author: FORET, Judge.

text:
    Carolyn Faye DICKSON, Individually and as the Administratrix of the Estate of her Minor Child, Calvin James Blanco, Plaintiff-Appellee, v. STATE FARM INSURANCE AGENCY et al. State Farm Fire & Casualty Company and Allstate Insurance Company, Defendants-Appellants.
    No. 8082.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Roy & Forrest, Alex A. Lopresto III, New Iberia, Davidson, Meaux, Sonnier & Roy, John E. McEIligott, Jr., Lafayette, for defendants-appellants.
    Joseph Koury, Lafayette, for plaintiff-ap-pellee.
    McBride & Brewster, Glynn Rozas, Lafayette, Gracella Simmons, Baton Rouge, for defendant-appellee.
    Before CULPEPPER, FORET and SWIFT, JJ.
   FORET, Judge.

This is an action ex delicto in which Carolyn Faye Dickson (Plaintiff), individually and as administratrix of the estate of her minor child, Calvin James Blanco, seeks to recover damages for personal injuries suffered by that child.

The named defendants are: Allstate Insurance Company (Allstate), whose liability is predicated on the alleged negligence of a minor child of Harold Touchet, its insured; and State Farm Fire & Casualty Company (State Farm), whose liability is predicated on the alleged negligence of a minor child of Ira Oertling, its insured.

Both of these defendants filed third party demands against the Lafayette Parish School Board (School Board) and its liability insurer, Continental Insurance Company (Continental); and Venetian Manufacturing and Sales Corporation (Venetian), a Louisiana corporation.

The School Board and Continental then filed third party demands against Venetian; Ira Oertling, individually and as administrator of the estate of his minor daughter, Donna Oertling and his liability insurer, State Farm; and Harold Touchet, individually and as administrator of the estate of his minor daughter, Caroline Touchet.

This was essentially the posture of the parties as the case went to trial before a jury. The jury returned a verdict against Allstate and State Farm, in favor of plaintiff and in favor of third party defendants, the School Board and Venetian. Allstate and State Farm bring this suspensive appeal and they present the following issues:

1. Whether the trial court committed reversible error in denying defendants’ motion for a directed verdict in the presence of the jury;

2. Whether the children of defendants’ insureds were negligent;

3. Whether the trial court erred in excluding certain evidence presented by the defendants on the grounds that it was irrelevant;

4. Whether the trial court erred in excluding certain testimony given by defendants’ expert;

5. Whether the trial court abused its discretion in informing the jury of the amounts of damage claimed by the plaintiff in her petition;

6. Whether the quantum awarded by the jury is excessive.

FACTS

This action arises out of an accident which occurred on the premises of Lafayette Elementary School in Lafayette, Louisiana, on May 9, 1977. Plaintiff’s minor son, Calvin Blanco, 14 years of age, was leaning on the sill of a window of the school auditorium talking with Caroline Touchet, Donna Oertling, both 13 years of age, and some other students who were inside the building. The Venetian blinds attached to that window fell at this time and struck young Calvin on the arm, seriously lacerating him.

Plaintiff instituted this action as a result of the accident, contending that it was caused by the negligent acts of the two minor girls, Donna and Caroline. Plaintiff alleged that Donna Oertling negligently raised the Venetian blinds without making sure it was secured and, thereafter, Caroline Touchet suddenly began pulling and yanking on the cord of the Venetian blinds, causing the blinds to fall and injure Calvin.

The defendants then filed third party demands against the School Board and Venetian alleging negligence on the part of the School Board in allowing a dangerous condition to exist on its premises when it knew, or should have known, of the unsafe or defective condition of the Venetian blinds. Further, defendants sought to hold Venetian strictly liable for producing a defective product, i. e., the blinds.

The principal and incidental actions were tried before a jury which returned a verdict finding the defendants liable to the plaintiff in the amount of $15,000.00. The jury, in addition, found no negligence on the part of the School Board and that no defective product had been manufactured by Venetian. The defendants appeal suspensively from the judgment of the trial court rendered pursuant to that verdict.

THE DIRECTED VERDICT

Counsel for defendants moved for a directed verdict at the close of plaintiff’s case. They informed the trial court that they had a “preliminary” motion to file and asked if it would like to retire the jury. The trial court declined to do so, stating that it thought it knew what the motions were and denied them after a visual inspection (apparently the motions were in writing).

Defendants argue that the trial court’s handling of the motions for directed verdict in front of the jury was prejudicial to their case and constituted an improper comment by the trial court on the facts. This contention is without merit.

We find that the conduct of the trial court was in no way prejudicial to defendants, nor did it constitute an improper comment by that court on the facts. The jury had absolutely no idea of what had transpired, and even if they did, it would be no more prejudicial than other acts of the trial court which take place in the presence of the jury such as the rulings on objections, etc.

THE ALLEGED NEGLIGENCE OF THE MINOR GIRLS

Defendants argue that there was no evidence presented by the plaintiff which suggests actionable negligence on the part of Donna Oertling or Caroline Touchet in handling the Venetian blinds, and they argue that it was error for the jury to find otherwise. We disagree.

“When there is evidence before the trier of facts which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding of the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Dof-flemyer v. Gilley, 384 So.2d 435 (La.1980).

No incident of Venetian blinds falling at the school had ever happened before this accident or since. There is evidence which indicates that Donna raised the Venetian blinds by grabbing the string and walking with it until the blinds were fully raised, at which point the blinds became stuck. Then she released the string and Caroline grabbed it and started pulling, yanking and jerking on it until it fell, causing the injury complained of.

This action went to trial some three years after the accident occurred. Donna and Caroline both appeared to be somewhat confused at the trial as to how the accident actually happened. They made statements while under examination and cross-examination which were somewhat inconsistent with earlier statements made in depositions. Thus, plaintiff was able to place some of these “prior inconsistent statements” before the jury for impeachment purposes.

Melissa Richard, another student present when the accident happened, testified for the defendants. She stated, upon examination, that Donna and Caroline were not playing with the blinds when they fell. However, she too was impeached with “pri- or inconsistent statements” made during an earlier deposition.

Plaintiff was able to elicit testimony from the girls themselves and from another student present at the time of the accident to the effect that Donna and Caroline were indeed handling the blinds when they fell.

We find that, while there is no evidence of another cause (besides the negligent conduct of the girls) for this accident, there is ample evidence that it was caused by the negligence of Donna Oertling and Caroline Touchet. Therefore, it is our determination that the record as a whole establishes that the jury’s finding of negligence in the actions of the girls as being the cause of this accident is not clearly wrong, but on the record, clearly correct.

RELEVANCY OF OTHER LATCHING MECHANISMS MANUFACTURED BY VENETIAN

The defendants brought their third party demand against Venetian, alleging that the Venetian blinds and latching mechanisms were defective in either design or manufacture or lacked adequate warning that the product was unreasonably dangerous for normal use. The defendants sought to introduce into evidence a different type of Venetian blind latching mechanism which was also manufactured by Venetian and had been used on some of the blinds at the school.

Defendants sought to introduce this evidence in an attempt to show that the latching mechanism on the blind which fell and the brackets which held it were constructed of a flimsy, light gauge metal, inferior in comparison to that of the latching mechanism used in these other blinds. The trial court excluded this evidence as being irrelevant. We agree.

The only issue before the jury on defendants’ third party demand against Venetian was whether the blinds which injured Calvin were defective and the different design of some other blinds at the school was irrelevant with respect to this issue. The jury viewed the blinds which fell, and it was their decision that these blinds were not defective.

EXCLUSION OF DEFENDANTS’ EXPERT TESTIMONY

Defendants sought to introduce the testimony of Robert Owens, who the court did accept as an expert. Owens has a bachelor of science degree in Industrial Technology. He was involved in consulting work for different firms in which he would inspect their facilities and make recommendations on how to improve them with an eye for safety. Owens considers himself an expert in the control and elimination of hazards in the workplace and in the public environment.

On traverse, it was brought out that Owens had never made any studies or surveys pertaining to the safe design and use of Venetian blinds. It was also brought out that he had never studied any applicable safety manuels or regulations on design factors pertaining to the manufacture and use of Venetian blinds.

The trial court recognized Owens as an expert in the field of industrial safety and in the detection and control of accident exposures to both the people in the industry and the public. Owens was then placed on the stand.

