author: SWIFT, Judge.

text:
    Michael M. WAHLDER, Plaintiff-Appellant, v. Richard H. OSBORNE, Defendant-Appellee.
    No. 8638.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Rehearing Denied March 23, 1982.
    Michael M. Wahlder, Garrett & Ryland, B. Dexter Ryland, Alexandria, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, F. A. Little, Jr., Alexandria, for defendant-ap-pellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   SWIFT, Judge.

In this proceeding plaintiff-lessor, Michael Wahlder, is attempting to evict defendant-lessee, Richard H. Osborne, from property owned by the plaintiff in Alexandria. From the trial court’s judgment refusing to cancel the lease, the plaintiff appeals.

On May 22, 1972, the plaintiff granted a lease to the defendant to operate a filling station which contained the following relevant provisions:

“Lessee shall pay as rent for the leased premises for each calendar month during the term of this lease, in cash or by check to the order of ‘Mike Wahlder,’ and mail same to ‘Mike Wahlder’, P. O. Box 1787, Alexandria, Louisiana 71301.
“A. The sum of $50.00 on or before the 1st day of each month.
“B. An additional sum equal to 1'/2$ for each gallon in excess of 3333 gallons of gasoline and diesel oil sold on the premises during each month as shown by Lessee’s records, payable on or before the 15th day of the following calendar month.
“C. An additional sum of 5% of the gross sales, cash and on credit, sold on the leased premises during each month as shown by Lessee’s records, excepting only gasoline and diesel oil, payable on or before the 15th day of the following calendar month.
“In connection with the operation of the service station it is expressly stipulated that lessor will receive 5% of the gross sales, cash and on credit, of all tires, but minor accessories such as batteries, headlights, lubricating oil and greases, etc., are excluded.”
* * * * * sfe
“The leased premises can be sublet and this lease can be assigned or transferred only with written consent of Lessor first obtained. In event of sublease, assignment or transfer of the lease with the consent of Lessor, Lessee will continue to be liable for the consideration, terms and conditions of this lease. It is understood that in all events the leased premises are to be used for the sale of gasoline, motor oils, lubricants and other motor vehicle products unless written consent of Lessor is obtained to use the premises for other purposes.”
lie * * * * *
“Lessee agrees to remain open and carry on business seven (7) days per week for at least fourteen (14) hours per day — at least eight (8) of said 14 hours during daylight.”

The defendant incorporated his business under the name of R. H. Osborne, Inc. The inventory was owned and the salaries of employees were paid by the corporation. However, the lease was never transferred to the corporation.

During the first two months of business the station sold various automotive products, including tires. Shortly thereafter the sale of tires was discontinued and eventually the defendant opened another store which sold tires and accessories exclusively. This store, The Tire Hut, was located approximately three miles from the gas station. No one at the filling station on the leased premises has directed any prospective tire purchaser to The Tire Hut.

During the summer of 1979 a Presidential Proclamation requested gas stations to close on Sundays because of a gas shortage. The defendant closed the service station on four or five Sundays during this period. The defendant also allowed the station to close early on certain holidays, such as Christmas, New Year’s and Thanksgiving. On these occasions it was not open for 14 hours each day as provided by the lease.

On October 27, 1980, and January 12, 1981, the plaintiff sent the defendant letters stating several violations of the lease and notifying the latter that the plaintiff considered the lease cancelled.

On January 29, 1981, the plaintiff filed a rule to evict the defendant from the premises. This petition and subsequent amended petitions alleged the defendant breached the lease in the following respects:

1) In failing to stay open 7 days a week, 14 hours a day;

2) By transferring the lease to R. H. Osborne, Inc., without obtaining the written consent of plaintiff;

3) In using the leased premises to sell tires for The Tire Hut and in failing to give plaintiff five per cent of the sales of these tires; and

4) By breaching a subsequent verbal agreement which required defendant to sell tires at the station.

The trial judge found that the defendant failed to stay open seven days a week, 14 hours a day, as required by the lease on certain holidays and during the gas shortage after the station’s allocation of gasoline had been sold. However, he felt such breaches were insubstantial. Since they were not committed in bad faith, the judge declined to cancel the lease for equitable reasons under the doctrine of judicial control. Farmers Gas Company v. LaHaye, 195 So.2d 329 (La.App. 3 Cir. 1967). The court also found that the lease had not been transferred by defendant to R. H. Osborne, Inc. and denied cancellation of the lease and eviction for this alleged breach. The plaintiff has not complained of these rulings by the district court and we assume they are not at issue before us.

The trial court denied the plaintiff’s offering of parol evidence to prove the existence and content of an alleged verbal agreement between the parties requiring the defendant to sell tires at the station. It determined that the lease is unambiguous in this respect and does not obligate the defendant to sell tires, but merely requires him to give the plaintiff five per cent of the gross sales of such items if the defendant decides to sell same. For these reasons the trial court denied the termination of the lease on this ground. From this part of the judgment the plaintiff has appealed, specifying that the trial court erred: 1) In failing to allow parol evidence to determine and clarify ambiguities in the lease, the intent of the parties and subsequent modifications of the lease: and 2) In holding the defendant had no explicit or implied obligation to sell tires and that the plaintiff was not entitled to a five per cent rent on the sale of all tires sold by defendant at The Tire Hut.

A contract of lease is not required by law to be in writing. La.C.C. Article 2683. Therefore, parol evidence is admissible to prove the written lease was modified, altered, or abrogated by a subsequent agreement. But where such agreement was antecedent or contemporaneous with the written agreement it cannot be established by parol evidence. Wahlder v. Tiger Stop, Inc., 391 So.2d 535 (La.App. 3 Cir. 1980), writ denied 396 So.2d 1351 (La.1981); and Mott v. Phillips, 372 So.2d 223 (La.App. 3 Cir. 1979). In Mott, however, this court pointed out that as between the parties to the written instrument, parol evidence is competent to explain an ambiguity when such explanation is not inconsistent with the written terms of the agreement.

In the instant suit we are unable to agree with the trial judge’s conclusion that the terms of the lease are clear and unambiguous in regard to whether or not the lessee is bound to sell tires at the station. However, from our review of the record, as well as the evidence on the subject which was proffered, we agree with the court that the defendant is not obligated to do so.

Paragraphs A, B and C of the lease provisions quoted above set forth the lease rental. Paragraph C simply provides for payment of five per cent of the gross sales on the premises, excepting gasoline and diesel oil. It does not mention tires. The following paragraph does say that the lessor will receive five per cent of the gross sales of tires. However, nowhere in the lease is there any provision expressly obligating the lessee to sell any tires at the station.

In his offer of proof the plaintiff testified that prior to, at the time the lease was executed and subsequently the parties agreed that after he had completed blacktopping the area the defendant would have to carry tires. On the other hand, Mr. Osborne emphatically denied he ever agreed that he was obligated to stock and sell tires on the leased premises. The defendant said their agreement was simply that if he sold tires at the station the plaintiff would receive five per cent of the gross sales thereof. Although a few tires were sold when the station was first opened, more tires were stolen than were sold because he did not have the facilities to secure them properly. Consequently, the sale thereof was discontinued. There is no indication of bad faith on the part of the defendant.

Thus, in the present case neither the lease nor the testimony of the parties clarify their intention as to whether or not the defendant is obliged by their contract to sell tires.

In Wilson v. Cost + Plus of Vivian, Inc., 375 So.2d 683 (La.App. 2 Cir. 1979), the court said:

“At best from the lessor’s standpoint, it might be argued that the lease is ambiguous in this respect. Dissolution of leases is not favored and any ambiguity is to be construed against the lessor and in favor of the lessee and maintenance of the lease.”
Article 1956 of our civil code provides: “When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.”

The record reflects that no tires have been sold by the filling station on the leased premises for over nine years. It was not shown that the plaintiff complained thereof until recently. We are convinced that if the parties really intended the lessee was obligated by the lease to stock and sell tires the lessor would have taken steps to enforce such obligation long ago. Therefore, our conclusion is that there is no such obligation under the lease involved in this case.

For the foregoing reasons, the judgment of the district court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Jesse JACKSON, et al., Plaintiffs-Appellants, v. RAPIDES PARISH SCHOOL BOARD, et al., Defendants-Exceptor-Appellees.
    No. 8650.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Rehearing Denied March 23, 1982.

      Chris J. Roy, Alexandria, for plaintiffs-appellants.
    Edwin 0. Ware and Gus Voltz, Jr., Alexandria, for defendants-exceptor-appellees.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

Plaintiffs-appellants, Jesse Jackson, Ruth O’Quinn, Rosia Metoyer, and the Rapides Association of Educators brought this action against defendants-appellees, Rapides Parish School Board and Dr. William Lucas, alleging that said School Board violated its own written policies and rules when it employed defendant doctor as coordinator of federal funds. Appellants claimed that they are entitled to relief either through writs of quo warranto, mandamus, under the Intrusion Into Office Act, and/or mandatory injunction. From a judgment of the trial court sustaining appellees’ exception of no cause of action, appellants have appealed. For different reasons assigned herein, we affirm.

The only issue presented to us on appeal is whether or not plaintiffs in their petition allege facts sufficient to establish a cause of action under any of the relief prayed for.

