author: CUTRER, Judge.

text:
    Joe POTMESIL, Plaintiff-Appellee, v. E. I. DuPONT deNEMOURS CO., INC., et al., Defendants-Appellants.
    No. 8487.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.
    Writ Denied March 19, 1982.
    Cook, Clark, Egan, Yancey and King, Sidney E. Cook, Shreveport, for defendants-appellants.
    Brittain & Williams, Joe Payne Williams, Natchitoches, for plaintiff-appellee.
    Gahagan & Gahagan, Fred S. Gahagan, Natchitoches, for defendant-appellee.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal arises out of a suit for damages sustained by Joe Potmesil to his soybean crop as a result of his use of a chemical herbicide manufactured by E. I. DuPont deNemours Co., Inc.

Joe Potmesil (Potmesil) produced soybeans from a large farm in Natchitoches Parish. He used chemical herbicides to control the grass and weeds in his bean crop. Potmesil purchased his chemicals from E. I. Dupont deNemours Co., Inc. (DuPont) through its distributor, Paul Wall, in Man-sura, Louisiana.

During the crop year of 1978, Potmesil had planted 1200 acres of soybeans. On May 11, 1978, he was spraying the fields with a powdered herbicide called Lexone. This form of powdered Lexone was mixed with water and sprayed by aerial application. The aerial application service was rendered by Foshee Dusting Co., Inc. (Fosh-ee). Around noon that day, Potmesil ran out of powdered Lexone. He acquired more Lexone from the Dupont distributor, Wall. Wall had no powdered Lexone but sent Potmesil some liquid Lexone, a new product. Potmesil obtained 125 gallons of liquid Lexone (50 containers with 2lh gallons each). Potmesil applied the liquid to a portion of the 315.5 acres in question. Approximately one week later, Potmesil sprayed the remainder of the acreage in question with the liquid Lexone. Around June 6, 1978, Potmesil noticed that some of his beans were dying or were stunted in growth. The affected area was 315.5 acres which was sprayed with the liquid Lexone.

Potmesil then undertook operations to replant the damaged areas of the 315.5 acres. Even though he replanted same, his yield for this acreage was substantially lower than the beans on adjoining lands which were sprayed with the powdered Lexone.

Potmesil filed suit for damages for his losses on the 315.5 acres. The suit was filed against DuPont and Foshee’s alleged insurer, Global Aviation Insurance Company (Global). A default judgment was rendered against Global. Potmesil’s petition was then amended by making Foshee a party defendant. After trial on the merits, judgment was rendered in favor of Potmesil and against Dupont in the amount of $42,607.36. The judgment dismissed the suit against Foshee. Dupont appealed. Potmesil answered the appeal seeking attorney’s fees.

The issues on appeal are as follows:

(1) Whether Dupont is liable for damages under the circumstances presented;
(2) If such liability exists, whether the damages are excessive; and
(3) Whether attorney’s fees should be awarded.

WHETHER DUPONT IS LIABLE FOR DAMAGES

At the outset, we must observe that there is no contention that the liquid Lexone is defective. Potmesil stated that liquid Lex-one is an “excellent” product and he has used it since the incident in question by using the recommended amount of liquid per acre, one pint.

The question presented is whether the labels on the liquid containers met the requirements of the law to properly warn the user of the effects of the misuse of the Lexone and/or whether they contained the proper instructions for the use of same.

The facts presented in this case are:

Potmesil, 44 years of age, had been a farmer all of his adult life. He had finished high school and three semesters of college. He owned large farms in Avoyelles and Natchitoches parishes. He farmed principally soybeans. Potmesil testified that he had been using chemicals for approximately eight years before the incident in question. The chemicals were used for weed and grass control in the soybeans. He had used such chemicals or herbicides as Lasso, Lo-rox, Sencor, Treflan, Lexone and others. It depended upon the type of land as to which chemical or combination of chemicals he would use on a certain area. He explained that he used Lasso, Lorox and Treflan on sandy loam. He had used Sencor, Treflan and powdered Lexone on heavier clay soils. He stated that Sencor or powdered Lexone would kill broadleaf weeds while Treflan was used for grass control.

Potmesil testified that he had used Sen-cor along with Treflan up until the powdered Lexone became available. The Sen-cor was a powder form and, according to the instructions for the use of Sencor, he successfully used one pound of Sencor per acre. This information was contained on the labels of the sacks containing Sencor. When powdered Lexone later became available, he switched to Lexone. Potmesil stated that when he began using the powdered Lexone, he checked on how to use it and, after finding out that powdered Lexone was about the same as Sencor, he used the same formula on the powdered Lexone as he had previously used on the Sencor. Pot-mesil testified that each of the sacks of powdered Lexone contained the directions for the use of the Lexone on the various types of soil. He checked same and determined that the ratio of powdered Lexone was the same as that of Sencor. The directions contained on the back of the powdered Lexone sacks are in evidence. The directions set forth a table as follows:

Potmesil stated that the type of land contained in the 315.5 acre damaged area was mixed (sandy and clay to clay). He classified it as heavy land. Applying the recommendations contained in the table set out above, one pound of Lexone per acre is recommended for application to “silty clay, silty clay loam, clay, clay loam.” These classifications of soil would include the general types of soil on Potmesil’s 315.5 acres. Potmesil stated that he applied one and one-fourth pounds of the powdered Lexone per acre and this proved very satisfactory. Potmesil testified that he may vary a little from the manufacturer’s recommendations but would not vary enough to cause damage to his crops. He realized that over-application of these herbicides could cause crop damage.