Defendants attempted to question Owens on what type of metals had been used in the manufacture of the latching mechanism and brackets in question, and what properties these metals possessed. Opposing party objected to this line of questioning and was sustained by the court. The court noted that Owens had made no tests on these particular objects and that he had not been qualified as an expert in the analysis of metals.

Defendants also sought to elicit testimony from Owens, over objection, as to his opinion on the inherent safety aspects of the design of the above objects and his recommendations as to how the design could have been improved to make it safer. Objections to this line of questioning were sustained by the court which noted that Owens had no expertise in the design of such objects for Venetian blinds nor had he made any studies in that area.

Defendants argue that it was error for the trial court to exclude this testimony which they sought to elicit from Owens. We disagree.

The record reflects that Owens was qualified and accepted by the court as an expert on a fairly narrow range of subjects. The above testimony would have clearly been outside of his field of expertise as the trial court correctly concluded. We find no merit in defendants’ contention.

INFORMATION GIVEN THE JURY AND QUANTUM

The trial court instructed the jury on the law applicable to this case upon conclusion of the trial. A request was made by the jury shortly thereafter for information regarding the various amounts of damages sought by plaintiff as set forth in the petition. The foreperson of the jury explained the request by stating that it was the jury’s understanding that they could award plaintiff no more than the amount prayed for in the petition. The trial court complied with this request by orally stating the amounts itemized in the petition.

Defendants argue that it was error for the trial judge to give this information to the jury and contend that it was an improper comment on the evidence as prohibited by LSA-C.C.P. Article 1792. We fail to see how the mere reading of the amounts claimed by a plaintiff as set forth in his petition can be considered a comment on the evidence.

The trial court, in instructing the jury, had informed them that under no circumstances could they award the plaintiff a greater amount than that set forth in her petition. It is obvious that after the jury had retired it realized that no information regarding those amounts had been given it and it wanted that information so that it could make an award within the limits.

Defendants next argue that the action of the trial court was prohibited by LSA-C.C.P. Article 1794. This article generally forbids the jury from taking written evidence with them when they retire to deliberate.

We find that the information requested by the jury was given orally and was in no way presented as evidence to them. Therefore, defendants’ contention lacks merit.

QUANTUM

Finally, defendants argue that the amount of damages awarded by the jury is excessive and a clear abuse of their discretion.

This Court is bound by the methodology of appellate review of trial court awards as set forth in Reck v. Stevens, 373 So.2d 498 (La.1979) on page 500 where the Court stated:

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

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

Dr. Margaret Longo testified on behalf of plaintiff. She stated that she treated Calvin in the emergency room of the hospital where he had been taken and later performed surgery to repair the wound. A local anesthetic was administered and the wound opened and cleaned in preparation for surgery.

Dr. Longo testified that the right hand was lacerated with the wound running from the top side of the right wrist to the base of the right thumb. The injuries revealed during surgery included a cut in a small branch of nerves leading to the top side of the hand, the severance of certain blood vessels branching out from the major artery in the area of the wound, the radial artery and five tendons which were also cut.

Calvin remained in the hospital for two days after surgery. The wound was then monitored for approximately one month for signs of infection and the stitches were removed.

It was after this one-month period that Calvin started on physical therapy which lasted for approximately seven months in an attempt to restore the full use of his hand.

Dr. Longo testified that it was her opinion that there would be a permanent physical impairment of the injured area (wrist, hand, etc.) of four percent. She also stated that she felt there was no permanent functional impairment, i. e., Calvin could still perform all normal functions of a human hand with the one that had been injured. Defendants presented no medical evidence to the court.

We find no clear abuse of the trier of fact’s “much” discretion based on our analysis of the facts present in this case.

Defendants also argue that the reading of the amounts sought by plaintiff to the jury as mentioned above caused them to return an excessive verdict. They note that, while plaintiff asked for $7,500.00 for medical expenses in her petition, the parties later stipulated that this item of damage amounted to $3,730.27. Defendants contend that the jury erroneously awarded plaintiff the $7,500.00 for medical expenses.

We find defendants’ contention to be no more than mere speculation. The jury’s damage award was rendered as a lump sum and it is impossible to tell how much was awarded for each item of damage.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of these proceedings are assessed against defendants-appellants.

AFFIRMED.

      . “Art. 1792. Contents of charge to jury
      In his charge to the jury the judge shall instruct the jurors on the law applicable to the cause submitted to them, but he shall not recapitulate or comment upon the evidence so as to exercise any influence upon their decision as to the facts.”

      . “Art. 1794. Taking evidence to jury room
      In reaching a verdict the jurors must rely upon their memories, and, when they retire from the jury room to deliberate, they shall not be allowed access to any written evidence or to any notes of the testimony of any witness, but they may take with them any object or document received in evidence which requires a physical examination to enable them to arrive at a just conclusion.”


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Doris J. ABSHIRE, Plaintiff-Appellee, v. DRAVO CORPORATION et al., Defendants-Appellants.
    No. 8116.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Landry, Watkins & Bonin, James O. Sal-ley, New Iberia, for defendants-appellants.
    Thompson & Sellers, Rogers C. Sellers, Abbeville, for plaintiff-appellee.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

This a workmen’s compensation suit. The plaintiff, Doris Abshire, alleges that he was struck on the back by a large piece of salt which fell upon him while he was employed as a miner at Dravo Corporation’s Weeks Island complex. Plaintiff had a preexisting back condition caused by a fall in 1977.

After plaintiff was struck he contends that he could no longer do strenuous work. At the time of trial he was employed at a Burger Chef Restaurant doing light janitorial work.

The trial court concluded that the accident which occurred in the salt mine aggravated plaintiff’s pre-existing back condition and produced a partial disability.

Judgment was rendered in favor of the plaintiff and against the defendants, Dravo Corporation and Liberty Mutual Insurance Company, in solido, for reimbursement of medical expenses and partial disability compensation benefits under LSA-R.S. 23:1221(3). The defendants appealed and plaintiff answered seeking penalties and attorney’s fees.

The principal issue on appeal is whether the accident sustained by the plaintiff in October 1978 produced the plaintiff’s disability.

The medical and lay testimony is unanimous in declaring that plaintiff has a substantial disability. The crucial issue is whether this same disability was present before the accident in the salt mine or whether such accident aggravated plaintiff’s back condition causing his disability.

Plaintiff is a 30 year old man with a 5th grade education. He is a functional illiterate and has worked as a manual laborer for the major part of his life. His previous back injury was caused by a fall from an attic onto some sawhorses in September 1977. He subsequently underwent a lumbar laminectomy in November 1977, at Charity Hospital in Lafayette. Thereafter he was never completely free of back trouble. He went to work for Dravo Corporation as a security guard on August 15,1978. He transferred to the job of miner-laborer on September 4, 1978. The accident took place in October of that year. Plaintiff testified that his back pain was mild and intermittent before being struck by the salt. He stated that it only bothered him when he did heavy lifting, but he was still able to perform the duties of his job, including such heavy lifting.

Richard Hill, an operator for defendant, witnessed the accident and testified that plaintiff had always done his work without complaint prior to the accident. He further stated that after being struck by the salt, plaintiff couldn’t perform his work. He said plaintiff appeared to be trying to do the work but just couldn’t handle it.

Lennix Duhon, the union steward at the mine, testified that plaintiff showed him the bruise on his back. He stated that afterward plaintiff began complaining about back pain.

Edward Whitely, plaintiff’s supervisor at the time of the accident, also stated that plaintiff was a good worker and had been able to do his job prior to the October 1978 accident.