At a regular meeting of the Rapides Parish School Board held on December 1, 1980, the Board approved the appointment of Doctor Lucas as coordinator of federal funds for the Rapides Parish School Board. On May 13, 1981, plaintiffs filed suit for the relief prayed for herein. Thereafter, on May 14, 1981, a rule issued directing the defendants to show cause why the relief prayed for should not be granted, at which time the defendants filed an exception of no cause of action. The exception was heard on June 18, 1981, and for assigned written reasons contained therein, the trial judge sustained the exception and dismissed plaintiffs’ suit.

In their petition the plaintiffs allege in paragraph 2 that the hiring of Doctor Lucas was without advertising, contrary to the rules and regulations of the Rapides Parish School Board, and was without job description. In paragraph 3 they allege that the School Board was in complete derogation of its own policy and rules, and in paragraph 4 they reiterate the previous allegations that said 'School Board violated its own bylaws, rules and regulations in hiring and contracting with Doctor Lucas.

The Legislature has delegated certain duties and rule making authority to the School Board under LSA-R.S. 17:81 and LSA-R.S. 17:84, which provide in part as follows:

LSA-R.S. 17:81:
“. .. . Each school board is authorized to make such rules and regulations for its own government, not inconsistent with law or with the regulations of the State Board of Elementary and Secondary Education, as it may deem proper.”
LSA-R.S. 17:84:
The parish school boards may appoint such assistant superintendents, supervisors, stenographers, bookkeepers as may be needed, and such attendance officers, medical directors, and other appointees as may be necessary for the proper and efficient conduct of the schools; they may also fix their salaries and prescribe their duties.”

In Earnest v. Caldwell Parish School Board, 368 So.2d 801 (La.App. 2nd Cir. 1979), the Second Circuit discussed these statutes and the Court’s role in their enforcement, rather than paraphrase we quote, to-wit:

“La.R.S. 17:84 grants sole authority to parish school boards to select and employ supervisory personnel and La.R.S. 17:81 permits school boards to adopt their own rules and regulations to carry out their governmental functions provided the policies adopted are not inconsistent with law or the regulations of the Louisiana Department of Education. The courts should not interfere with a school board’s management unless there is a clear showing of abuse of the authority granted to the board under the statutory law. See State, ex rel. Rathe v. Jefferson Parish School Board, 206 La. 317, 19 So.2d 153 (1943), Shaw v. Caddo Parish School Bd., 347 So.2d 39 (La.App. 2nd Cir. 1977).”

In order for plaintiff to state a cause of action for mandamus, the petition must allege that there is a specific ministerial duty required by law, and that a public officer has failed to perform that duty. LSA-C. C.P. Article 3863. Plaintiffs’ petition, however, fails to allege any specific law establishing a statutorily imposed duty on behalf of the School Board to follow any set procedures in hiring its personnel. Plaintiffs only contend that the School Board violated its own bylaws, rules and regulations.

LSA-R.S. 17:81 and LSA-R.S. 17:84 gives the School Board wide latitude in making its own rules and regulations, and by that same authority the School Board may suspend, amend, or change said rules and regulations from time to time. Absent a clear showing of abuse of authority granted to the Board under the statutory law, the courts should not interfere with the Board’s actions. Earnest, supra. Accordingly, it seems clear to us that the plaintiffs have failed to allege facts sufficient to state a cause of action upon which mandamus relief is authorized.

Quo warranto is equally inappropriate, as its purpose is to direct an individual to show by what authority he holds public office. LSA-C.C.P. Article 3901 et seq. In Small v. Levy, 355 So.2d 643 (La.App. 4th Cir. 1978), writ refused, 361 So.2d 450 (La.1978), the Fourth Circuit held that a plaintiff, who is not a “claimant” to office, had no right to bring application for writ of quo warranto. No where in plaintiff’s petition do they allege to be “claimants” to Doctor Lucas’ office. In fact, they merely allege that they desire the opportunity to be considered for that position which Doctor Lucas now holds. Plaintiffs, then, in failing to allege facts supportive of any claim to the office challenged, do not state a cause of action upon which quo warranto relief is authorized.

As the court in Small, supra, points out, disallowing quo warranto where plaintiffs failed to assert a claim to the office in question does not deny those plaintiffs, under the proper circumstances, access to the courts to test the right of a public officer to hold office. An individual acting alone and in his capacity as a citizen, may file a mandamus proceeding against the attorney general or the appropriate district attorney to compel said officer to file the action to test in accordance with his responsibility under the Intrusion Into Office Act. These legal offices represent the interest of all citizens with regard to the right of a public officer, and under the proper circumstances, mandamus will lie.

Additionally, plaintiffs’ petition answers the very question that quo warranto directs. The petition shows that Doctor Lucas was hired by the Rapides Parish School Board. Obviously, that is the authority by which he holds the position of coordinator of federal funds. Accordingly, for these reasons as well as those previously stated, plaintiffs’ petition does not state a cause of action for quo warranto.

In addition to the relief sought above, plaintiffs contend that they are entitled to relief under the Intrusion Into Office Act, LSA-R.S. 42:71 et seq.

As aforementioned, the plaintiffs merely allege facts suggesting that the School Board violated its own bylaws, rules, and regulations. As we appreciate this act, allegations of these violations alone simply do not give rise to a cause of action under it. Furthermore, even if we were to assume that defendants' actions give rise to a cause of action under the Intrusion Into Office Act, the plaintiffs are not the proper parties to bring an action for such relief.

LSA-R.S. 42:76 and LSA-R.S. 42:77 provide in part as follows:

LSA-R.S. 42:76:
“An action shall be brought in the name of the state in any of the following cases;
‘(1) When any person usurps, intrudes into, or unlawfully holds or exercises or attempts to remain in possession of any public office or franchise within this state.
‘This action shall be brought by the attorney general of the state or by the parish district attorney of the parish in which the case arises against the offender, and the suit shall be filed in the district court of that parish.
‘The action may also be brought by the governor appearing in proper person or through the attorney general of the state or other counsel he may select.’ ”
LSA-R.S. 42:77:
“In the cases provided in R.S. 42:76(1) and 42:76(2), the action may be brought by any person demanding possession of the office against any person claiming or exercising the functions of the office.”

As discussed above, the plaintiffs do not demand possession of the office presently held by Doctor Lucas. As such, the proper parties to bring an action under this Act are governed by LSA-R.S. 42:76, i.e., the parish District Attorney, the Attorney General, the Governor, or his representative.

At the hearing on the exception of no cause of action the district judge expressed his desire to expand the scope of that hearing to consider whether or not the plaintiffs possessed a right of action in this suit. Although the plaintiffs objected to the court considering the no cause exception as being one of no right as well, they proceeded to put on evidence in support of the plaintiff’s right of action in this suit. In light of the fact that the plaintiffs proceeded to introduce evidence in support of their right of action, and inasmuch as plaintiffs are not the proper parties to bring a cause of action under the Intrusion Into Office Act, we would have to find that plaintiffs have no right to bring an action for the relief prayed for herein.

Lastly, the plaintiffs pray for in-junctive relief seeking to enjoin Doctor Lucas from serving as coordinator of federal funds until such time as the rules and regulations of the Rapides Parish School Board are followed, and further asking that Doctor Lucas be permanently removed from the position he now holds. In essence plaintiffs pray for a preliminary injunction restraining and enjoining Doctor Lucas from acting as coordinator of federal funds until such time as a mandatory injunction is issued removing him from this position.

Injunctive relief is appropriate only in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law. LSA-C.C.P. Article 3601. The petition of plaintiffs, however, does not allege sufficient facts upon which injunctive relief may be based. The plaintiffs do not allege specific facts from which it clearly appears that they face irreparable injury absent a granting of an injunction, or that an injunction in this case is specifically provided by law. As such the face of the petition does not state a cause of action for injunctive relief.

In a footnote in his reasons for judgment the district judge commented on the impropriety of cumulating an action for mandatory injunction with this summary proceedings. In view of our opinion above, we find it unnecessary to address this issue.

For the above and foregoing reasons the judgment of the trial court sustaining defendant’s exception is affirmed. Costs at trial and on appeal are to be taxed against plaintiff-appellant.

AFFIRMED.

      . A claimant as defined by the court in Small, supra, is one who demands possession of the office against any person claiming or exercising the functions. See LSA-R.S. 42:77 cited later in this opinion.

      . The footnote in the trial judge’s reasons for judgment provides as follows:
      “Parenthetically the Court should note that it ruled from the bench that the only action available to petitioners was that in the nature of a mandatory injunction. A suit for a mandatory injunction is in the nature of an ordinary proceeding. Louisiana Livestock Sanitary Board v. Johnson, 372 So.2d 585 (La.App. 3rd Cir. 1979). However, petitioners have commenced this suit by summary process.”


author: DOUCET, Judge. STOKER, Judge, DOMENGEAUX, Judge, GUIDRY, Judge,

text:
    J. C. GAUTREAU, Plaintiff-Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, et al., Defendant-Appellee.
    No. 8513.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Rehearing Denied March 23, 1982.

      Theall & Fontana, Gary E. Theall, Abbe-ville, for plaintiff-appellant.
    Caffery, Oubre & Dugas, Patrick T. Caf-fery, New Iberia, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY, FOR-ET, STOKER and DOUCET, JJ.
   DOUCET, Judge.

This appeal arises out of a suit, filed by appellant, styled “Petition for Insurance Benefits and for Declaratory Judgment”, wherein plaintiff sought damages for two electric motors destroyed by lightning, pursuant to his insurance policy with defendant, and asked for a declaratory judgment as to whether as a member of the Vermilion Parish Farm Bureau he was entitled as a matter of right to purchase insurance policies from Southern Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company, defendants-appellees herein. Defendants filed a motion for summary judgment, and the trial court granted same, holding the claim for lightning loss had prescribed, and that plaintiff was not entitled to renewal of his insurance coverage by virtue of his membership in the aforesaid organization where policy provisions afforded the insurer the right to cancellation.