On May 11, 1978, Potmesil was in the process of applying powdered Lexone to his acreage. Around noon he realized that he didn’t have enough powdered Lexone to finish the job. He sent Mrs. Potmesil to Mansura to obtain additional powdered Lexone from Paul Wall, the distributor of Dupont products. Upon arrival, Wall informed Mrs. Potmesil that he had no powdered Lexone but that he had some of the new liquid Lexone. She asked for enough to cover 800 acres. Wall sold her 50 bottles of liquid Lexone with each bottle containing two and one-half gallons.

Mrs. Potmesil delivered the Lexone to her husband and Paul Foshee at the grass landing strip on the farm. It was getting late in the afternoon and the weather was heavily overcast. Potmesil stated that he was in a hurry to get the Lexone applied due to the fact that rain was threatening and he needed to get the Lexone out before the rain. Potmesil took one of the containers from the pickup truck and checked the label on the front of the bottle. At the same time he examined the label on the front of the sack of powdered Lexone. The powdered Lexone bag stated on the label that the powder contained 50% “active ingredients.” The remaining 50% was “inert ingredients.” The label of the liquid Lexone container stated that it contained 42.8% “active ingredients” and 57.2% “inert ingredients.” Potmesil, after comparing the labels, noticed that the percentage of active ingredients of each was near the same with the liquid being slightly less than the powdered. Potmesil, being in a hurry, did not check the directions for use on the back of the container. Based upon the similarities of percentage, he decided to apply the liquid at the rate of one pound per acre, as he had been applying the powdered Lexone.

The label on the liquid specifies that the liquid Lexone contains four pounds of “active ingredients” per gallon. In making his determination of the amount of liquid to be used (one pound per acre), Potmesil made a simple error in his assumption. He erroneously used the “4 pounds active ingredients per gallon” as the total weight of a gallon rather than such “4 pounds” being approximately one-half the weight of a gallon. By doing so, Potmesil applied twice as much liquid Lexone per acre as he would have had he been using the powdered form of Lexone. This oversight by Potmesil resulted in the application of one quart (two pints) of liquid Lexone per acre instead of one pint per acre as is specified by Dupont. This over-application caused damage to the soybeans on the 315.5 acres in question.

Potmesil admitted that he did not read the “directions for use,” located upon the back of the liquid container. This label sets forth the amount of liquid Lexone to be applied per acre depending upon the type of soil to be treated. This table reads as follows:

Rate per Acre

“Lexone” 4L + “Treflan” * Soil Texture"

lk Loamy sand, sandy loam

% IV2 Loam, silt loam, silt, sandy clay, sandy clay loam

Silty clay, silty clay loam, clay loam

A reading of the table reflects that only one pint per acre of liquid Lexone should be used on the soil contained in the 315.5 acres. Potmesil’s testimony in regard to the failure to read the instructions reads as follows:

“Q. All right, sir. So you and Mr. Paul Lee Foshee discussed how much of it to apply and you all agreed on the amount to put out?
“A. Well, looking at the weight of the material and seeing how many gallons it was and comparing it with the powder over there and it threatening to rain and it’s five — it’s between four and five o’clock in ’the evening and we had a whole bunch of more beans to try to fly that evening. And uh . . .
“Q. Oh, I see. It was threatening rain out there that afternoon?
“A. That afternoon, yes. And we were kind of in a hurry to — it wasn’t no thunderstorm bearing down but, you know, it was kind of like it is now, heavily overcast and looked like it would start raining any time. ■ And I’m on a dirt strip. I don’t have a blacktop strip. And once it starts raining he has to come on out.
“Q. Oh, I see. You all were in a hurry to get this product out, get it applied?
“A. That’s right. And by just looking at these two particular labels, I mean the weight and the active ingredients in it, they’re just — well this one here actually shows a little less and I felt like we wasn't in no trouble.
“Q. Did you turn it around to look on the back of it?
“A. No. sir. We didn’t bother to go anv further than that.
“Q. You didn’t bother to look on the back of the label to see if it had any instructions as to how much to put out on an acre of land?
“A. No, sir. Because I felt like these pounds here and the active ingredients was so close to what we were putting out and I just, you know, we just took it for granted from there and went on.” (Emphasis added.)