Recognizing that the real issue is whether the accident in the salt mine caused plaintiff’s disability, the trial court, in its reasons for judgment, reviewed the medical evidence relating to that question as follows:

“Dr. LaFIeur, an orthopedic surgeon who has treated plaintiff on a regular basis since November 1979, is of the opinion that the contusion caused by the falling salt aggravated the back condition which had been existent prior to that accident.... He stated that the previous lumbar surgery predisposed plaintiff to being susceptible to further back injury, and that the salt accident aggravated the pre-existing condition....
“Dr. Sutton is an orthopedic surgeon who examined plaintiff on one occasion prior to the salt mine accident and twice since the accident. In May 1978, Dr. Sutton was of the opinion that plaintiff had permanent physical impairment of 25 to 30 percent, and that he would have difficulty returning to his previous occupation as a painter.... When he examined plaintiff again in January 1979, he found no significant changes in plaintiff’s objective symptoms.... In terms of plaintiff’s ability to perform heavy work today, Dr. Sutton stated that he ‘really found no reason why there was any change, at least objectively’.... Dr. Crackower, a family doctor who referred plaintiff to Dr. Sutton for evaluation, stated that he is in agreement with Dr. Sutton’s reports... . Defendant’s contention that plaintiff’s present partial disability resulted from the 1977 accident rather than the salt mine accident is based primarily on the opinions of Drs. Sutton and Crackower.
“Although Dr. Sutton found few objective changes to plaintiff’s condition, he did admit that plaintiff’s condition could have been aggravated by the salt mine accident. Dr. Sutton is of the opinion that plaintiff’s prior accident and surgery resulted in a weakened back in terms of ‘more prone to injury or symptomatolo-gy.’ ... When asked his opinion as to the most probable source of plaintiff’s problems today, Dr. Sutton stated: ‘Well, I believe it probably basically all stems from the falling through the attic accident. However, certainly his problem or symptomatology could have been aggravated by the block of salt falling on his back.’ ... Although Dr. Sutton found few objective changes as a result of the mine accident, plaintiff’s subjective symptomatology seemed to be somewhat worse than previously, and he seemed to be complaining of more discomfort.’ ...
“This medical testimony must be considered in light of the factual situation of the case. The court found plaintiff to be an extremely credible witness. He testified that he was able to work in the salt mine without experiencing substantial pain, but that he now experiences severe pain when doing any strenuous work. Plaintiff’s shift boss and two other Dravo employees corroborated plaintiff's testimony concerning his ability to perform the manual labor required of him in the mine.”

For a period of several weeks prior to the accident plaintiff, as a miner, was engaged in strenuous physical labor. This was the work in which he was customarily engaged prior to the accident. He shoveled salt without problems and could do even the heaviest of the work such as lifting cross ties, although it caused him some pain. His testimony and that of his co-workers indicated that after the accident he could no longer perform his duties. None of the medical testimony contradicts plaintiff’s claim that the blow to his back worsened his condition. The medical testimony supports that claim. It is apparent to us that after the accident plaintiff was no longer able to perform the “duties in which he was customarily engaged when injured or duties of the same or similar character, nature or description by which he was fitted by education, training and experience.”

Defendants’ contention, that the trial court based its findings (that the accident in the mine aggravated plaintiff’s condition) solely on subjective symptomatology which is not allowed under LSA-R.S. 23:1317, is also incorrect.

The statutory provisions of LSA-R.S. 23:1317 reads, in part, as follows:

.. The Court shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, of which there are or have been objective conditions or symptoms proven. not within the physical or mental control of the injured employee himself....” (Emphasis added.)

The Louisiana Supreme Court has interpreted this provision in the case of Drummer v. Central Pecan Shell. Co., 366 So.2d 1333 (La.1978):

"Workmen's compensation payments may be made ‘for only such injuries as are proven by competent evidence, or [sic] which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.’ * * * La.R.S. 23:1317. In interpreting the statutory language this Court has indicated that ‘objective conditions or symptoms’ have a broad meaning, including ‘symptoms of pain, and anguish, such as weakness, pallor, ... sickness, nausea, expressions of pain clearly involuntary, or any other symptoms indicating a deleterious change in the bodily condition * * *.’ Frantz v. Schroeder. 184 La. 945, 947, 168 So. 110, 111 (1936), (quoting with approval from Manniner v. Pomerene. 101 Neb. 127, at 130, 162 N.W. 492 at 493 (1917), and this Court has consistently held that subjective results which are imputable to the original objective conditions are compen-sable under law. Tantillo v. Liberty Mutual Insurance Company. 315 So.2d 743 (La.1975); Frantz v. Schroeder. supra. Accordingly, the objective conditions or symptoms required by the statute are not limited to symptoms of an injury which can be 'seen or ascertained by touch. Moreover, there need not be a continued exhibition of objective symptoms to entitle the employee to compensation if the injury complained of is causally connected with the original accident. Tantillo v. Liberty Mutual Insurance Company, supra; Frantz v. Schroeder. supra; Veera v. Hiarsrins Industries. 23 So.2d 661 (La.App. Orl. Cir. 1945).”

Defendants rely heavily on Dr. Sutton’s testimony indicating that he found no objective changes in the condition of plaintiffs back between May 1978 and January 1979.

We find that the accident itself, witnessed by a co-worker, the large contusion and small scar left by the falling salt in the area of plaintiff’s previous laminectomy, and the apparent inability of plaintiff to perform his work, coupled with the medical testimony that plaintiff’s condition made him more susceptible to injury to this area of his back by such an accident, gives a sufficient basis of objective conditions upon which the trial court could find the aggravation of a pre-existing condition. Furthermore, Dr. Sutton testified that his examination revealed such objective findings as a slight limp, curvature of the spine, and the right gastroc muscle was smaller than the left gastroc muscle. The contention of defendants is without merit.

Defendants’ final contention is that the trial court erred in applying an improper standard to the determination of whether there was a causal relationship between the plaintiff’s disability and the October 1978 accident.

Defendants’ counsel argues that the plaintiff must be symptom free before the aggravating accident in order to recover compensation for that accident as the cause of the resultant disability, citing the case of Duncan v. R. J. Reynolds, Inc., 305 So.2d 707 (La.App. 4th Cir. 1974), for this proposition. He apparently interprets this case to mean that the plaintiff must be free of pain relating to the prior existing condition. We disagree. In the Duncan case, where compensation was awarded, the court, speaking of the incident there at issue, stated:

“Its effect was to weaken plaintiff’s back so that he could no longer carry on... . it changed plaintiff from one actually gainfully employed and able to engage in employment with only a tolerable degree of pain to a patient who has an intolerable degree of pain and was evidently unable to return to work after what was probably an aggravating incident.”

Plaintiff also was suffering a tolerable degree of pain until he was struck by the falling piece of salt and that pain then increased to an intolerable level. The proper standard for determining whether an accident is the legal cause of the disability is simply whether the accident changed the plaintiff’s condition so as to render him disabled and unfit for his former employment. Allen v. Milk Haulers, Inc., 278 So.2d 871 (La.App. 1st Cir. 1973). Plaintiff has met this standard.

The trial court was therefore correct in finding that the incident in question aggravated plaintiff’s pre-existing back condition. Under Louisiana law the employer takes the employee as he finds him and it is well settled that the aggravation of a pre-existing condition is fully compen-sable. Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978); Mitchell v. Travelers Insurance Company, 136 So.2d 143 (La.App. 3rd Cir. 1961).

Plaintiff is therefore entitled to workmen’s compensation as awarded by the trial court.

The trial court also correctly found that, considering the circumstances of this case, the defendants were not arbitrary or capricious in refusing to pay compensation benefits. Plaintiff’s request for penalties and attorney’s fees is denied.

For the above reasons the judgment of the trial court is affirmed. All costs are assessed to defendants-appellants.

AFFIRMED.


author: LABORDE, Judge.

text:
    Lewis W. TILLEY, Plaintiff-Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al., Defendants-Appellees.
    No. 8117.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Smith, Ford & Clark, S. Chris Smith, III, Leesville, for plaintiff-appellant.
    Cabra, Leach & Tilley, William E. Tilley, Leesville, for defendant-appellant.
    Hall, Lestage & Lestage, David R. Les-tage, DeRidder, Simms, Tillman & Fonten-ot, F. Clay Tillman, Jr., Leesville, Stafford, Stewart & Potter, Russell L. Potter, Alexandria, John W. King, Baton Rouge, for defendants-appellees.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

This appeal arises out of an automobile accident which occurred on May 27,1977, in which plaintiff, Lewis W. Tilley, sustained personal injuries. On January 9, 1978, plaintiff sued Charles A. Brown, the alleged tortfeasor, and Brown’s insurer, Government Employees Insurance Company. On April 1, 1970, plaintiff filed a supplemental and amending petition, adding its insurer, State Farm Automobile Insurance Company, as a defendant under the uninsured motorist provisions of the policy of insurance issued by State Farm to plaintiff.

State Farm filed an exception of prescription to plaintiff’s uninsured motorist claim. The trial court sustained the exception and dismissed plaintiff’s claim against State Farm.

Whether LSA-R.S. 9:5629 applies retroactively under the circumstances of this case is the issue on appeal.