That the defendant successfully defeated its customer’s claim for payment of lightning losses by plea of prescription is not before this court. On appeal, plaintiff alleges only that genuine issues of fact exist precluding a summary judgment; that the articles and by-laws of the membership organization prevailed over contrary policy stipulations, and that issues of fact exist as to whether plaintiff met the underwriting criteria of defendant’s insurance policies. We reverse.

Plaintiff, in his petition, alleges: that he has been a member of the Louisiana Farm Bureau for many years; that the organization made available to its members low cost insurance and he has taken advantage of this membership benefit for many years; that the members are the owners of the insurance operations, which are conducted for their mutual benefit; that he suffered losses due to lightning and defendant arbitrarily and capriciously refused to pay his subsequent claim; that thereafter defendants informed him that his automobile policy would not be renewed and when he inquired as to the reasons he was told that it was because of “claims experience” when in reality no claims had been made on said policy; that defendants later admitted there had been no claims experience on that policy, but were refusing to renew because of the attitude of the plaintiff; that defendants further notified plaintiff they were refusing to renew all of his policies; that he was led to believe that defendants had no right to refuse coverage to a member in good standing, as supported by the articles, charter, and bylaws of the organization, at least under the circumstances.

Affidavits were filed to the effect that members of Farm Bureau understand insurance is available to members as a matter of right. However, Mr. Graugnard, member of the board of many of the organizations involved, was deposed and asked whether members were entitled to insurance, to which he responded that one must meet the underwriting criteria.

Preliminarily, it should be noted that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits show no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. C.C.P. Art. 966. Papers supporting the position of the party moving for summary judgment are to be closely scrutinized, while the opposing papers are to be indulgently treated. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). A summary judgment is not appropriate when it is based upon affidavits and accompanying pleadings and other documentary evidence to establish subjective facts such as motive, intent, good faith or knowledge. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3rd Cir. 1974), Fontenot v. Aetna Insurance Co., 225 So.2d 648 (La.App. 3rd Cir. 1969). Only when reasonable minds must inevitably concur is a summary judgment warranted and any doubts should be resolved in favor of a trial on the merits. Cates v. Beauregard Elect. Coop., Inc., 328 So.2d 367 (La.1976); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Clement v. Taylor, 382 So.2d 231 (La.App. 3rd Cir. 1980).

Succinctly stated, the issue before us is whether, as a matter of law, a petition alleging arbitrary and capricious non-renewal of an insurance policy offerred under a group plan states a cause of action when the contract between the parties gives the insurer the option not to renew.

Defendants admit that their insurance may be sold only to members of a farm bureau, but maintain that the policy provisions afford them absolute right to refuse renewal regardless of any other representations or the motive for their actions. We agree that this represents the orthodox view.

A similar defense was made in Spindle v. Travelers Ins. Co., 66 Cal.App.3rd 951, 136 Cal.Rptr. 404 (1977), wherein plaintiff-physician brought suit against his malpractice insurer alleging that defendant had can-celled his policy to coerce the medical group, of which plaintiff was a member, into accepting higher insurance premiums. Plaintiff’s complaint alleged defendant did so willfully with malice and intent to harm plaintiff. The trial court sustained defendant’s demurrer, finding that the insurer had an absolute right to cancel. The appellate court reversed, holding that the doctrine of implied covenant of good faith and fair dealing which had in the past been held applicable to an insurance company’s failure to settle and failure to pay claims to the insured also extended to cancellation provisions of the plaintiff’s policy, cf: L’Orange v. Medical Protective Company (6th Cir. 1968) 394 F.2d 57 (cancellation motivated by insured’s testimony adverse to insurer held contrary to public policy). The principles espoused in the above cases have received overwhelming doctrinal support. See: Note, Intimidation of Plaintiff’s Witness in a Malpractice Suit by Cancellation of Insurance, 63 NW.U.L.Rev. 873 (1969); Comment, Insurance — Cancellation Clause — Improper Motive Invalidates Insurers Cancellation, 54 Iowa L.Rev. 649 (1969); Note, Insurance — The Exercise of a Cancellation Clause by an Insurer as a Breach of Contract, 37 U.Mo.K.C.L.Rev. 154 (1969); Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv.L.Rev. 369 (1981).

See also: Murphy v. Seed-Roberts Agency, Inc., 79 Mich.App. 1, 261 N.W.2d 198 (1977), where the court reasoned that the cancellation clause merely provided the procedure by which coverage could be terminated and did not set forth the grounds for cancellation.

Insurance policies are inherently adhesive, Continental Auto. Assoc., Inc. v. Hansen, 334 So.2d 437 (La.App. 4th Cir. 1976), as a result of the unbalanced relationship between insurer and insured. The language of the policy is drawn by the insurer, who has the aid of wide experience and highly skilled advisors; hence the policy is construed against the insurer. LSA-C.C. Art. 2474. This rule of construction, resolving doubts against the seller, is particularly applicable where there is substantial disparity in relative bargaining power between parties. Haymon v. Holliday, 405 So.2d 1304 (La.App. 3rd Cir. 1981). Invariably the policy will contain a provision which gives both parties an absolute right to cancel, however, this right is more often exercised by the insurer than the insured. Smoot, The Cancellation Clause, 295 Ins.L.J. 675, 676 (1947). Similarly, somewhere in the print will be found a clause permitting the maker of the instrument to refuse renewal for any reason whatsoever. Arbitrary exercise of either right by the insurer undoubtedly results in inconvenience and often loss to the insured. It makes little difference to the insured whether his insurance .is lost through cancellation or refusal to renew. His insurance record is in many respects analogous to a conventional credit rating; the longer the duration of relationship between insurer and insured, the better position the insurer is in to evaluate the risk involved and adjust rates accordingly. When the relationship is unilaterally terminated without cause related to risk the insured is denied partial benefit of his bargain. His frustrations in securing a new policy are compounded by the scarcity of competitive price advertising by insurers.

Insurers are purveyors of a vital, indeed oft legally required, service which is quasi-public in nature. They hold themselves out as fiduciaries, and with the public’s trust must go responsibility consonant with that trust. Accordingly, we hold that in light of the peculiar relationship between the parties, a covenant of good faith and fair dealing was implied in the policy issued unto plaintiff pursuant to a group plan which would preclude the defendant from refusing renewal for arbitrary and capricious reasons. Such a result is in accord with the expectations of the members of the farm bureau as alleged in plaintiff’s petition and accompanying affidavits. If any member could be denied coverage because of “attitude”, the group label assigned to the policy would be nothing more than an empty sales pitch with no corresponding benefit to the group. Therefore, the plaintiff is entitled to his day in court to establish that the insurer exercised its contractual discretion for a reason outside the contemplated range of reasons for non-renewal.

Defendants claim that reversal of the trial court’s decision would abrogate freedom of contract. However, this doctrine presupposes that there is equality of bargaining power between the parties and that terms of the contract are not predetermined before negotiations begin. See Kes-sler, Contracts of Adhesion — Some Thoughts About Freedom of Contract, 43 COLUM.L.REV. 629 (1943). It is clear that the present contract is not the product of any meaningful choice by appellant. Assuming that most reasons which motivate an insurance company to cancel or refuse renewal are reasonable, for example an increase in or failure to fully disclose the extent of the risk involved, the rule announced today effects only a minor limitation upon the contractual freedom of the maker of the policy. We have never had and never shall have unlimited liberty of contract, either in its phase of societal forbearance or in its phase of societal enforcement. 6A Corbin, Contracts § 1376 at 20 (1962).

Alternatively, plaintiff may be able to establish that the charters of the insurers mandate that members of the farm bureaus be entitled to coverage. Similarly, the plaintiff may be able to establish a contract between the insurers and farm bureaus representing that he is to be afforded coverage. If any such contract is susceptible of conflicting interpretations, the trial court should adopt a construction in accordance with justice and fair dealing instead of one entailing loss to a party, as persons may be expected to contract with one another on a basis equitable to each. Haymon v. Holliday, supra; Texaco, Inc. v. Vermilion Parish School Board, 244 La. 408, 152 So.2d 541 (1963).

For the purpose of reviewing the propriety of a summary judgment, the plaintiff’s allegations must be considered true; thus we need not concern ourselves with problems of proof plaintiff may encounter in establishing that the defendants’ motives were arbitrary or capricious, and/or that the insurers charters of a contract between them and the farm bureaus mandated coverage be afforded to members.

For the reasons assigned the judgment appealed from is reversed and the case remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

STOKER, J., concurs and assigns written reasons.

FORET, J., concurs for reasons assigned by STOKER, J.

DOMENGEAUX, J., concurs in the result.

GUIDRY, J., dissents and assigns written reasons.

STOKER, Judge,

concurring.

I concur in the result reached by the majority.

The provisions of the charter or bylaws of the Louisiana Farm Bureau or the Southern Farm Bureau are not material or relevant to the issue presented by the motion for summary judgment in the case. This might not be so if the two bureaus and the two insurers were the same entities. It is established, however, that they are separate and distinct entities. In any event, the charters and bylaws of the two bureaus do not establish the right to renew insurance claimed by plaintiff. Therefore, the only ways plaintiff may establish that Southern Farm Bureau Casualty Insurance Company or Louisiana Farm Bureau Insurance Company are obligated to afford him insurance is through one of two means: either through (1) some contractual relations between the bureaus and the insurers which grant such rights to bureau members, or (2) some provisions in the charters of the insurers requiring that members of the bureaus be afforded such rights. Without some support, plaintiff’s understanding and impression, or those of other members, cannot govern the case.