After Potmesil noticed the damage to his beans he called a Dupont representative who went out to the farm for an inspection. After an inspection and discussion with Pot-mesil, the Dupont representative told Pot-mesil that he had applied twice as much Lexone as was recommended. Potmesil testified that later he again looked at the labels on the liquid container including the label on the back of the container. By examining the table on the back of the container, he recognized that the table recommended only one pint of liquid per acre, whereas he had erroneously used two pints per acre. Potmesil, with his experience, had no trouble deciphering the table upon his latter examination.

We have gone into this detailed discussion in order to show that, with reasonable care, Potmesil would not have over-applied the liquid herbicide. He was a farmer with reasonable education, and many years of farming experience. He had used chemicals, including herbicides, for eight years in his soybean operations. He had been using Lexone for a time before the accident and was fully aware of the consequences if such a herbicide was not used properly. The tables setting forth the proper distribution rates on particular soils are set forth on the back of both the powdered sack and the liquid container. We have set forth the two tables herein which clearly reflect the recommended amounts to be applied. The powdered label recommends one pound per acre and the liquid recommends one pint per acre. The trial court’s conclusion that the labels or instructions are confusing was error. Potmesil, in his testimony, did not contend that he was confused by the directions. He very candidly admitted that he was in a hurry and did not look at the instructions on the back of the container which would have informed him to limit his application to one pint per acre.

The general rules governing such an issue are as follows:

Manufacturers of potentially dangerous products have a duty to warn purchasers of the dangers involved in the use of the product. Hoffoss v. Ralston Purina Co., 341 So.2d 605 (La.App. 2nd Cir. 1977). However, there is no duty to warn of dangers of which a buyer knows or should be aware. Where the consequences of improper usage are such that they are readily cognizable, there is no duty to warn of the particular consequence that may flow therefrom. American Ins. Co. v. Duo Fast Dixie, Inc., 367 So.2d 415 (La.App. 4th Cir. 1979); Foster v. Marshall, 341 So.2d 1354 (La.App. 2nd Cir. 1977), writ den., 343 So.2d 1077 (La.1977); Leonard v. Albany Mach. & Supply Co., 339 So.2d 458 (La.App. 1st Cir. 1976), writ den., 341 So.2d 419 (La.1976); Dixon v. Gutnecht, 339 So.2d 1285 (La.App. 1st Cir. 1976), writ den., 342 So.2d 673 (La.1976); Albert v. J. & L. Engineering Co., 214 So.2d 212 (La.App. 4th Cir. 1968).

As we apply these principles to the facts herein we conclude that Dupont has com-, plied with the legal obligation to properly label its products. Potmesil was fully aware of the dangers of the over-application of this herbicide. Dupont would be under no duty to warn Potmesil of such danger. The instructions for proper use were clear. Potmesil had no difficulty in making a determination, that he had over-applied the Lexone, once he got around to reading the directions.

The danger of damaging the soybeans was not created by confusion or ambiguity of the label or directions but from Potme-sil’s neglect to read and apply the clear instructions located on the container. Under these circumstances the judgment of the trial court must be reversed.

Counsel for plaintiff contends that Du-pont was under a duty to place a special warning on the label of the liquid Lexone notifying the user that such was “twice as strong” as the powdered Lexone. We disagree with this contention. We cannot conclude that the liquid is “twice as strong” as the powdered Lexone. One pound per acre of the powdered Lexone is recommended for use. One pint per acre of liquid Lexone is recommended for use. One pint of the liquid weighs one pound. (Counsel for Pot-mesil agreed with this in oral argument.) Therefore, when we compare the two chemicals by weight, the recommended amount of the liquid weighs the same as the recommended amount of the powdered.

The damage caused to the soybeans was not caused by any breach of an obligation by Dupont but by the neglect of Potmesil.

The trial court dismissed the suit against Foshee. There is no contention by Dupont or Potmesil that this was error. The record supports the dismissal of Foshee. Potmesil made the decision as to the application of the herbicide. This portion of the judgment will be affirmed.

For the reasons set forth herein, the judgment of the trial court in favor of Joe Potmesil and against E. I. Dupont deNem-ours Company, Inc., is reversed, set aside and dismissed. The judgment dismissing Joe Potmesil’s suit against Paul Foshee is affirmed. Joe Potmesil is to pay all costs of court both in the trial court and for this appeal.

REVERSED IN PART; AFFIRMED IN PART; RENDERED.

      . This judgment has become final. We do not address this subject any further.

      . Potmesil testified as follows as to the type of land in the damaged area:
      “Q. All right. What type of soil do we have on your property?
      MR. BRITTAIN: Which area are we talking about?
      “Q. Let’s take the so called damaged area.
      “A. That’s got some kinda mixed land to clay land, but it’s all heavy land, referred to as heavy land.”
      ******
      “Q. And you would classify the land on the test plot and the 315 acres as what kind of land?
      “A. What kind of land?
      “Q. Yes.
      “A. Oh, I’d say it’s probably anywheres from mixed to sandy — I mean not sandy but from mixed to clay land.”