The trial court held that LSA-R.S. 9:5629, effective July 1, 1978, as amended, limited the period within which plaintiff could bring an uninsured motorist claim to ten months and twenty seven days which was a sufficient or reasonable period of time to allow plaintiff to assert an otherwise divested contractual right of action.

We affirm the ruling of the trial court.

Plaintiff argues that on the date of the accident (May 27,1977) the prescriptive period for actions under uninsured motorist policies was ten (10) years. LSA-C.C. art. 3544. Under this article, plaintiff’s claim against State Farm would prescribe May 27, 1987.

Under LSA-R.S. 9:5629, which became effective July 1, 1978, plaintiff’s time for filing suit against State Farm would be reduced from May 27, 1987, to May 27, 1979 — a period of ten months and twenty seven days.

To apply the amended statute to the facts of this case, argues plaintiff, would unconstitutionally divest him of a vested substantive right. In support of his argument, plaintiff urges our adoption of the reasoning of our brothers of the First Circuit in the recent decision of Johnson v. Fournet, 387 So.2d 1336 (La.App. 1st Cir. 1980). The Johnson court relied on the interpretation given LSA-R.S. 9:5628, the medical malpractice prescription statute, in Lott v. Haley, 370 So.2d 521 (La.1979). In the Lott case, the Supreme Court held:

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

The court, setting aside the lower court’s ruling, then added:

“In the instant case, plaintiff’s cause of action for damages vested on January 21, 1972, the date of Dr. Haley’s alleged act of negligence giving rise to plaintiff’s injuries. This was prior to enactment of La.R.S. 9:5628 which became effective September 12, 1975. Under the law in effect prior to that date, plaintiff’s suit would have been timely filed. La.R.S. 9:5628 is a statute of limitation in that it prescribes fixed time periods for institution of medical malpractice suits. According to the general rule, statutes of limitation are accorded retroactive application. However, in the instant case, La. R.S. 9:5628 operates to eliminate plaintiff’s vested right to sue on his pre-exist-ing cause of action without providing a reasonable period following its enactment to assert his claim. Absent such a provision, we conclude that La.R.S. 9:5628 cannot be retroactively applied in the instant case because to do so would divest plaintiff of his vested right in his cause of action in violation of the due process guarantees under the state and federal constitutions. The court of appeal erred in holding otherwise.”

The Johnson court, after reviewing the Lott case, concluded: “We hold that the above articulated rules are, analogously, equally applicable in interpreting and applying LSA-R.S. 9:5629.”

We do not agree with the holding in the Johnson case. Rather, we adopt the trial judge’s scholarly analysis of this issue. When presented with the same arguments by plaintiff on the trial level, the trial judge, after carefully reviewing the facts and the holding of the Supreme Court in Lott v. Haley, supra, concluded:

“The case now before the Court is distinguishable. Here the cause of action arose on May 27, 1977. In July of 1977 the statute shortening the period within which suit could be filed was adopted. By its own terms, the statute became effective July 1, 1978. As previously pointed out, Act 444 of 1977 was published in the official journal on August 8, 1977. A period of eight months and twenty-four days elapsed between publication and the effective date of the statute. Under the terms of the statute, plaintiff’s suit would have been timely if it had been filed on May 27, 1979. Between May 27,1979 and the date of publication of the act one year nine months and nineteen days elapsed. Although the writer might have approached the matter differently, the Legislature undoubtedly felt that allowing a lapse of approximately nine months within which persons affected by the act could assert their rights was adequate. As a matter of fact, the plaintiff here had a period of more than one year and nine months within which to assert his rights following the adoption of the act. The Legislature is properly the judge of the reasonableness of the time allowed. Although the result may be harsh, the writer is unable to say that the time was so short as to amount to a denial of justice.”

It is our view that the time period allowed by the Legislature within which persons affected by the LSA-R.S. 9:5629 could assert their otherwise divested contractual cause of action was adequate and reasonable and not in violation of the due process guarantees of the state and federal constitutions.

For the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . LSA-R.S. 9:5629 provides:
      “Actions for the recovery of damages, sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.”
      Added by Acts 1977, No. 444, § 1, eff. July 1, 1978.


author: GUIDRY, Judge.

text:
    Joseph Maxie PIERCE, Plaintiff-Appellant, v. GOLDKING PROPERTIES, INC., Defendant-Appellee.
    No. 8125.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Writ Denied May 18,1981.

      Broussard, Broussard & Moresi, Marcus A. Broussard, Jr., Abbeville, for plaintiff-appellant.
    Gordon, Arata & McCollam, John M. McCollam, New Orleans, for defendant-ap-pellee.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   GUIDRY, Judge.

In this suit the plaintiff-lessor, Joseph Maxie Pierce, seeks damages and cancellation of an oil, gas and mineral lease held by the defendant-lessee, Goldking Properties, Inc. (hereafter Goldking). In support of his demand plaintiff contends that Goldking breached its contractual obligations under the lease in failing and refusing to pay him royalties on pre-unit production resulting from a lease well situated on the property of an adjacent landowner; and, in failing to protect his land from uncompensated drainage. Plaintiff further urges that the defendant had an obligation to represent the lessor fairly and completely before the Commissioner of Conservation and failed to do so. The defendant filed a dilatory exception of prematurity grounded upon plaintiff’s failure to place the defendant in default prior to the filing of the instant suit as required by La.R.S. 31:135 and 136, infra. Defendant’s exception was referred to the merits by the trial court. The trial court held that Goldking acted reasonably and prudently in its dealings with the plaintiff and denied plaintiff’s demands. Plaintiff appeals from that judgment. We affirm.

FACTS

The facts of the instant case are undisputed. On November 13, 1973, plaintiff entered into two mineral lease agreements with J. W. Rettig, Jr. Through a series of assignments, these leases were ultimately acquired by the defendant, Goldking. On or about August 21, 1974, Goldking drilled and completed a gas well, referred to as the Bernard No. 1 well, which was physically located on land owned by Raywood Bernard et al., which lands are situated adjacent to the lands owned by the plaintiff. The well was initially shut-in because of non-availability of a reasonable market. Approximately one month later, Goldking retained the services of Ted Hoz, a consulting geologist, for the purpose of determining the advisability of creating producing units for the productive sands found in the Bernard No. 1 well. At some time in late December 1974 or early January, 1975, Mr. Hoz advised Goldking to file an application with the Commissioner of Conservation requestion the creation of drilling and producing units for the Siphonia Davisi No. 3 Sand (referred to as SD-3) and the shallower Cristelleria No. 6 Sand (referred to as Crist-6) pursuant to the provision of LSA-R.S. 30:9. On January 4, 1975 Goldking filed its initial notice of intent to apply for the aforementioned units. Subsequently, a pre-application hearing was scheduled for February 4, 1975 to be held in Lafayette, Louisiana. Following the pre-application hearing, on February 7,1975, Goldking filed its formal application for a public hearing before the Commissioner of Conservation. The Commissioner set the hearing for April 8, 1975, thus, allowing sufficient time to provide the thirty day public notice and advertisement as mandated by statute.

While the aforesaid unitization procedure was ongoing, defendant was actively engaged in the search for a reasonable market for the gas to be produced from the Bernard No. 1 well. On February 16, 1975, after a market was located, the Bernard well was put on production. All lease royalties resulting from the gas produced from the subject well were paid to Raywood Bernard et al. Subsequently, the public hearing, scheduled by the Commissioner, was held resulting in the issuance of Department of Conservation Orders Nos. 367-D1 and 367-E which created producing units for the SD-3, Reservoir B, and the Crist-6 Sand, Reservoir B, as requested by the defendant. These units included substantial portions of the plaintiff’s lands which were leased to defendant. The Commissioner of Conservation, despite opposition, set the effective date of the unitization order as May 1, 1975. Commencing as of that date, royalties were ultimately paid to those lessors who contributed lands to the aforesaid units, including plaintiff.