In paragraph 19 of his petition for declaratory relief, plaintiff alleges the following: “Plaintiff submits that the articles, charter, bylaws and other organizational documents will show that he is entitled to the insurance coverage he has received in the past as a membership benefit.” It is not clear whether plaintiff refers in this allegation to the bureaus or the insurers. The charters of the insurers were not submitted by either party in support of or in opposition to the motion.

The policies of insurance which existed between plaintiff and the defendant set forth the contract rights between these parties. The insurers had the right under insurance contracts to decline to renew the policies.

The majority opinion includes the following pronouncements:

“... we hold that in light of the peculiar relationship between the parties, a covenant of good faith and fair dealing was implied in the policy issued unto plaintiff pursuant to a group plan which would preclude the defendant from refusing renewal for arbitrary and capricious reasons.”

With respect, I disagree entirely with this pronouncement.

Irrespective of the above comments I concur on the narrow ground that plaintiff should be given the opportunity at a trial to establish that the charter, bylaws, or other regulations of the insurers (not of the bureaus) extend to him the rights he claims, or that some contract granting such rights exists between the bureaus and the insurers for the benefit of bureau members. Such rights would, of course, have to be of a nature which would override the contract provisions of the policies in question. If plaintiff cannot carry the burden of proof, then the comments of the trial court in its reasons for judgment would be apropos.

For the foregoing reasons, I concur in the result reached by the majority.

DOMENGEAUX, Judge,

concurring.

In considering this motion for summary judgment, whether or not plaintiff can ultimately prevail, should be of no concern to us at this time. Taking a cue from the Louisiana Supreme Court in the recent consolidated cases of Vermilion Corporation v. Norman Vaughn, Freddie Broussard, and Larry J. Broussard, 397 So.2d 490 (La.1981), I feel that we have little choice but to reverse the granting of summary judgment and remand this case for trial on the merits.

A review of the pleadings, depositions, affidavits, and other documents show that there is a very close knit association between the Farm Bureau, its members and the defendant Farm Bureau Insurance Companies. Some of these documents indicate that the Farm Bureau in Louisiana has approximately 63,000 members. It is a nonprofit organization designed primarily to help people in agriculture. Members have certain rights. Actually the Farm Bureau organization pretty well owns the defendant insurance companies. A perusal of the bylaws indicate that members of the Bureau may have rights to insurance which would not be available to individuals who may seek insurance from insurance companies other than those companies with the Farm Bureau. Three of the affidavits submitted by members of the Farm Bureau indicate that they were under the impression that they had the automatic right to be insured by these companies. Whether this is true or not, and regardless of how farfetched it may be, is of no moment to us now in determining the merits of the summary judgment motion. A trial on the merits may show that members may have been led to believe this by people in authority with the defendant insurance companies, which could result in the possible application of the doctrine of estoppel.

Article IV, Section 6 of the Farm Bureau bylaws provides that members “shall be entitled to the benefits and privileges of any affiliated or associated insurance company service.” Although I do not necessarily subscribe to the argument at this time, it could be argued that one interpretation of this provision would deem to mandate coverage by a member upon request, absent a justified cause to refuse coverage.

For examples of the general proposition that summary judgment procedure should be used cautiously and sparingly and that any reasonable doubt concerning the existence of such should be resolved against the mover and in favor of a full trial on the merits, see Mecom v. Mobil Oil Corporation, 299 So.2d 380 (La.App. 3rd Cir. 1974), and Garrett v. Gayle, et al, 405 So.2d 622 (La.App. 3rd Cir. 1981).

If plaintiff should have to lose this case, it should be after a full trial, and not by summary judgment.

I respectfully concur.

GUIDRY, Judge,

dissenting.

The record reflects that defendants enjoy a contractual right to refuse renewal of plaintiff’s insurance coverage. Additionally, the record establishes that defendants complied with all statutory and contractual provisions for non-renewal. Under these circumstances defendants are entitled to summary judgment absent some showing by plaintiff that defendants’ contractual right to refuse renewal of plaintiff’s insurance coverage is unenforceable or that a genuine issue of fact material to this determination exists. As set forth in Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980):

“On a motion for summary judgment the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings.” (Emphasis mine)

In my view the supporting documents presented by defendants are sufficient to resolve all material fact issues favorable to them. This showing shifted the burden to plaintiff to present evidence establishing that material facts are still at issue. At that point plaintiff could no longer rely upon the allegation in his petition to the effect that the articles, charter, bylaws and other organizational documents show that he is entitled to the insurance coverage he has received in the past as a membership benefit, but rather it was incumbent upon him to present evidence that at least a factual dispute existed on this issue.

In opposition to defendants’ motion for summary judgment plaintiff submitted documentary evidence, including some of the charters and bylaws of the parties, and affidavits to the effect that it was his understanding, and that of a friend of his, that as members of the farm bureau they were entitled to be issued policies. The documentary evidence submitted does not establish plaintiff’s right to policy renewal nor can his understanding and impression of his rights as a bureau member “govern the case”. The plaintiff having presented nothing more in opposition to the motion, I agree with the learned trial judge that the record presents no genuine issue of fact material to a determination that plaintiff is not entitled to a renewal of insurance coverage with defendants.

For these reasons I respectfully dissent.

      . Although not the exact terminology employed, this is the gist of the plaintiffs complaint, which, for our purposes of review, is to be liberally construed.

      . Plaintiff alleges that the two insurers are domestic corporations. The testimony of James D. Graugnard, president of the bureau, and of the insurers established that each of the companies was a separate entity. The fact that the bureaus may own the insurers does not affect the rights of the bureaus’ members.


author: DOUCET, Judge.

text:
    L. H. BOSSIER, et al., Plaintiffs and Appellees, v. S. Mark LOVELL, et al., Defendants and Appellants.
    No. 8565.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Rehearing Denied March 23, 1982.

      Trimble & Associates, J. Michael Percy, Alexandria and Beard, Arceneaux & Suth-erlan, Roy L. Beard, Shreveport, for defendants-appellants.
    Gary & Field, Thomas R. Elkins and Russell L. Dornier, Baton Rouge, for plaintiffs-appellees.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOUCET, Judge.

This is a dispute among partners in a partnership in commendam named Quinn-L Corporation. Defendant-Appellant S. Mark Lovell, allegedly attempted to alienate partnership property without the authority of and to the detriment of the limited partners. Plaintiffs are limited partners who seek injunctive relief to block the sale of the partnership assets by the defendant general partners Lovell and Quinn-L Corporation on the basis that the latter parties’ actions constitute a breach of their fiduciary and partnership agreement duties. From a judgment in favor of plaintiffs, defendants appeal. We affirm.

On February 18, 1974, a limited partnership known as “The Pines Apartments” was formed by execution of an “Agreement for Partnership in Commendam”. Subsequently, plaintiffs-appellees, Mr. L. H. Bossier and his corporations L. H. Bossier, Inc. and Alexandria Construction Company, became interested in investing in the partnership as commendam or limited partners and the Articles were amended to effect certain changes including a renaming to “Quinn-L Corporation — 1974”. Thereafter, on June 17, 1974, the partnership agreement was amended to actually admit the appellees into the partnership and limit their liability therein.

In due course the enterprise built and operated one phase of an apartment complex known as “Tanglewood Terrace” near the City of Pineville, Louisiana. Due to poor market conditions, insufficient income was generated to meet expenses and the result thereof was a substantial tax shelter to the partners who were able to deduct their respective share of business expense, operating loss, and depreciation. Six years later the apartments were renting well, however, due to the structure’s age certain improvements were required. According to defendant Lovell, the tax benefits are close to being exhausted and the partnership will begin to show an income, thereby terminating the tax shelter. The project had reached what Lovell referred to as the “cross-over point”, and consequently he desired to restructure the partnership.

In September of 1980, Mr. Lovell met with Mr. Bossier concerning the restructuring of the partnership by admission of new partners and capital. The proposal was rejected. His restructuring plans having failed, Mr. Lovell felt at liberty'to dispose of the partnership property. Accordingly, he entered into an agreement with a syndicate he had organized from the investors who proposed to buy into the partnership. On September 26, 1980, an “Agreement for Sale” was signed between said parties with a purchase price fixed at $1,780,000 — an amount representative of the true value according to defendant Lovell. The limited partners opposed the sale, maintaining that the purchasers, Q-L Investments, Inc. and Quinn-L Investments, Inc. are wholly owned by Lovell, and that the sale was to his personal advantage and allowed him to recoup loans advanced.

In October of 1980, a meeting was held by the commendam partners, without notice to the general partners, whereat the general partners were purportedly removed and the limited partners withdrew their power of attorney to sell real estate of the partnership. Thereafter, on November 11,1980, another meeting was held, again without notice to the general partners, and the articles were allegedly further amended to prohibit the sale of property belonging to the partnership without the approval of the commendam partners.