      . His testimony pertaining to the determination of the amount to be used and which reveals his mistake reads as follows:
      “... But anyway, the active ingredients are almost identical as that of the powder. The liquid is almost identical to that of the powder. So, that didn’t cause us no confusion. And then we said well they looked alike. When we looked at the pounds and saw that each gallon weighed four pounds, well we wanted to put a pound and a quarter. But meanwhile she cautioned us about the price so we may have cut back a little on that thing like I had said before but anyway, we took the four pounds of the liquid per gallon and figured that the one jug would equal to ten pounds.” (Emphasis added.)

      . Potmesil used Treflan along with the Lexone for weed and grass control.

      . Potmesil’s testimony in this regard reads as follows:
      “Q. You have had occasion since all this started to look at the label and look at the back of it I assume?
      “A. I check and double check.
      “Q. Now you check and double ....
      “A. Check and double check, correct.
      “Q. All right. But since all this started I’m sure you have taken the Lexone label that we have involved here on this (inaudible —coughing in mike) I assume you have taken it and looked at the back of it?
      “A. Since then.
      “Q. Since that time?
      “A. Since that time.
      “Q. Okay. And you noticed on the back of it that it has the directions on it to put a pint out per acre?

      “A. Yes, sir.

      “Q. Okay. And you of course did not notice that the afternoon that you all were hurrying to try to get this out before the rain?
      “A. No, sir.” (Emphasis added.)


source: Caselaw Access Project

license: Public Domain

text:
    Roderick GRANGER, Plaintiff-Appellee, v. MONTGOMERY WARD & COMPANY, INC., et al., Defendants-Appellants.
    No. 8494.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.
    Writ Denied March 19, 1982.

      Deutsch, Kerrigan & Stiles, Ralph L. Kas-kell, Jr., New Orleans, for defendants-appellants.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal arises out of a products liability suit for damages due to injuries incurred when a battery exploded as Roderick Gran-ger lifted the hood of his pickup truck.

The facts of the occurrence of the accident are not in dispute. On August 13, 1979, Granger purchased a battery from Montgomery Ward & Company which was installed by Montgomery Ward in Granger’s pickup truck. The battery was manufactured by Gould, Inc. The battery functioned satisfactorily until August 29, 1979, two weeks after purchase. On that day, as Granger was preparing to leave his place of employment with Belmont Academy, his pickup engine would not turn over. Gran-ger left the cab and opened the hood of the truck and, at that moment, the battery exploded. As Granger opened the hood, he was near the battery. The explosion threw acid in Granger’s face causing injuries to his eyes and face, especially his left eye.

Granger filed suit for damages against Montgomery Ward & Company, Gould, Inc., and its liability insurer, Transportation Insurance Company. Montgomery Ward filed a third party demand against Gould for contractual indemnity and attorney’s fees. After trial on the merits the trial court rendered judgment in favor of Granger and against Gould and its insurer in the amount of $155,239.13. Montgomery Ward was awarded the sum of $3,129.50 as attorney’s fees on its third party demand. The plaintiff’s suit against Montgomery Ward was dismissed. From this judgment Gould and its insurer appeals. Granger answered the appeal seeking an increase in the award. The liability of Gould is not at issue on appeal.

The issues on appeal are:

(1) Whether the trial court committed manifest error in its evaluation of the medical testimony, especially that of Dr. Wyble;
(2) Whether the trial court erred by denying a motion of Gould to have Gran-ger examined by Dr. Robert Azar of New Orleans; and
(3) Whether the damages awarded were excessive.

The first issue involves the trial court’s evaluation of the medical testimony. In his reasons for judgment, the trial judge reviewed the testimony of the three ophthalmologists, and one optometrist. In addition, the testimony of the plaintiff was before the court. In his reasons, the trial judge stated as follows:

“The real issue and only issue remaining for this Court to decide is the amount of damages the plaintiff, Roderick Gran-ger, is entitled to recover for his injuries sustained in the accident here in question. The Court was impressed with the testimony of the plaintiff, considering his demeanor, his work history and life style. The Court is of the opinion that plaintiff was severely injured, receiving serious injuries to his eyes in the accident, particularly to the left eye. The Court is convinced that the plaintiff suffered severe pain from the time of the accident up to the time of trial and will continue to have pain, particularly to his left eye. The Court, looking at all of the testimony, including the doctors’ and the plaintiff’s testimony, is of the opinion that plaintiff is in effect blind in his left eye and will remain blind for the rest of his life. The Court also finds that the plaintiff has also suffered from loss of vision as a result of the accident in the right eye, while not to an extent that would keep him from performing the duties that he was performing at the time of the accident or driving a truck. The Court takes into consideration the fact that Dr. Wyble was connected with the Belmont Academy at the time of the accident and that fact could have subconsciously caused him to minimize plaintiff’s injuries as Belmont Academy may have been responsible to plaintiff for workmen’s compensation benefits. The Court finds that Dr. Thompson and Dr. Soileau are perhaps more impartial in giving their diagnosis of plaintiff’s condition. The Court takes cognizance of the fact that while the visual acuity test is a subjective test when done by a specialist, it is indeed difficult for a patient to feign good vision in favor of poor vision. Even defendant’s physician, Dr. Azar, found disability to plaintiff’s right eye and did perform an objective test on his left eye which showed that he had at least 20/400 vision. All of this testimony, in addition to plaintiff’s, convinces the Court as stated above that plaintiff is in effect legally blind in his left eye.”

