants was clouded by the fact that Bourg brought the present action as a “holder in due course” which he was not. He was a comaker of the hand note as his own testimony admits and the facts dictate.

With respect to the exception of res judi-cata which was premised on the basis of the dismissal with prejudice in the bank’s suit, the same was properly denied in the instant action. The final judgment in the bank suit would support the exception as between the bank and any one or all of the comakers but it cannot stand as authority for having adjudged the rights as between two competing comakers.

The requisites for the application of res judicata are set forth in C.C. art. 2286:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

The final judgment in the bank’s suit, albeit on its own motion, terminated the bank’s rights under the notes. C.C. art. 3285 provides, in part:

“In all cases where the principal debt is extinguished, the mortgage disappears with it.”

Thrift Funds Canal, Inc. v. Foy, 261 La. 573, 260 So.2d 628 (1972); Mente & Co., v. Levy, 160 La. 496, 107 So. 318 (1926). However, as we discuss next, the rights as between solidary obligors (comakers of the note) are not affected by the discharge of the principal debt. For these reasons the requisite identities in the two actions are not present.

In the recent ease of Quanta v. Jenks, 355 So.2d 607 (La.App. 4th Cir. 1978), untimely application not considered, 357 So.2d 1165 (La. 1978), this court had occasion to consider the rights and obligations of solidary obligors (co-debtors) on a hand note secured by a collateral mortgage granted by a corporate third party. One of the co-debtors “purchased” the note to avoid suit and proceeded against his co-debtor and obtained a summary judgment on the note and recognition of the mortgage. In answering his contention that he was privileged to do so, we stated:

“... This position is contrary to the law. R.S. 7:119(1) and (5) state respectively: ‘§ 119. Modes of discharging instrument
‘A negotiable instrument is discharged: ‘(1) By payment in due course by or on behalf of the principal debtor;
:{s * :j< * * *
‘(5) When the principal debtor becomes the holder of the instrument at or after maturity in his own right.’
“See also, 11 Am.Jur.2d Bills and Notes § 911 (1963), which states: ‘[T]he endorsement and delivery of a negotiable promissory note by the payee to one of several joint and several makers after maturity and for valuable consideration completely extinguishes the obligation of the note. . .’ (emphasis supplied); also, 10 C.J.S. Bills and Notes § 449b(l)(a) (1938), wherein it is stated: ‘[Pjayment in due course of a promissory note by one of several joint makers to the payee or holder extinguishes the instrument and discharges the liability of the other makers thereon’ (emphasis supplied), and (b):
‘.. . Because payment by one joint maker discharges the instrument, . . . the joint maker who makes the payment cannot sue his comakers on the note, an assignment or indorsement of it to him by the payee not resuscitating it or vitalizing it in his hands as against his comaker. The remedy of the maker making the payment in such case is to sue for contribution . .. . ’ (Emphasis supplied)
“Whenever a co-debtor has paid the entire common debt, he has the right to demand contribution from his co-debtors from their virile share. C.C. art. 2104. ‘. . . The solidary co-debtor may claim contribution from his co-debtor, only in proportion to the amount which each one of them must contribute to the common debt.’ 1 Aubrey & Rau, Civil Law Translations, Obligations, § 298b(4) (1965).
"... (E)ach of the four co-debtors is only liable for his virile share. Since the note was discharged, the 91/2% interest from the date of payment and 20% attorney’s fees provided therein are eliminated.”

While this case was decided under the provisions of R.S. 7:1 et seq. (Louisiana’s Negotiable Instruments Law), the current applicable statute is R.S. 10:3-601 et seq., where comparable provisions require the same result.

In Aiavolasiti v. Versailles Gardens Land Dev. Co., 371 So.2d 755 (La. 1979), on one of the notes therein sued upon, the court determined that the parties were primary obligors and therefore bound in solido rather than accessory obligors (accommodation endorsers) and that their respective rights and obligations under the note were governed by C.C. art. 2104, above. Accordingly, each was bound only for his virile share. Pertinent to the issue here is that the decision affirmed that portion of the judgment of the Court of Appeal, Aiavolasiti v. Kurtz, 361 So.2d 964, 967 (La.App. 4th Cir. 1978) which decreed the note extinguished upon its payment by one of the co-debtors precluding an award to the purchaser-codebtor for interest and attorney’s fees stipulated in the note.

The record does not show the exact date and the amount that Bourg paid the American Bank for the note. The matter will have to be remanded for that purpose.

The claim of Mrs. Wiley raising the constitutionality of C.C. art. 2404 for the reasons stated above is rendered moot.

On remand, if plaintiff is found to be entitled to judgment, then the judgment should be for % of the amount plaintiff paid the American Bank, together with legal interest thereon from date of judicial demand until paid, and such costs in the district court as the trial judge deems equitable.

For these reasons the judgment of the district court is annulled and set aside. The collateral mortgage, collateral mortgage note and the hand note all herein above referred to are ordered cancelled and this matter is remanded for further proceedings consistent with the views herein expressed. All costs relating to this appeal are assessed against appellee Bourg. The assessment of all other costs is to await a final determination on the merits.

ANNULLED AND REMANDED

      . Althea Toliver is the granddaughter of Mr. Wiley’s wife.

      . The difference between the cash advance and the amount of the note represents credit life and finance charges.

      . Note dated January 22, 1974 in the sum of $50,755.84 in favor of the International City Bank & Trust.

      . For a discussion of this case and some criticism thereof see: Hebert, A Conflict Resolved, A Conflict Ignored, 40 La. L. Rev. 483 (1980).