On December 31, 1980, the partners in commendam filed suit alleging that the general partners had arranged to sell the partnership assets in violation of both the partnership agreement as amended, and fiduciary obligations, and sought injunctive relief prohibiting the sale. A temporary restraining order was obtained. The general partners responded with an Exception of No Cause of Action and a Motion to Dissolve the Temporary Restraining Order wherein damages for wrongful issuance were sought. Said pleadings alleged insufficient facts to justify injunctive relief and lack of a showing of irreparable harm. Plaintiffs then amended their Petition, alleging fraud on the part of the general partners, to which amendment the defendants filed a Motion to Strike such allegations of fraud.

All matters were consolidated for trial upon hearing of the Rule for Preliminary Injunction. The trial court found that the general partners’ decision to sell the apartment project, which was the only asset of the partnership, violated a fiduciary duty owed the commendam partners and further violated the partnership agreement. Additionally, the trial court held that no demonstration of irreparable harm was necessary for the issuance of either the Temporary Restraining Order or the Preliminary Injunction as he found the actions plaintiffs sought to enjoin were reprobated by law.

The issues presented for consideration on appeal are whether the general partners had the legal authority to sell immovable property of the partnership without the approval of all partners and whether the grant of injunctive relief was proper.

The trial judge, in his well reasoned opinion, noted that the sole purpose of the partnership was to build and operate an apartment complex in Pineville. (Article 3 of the Partnership Agreement). He further recognized that Article 29 provided that the general partners may not do any act which would make it impossible to carry on the ordinary business of the partnership without the written consent of all partners. Additionally, Article 7 commends that the partnership shall not engage in any other business without the consent of all partners. Nonetheless, S. Mark Lovell, in his capacity as general partner, entered into a purchase agreement to sell the apartments to a corporation owned by himself, apparently relying upon Article 22(a)(i) which permits general partners the authority to sell or otherwise convey all or any portion of the partnership property. The trial judge noted that the aforementioned article created an ambiguity in the agreement inasmuch as it allows the general partners absolute authority to sell all partnership property notwithstanding that such would make it impossible to carry on the business of the partnership. He resolved the conflict by construing Article 22 as tempered by Articles 3, 7, and 29; a construction which would lead to no absurd consequences. Consequently, the action of defendants was not only a breach of fiduciary but also contractual duties. We agree and incorporate herein the following portions of the trial judge’s opinion:

“It goes without saying that the relation among partners is fiduciary in character and imposes on the members of the firm the obligation of upmost [sic] good faith in their dealings with one another with respect to partnership affairs, of acting for the common benefit of all partners in all transactions relating to the firm business; and of refraining from taking any advantage of one another by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. Henley v. Haynes, 376 So.2d 1030 (La.App. 1st Cir. 1979), writ denied, 377 So.2d 843; W. A. McMichael Construction Co. v. D. & W. Properties, Inc., 356 So.2d 1115 (La.App.2d Cir. 1978), writ denied, 359 So.2d 198 (La.); See also: LRS 9:3801(2); Comment, Symposium: A Survey of Louisiana Law of Partnerships; Part III, Rights and Obligations of Partners, 45 Tul.L.Rev. 367, 378-381.

Even with the deletion of those portions of paragraph 29 giving the in commedam [sic] partners a “veto” of the sale of partnership immovables, the actions of the general partners, in attempting the sale in the manner in which they had breached the partnership agreement. Paragraph one of Article 29 states that “(t)he General Partners may not, without the written consent of all of the Partners, do any act ... which would make it impossible to carry on the ordinary business of the Partnership...”

Articles 3, 7, and 22 make it clear that the only purpose of Quinn-L-1974 was to perate [sic] the Tanglewood Apartment complex. With these restrictions, it becomes patently obvious that by selling the apartment complex, the partnership could not possibly carry out its stated purpose. Furthermore, the clear intent of the general partners was to squeeze out the plaintiff partners. While the factual situations are not exactly analagous, the reasoning behind the Noe v. Roussel decision applies here. “. .. (A)n agent who acquires his principal’s property, or one who otherwise acts in a fiduciary capacity, bears the burden of establishing that the transaction was an arm’s length affair. This means that the agent or fiduciary must handle the matter as though it were his own affair. It also means the agent or fiduciary may not take even the slightest advantage, but must zealously, diligently and honestly guard and champion the rights of his principal against all other persons whomsoever, and is bound not to act in antagonism, opposition or conflict with the interest of the principal to even the slightest extent." 310 So.2d 806, 818 (La.1975).

It appears elementary that an agent, acting in that capacity, who purports to sell his principal’s property to another entity organized and controlled by himself, especially where his principals are not specifically advised of the proposed sale and/or all the pertinent details, has an extraordinary burden of proving such a transaction was done at arms length and for the benefit of his principal. Defendants have failed to meet that burden. Any transaction that was a clear benefit to the in commendam partners and to the partnership entity was certainly one which could and should have been conducted with the full and informed knowledge and consent of all interested partners. This court has little more than the bare assertions of Mr. Lovell that his actions were in the best interest of the partnership and the limited partners, and this assertion is one hotly contested by those limited partners. Any “secret agreements” or “subsequent verbal understandings”, regardless of how the parties choose to characterize them, aside, the written agreement does not give the general partner carte blanche to deal with the partnership assets in any manner he so chooses. There were limits to his authority, and he clearly transcended those limits in attempting to sell the partnership assets without full consultation and consent of the in commendam partners, since to do so would effectively end the partnership. The loss of the subject of the partnership (whether by destruction or sale seems irrelevant) dissolves the contract of partnership. LSA-C.C. Articles 2876(2), 2879; Claiborne v. Their Creditors, 18 La. 501 (1841).

Article 3(b) permits the Partnership to sell “such property and the improvements built thereon” but the general partners are specifically prohibited from doing “any act ... which would make it impossible to carry on the ordinary business of the Partnership ...” Article 29. This court finds it somewhat difficult to invision how “Quinn-L Corporation-1974” would continue .. . “to hold, improve, maintain, operate and lease” something it would no longer own, and Article 7 expressly prohibits engaging in any other business without the prior consent of all of the Partners.

Article 22(i) can be read to create a patent ambiguity on the face of the agreement because it expressly provides that the general partners have “the right to sell ... all or any portion of the property" yet the absolute authority to sell all of the partnership assets would give the general partners the absolute authority to end the partnership and to make it impossible to carry on the ordinary business of the partnership. Both propositions cannot stand in the same agreement. The intent of the parties is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences. LSA-C.C. Article 1945(3); Makofsky v. Cunningham, 576 F.2d 1223 (C.A. 5 La., 1978); Ainsworth v. Association Life Insurance Co., 325 So.2d 708 (La.App. 4th Cir., 1976) cert. den. 328 So.2d 105 (La.). It is only where the agreement is unclear, ambiguous or will lead to absurd consequences that a court should go beyond the written agreement to determine the true intention of the parties. Bohm v. CIT Financial Services, Inc., 348 So.2d 132 (La.App. 1st Cir., 1977) writ denied, 350 So.2d 673 (La.).

The restrictions mentioned in Article 22, i.e., Article 28, should be considered as a error and that Article 29 was intended. In that event, the authority granted in Article 22 must be tempered with the proviso that no action by the general partner that would make it impossible to carry on the ordinary business of the partnership, without the express approval of all of the partners, is legal. The agreement, after all, is the law as between the parties, LSA-C.C. Article 1901, unless contrary to law or public morals. Wilson v. Southern Bell Tele. & Tel. Co., 194 So.2d 739 (La.App. 1st Cir., 1967).

Therefore, the partnership agreement cannot be interpreted so as to permit the sale of all of the partnership assets without the express consent of all of the partners notwithstanding the deletion of that portion of Article 29 which had previously required such consent. This is true whether or not a sale is in the best interest of the partnership entity and the individual partners. This court makes no finding one way or the other on that issue but only finds that the manner of the sale violated the fiduciary duty owed by the general partners to the limited partners.

A related issue is the authority of the limited partners to take the actions that they have.

A partnership is a separate legal entity, distinct from the persons comprising it, La-Coste v. C. and C. Contractors, 328 So.2d 802 (La.App. 1st Cir., 1976), and the funds and property of the partnership are owned by the partnership entity, State v. Morales, 256 La. 940, 240 So.2d 714 (1970). (The Civil Code Articles on Partnership were amended effective January 1, 1981, and are therefore inapplicable, per se, to this dispute. However, where the new versions do not change the law they will be used for the sake of clarity. A partnership in commen-dam, or limited partnership, consists of one or more general partners who have the powers, rights, and obligations of partners, and one or more partners in commendam, or limited partners. LSA-C.C. Articles 2828, 2840 (new Article 2837). The limited partner must contribute to the partnership money, things or the performance of non-managerial services, LSA-C.C. Articles 2841, 2842 (new Article 2840), but a partner in commendam does not have the authority of a general partner to bind the partnership, to participate in the management or administration of the partnership, or to conduct any business with third parties on behalf of the partnership. LSA-C.C. Articles 2844-2848; Ray’s Appliance & Air Conditioning Services, Inc. v. K. & D. Enterprises, Inc., 350 So.2d 228 (La.App. 3rd Cir., 1977), writ denied, 352 So.2d 1032 (La.); new Article 2843. A violation of this rule subjects the limited partner to the same liabilities as a general partner. LSA-C.C. Articles 2844, 2849(2); new Article 2844.

First, Article 22(d) of the partnership contract contains an “irrevocable mandate” in favor of the general partners. Petitioners question, in brief, the validity of any “mandate” to sell partnership immovables. I do not view these objections as having any merit but because I believe that the contract granted no unilateral authority to the general partners to conduct such a sale (for reasons other than on points of agency law) they need not be considered in detail. In any event, whatever “mandate” that does exist is certainly not irrevocable. Civil Code Article 3028 provides in pertinent part:

“Except in the cases of irrevocable powers of attorney, as described in the preceding article, the principal may revoke his power of attorney, whenever he thinks proper, ...”