The trial court’s conclusions are fully supported by the record.

Immediately following the accident on August 29, 1979, Granger was taken to the offices of Dr. Wyble and LaFleur for examination and treatment. Dr. LaFleur was on duty and examined Granger and prescribed medication. The following day Granger reported to Dr. Wyble. Dr. Wyble testified that he saw Granger four times; August 30, September 4, 7 and 11, 1979.

On the initial examination Dr. Wyble found Granger’s vision to be 20/30 in the right eye and 20/50 in the left. This physician found the existence of conjunctiva or inflammation of the white membrane next to the eye. He found no cornea problem. Dr. Wyble testified that upon the subsequent three visits in September, Granger’s inflammation (conjunctiva) increased. Granger’s complaint of pain increased. On his last visit, Granger told the doctor his pain was so severe he couldn’t sleep. He stated that he became nauseated as a result of the pain. Dr. Wyble stated that upon Granger’s last visit, September 11,1979, the inflammation was increasing. Dr. Wyble stated that he did not test Granger’s vision after the initial visit on August 30, 1979. Dr. Wyble was somewhat doubtful that Granger’s vision in the left eye could have decreased from 20/50 to 20/400 by September 14, 1979, the day Dr. Thompson found the 20/400 vision.

Granger next consulted Dr. Robert Thompson, a specialist in Ophthalmology and E. N. T. This physician saw Granger on three occasions; September 14, 21 and October 13, 1979. The physician had prescribed glasses for Granger in 1976 as he found him farsighted. On that examination in 1976 Granger had 20/20 vision in the right eye and 20/25 in the left. On September 14, 1979, this physician found that Granger had marked photophobia (eyes sensitive to light). Both of Granger’s eyes were inflamed. Vision tests showed that Granger had vision in the right eye of 20/70 without glasses and 20/60 with glasses. The left eye showed 20/400 with or without glasses. The left eye could not be corrected. On September 21st there was no change in the condition of Granger’s left eye but slight change for the better in the right. Granger had a vision of 20/40 in the right eye. On October 13th, Dr. Thompson did not test for vision but changed medication. He recommended that Granger see another doctor. This doctor stated that 20/40 vision was a serious impairment but Granger could perform work with this vision. The physician stated that a vision of 20/200 is classified as legally blind.

Granger was examined by Dr. Hosea Soi-leau, an optometrist, on December 27, 1979. Dr. Soileau found that Granger had a 20/40 vision in the right eye but was totally blind in the left eye. He stated that Granger was very sensitive to light in both eyes. He felt that Granger had an impairment to the nerve that controls the pupil reaction to the left eye.

At the request of Gould, Granger was examined by Dr. Paul Azar, an ophthalmologist of Lafayette. This physician saw Granger one time on January 13, 1981. This physician found that Granger had a vision of 20/50 in the right eye but the physician could not give a visual acuity test to Granger’s left eye as the eye lid would not open for such test. The doctor stated that Granger had photophobia in the left eye and due to the pain did not open the eye for examination. However, the doctor did get an objective test known as O.K.N. In this test the physician would hold the eye lid open and have the patient look at a rotating drum which reflected alternating rays of light. The physician stated that this test would give “an appropriate visual acuity.” This test revealed that Granger was getting some light into the eye and the doctor felt that the test results showed an “equivalent to 20/400.”

A review of the medical evidence clearly supports the trial judge’s conclusion that Granger was legally blind in his left eye and some impairment existed in the right eye which impairment was caused by the injuries received in the accident. The trial judge, in his reasons for judgment, stated that he took into consideration the fact that Dr. Wyble was an officer with Belmont Academy at the time of Granger’s accident and examination. Due to a possible workmen’s compensation claim against Belmont, the court felt this may subconsciously cause the doctor to minimize Gran-ger’s injuries. Dr. Wyble stated that he was an officer with the academy and that he was aware that Granger was contending that he was hurt while on the premises of Belmont, Granger’s employment. The trial judge committed no error in taking this fact into consideration.

There is abundant proof in the record to support each of the trial court’s findings of fact. It is well settled that on appellate review the findings of the trier of fact are entitled to great weight and should not be disturbed unless clearly wrong. On appeal, the reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial judge.