On or about June 25, 1975, Pierce, through his attorney, wrote J. W. Rettig, Jr. stating his concern that he had not received any royalty payments despite information indicating that his leased lands were included within the confines of a producing unit. On June 30, 1975, W. E. Pittman, Exploration Land Manager for Goldk-ing, responded to plaintiff’s inquiry that royalty payments would be forthcoming following the Commissioner of Conservation’s approval of the preliminary survey of the subject unit and completion of title examinations on each unit tract. On July 2,1975, plaintiff’s attorney in a letter to Mr. Pittman expressed for the first time his contention that plaintiff’s royalty should be computed and paid from the date of first production of the Bernard No. 1 well. Mr. Pittman replied that plaintiff would receive all royalties due from the effective date of the unit. On October 27,1975, plaintiff in a letter to Goldking officials expressed his intent to seek cancellation of the oil, gas and mineral lease applicable to his lands unless royalties were paid to plaintiff dating from the time of first production of the Bernard No. 1 well, i. e., February 16, 1975. On November 11, 1975, plaintiff’s counsel sent a letter to counsel for the defendant which contained plaintiff’s allegations that Goldking was guilty of failing to protect plaintiff’s lands from drainage. Goldking refused to tender royalty payments as requested by the plaintiff, thereafter the present litigation ensued.

Plaintiff-appellant specifies as error the holding of the trial court that he is not entitled to royalty payments for alleged drainage of his lands resulting from pre-unit production obtained from a lease well located on the property of an adjacent landowner. In addition, appellant urges that the trial court erred in failing to hold that the defendant breached its obligation to represent the plaintiff’s interests before the Commissioner of Conservation.

As we understand appellant’s principal argument, he contends that the defendant, Goldking, was obligated to delay production of the Bernard No. 1 well until unitization of the lands subject to the oil, gas and mineral leases at issue or pay him for the pre-unit production allocable to the unitized portions of his leased lands, and when it failed to do either, the lessee breached its obligation under the leases to protect the leased lands from drainage. Considering the provisions of the leases in question, specifically paragraph 5 thereof, and mindful of the sequence of events as disclosed by the record as well as the custom and practice of the mineral industry, we conclude that Goldking acted at all times as a reasonable and careful operator and did not breach its obligation to protect the leased land from drainage.

Louisiana R.S. 31:122 provides the duty owed by the mineral lessee to the lessor, to-wit:

“A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.”

The redactors of Louisiana’s Mineral Code in the official comment to Article 122 clearly express the intent of the article in regard to diligence in marketing, viz:

“Diligence in marketing: A mineral lessee is under a duty to exercise reasonable diligence to secure a market for minerals that have been produced or are capable of being produced in paying quantities. There is rarely a problem in this regard where oil is being produced, as ready markets can usually be found. Most problems arise in connection with the marketing of gas where the magnitude of reserves has not been proved, a market is not readily available, marketing facilities are not available, or administrative delays are involved. The existence of an obligation to exercise reasonable diligence in securing a market is recognized in the Louisiana jurisprudence. See e. g. Ri-sinerer v. Arkansas-Louisiana Gas. Co.. 198 La. 101, 3 So.2d 289 (1941); Hutchinson v. Atlas Oil Co.. 148 La. 540, 87 So. 265 (1921); Lelong v. Richardson. 126 So.2d 819 (La.App.2d Cir. 1961).”

As previously stated, the Bernard No. 1 well was drilled and completed on August 21, 1974, however, was initially shut-in due to the non-availability of a reasonable market. Expert witness, Henry Speyrer, a petroleum engineer testified that the longer a well is shut-in the greater the likelihood of operational difficulties when the well is finally placed on production. Mr. Speyrer also stated that the most prudent course of action to take in such situations is to place the well on production as quickly as possible to avoid damage. Furthermore, the record reveals that during the time that Goldking was attempting to locate a suitable market for the gas, it continued to proceed with its efforts to unitize the lands surrounding the Bernard No. 1 well.

On or about December 11,1974, Goldking located a reasonable market for the gas and after the requisite negotiations, finalized the marketing agreement. Following the construction of the flow line facilities necessary to accommodate the marketing of the gas, initial production was commenced on February 16, 1975. It is clear from the language of LSA-R.S. 31:122 as well as the comments of the redactors that Goldking was obligated to the Raywood Bernard et al. lessors to commence production of the Bernard No. 1 well as expeditiously as possible. To do otherwise would have subjected the defendant to possible legal action resulting in the cancellation of the lease agreement between the defendant and the Bernard lessors.

We agree that Goldking had an obligation under the lease in question to protect plaintiff’s lands from drainage, however, we conclude that it did not breach this obligation by placing the Bernard No. 1 well on production in February of 1975.

Although paragraph 5 of the aforesaid lease (see footnote 2) provides that the lessee will, under the circumstances specified, drill a well with reasonable diligence on the leased lands to protect the land from drainage, clearly this obligation is satisfied when the property is unitized by the Commissioner of Conservation, as unit-ization insures to each unitized tract its just and equitable share of the minerals contained in the reservoir. The record reflects diligence and conscientious effort on the part of the defendant in obtaining the approval of the Commissioner of Conservation for a drilling and producing unit encompassing plaintiff’s leased land. The administrative procedures required for unitization were begun prior to the Bernard No. 1 well being placed on production and were continued with all deliberate speed until receipt of the Commissioner’s order declaring the effective date of the unit as May 1, 1975. Testimony received at trial indicated that in or about September, 1974, Goldking retained the services of a consulting geologist, Ted Hoz, to ascertain the advisability of creating a unit encompassing the lands surrounding the lease well. At some time in late December or early January, Hoz recommended that such a unit be formed to prevent waste and to avoid the drilling of unnecessary wells. Upon receipt of Hoz’s recommendation Goldking promptly initiated measures to insure the fulfilment of its obligations to all concerned by proceeding to obtain the approval of the Commissioner of Conservation for the creation of the unit. Thus, we conclude that the record clearly reflects that Goldking acted reasonably and prudently in regard to all of its lessors when it placed the Bernard No. 1 well on production and simultaneously proceeded diligently with its efforts toward unitization of the lands surrounding the Bernard well.

We note, however, that had there been such a breach, the plaintiff failed to place the defendant in default, a prerequisite to any demand for damages and/or cancellation of a mineral lease based upon a claim of uncompensated drainage.

Louisiana R.S. 31:135 and 136 set forth the requirement that mineral lessees be placed in default as a prerequisite to a demand for damages arising from drainage of the property leased. These articles provide:

Louisiana R.S. 31:135 provides:

"The provisions of the Louisiana Civil Code concerning putting in default are applicable to mineral leases subject to the following modifications.”

Louisiana R.S. 31:136 provides:

“A putting in default is a prerequisite to a demand for damages arising from drainage of the property leased. If a lessee is found to have had actual or constructive knowledge of drainage and is held responsible for consequent dam ages, the damages may be computed from the time a reasonably prudent operator would have protected the leased premises from drainage. In other cases they may be computed only from the time of the putting in default

In addition, paragraph 11 of the oil, gas and mineral leases which forms the basis for the present litigation contains the following language:

“In the event Lessor at any time considers that operations are not being conducted in compliance with this lease, Lessor shall notify Lessee in writing of the facts relied upon as constituting a breach hereof, and Lessee, if legally required to conduct operations in order to maintain the lease in force, shall have sixty (60) days after receipt of such notice in which to commence the necessary operations to comply with the requirements hereof.”

Following the decision of the U.S. Fifth Circuit Court of Appeals in Williams v. Humble Oil and Refining Co., 432 F.2d 165 (5th Cir. 1970), there existed some controversy regarding the requirement of putting a mineral lessee in default prior to a demand for damages resulting from uncompensated drainage of the leased premises. In Williams, supra, the Fifth Circuit held that drainage by a common lessee of adjoining tracts was, as a matter of law, an active breach of the lease, thus, no putting in default was required. However, as explicitly stated in the Official Comment following La.R.S. 31:136, it is the intent of Article 136 to overrule the Williams case insofar as it relieves the lessor of the necessity to put the lessee in default.

The record in the instant suit contains voluminous correspondence between the parties to this suit and/or their legal representatives. A careful examination of these letters reveals that the plaintiff made no mention of the alleged drainage of his property until after the creation of units surrounding the Bernard No. 1 well. ' Thus, at the time of plaintiff’s initial complaint of drainage the unit had already been in effect and all of plaintiff’s productive lands were included therein and plaintiff was receiving the royalties due him. The Commissioner of Conservation’s order declaring the unit-ization of the subject lands went into effect on May 1, 1975. Therefore, any notice of defective performance of the lease by the defendant pertained to that which had already been remedied by the Commissioner’s order. Thus, we fail to discern any timely attempt by the plaintiff to place the defendant in default with respect to the alleged drainage of plaintiff’s lands as required by the applicable statutes and the contractual agreement between the parties. We do not mean to imply by this decision that the remedy of damages and dissolution is not potentially available to the lessor of a lease which has not been adequately protected by the lessee from uncompensated drainage. However, we conclude that under the facts of the instant case, the defendant acted as a reasonably prudent operator and with all due diligence in its efforts to protect the leased premises. LSA-R.S. 31:122; Breaux v. Pan Am. Petroleum Corp., 163 So.2d 406, writ denied 165 So.2d 481, 246 La. 581.