To constitute a mandate of the class that is coupled with an interest sufficient to make the mandate irrevocable, the interest of the agent in the subject matter of the agency must be such as to give the agent the right to deal with the res in his own name. LSA-C.C. Article 3027; Succession of Zatarain, 138 So.2d 163, 166 (La.App. 1st Cir., 1962); Renshaw v. His Creditors, 40 La.Ann. 37, 3 So. 403 (1888). The Court used the term “procurator in rem suam” which Black’s Law Dictionary, 5th Ed., p. 1087, defines as an attorney in his own affair, or with reference to his own property. This is hardly the situation here since defendants act only in a representative capacity to property owned by the partnership entity and not of any partner. Therefore, the “irrevocaable [sic] mandate” contained in Article 22(d) is of no effect.

Second, although the limited partner’s role in the business is very circumscribed, at best, there are actions he may take. The comments under amended Article 2843 state:

“This article continues the basic principle that a partner in commendam may not exercise the same rights and privileges available to a general partner. His role is that of a passive contributor whose powers are generally restricted to the protection of his interest.”

This Article does not present a change in our partnership law but is derived from Civil Code Articles 2844 and 2849. Furthermore, Articles 2845 and 2848, as amended, detail the actions a limited partner may engage in without subjecting himself to general partner liability. Although derived from section 303 of the Uniform Limited Partnership Act, these provisions appear to be in line with Louisiana jurisprudence on the subject, (e.g. Ulman v. Briggs, 32 La. Ann. 655 (1880)). Specifically, the new Article 2846 would permit a limited partner to advise and consult with a general partner on business matters of the partnership and approve or disapprove an amendment to the contract of partnership while new Article 2847 would permit a vote by a limited partner for the continuation, dissolution, or liquidation of the partnership, the alienation, lease, or encumbrance of all, or substantially all, the assets of the partnership other than in its ordinary course of business; the admission, explusion or withdrawal of partners; or the selection or removal of managing partners. Therefore, petitioners were well within their authority to block the sale and vote to remove defendants from their managerial status.”

The issue of the validity of the limited partners’ removal vote of the general partners was not argued at the trial level, nor has it been argued on appeal, thus it is considered abandoned.

The question remains whether the grant of injunctive relief was proper. The trial judge, upon considering the verified petition of plaintiffs, was satisfied that immediate and irreparable injury, loss and damage will result to the plaintiffs by virtue of the threatened sale of immovable property owned by the partnership, and accordingly entered a temporary restraining order against defendants enjoining them from selling the property in dispute. However, in his written Reasons for Judgment the trial judge reasoned that no showing of irreparable harm was necessary as the contract was the law between the parties and the action to be enjoined was reprobated by law. He reached this result by relying upon cases to the effect that a showing of irreparable injury is a prerequisite to in-junctive relief only where the actions to be enjoined are lawful. Salter v. B.W.S. Corporation, Inc., 290 So.2d 821 (La.1974); Bardwell v. Parish Council, 44 So.2d 107 (La.1949); Caffery v. Powell, 320 So.2d 223 (La.App. 3rd Cir. 1975); Whalen v. Brinkmann, 258 So.2d 145 (La.App. 1st Cir. 1972); Wachsen v. Commission Council of Lake Charles, 162 La. 823, 111 So. 177 (1926); Connell v. Commission Council of City of Baton Rouge, 153 La. 788, 96 So. 657 (1923). Although the above cited cases dealt with injunctive relief, the trial court found no distinction between the temporary restraining order and preliminary injunction insofar as issuance to prevent a party from a course of action reprobated by law. Alternatively, the trial judge opined that damages for wrongful issuance were not warranted.

We agree with the trial judge that, if a plaintiff can show that a defendant’s conduct, interfering with the right of property ownership, is clearly forbidden by law, as was shown herein by the partnership contract between the parties, then plaintiff is entitled to a temporary restraining order enjoining the illegal acts of defendant without proof of irreparable injury.

For the above and foregoing reasons the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

LABORDE, and DOMENGEAUX, JJ„ concur in the result.

      . Originally this article expressly prohibited the general partner’s sale or exchange of real estate without the consent of all partners, however, this requirement was deleted upon entry of the limited partners. The limited partners later attempted to reinstate this limitation on the general partners’ powers at the aforementioned meeting of November 11, 1980.


author: CULPEPPER, Judge. FORET, Judge,

text:
    William E. RYALS, Sr., et al., Individually and as Administrator of the Estate of the Minor, William E. Ryals, Jr., Plaintiffs & Appellants, v. HOME INSURANCE COMPANY, et al., Defendants & Appellees.
    No. 8578.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Rehearings Denied March 23, 1982.

      Davis & Simmons, James L. Davis and Kenneth N. Simmons, Many, for plaintiffs & appellants.
    Cook, Yancey, King & Galloway, Herschel R. Richard, Jr., Shreveport, for defendants & appellees.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

This is a personal injury suit filed by the parents of a child, Eddie Ryals, who was injured when he was caught in the pumping unit of an oil well owned and operated by defendant’s insured, Alpha Oil & Gas Company, Inc. (hereinafter Alpha). Suit was filed September 16, 1980 against Home Insurance Company, Alpha’s liability insurer, and two individual employees of Alpha, for medical expenses, the child’s personal damages, and damages for the mental and emotional distress of the parents. The trial court sustained defendants’ exception of no cause of action to the parents’ claim for damages for their mental and emotional distress. After a lengthy trial, the jury returned a verdict in favor of the plaintiffs awarding $100,000 for the child’s damages and $58,000 in medical expenses. From the judgment rendered in accordance with the verdict, plaintiffs appeal. Defendant Home Insurance Company answered the appeal.

Numerous issues are urged for our consideration. Plaintiffs’ substantial contentions are as follows:

1) That the parents’ claim for their mental and emotional distress suffered as a result of their child’s injuries should be allowed;
2) That the following conduct by the trial judge amounted to a comment on the evidence and/or was an expression of his opinion to the jury:
(a) Exclusion of photographs of the child sought to be introduced as evidence of his pain and suffering;
(b) Omission of an interrogatory to the jury concerning the issue of attractive nuisance;
(c) The judge’s offer to submit to the jury a written copy of jury instructions;
(d) The allowance of a recess between the charge to the jury and the submission of the case to the jury, for the purpose of correcting a verdict interrogatory;
(e) The inadequacy of jury instructions concerning the effect of the parents’ negligence on the child’s recovery and the omission of a charge as to the credit due the insurance company against any award of medical expenses;
3) That the jury erred in its finding that the individual defendants, E. B. McCaslin and Cecil Sepulvado, were not negligent;
4) That the jury’s award of $100,000 for the child’s damages was so low as to constitute an abuse of the jury’s discretion;
5) That the trial court erred in denying plaintiffs’ motion for an additur or, in the alternative, a new trial;
6) That the trial court erred in excluding testimony, affidavits and statements by the jurors sought to be introduced on the motion for a new trial for the purpose of impeaching the jury verdict;
7) That the conduct of the trial court constituted deprivation of plaintiffs’ right to due process of law and equal protection of the laws.

Defendant, Home Insurance Company, contends the jury erred in finding that Alpha was negligent, that there was no negligence on the part of Eddie’s parents, Mr. and Mrs. Ryals, and also in finding that Eddie himself was not contributorily negligent.

FACTS

The facts are these. Alpha Oil & Gas Company owns and operates an oil well located in Block 19 of the town of Converse, Louisiana. Defendant McCaslin is the superintendent in charge of Alpha’s operations in the Converse area. The actual production by the well in question is attended to by defendant Sepulvado, a pumper employed by Alpha.

The well is a “stripper”, producing approximately one barrel of oil per week. Because the well runs out of oil after pumping a certain length of time, it is operated on an automatic time clock, set so that the pump will begin pumping at certain hours during the day, pump for a certain length of time, and then turn off. The schedule is determined by the pumper responsible for the operation and gauging of the well. This well is located behind the backyard of the mobile home in which Eddie Ryals and his parents reside, also in Block 19 in Converse, only a little over 200 feet away from the home. There was no fence around the well, no warning sign or other devices to indicate that the pump was operated by an automatic time clock and subject to being activated automatically and without warning at a given moment.

On September 24, 1979, Eddie, 8 years old at the time, and his sister, Angela, age 10 at the time, went into the wooded, overgrown area behind their house in search of birds. In the course of their search, they wandered into the area around the pumping unit. Eddie climbed onto the pumping unit, which was shortly thereafter activated by the time clock. His lower body was caught in the mechanism and he was thrown around and around, receiving severe injuries.

His sister pulled him out of the pump. He was rushed first to the Converse hospital and then to Schumpert’s Medical Center in Shreveport, where he remained hospitalized until November 12, 1979. He suffered serious, life-threatening complications and permanent disability.