DENIAL OF FURTHER MEDICAL EXAMINATION

The next issue is whether the trial court erred in denying the request of Gould and its insurer to have Granger examined by Dr. Robert Azar of New Orleans.

Shortly before trial, Gould filed a motion to have Granger ordered to submit himself for examination by either Dr. Paul Azar of Lafayette or Dr. Robert Azar of New Orleans. The court granted the motion as to Dr. Paul Azar who examined Granger two days before trial on the merits. The trial was held open for the taking of the doctor’s deposition. The deposition was taken and filed in the record two weeks after trial. We have previously discussed this physician’s testimony. Gould and its insurer then requested that the court order Gran-ger to be examined by Dr. Robert Azar of New Orleans. This motion was denied by the trial court.

Gould contends that since Dr. Paul Azar was unable to get a subjective acuity test, as Granger did not open his left eye, that another examination should be ordered by Dr. Robert Azar of New Orleans.

The pertinent law on the subject of medical examinations is LSA-C.C.P. art. 1464 (formerly C.C.P. art. 1493) which states:

“When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”

Under this provision, each request for additional medical examination must be determined according to its own facts and circumstances. In this case the trial court denied the motion for further examination on the principal ground that the granting of the motion could create unnecessary time delays in the termination of the suit. We may add also that- Granger was examined by three qualified ophthalmologists and one optometrist. One of these, Dr. Azar, was chosen by Gould. The fact that Dr. Azar could not perform the visual acuity test on Granger’s left eye is not grounds for a second opinion. Dr. Azar did obtain a O.K.N. test which revealed at least a 20/400 vision in the left eye.

Article 1464 (previously 1493) leaves great discretion to the trial judge in ordering an examination to take place. Such an order of examination can only be granted upon the showing of good cause. With the three specialists and the optometrist having examined Granger, Gould and its insurer were made fully aware of Gran-ger’s medical condition. A defendant is not entitled to have examinations made in order to search for a report which may be more favorable to such defendant. We find no abuse of discretion by the trial court in denying this request. Monroe v. Northwestern National Insurance Company, 210 So.2d 365 (La.App. 3rd Cir. 1968), writs ref’d, 252 La. 683, 212 So.2d 428 (La.1968).

DAMAGES

Gould and its insurer contend the general damages awarded were excessive. The trial court awarded general damages as follows:

Permanent loss of vision of left eye $100,000.00

Pain and suffering, past and future 40,000.00

Partial loss of vision in right eye 15,000.00

Granger, 45 years of age, was off work for about two weeks following the accident. He continued to work following return. He had enough vision in his right eye to perform his duties as a janitor and subsequently as a delivery van driver. For this reason, no loss of wages was awarded by the trial court. We have carefully considered the damages and losses suffered by Granger as general damages and find that there is no abuse of discretion by the trial court in the award of general damages. The award is neither excessive or inadequate.

For the reasons set forth herein, the judgment of the trial court is affirmed. Gould and its insurer, Transportation Insurance Company, shall pay the costs of this appeal.

AFFIRMED.

      . As reference we are cited the case of Outlaw v. Bituminous Ins. Co., 357 So.2d 1350 (La.App. 4th Cir. 1978), writ ref’d, 359 So.2d 1293 (La.1978), which awarded $150,000.00 for the loss of an eye by a nine year old boy.


text:
    SEABOARD ALLIED MILLING CORPORATION, Plaintiff-Appellee, v. Guy BENITEZ, d/b/a Guy’s Towing Service, Defendant-Appellant.
    No. 8496.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Breazeale, Sachse & Wilson, Pamela A. Prestridge, Baton Rouge, for plaintiff-ap-pellee.
    Charles N. Wooten, Ltd., Dan Keefe, Lafayette, for defendant-appellant.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CUTRER, Judge.

Seaboard Allied Milling Corporation (Seaboard) owned a tractor-trailer vehicle which was involved in an accident near Lafayette. Seaboard brought suit against Guy Benitez, d/b/a Guy’s Towing Service (Guy’s), for damages due to the wrongful sequestration of the, vehicle. Guy’s reconvened for the amount due for services performed in connection with the removal of the vehicle and its contents from the accident scene. From a judgment which reduced Guy’s claim and dismissed Seaboard’s suit, both parties appeal. We amend and affirm.

The facts presented in this case are as follows:

A tractor-trailer rig, loaded with 450 sacks of flour and owned by Seaboard, overturned in the median of Interstate 10 near the Henderson, Louisiana exit at approximately 1:30 A.M., on May 8, 1980. The truck was enroute to Seaboard’s plant in Port Allen, Louisiana. Troop I of the Louisiana State Police received notice of the accident at approximately 1:36 A.M. and dispatched a trooper to the scene.