The trial court held that all royalty payments on pre-unit production obtained from the Bernard No. 1 well were legally owed by the defendant to the Raywood Bernard et al lessors because the well was physically located on the Bernard tract. Thus, all production from that well had to be allocated solely to the lease on which the well was situated. Mr. W. E. Pittman, Exploration Land Manager for Goldking, testified that all royalties on such pre-unit production were paid to the lessors of the Raywood Bernard tract. Plaintiff contends that royalties on such pre-unit production should have been paid to him since allegedly a portion of such production was the result of drainage of plaintiff’s lands. We conclude that such á result would not only be inconsistent with the rule of capture and the concept of unitization but also in conflict with the present jurisprudence.

Under Louisiana’s so-called “rule of capture” a landowner is not the owner of minerals beneath the surface of his lands, but rather has only the right to search for and draw minerals through the soil and thereby become the owner thereof. Desormeaux v. Inexco Oil Co., 298 So.2d 897 (La.App. 3rd Cir. 1974), writ refused 302 So.2d 37 (1974); Breaux v. Pan Am. Petroleum Corp., supra.

In Desormeaux supra, this court addressed a claim by a landowner similar to that of the instant plaintiff. In that case, the plaintiff-lessor sought a judgment decreeing that his unleased acreage, included within a unit, was entitled to share the production obtained from the unit well from the date of completion, as though the unit had been effective on the date the well was completed. This court in rejecting plaintiff’s demand stated:

"... The landowner is not the owner of the oil and gas beneath the surface of his land. Plaintiff merely had the right to search for and reduce to possession the oil and gas beneath the land. Plaintiff has granted, under the terms of the lease to defendant, the right to search for, drill and produce oil and gas from the property covered by the lease. Under the terms of the lease, production obtained through the well drilled on plaintiff’s land is owned by the lessee, subject to the Vs royalty which was paid to plaintiff.
We are cognizant that the rule of capture has been modified in this state by the Conservation Statute LSR-R.S. Title 30. Under the authority granted to the Commissioner of Conservation a drilling unit or units may be established for each pool for the prevention of waste and to avoid the drilling of unnecessary wells. A drilling unit is the maximum area which may be efficiently and economically drained by one well. The Commissioner is authorized to utilize geological and engineering evidence to establish the just and equitable share of the production of the unit for each tract. LSA-R.S. 30:9.
The creation of a drilling unit modifies the rule of capture only to the extent that the Commissioner’s finding indicates unitization should reasonably insure each tract will receive its just and equitable share of reservoir content. Until such time as a unit is created, no other tract is entitled to production from a well. Unit-ization prevents the drilling of unnecessary wells to capture the oil from the reservoir.” (Emphasis ours)

The plaintiff herein, as in Desor-meaux, supra, alleges that he is entitled to share in the production of the lease well prior to the creation of the unit which subsequently included his lands. We disagree. Application of the Desormeaux rationale to the facts of this case clearly results in a denial of plaintiff’s demands. As noted by the Desormeaux court, unitization modifies the rule of capture only to the extent that the Commissioner of Conservation determines that unitization is necessary to insure that each tract will receive its fair share of the reservoir content. No tract is entitled to share in production until the unit is created. This result is not changed merely because the mineral lessee is lessee of both the tract on which the well is physically located and the tract or tracts adjacent thereto. See Breaux v. Pan Am. Petroleum Corp., supra. Although drainage of plaintiff’s lands may have occurred during the relatively short span of time between initial production of the Bernard No. 1 well and unitization, plaintiff is still not entitled to receive royalties until such time as the effective date of the unit. Desormeaux v. Inexco Oil Co., supra. Once Goldking drilled and completed the Bernard No. 1 well, the rule of capture became applicable.

Finally, plaintiff alleges that Goldking breached its obligation to the plaintiff by failing to request that the effective date of the unit be the date of the public hearing, specifically April 8, 1975, rather than May 1, 1975, the date selected by the Commissioner. Plaintiff’s contention constitutes a collateral attack on an order issued by the Commissioner of Conservation which is prohibited. See, e. g., Simmons v. Pure Oil Co., 241 La. 592, 129 So.2d 786 (1961); Mayer v. Tidewater Oil Co., 218 F.Supp. 411 (W.D.La.1963); and Savoy v. Tidewater Oil Co., 218 F.Supp. 607 (W.S.La.1963), aff’d, 326 F.2d 757 (5th Cir. 1964). Orders by the Commissioner can only be attacked via a direct action filed against the Commissioner in East Baton Rouge Parish. LSA-R.S. 30:12.

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

AFFIRMED.

      . Plaintiffs lands located adjacent to the Bernard property are the properties affected by the two Rettig leases.

      . Paragraph 5 of the lease reads as follows:
      “If, prior to or after the discovery of oil on the lands held hereunder, a well producing oil in paying quantities for thirty (30) consecutive days is brought in on adjacent lands not owned by the Lessor and not forming a pooled unit containing a portion of the lands described
      herein, and within 330 feet of any line of the land held hereunder, Lessee, in order, to maintain the rights granted, shall thereafter begin and prosecute with reasonable diligence the drilling of the a well in an effort to discover oil thereby and to protect the land held hereunder from drainage.”


author: SWIFT, Judge.

text:
    Lloyd LeBLANC et al., Plaintiffs-Appellees, v. Claude J. BROUSSARD et al., Defendants-Appellants.
    No. 7811.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Cooper & Sonnier, John E. Ortego, Abbe-ville, for defendants-appellants.
    Voorhies & Labbe, Richard D. Chappuis, Jr., Allen, Gooch & Bourgeois, Joel E. Gooch, Lafayette, for defendant-appellee.
    Darrel J. Hartman, Kaplan, for plaintiffs-appellees.
    Before CULPEPPER, FORET and SWIFT, JJ.
   SWIFT, Judge.

Lloyd LeBlanc and his wife, Gloria Veaz-ey LeBlanc, sued Claude J. Broussard and others to recover damages for personal injuries received in a tractor-automobile collision. The collision occurred on October 4, 1977, at the intersection of U.S. Highway 167 and a parish road near Maurice, Louisiana. Mr. Broussard was the driver of the tractor. The automobile was driven by Mrs. LeBlanc and her husband was a passenger therein.

The pertinent facts are stated in an affidavit by Mr. Broussard attached to a motion for a summary judgment. He and his brother, Harris Broussard, have a farming partnership which occasionally undertakes haying operations for other people for hire. On the day of the collision Claude Brous-sard was driving his brother’s tractor pulling a three-point mowing machine from his home to land leased by Kenneth Vincent in order to cut grass for making hay. Mr. Vincent was to pay the partnership a unit price for each bale of hay.

The plaintiffs joined Audubon Insurance Company, Mr. Broussard’s insurer, as one of the defendants. Audubon moved for a summary judgment and it was sustained. Defendant, Claude Broussard, appealed.

The only issue to be decided by this court is whether the “business pursuits” exclusionary clause in the homeowner’s insurance policy issued appellant by Audubon excluded coverage under these circumstances.

The clause provides:

“This policy does not apply:
“1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
* * * * * *
“d. to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non business pursuits; ”

In his first argument appellant attempts to analogize “business pursuits” with the general rule in workmen compensation cases that an accident befalling an employee while he is going to and from work does not occur in the course of his employment. Broussard contends that until he reached Mr. Vincent’s field and began cutting grass he was not engaged in a business pursuit.

Generally, coverage under the workmen’s compensation act is not extended to such trips due to the substantial administrative problems involved. The courts do not wish to become involved in the controversy of determining when such trips begin and end. Louisiana Civil Law Treatise, Workers’ Compensation (2d Ed.), Malone and Johnson, § 168. The purpose of the “business pursuits” exclusion in a homeowner’s policy is to lower rates by removing coverage which is not essential to the purchasers and which would require specialized rating and underwriting. 48 ALR 3rd 1096, 1098. The terms, “business pursuits” and “course of employment,” serve different purposes in these separate contexts and are not analogous in the circumstances.