CLAIM FOR MENTAL AND EMOTIONAL DISTRESS

The first issue addressed is the plaintiffs’ contention that the trial court erred in sustaining the defendants’ exception of no cause of action to the claims of William E. Ryals, Sr. and Betty Ryals for damages for their mental and emotional distress as a result of the injuries to their child. The rule has long been established in Louisiana that there can be no recovery for emotional distress or mental suffering resulting from personal injuries sustained by another person. Black v. Carrollton Railroad, 10 La.Ann. 33 (La.1855); Sperier v. Ott, 116 La. 1087, 41 So. 323 (La.1906). Despite the criticism of the long line of jurisprudence echoing this rule, [See Stone, Ferdinand F., La.Civ. Law Treatise Tort Doctrine, Vol. 12, Secs. 170-171 (1977) ], the Louisiana Supreme Court’s consistent denial of writ applications in cases holding such mental anguish and suffering to be non-compensable necessitates our conclusion that this rule of law is still controlling. Wascom v. American Indemnity Corporation, 348 So.2d 128 (La.App. 1st Cir. 1977), writ denied 350 So.2d 1224 (La.1977); Steele v. St. Paul Fire & Marine Insurance Company, 374 So.2d 658 (La.1979); Parker v. St. Paul Fire & Marine Insurance Company, 338 So.2d 700 (La.1976). See also Brauninger v. Ducote, 381 So.2d 1246 (La.App. 4th Cir. 1980); Bertrand v. State Farm Fire & Casualty Company, 333 So.2d 322 (La.App. 3rd Cir. 1976). Any departure therefrom must come from the Supreme Court. Therefore, we affirm the trial court’s judgment denying these plaintiffs recovery for mental and emotional distress as a result of their son’s accident and injuries.

CONDUCT OF THE TRIAL JUDGE

We turn now to a consideration of the plaintiffs’ assignments of error dealing with rulings, actions and omissions by the trial judge, which they contend either prejudiced or confused the jury.

Plaintiffs attempted to introduce certain photographs of Eddie for the purpose of proving the child’s pain and suffering. The trial court refused to allow introduction of the pictures on the grounds that they were inflammatory and the prejudicial effect outweighed any relevancy they had, since they would have been cumulative to other pictures already in evidence. Plaintiffs argue that the photographs were necessary to show the full extent of Eddie’s injuries and pain and suffering, and that their exclusion contributed to the jury’s rendering an inadequate award.

This is an area in which the trial judge is vested with discretion in the determination of the weight to be accorded the probative value of the evidence sought to be introduced. State v. Redwine, 337 So.2d 1041 (La.1976). We find no abuse of that discretion in the exclusion of these photographs. Other photographs taken of the child during his hospitalization had already been admitted into evidence, thus greatly diminishing the probative value of the pictures in question.

The plaintiffs further claim it was error to omit an interrogatory to the jury on the issue of whether or not the well was an attractive nuisance. They contend that it constituted a comment on the evidence, inasmuch as it indicated to the jury the judge’s opinion that it was not an attractive nuisance.

LSA-C.C.P. Article 1811 authorizes the use of special verdicts and further provides that:

“If the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue omitted unless, before the jury retires, he demands its submission to the jury.”

A careful review of the record reveals that counsel for both parties had an opportunity to review the special questions to the jury and make objections. It further reveals that none was made by counsel for plaintiffs. Thus, they are deemed to have waived trial by jury on the issue of attractive nuisance. The jury found as a fact that the pumping jack created an unreasonable risk of harm to Eddie Ryals, and that Alpha was guilty of negligence which proximately caused his injuries. In light of the verdict in plaintiffs’ favor assessing liability against the defendant-insurer, we cannot say that the omission influenced the jury so adversely to the plaintiffs as to warrant reversal.

We also find no merit to the plaintiffs’ contentions regarding errors in the trial court’s charge to the jury. The claim that the recess taken at lunch time, for the purpose of making a correction in the special verdict, confused the jury is rejected as insufficient for reversal, inasmuch as counsel for plaintiffs made no objection to the procedure. It is also noted that the provisions on procedure for jury trials in our Code of Civil Procedure neither authorize nor prohibit such a practice. There was complete instruction on the law applicable to the case before the recess was taken, and a repetition of general instructions upon return to the courtroom. The jury was informed that they could request further instruction if necessary, but did not do so. We do not hold that such a practice could not, under some circumstances, create such confusion that reversal might be warranted. However, in the instant case, this contention is without merit.

Likewise, the contention that the jury was prejudiced against the plaintiffs because of their counsel’s objection to the trial judge’s attempt to give to the jury a copy of the charges is meritless, inasmuch as both counsel pointed out the impropriety of such an action. In point of fact, the record shows that defense counsel was first to point it out.

As to the plaintiffs’ claims regarding the inadequacy of certain charges to the jury, and the omission of the charge dealing with the insurer’s right to reimbursement of approximately $44,000 of medical expenses already paid by it, we find in the record no objection by counsel to the omissions, as required by LSA-C.C.P. Article 1793 which reads as follows:

“Art. 1793. Instruction to jury; objections
At the close of the evidence or at an earlier time during the trial as the court reasonably directs, a party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests pri- or to their arguments to the jury.
A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

See also Kolmaister v. Connecticut General Life Insurance Company, 370 So.2d 630 (La.App. 4th Cir. 1979), writ denied 373 So.2d 531 (La.1979); Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3rd Cir. 1975), writ denied 321 So.2d 363 (La.1975); Williams v. City of Alexandria, 376 So.2d 367 (La.App. 3rd Cir. 1979), writ denied 378 So.2d 432 (La.1979). This assignment of error is also rejected.

NEGLIGENCE OF THE INDIVIDUAL DEFENDANTS

The jury found that neither of the individual defendants, E. B. McCaslin and Cecil Sepulvado, was guilty of negligence in performing their duties as employees of Alpha. Plaintiffs urge that this finding should be set aside as being contrary to the evidence adduced at trial. As this is a factual finding by the jury, it cannot be reversed on appeal unless it is shown to be clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The criteria for imposing individual liability upon the agent, supervisor or employee of a corporate employer is set out in Canter v. Koehring Company, 283 So.2d 716 (La.1973), at page 721:

“1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
2. This duty is delegated by the principal or employer to the defendant.
3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. * * *
4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages.”

The plaintiffs failed in the present case to bear the burden of proving by a preponderance of the evidence that these defendants had the authority and had been delegated the duty to oversee the safety aspects of the well in question. As to defendant Sepulvado, the only evidence adduced to show his employment duties, as pumper in charge of the well, was his own testimony that he was responsible only for actually operating the well, for seeing that the pump was operating properly, and for gauging the well to determine how much oil was being produced.

Defendant McCaslin is the superintendent of operations running Alpha’s Converse office. He was in charge of production, drilling and maintenance. There was no evidence to show who, if anyone, within the hierarchy of Alpha’s organization had actual responsibility for the safety aspects of the operation. There were apparently two positions in the company with authority over Mr. McCaslin’s operational activities— his immediate superior and the owner-president of the company. However, there was nothing to show that either of these persons had ever delegated to this defendant, or to anyone, the duties of overseeing the safety aspects of operations. The jury’s conclusion that these defendants breached no duty toward Eddie Ryals is further strengthened by the unrebutted testimony of defendant McCaslin that he had no authority to make any expenditures on behalf of Alpha other than those necessary for routine production and maintenance. We do not find the jury clearly wrong in its exculpation of these defendants.

MISCONDUCT OF THE JURY — MOTION FOR NEW TRIAL

At the hearing on the plaintiffs’ motion for a new trial, they attempted to introduce evidence of jury misconduct, claiming that the members of the jury considered facts not in evidence which resulted in a compromise verdict contrary to the law and the evidence. The proffered evidence was in the form of affidavits, statements and testimony of the jurors themselves as to their deliberations in the jury room, tending to show that some felt the parents were negligent. The trial judge rejected both the evidence and the plaintiffs’ motion for a new trial.

The plaintiffs now urge on appeal that the alleged conduct of the jury constitutes error sufficient to require reversal of the verdict by this court, and that the trial judge’s exclusion of the evidence and consequent denial of a new trial is reversible error.

The contention is that the statements by the jurors show that they considered facts not in evidence, and are admissible to prove that the jury members gave incorrect answers on voir dire examination. Plaintiffs also argue that the jury violated the oath to render an impartial verdict according to the law and the evidence. They rely on this court’s decision in Rains v. Diamond M. Company, 396 So.2d 306 (La.App. 3rd Cir. 1981), wherein we recognized the distinction between the impeaching of the jury verdict and attempting to ascertain whether the jurors responded truthfully on voir dire. We there held the testimony of jurors should have been admitted for the latter purpose, while recognizing the general rule prohibiting the admissibility of statements of jurors to impeach their own verdict. See Renz v. Texas & Pacific Railway Company, 138 So.2d 114 (La.App. 3rd Cir. 1962); Lachney v. Jones, 373 So.2d 595 (La.App. 3rd Cir. 1979), writ denied 376 So.2d 959 (La.1979); Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3rd Cir. 1977), writ denied 354 So.2d 1050 (La.1978).

LSA-C.C.P. Article 1814 provides:

“Art. 1814. New. trial on showing of misconduct by jury
A new trial shall be granted if it be proved that the jury was bribed or has behaved improperly so that impartial justice has not been done.”

We recognize that, as stated in Blandino v. Brown Erection Company, Inc., 341 So.2d 577, 580 (La.App. 2d Cir. 1977):

“Improper behavior by a juror is not defined but must be determined by the facts and circumstances of the particular case.”

The behavior alleged here to be improper does not involve the attempt to ascertain the objective truthfulness of jurors’ answers on voir dire so much as it does the use of the proffered evidence to impeach the verdict of this jury.