Upon arrival, it was discovered that the driver was pinned in the truck cab. The desk sergeant placed a call to defendant’s wrecker service, Guy’s, requesting service. Two wreckers, one heavy duty and one extra-heavy duty, were dispatched to the scene. The truck was lifted and turned back upon its wheels. The driver was extricated and sent to the hospital.

Guy’s was then asked to clean up the accident scene. Some of the flour bags had broken open spilling the flour around the wreckage. Guy’s dispatcher contacted R. J. Arceneaux (R. J.’s), a rental firm, to obtain a flatbed tractor-trailer upon which the undamaged sacks of flour could be loaded. R. J.’s complied with this request. Guy’s did not have the needed equipment to do the cleanup job.

Guy’s dispatcher then contacted Supreme Contractors (Supreme) to secure a crew of workmen to clean the scene. Twelve men, including a supervisor, were sent to the scene. The unbroken sacks of flour were loaded and hauled to Port Allen. The crew proceeded to clean the spilled flour from the accident site. The wrecked tractor-trailer was towed to Lafayette and remained in the custody of Guy’s in Lafayette until June 2, 1980.

Seaboard received word of the accident whereupon the plant manager, Robert Clear, contacted Guy’s at 8:15 A.M. to ascertain what arrangements had been made. Clear then proceeded to Lafayette after being informed that all necessary arrangements were made. All arrangements for the cleanup were made by Guy’s as it assumed responsibility to work the accident site. Thereafter, Seaboard received an invoice from Guy’s in the amount of $4,743.49 for all services rendered. Seaboard contacted the State Police Troop I to see if any adjustments could be made to the bill. Only negligible adjustments were mentioned. Seaboard contacted Guy’s to discuss the charges but these discussions proved unfruitful as Guy’s refused to release the tractor-trailer until its bill was paid. Other discussions took place until June 2,1980, when Seaboard, after concluding further discussions to be pointless, filed a petition and bond in the district court requesting the release of the tractor-trailer from sequestration and claimed damages for its wrongful detention. An order was signed releasing the tractor-trailer to Seaboard after a security bond was posted. Seaboard took the tractor-trailer to Baton Rouge for repairs.

Seaboard amended its original petition claiming conversion of a bumper, driveline and battery from the tractor (all of which were returned) and demanded attorney’s fees for the wrongful sequestration. Guy’s answered and reconvened seeking the full amount of its claims and also sought attorney’s fees contending that the debt Seaboard owed was an open account.

After trial on the merits judgment was rendered in favor of plaintiff-in-reconvention, Guy’s, for the sum of $2,962.43, with legal interest from date of demand until paid. Guy’s demand for attorney’s fees were denied. Seaboard’s claims were dismissed. Both parties appealed: Guy’s appealed seeking to receive the full amount claimed and attorney’s fees; Seaboard appealed claiming the amount for storage to be excessive and seeking damages for the loss of use of the vehicle and attorney’s fees.

The issues raised by the parties on appeal are:

(1) Whether the trial court erred in ruling that the detention of Seaboard’s vehicle was legal and produced no basis for damages for attorney’s fees;
(2) Whether the trial court erred in its finding that Guy’s charges for services were excessive; and
(3) Whether Guy’s is entitled to attorney’s fees.

WRONGFUL DETENTION OF VEHICLE

Seaboard styles the detention of its vehicle by Guy’s as a sequestration. It should be noted that Guy’s did not have a writ of sequestration issued. It merely detained the vehicle in question for the amount claimed by it for services rendered. Seaboard contends that such detention was wrongful.

A very similar situation was present in Hopper v. Bills, 255 La. 628, 232 So.2d 296 (La.1970), wherein plaintiff, owner of a logging truck and trailer, sued defendants, the owners of the wrecker service, for illegal seizure and wrongful detention of their vehicle. The wrecker service was called to the scene of the accident on November 19, 1966, by the State Police, to remove an overturned log truck. The truck was righted and removed to defendants’ truck stop. Plaintiff inquired concerning the release of the truck on December 1, 1966, whereupon defendants agreed to release the vehicle only after payment of towing and storage charges. On January 4, 1967, plaintiff caused a writ of sequestration to be issued making him the custodian of the vehicle.

The Supreme Court affirmed the Court of Appeal’s finding that the defendants had a lien on plaintiff’s vehicle for their expenses and that no unlawful conversion or detention occurred. The seizure was not illegal as the State Trooper, pursuant to LSA-R.S. 32:2, et seq., had the discretion to have vehicles removed from the highway which could cause driving hazards. This same provision applies in the case at hand.

As to whether the legal seizure can be converted into an unlawful conversion or detention, the Supreme Court stated:

‘“Acts which would otherwise constitute a conversion may be considered not to be a conversion, where' they are done by authority of law, by direction or order of a court, or by authority of valid process. * *
“'... And even when he has possession, a qualified refusal, for a reasonable parpóse and for a reasonable length of time, is not a conversion.'
“We. find from the record that the defendants acted in good faith; they acted under a valid process. Their refusal to surrender plaintiff’s vehicle was qualified; under our findings supra, they were entitled to their charges, and until such were paid, they were entitled to retain possession of plaintiff’s truck and trailer. They did not wrongfully deprive plaintiff of his vehicle; defendants committed no illegal conversion or unlawful detention by their actions of refusing plaintiff possession of his vehicle under the conditions of his demand. ” (Citations omitted.)