Clearly, Mr. Broussard was engaged in a business pursuit in driving this tractor to the field where he was to cut hay for a price and presumably for a profit. It was a necessary and an essential part of the commercial enterprise.

Appellant contends, however, that because he often drives a tractor in cutting his own grass or performing such favors for friends or relatives without compensation, his activity at the time of the accident (i. e. driving the tractor to where the business was to commence) was ordinarily incident to a non-business pursuit. As a consequence, the exception in the exclusionary clause was applicable and he was covered by the policy.

In Appelman’s Insurance Law and Practice (Berdal ed.), Vol. 7A, § 4501.10, at pages 276 and 277, this particular policy exclusion is explained as follows:

“The business pursuit exclusion is intended to apply to all activities that are involved in furtherance of any business, employment, trade, occupation or profession. There are relatively few functions, such as walking, opening and closing doors, bending or standing that a person performs in a business that cannot be viewed in isolation as nonbusiness activity. One cannot perform normal work without engaging in such functions or activities, and to treat these activities in isolation as incidental to nonbusiness activity would render this exclusion meaningless.”

And further in § 4501.11, at page 279, it is stated:

“When an activity, such as horseplay or a purely social amenity like preparing a cup of coffee, has lost its work related identification, it becomes an activity “incidental to non-business pursuits.”

The abovementioned American Law Report article treats the subject rather comprehensively and at page 1099 it says about' the exception to the exclusion:

“Such excepted activities have generally been held to denote activities of the insured which are not associated or related to his business pursuits or commercial activity.”

In Edwards v. Trahan, 168 So.2d 365 (La. App. 3 Cir. 1964), this court found the exclusionary clause inapplicable where the defendant, who baled hay as a business during certain seasons of the year, was hauling hay for his personal use and was involved in a tractor-automobile collision. The court looked to the purpose for which the tractor was being used at the time of the collision and held that he was then engaged in a non-business pursuit and covered by the policy.

An example of the exception’s application was involved in Jackson v. Lajaunie, 270 So.2d 859 (La.1972), where the operator of a gas station accidentally shot a customer while playing a practical joke. The court found that the use of the pistol for a prank was not related to the business enterprise. Instead, it pointed out that practical jokes are ordinarily incident to non-business pursuits and are excepted from this type of exclusionary clause.

In the present case the appellant undertook the haying operation for Mr. Vincent not as a personal undertaking or even a single activity for profit but as part of his partnership’s business activities. The very purpose of appellant’s particular activity at the time of the accident, unlike the defendant in Trahan, was to drive the tractor in pursuit of a business undertaking. We agree with the trial court’s findings that the collision damages not only arose from that undertaking but Broussard’s activity was definitely associated therewith or related thereto and was not “ordinarily incident to non-business pursuits.” Consequently, the exclusion is applicable in this instance. See Pitre v. Pennsylvania Millers Mutual Insurance Co., 236 So.2d 920 (La.App. 3 Cir. 1970); Berry v. Aetna Casualty & Surety Co., 221 So.2d 272 (La.App. 2 Cir. 1969); United States Fidelity & Guaranty Co. v. Burris, 240 So.2d 408 (La.App. 2 Cir. 1970); Burse v. Boh Brothers Construction Company, Inc., 328 So.2d 897 (La.App. 4 Cir. 1976), writ denied, 332 So.2d 284 (La.1976).

Louisiana Code of Civil Procedure Article 966 provides for a summary judgment if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. The pertinent facts are stated in appellant’s affidavit. There is no factual issue involved. They show that appellant was driving the tractor to Mr. Vincent’s field as a part of his business. The insuránce policy issued by the appellee excluded coverage for this business pursuit. As a matter of law, appellee is entitled to a summary judgment.

For the foregoing reasons, the decision of the trial court is affirmed. The appellant is cast with the costs of these proceedings.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Gerald B. NUGENT, Plaintiff and Appellant, v. EXECUTIVE OFFICERS OF HARTER OIL CO., Defendants and Appellees.
    No. 7888.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Shelby E. Bohannon, Alexandria, for plaintiff and appellant.
    Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendants and appellees.
    Before CULPEPPER, FORET and SWIFT, JJ.
   CULPEPPER, Judge.

This is a tort suit. The plaintiff, Gerald B. Nugent, seeks damages resulting from injuries sustained while working on an oil rig owned and operated by Harter Oil Company. Made defendants are Earl Harter, Mike Harter and Richard King, executive officers of Harter Oil Company. From a judgment sustaining the defendants’ exception of no cause of action, Nugent appeals. We affirm.

The issues are (1) the constitutionality of the 1976 amendment to LSA-R.S. 23:1032 giving tort immunity to executive officers and co-employees except for an “intentional act”, and (2) whether plaintiff’s petition alleges “intentional acts” by defendants within the meaning of LSA-R.S. 23:1032, so that the plaintiff is barred from recovery in tort.

GENERAL FACTS ALLEGED

In his petition, plaintiff alleges he was working atop an oil drilling rig owned by Harter Oil Company, when the scaffold he was standing on gave way, causing him to fall and severely injure his left hand. Nu-gent avers the defendants, executive officers of Harter Oil, intentionally provided an unsafe work area or knew that serious injury was substantially certain to result from such conditions.

The defendants filed an exception of no cause of action, contending that Nugent’s exclusive remedy is in workmen’s compensation, and that recovery in tort is barred by the provisions of LSA-R.S. 23:1032.

THE CONSTITUTIONAL ISSUE

In response to defendants’ exception of no cause of action, plaintiff first attacks the constitutionality of the 1976 amendment to LSA-R.S. 23:1032, which provides in pertinent part immunity from tort actions to executive officers and co-employees except where plaintiff’s injuries result from their “intentional act.” In Perez v. Continental Casualty Company, 367 So.2d 1284 (La.App. 3rd Cir. 1979), writ of certiorari refused, 369 So.2d 157 (La.1979), we discussed this issue at length and held the statute in question constitutional. The panel in the present case reaffirms the decision in Perez.

Plaintiff concedes the Third Circuit has held the statute constitutional. He argues that in Bazley v. Tortorich, 380 So.2d 727 (La.App. 4th Cir. 1980), writ granted, 383 So.2d 1263 (La.1980), the Fourth Circuit reached a different result and that we should follow Bazley. We respectfully disagree with the decision in Bazley insofar as it may be in conflict with our decision in Perez.

INTENTIONAL ACT

LSA-R.S. 23:1032 provides immunity from tort liability for employers, executive officers and co-employees of an employee injured while engaged in the course and scope of his employment. To escape the exclusive remedy of workmen’s compensation, an employee must show either (1) the injury occurred while he was not engaged in the course and scope of his employment, (2) the injury resulted from negligence of an employer, executive officer or co-employee who was not engaged in the course and scope of his employment, or (3) the injury was a result of an “intentional act” of an employer, executive officer or co-employee. In the present case, we are concerned only with the issue of whether plaintiff’s injury was caused by an “intentional act” of the defendants-executive officers.

Nugent contends that the acts of the defendants in providing an unsafe work area, failing to give safety instructions, and failing to provide proper safety devices and procedures constitute “intentional acts” which render the exclusion of LSA-R.S. 23:1032 inapplicable.

The definition of an “intentional act” was recently defined by this Court in McGuire v. Honeycutt, 387 So.2d 674 (La. App. 3rd Cir. 1980). We held that for an act to be “intentional” within the meaning of LSA-R.S. 23:1032, it is necessary to show (1) that the defendant entertained a desire to bring about the result which followed, and (2) that the defendant should have believed the result was substantially certain to follow. See also, Guidry v. Aetna Casualty and Surety Company, 359 So.2d 637 (La.App. 1st Cir. 1978); Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App. 1st Cir. 1980); Citizen v. Daigle, 392 So.2d 741 (La.App. 3rd Cir. 1980); McAdams v. The Black and Decker Manufacturing Co., 395 So.2d 411 (La.App. 3rd Cir. 1981); and Crenshaw v. Service Painting Co., 394 So.2d 706 (La.App. 3rd Cir. 1981).

Nugent contends the following allegations in paragraph 10 of his petition sufficiently allege the intentional nature of the defendants’ acts:

“Nugent contends that defendants as listed above entertained a desire to bring about the results which followed and defendants should have believed that the result was substantially certain to follow. Defendants’ action shows that they desired or intended to bring about the injury result.”