The public policy reason behind the rule against jurors being permitted to impeach their verdict was stated in Renz v. Texas & Pacific Railway Company, supra:

“The rule is founded on public policy, and is for the purpose of preventing litigants or the public from invading the privacy of the jury room, either during the deliberations of the jury or after-wards. It is to prevent over-zealous litigants and a curious public from prying into deliberations which are intended to be, and should be, private, frank, and free discussions of the questions under consideration. Further, if after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would open the door for tampering with jurors and would place it in the power of a dissatis'fied or corrupt juror to destroy a verdict to which he had deliberately given his assent under sanction of oath.
“Testimony of the jurors to impeach their own verdict is not excluded because it is irrelevant to the matter in issue, but because experience has shown that it is more likely to prevent them .to promote the discovery of the truth. Hence, the affidavit of a juror cannot be admitted to show anything relating to what passed in the jury room during the investigation of the cause, or the effect of a colloquy between the court and a juror, or the arguments made to a juror by a fellow juryman.”

Were we to accept the plaintiffs’ argument, any party who feels the jury verdict should have been different could raise the claim that the jury members were untruthful in stating that they could and would render an impartial judgment.

For these reasons, we reject plaintiffs’ contention of jury misconduct and affirm the trial court’s exclusion of the statements and testimony of the jurors at the hearing on the motion for a new trial. We thus find that the trial judge’s denial of a new trial on the grounds of jury misconduct was correct.

QUANTUM

The plaintiffs’ contentions with respect to the issue of quantum revolve around the claim of jury misconduct in considering the facts not in evidence, which consideration resulted in a patently inadequate recovery granted to the child. They argue that because some of the jurors felt that Eddie’s parents were negligent, the amount of the award was compromised and reduced to a figure so inadequate as to constitute an abuse of the much discretion afforded the trial court on the measure of damages under LSA-C.C. Article 1934. For this reason, a motion for additur or new trial was filed in the lower court, pursuant to LSA-C.C.P. Article 1813 which reads as follows:

“Art. 1813. Remittitur or additur as alternative to new trial; reformation of verdict
If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it may indicate to the party or his attorney within what time he may enter a remittitur or additur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be, as an alternative to a new trial, and is to be entered only if the amount of the excess or inadequacy of the verdict or judgment can be separately and fairly ascertained. If a remittitur or additur is entered, then the court shall reform the jury verdict or judgment in accordance therewith.”

As indicated above, the trial court rejected the plaintiffs’ motion, both for additur and for new trial. Plaintiffs thus claim that both judge and jury abused their discretion with respect to the issue of quantum. We agree.

We recognize that, under Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977);

“... before a Court of Appeal 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, (citations omitted) 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, (citations omitted.)”

The injuries and illness suffered by this young child were varied and extremely severe. He sustained open fractures of both the femur and the tibia of his right leg, requiring that they be set with pins and external fixation devices. A bone graft was required to be performed on the tibia because it failed to heal. The blood supply to the left leg was cut off for several hours, as a result of damage to the artery and the veins, which required immediate grafting to repair the damage. This leg subsequently required several fasciotomies, splitting of the skin on the leg to relieve the pressure from inner swelling. Both legs were kept in casts for four months after the accident. He was in a body cast for two months after the bone graft was performed on the tibia. His right leg remained in one kind of cast or another until over a year after the accident, and he was still wearing a short leg brace on it at the time of trial, fifteen months after the accident. The prognosis is that this leg will ultimately be brace-free, but there will be restriction of the ankle motion, and growth is probably stunted. A turning out of the ankle, which is a result of the damage to the bones’ growth centers, has already been noted, and it is more than likely that corrective surgery will be required. There was conflicting testimony as to the extent of permanent nerve damage in the left leg. One expert testified that he found a complete conduction block, meaning that there can be no function of the muscle involved in lifting the foot and toes. Defendants’ expert testified that he noted a slight activity in this muscle. However, improvement is unlikely since it had been over a year since the accident. He will therefore always have to wear a brace on his left leg, or undergo further surgery to fuse the ankle.

Eddie also suffered a ruptured bladder. His kidneys failed to function, requiring weeks of peritoneal dialysis. He contracted several infections, including Salamonella in his blood stream.

Of course, he is scarred from the waist down. He missed an entire year of school and is no longer able to participate normally in athletic activities, as he did before the accident.

This child was hospitalized six times for a total of 90 days, underwent ten different surgical procedures, and incurred medical bills totaling $58,000. His doctors testified that he suffered such extreme physical pain that the strongest of medications would not relieve it. A psychologist testified that, at the time of trial, Eddie was suffering from mental and emotional problems connected with the accident.

Eddie is permanently disabled from performing any work requiring heavy lifting, bending, stooping, twisting or climbing. His IQ of 85 places him in the category of “Dull normal”, a person who would in the normal course of things be expected to earn his living by performing heavy manual labor. The only type of work now suitable for him would be of a sedentary or semi-sedentary nature.

The great weight of expert testimony was that Eddie will more than likely be relegated to a job with lower compensation as a handicapped person than he would have been able to secure had he not been disabled. Defendants’ vocational expert testified that he felt, from studying the testing done of Eddie’s mental ability, Eddie was trainable for certain jobs which do pay higher than the minimum wage. However, he also testified that the great majority of the jobs in the area around Eddie’s home involve manual labor and that Eddie’s future employability is greatly decreased as a result of his handicap. Most of the jobs he felt Eddie could perform despite his handicap, and receive higher than the minimum wage, require training and math and reading skills. It is also obvious that Eddie has very serious academic problems, inasmuch as he should have been in the fourth grade at the time of trial, but he was performing at a first grade level at best.

It is apparent that the jury failed to consider the element of lost wages in their award of $100,000 to Eddie. The evidence clearly shows that as a result of this accident, he will be capable of earning a significantly lesser amount than he would have, and he should be compensated therefor. Based on the testimony of defendants’ own expert, John Trapani, the lowest amount which the jury could reasonably have awarded as compensation for Eddie’s loss of future earnings is $88,173.60.

Furthermore, in light of the child’s extreme physical pain and suffering, the depression, mental and emotional problems resulting from the accident, including embarrassment because of the extensive scarring, the fact that he missed an entire year of school, and finally the fact of his disability from normal manual labor and athletic activities, the very lowest award for general damages within the discretion of this jury was $200,000.

We affirm the award of medical expenses in the amount of $58,000.

CONSTITUTIONAL ARGUMENT

We find the plaintiffs’ final contention of error, that the plaintiffs were deprived of their constitutional rights to due process of law and equal protection of the laws, to be without merit. These issues were neither briefed, argued nor considered below, and therefore cannot be considered here. See State v. Madere, 352 So.2d 666 (La.1977); Johnson v. Welsh, 334 So.2d 395 (La.1976); Barron v. Allstate Insurance Company, 358 So.2d 663 (La.App. 1st Cir. 1978).

DEFENDANTS’ CONTENTIONS OF ERROR

The first contention by the defendant is that the jury erred in its finding that William E. Ryals, Sr. and Betty Ann Ryals were not guilty of negligence.

We are well aware that, under Louisiana law, parents are required to properly supervise and protect their young children. Guidry v. Hamlin, 188 So. 662 (Orl.La.App. 1939); Pampas v. Cambridge Mutual Fire Insurance Company, 169 So.2d 200 (La.App. 4th Cir. 1964); Carter v. Salter, 351 So.2d 312 (La.App. 3rd Cir. 1977). However, all of the above cases cited to us by the defendant involved extremely young children, none of whom had even reached the age of three. Defendants argue that the reasoning in Carter, supra, wherein the court concluded that the child’s mother was negligent in failing to take precautions against an unreasonable danger of which she had knowledge, should be applicable here.

We do not find the jury’s verdict clearly wrong in holding the parents free of negligence. A parent’s duty of supervision is measured by the standard of what a reasonable parent would do under the same or similar circumstances. The parents here admitted they knew of the existence of the well, but it is not unreasonable to accept their testimony that they did not know it was controlled by an automatic time clock, and thus were not aware of the full extent of the danger involved should their children go there to play. Furthermore, they testified that they had not known their children to play in that area.

Nor do we find manifest error in the conclusion that Eddie was not contribu-torily negligent. We do not feel that the danger involved in playing on the pumping jack when it was not in operation, considering the absence of a warning regarding the automatic character of its operation, was proven, under the facts and circumstances of this case, to be below the standard expected of someone of Eddie’s age, intelligence and experience. The burden of proof of contributory negligence lies with the defendants. They failed to show that 8-year-old Eddie was indeed aware of the exact danger that the machine might be activated and he might get caught in it.

DECREE

For the reasons assigned, the judgment appealed is amended to increase the award to William E. Ryals, Sr., as administrator of the estate of William E. Ryals, Jr., from the sum of $100,000 to the sum of $288,173.60. In all other respects, the judgment appealed is affirmed, costs of appeal to be borne by defendants-appellees.

AMENDED AND AFFIRMED.

FORET, J., concurs and will assign written reasons.

FORET, Judge,

concurring.

I file this concurring opinion for the reason that the two expert witnesses (one for plaintiff and one for defendant) who testified as to this eight-year-old boy’s future loss of earnings have left me far from convinced that their testimony is anything but rank speculation and conjecture. To illustrate the point, plaintiff’s expert testified that the boy (who has an I.Q. of 85) would sustain over $200,000 loss of future earnings, while the defendant’s expert testified that he would lose $88,000.

I concur in the decree, however, because I am of the opinion that the amount of $288,-000 as general damages is fully justified.