In considering an exception of no cause of action, the well pleaded facts are considered as true, but the court may nevertheless disregard allegations which are not facts but are mere conclusions of the pleader. Lott v. Haley, 363 So.2d 1270 (La. App. 4th Cir. 1978) affirmed in pertinent part, 370 So.2d 521 (La.1979). We find the above quoted paragraph to be a conclusion of the pleader that defendants desired to injure plaintiff and should have believed it was substantially certain the accident and injury would occur.

Plaintiff alleges that he had been recently hired, was given no physical examination, no safety instructions, no explanation as to the machinery, and that he was placed on top of the derrick on a make-shift scaffold and instructed to disconnect the cable from the drill pipe as it came out of the hole and push the pipe over to one side. There are allegations that the cable “kept hitting and striking the loose scaffold at the top of the rig,” finally causing the scaffold to fall. He alleges further that the defendant executive officers often visited the wells and had supervision of safety procedures, and then he alleges a list of 15 defects in equipment and deficiencies in safety procedures.

Accepting as true all of these allegations of fact as to defects in the equipment and deficiencies in safety training and procedures, they do not constitute facts which show that defendants desired to injure plaintiff or any other employee assigned this job and should have believed it was substantially certain the accident and injury would occur. There is no allegation that any of the defendants were present at the time of the injury, or that they even knew that plaintiff was working on top of the derrick. There is no allegation as to any motive of the defendants to injure plaintiff or any other employee. The allegations of fact may be sufficient to show negligence or even gross negligence, but they are not sufficient to show an intentional tort as defined above.

We applied these principles in the recent case of Citizen v. Theodore Daigle and Brother, 392 So.2d 741 (La.App. 3rd Cir. 1980), where a co-employee in a gun shop, thinking a rifle was not loaded, playfully pointed it at plaintiff and fired. The gun was loaded, and plaintiff was injured. The evidence showed that plaintiff and the co-employee were friends. There was, as in the present, no desire or motive to injure. Furthermore, we concluded the co-employee did not know nor should he have known that the result was substantially certain to follow. We stated it was clear the co-employee was negligent, but there was no intentional tort. The case involved the same statute with which we are concerned in the present case, and we held plaintiff could not sue the co-employee in tort.

We recognize that under LSA-C.C.P. Article 934 a judgment sustaining the peremptory exception of no cause of action should order amendment of plaintiff’s petition where the grounds of the objection may be removed by amendment. However, in the present case plaintiff has obviously alleged all of the facts. Any additional allegations of mere conclusions of the pleader would be cumulative and would not remove the grounds of the objection.

For the reasons assigned, the judgment appealed sustaining defendants’ exception of no cause of action is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


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    Stephanie C. GUILLORY, Plaintiff-Appellant, v. Mrs. Joseph R. GUILLORY, Defendant-Appellee.
    No. 7944.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Sister Joan Ridley, Acadian Legal Service, Opelousas, for plaintiff-appellant.
    Preston N. Aucoin, Ville Platte, for defendant-appellee.
    Mrs. Joseph Guillory, in pro. per.
    Before CULPEPPER, FORET and SWIFT, JJ.
   SWIFT, Judge.

On July 9, 1979, Mrs. Joseph R. Guillory filed a claim in the Small Claims Division of the Ville Platte City Court against Ms. Stephanie C. Guillory alleging an indebtedness of $200.00 and interest as the balance due on a promissory note. A document labelled “STATEMENT OF CLAIM AND CITATION” was sent by certified mail to Stephanie Guillory at Star Route, Box 170, Washington, Louisiana, with return receipt requested. It was received and signed for by Joyce Costanza on July 11, 1979. Stephanie Guillory did not appear or answer and a default judgment was rendered as sued for on August 2, 1979. Notice of the judgment was mailed to Ms. Guillory at the same address on August 2, 1979.

Mrs. Joseph Guillory collected $155.23 through garnishment of Stephanie Guillo-ry’s wages on two occasions.

On December 16,1979, Stephanie Guillory filed this suit attacking the judgment as a nullity for want of proper citation and service and seeking recovery of her garnished wages and losses.

At the trial Stephanie Guillory testified that when Mrs. Joseph Guillory filed her suit on the note plaintiff herein did not reside at Star Route, Box 170, her mother’s house, but instead was residing next door with her brother, Anthony Costanza. His address was Star Route, Box 169B. The latter’s wife said that plaintiff moved in with them in May, 1979, and remained there until September, 1979. Mrs. Paul Costanza, the plaintiff’s mother, testified that Stephanie moved from her house to her brother’s after a disagreement around April or May, 1979, and did- not return to live at Star Route,. Box 170, until September. However, she continued to get some mail at her mother’s house “for a while.” Joyce Cos-tanza, Stephanie’s 14 year old sister who signed for the certified mail, lived with her mother.

The defendant testified that she knew Stephanie Guillory’s mother’s address and “just took for granted that she was at her mother’s. I knew for a while she was so I thought she was still there.”

The trial judge concluded there was a valid citation and dismissed the action for nullity, but gave plaintiff judgment for $70.00 to cover infringements of the exempt portion of her wages. The court costs were assessed equally.

The plaintiff-appellant has appealed and assigned six specifications of error, but we need address only one.

LSA-R.S. 13:5200 et seq. established the procedures for a small claims division of a city court. Section 5204 provides in regard to service of citation:

“A. Service of citation or other process shall be by certified mail, with return receipt requested. However, should the receipt not be returned, or if requested by a party filing the pleading, service may be made of his pleading in accordance with the Louisiana Code of Civil Procedure.
“B. Notwithstanding any other provision of law to the contrary, each citation or other process shall contain a notice which provides substantially as follows:
“ATTENTION!
“THIS LAWSUIT IS FILED IN THE SMALL CLAIMS COURT.
“THE ORDINARY RULES OF EVIDENCE DO NOT APPLY IN SMALL CLAIMS COURT.
“IF YOU LOSE IN SMALL CLAIMS COURT, YOU HAVE NO RIGHT TO APPEAL THE COURT’S DECISION. “YOU MAY HAVE THIS CASE TRANSFERRED TO THE REGULAR CIVIL COURT IF YOU WISH. TO DO SO, YOU MUST FILE A WRITTEN NOTICE WITH THE CLERK OF THE SMALL CLAIMS COURT WITHIN FIVE (5) DAYS OF RECEIVING THIS LETTER.
“IF YOU ARE UNSURE OF WHAT TO DO, YOU SHOULD TALK WITH AN ATTORNEY ABOUT IT IMMEDIATELY.”

It is unnecessary for us to determine whether or not the service was proper in this instance. A review of the statement of claim and citation mailed to Stephanie Guil-lory reveals that the citation was barren of any words even closely resembling the notice required under Section 5204(B), which is mandatory under the statute. In addition the citation does not contain a statement that the defendant must either comply with the demand, appeal or plead within the delay for answering under penalty of default. LSA-C.C.P. Article 1202(5). Therefore, the citation was obviously defective and illegal.

Louisiana Code of Civil Procedure, Article 6, provides in part:

“Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or a proceeding. This jurisdiction must be based upon: (1) the service of process on the defendant, or on his agent for the service of process; .... ”

This undoubtedly includes the service of a valid citation.

LSA-C.C.P. Article 1201 provides in part:

“Citation and service thereof are essential in all civil actions except summary and executory proceedings. Without them all proceedings are absolutely null.”

These provisions, of course, apply to a city court and its small claims division. LSA-C.C.P. Article 4851.

There being no valid citation in the proceedings, the default judgment rendered against Stephanie C. Guillory is an absolute nullity. LSA-C.C.P. Article 2002(2); Succession of Barron, 345 So.2d 995 (La.App. 2 Cir. 1977); Spillman v. Texas & P. Ry. Co., 10 La.App. 379, 120 So. 905 (2 Cir. 1929).

For the foregoing reasons, the judgment appealed from is reversed and judgment is hereby rendered in favor of the plaintiff, Stephanie C. Guillory, and against the defendant, Mrs. Joseph R. Guillory, decreeing that the judgment in No. SCD 3527 of the Ville Platte City Court, Evangeline Parish, Louisiana dated August 2, 1979, is null and void; and further the plaintiff is awarded $155.23 with legal interest from judicial demand until paid; all costs of court are to be paid by the defendant.

REVERSED AND RENDERED.

FORET, J., concurs.