The Supreme Court made a ruling in Hopper by construing Civil Code articles 3224 and 3225. These articles provide as follow:

LSA-C.C. art. 3224;
“He who, having in his possession the property of'another, whether in deposit or on loan or otherwise, has been obliged to incur any expenses for its preservation, acquires on this property two species of rights.”
LSA-C.C. art. 3225;
“Against the owner of the thing, his right is in the nature of that of pledge, by virtue of which he may retain the thing until the expenses, which he has incurred, are repaid.
“He possesses this qualified right of pledge, even against the creditors of the owner, if they seek to have the thing sold. He may refuse to restore it, unless they either refund his advance, or give him security that the thing shall fetch a sufficient price for that purpose.”

Also construed within this framework is LSA-R.S. 9:4501, which grants a repairman’s or mechanic’s lien against the object repaired which can be enforced by a writ of sequestration. Even though no writ of sequestration was sought nor any repairs made to the vehicle, Guy’s had a qualified right to retain the vehicle until security was posted or the claim paid.

EXCESSIVE CHARGES

The charges submitted by Guy’s to Seaboard for payment were as follows:

(1) 1 Heavy Duty Hydraulic Wrecker, $100.00 per hour for 8 hours; $ 800.00

(2) 1 Heavy Duty Wrecker, $65.00 per hour for 10 hours; 650.00

(3) 1 Flat Bed Truck, $45.00 per hour for 6 hours; 270.00

(4) Storage, $20.00 per day for 22 days; 440.00

(5) Gaidry’s Hardware; 40.59

(6) Labor to clean up spill, 12 men plus supervisor for 8 hours; 1,443.49

(7) Rental of tractor and low boy from R. J.’s for one day; 880.00

(8) Labor and flat bed truck to reclean site. 270.00

Total. $4,794.08

The court allowed the recovery in full of Items (1) through (5). Seaboard complains of only Item (4), the storage charge of $440.00. The trial judge held that the $440.00 charge for storage (22 days) of the vehicle was reasonable. Seaboard could have posted bond for the release of their vehicle to avoid these accruing charges. The rate charged for such storage, according to the evidence, was considered usual. We find that the determination by the trial judge awarding the storage fee is supported by evidence in the record and is not clearly wrong and must be affirmed.

The court reduced the labor charge for the cleanup in Item (6). The court reduced the wages charged from $10.10 per hour to $7.65 per hour for the laborers. A wage of $9.00 per hour was allowed for the supervisor. The trial court also only allowed wages for five laborers instead of twelve. The trial court allowed eight hours for the cleanup work. Such reduction by the trial court is supported by the record.

Richard Fox, Manager of Manpower of Lafayette, a labor contracting firm, testified that the “normal industrial unskilled rate” for labor in the Lafayette area was $7.25 per hour, with a four hour minimum for a crew. Supervisors are paid $9.00 per hour. Fox stated that he was not called by Guy’s on the day in question but if he had been called, he could have supplied a crew for the cleanup. The testimony was corroborated by Robert Clear, Plant Manager of Seaboard.

Clear also testified that Seaboard had other spills of this nature. Only five men were used for those cleaning jobs that lasted approximately four hours. He stated that Seaboard had a similar spill of 54,000 pounds of bulk wheat. The wheat was not in bags and had to be picked up with scoop shovels. This was accomplished by five men in less than five hours.

The trial court accepted the testimony of Fox and Clear and reduced the wage rate for the labor. We conclude that the record fully supports the trial court’s reduction of these charges.'

The trial court also reduced Item (7) which reflected a charge of $880.00 by R. J.’s for the one day rental of a tractor and low boy trailer. R. J. Arceneaux, owner of R. J.’s, testified that he usually leased trailers like the one used herein for $35.00 per day. The tractor is usually rented for $110.00 per day. Arceneaux explained that those rates applied if the rental took place after 8:00 A.M. He stated that, in this case, he was called at 1:00 A.M. and he charged $880.00 for the rental of the tractor and trailer. He stated that the extra charge was a surcharge for “inconvenience.”

The evidence clearly reflects that Arcen-eaux was not called until approximately 7:00 A.M., one hour before the “convenient” time of 8:00 A.M. The trial court properly reduced the rental charges from $880.00 to $250.00. The testimony of Arceneaux supports such a reduction.

The trial judge disallowed Item (7) which was the $270.00 charge by Guy’s for recleaning the site. The trial court held that this charge was “absolutely absurd” and disallowed it since the evidence reflected that, if the initial crew had performed their work properly, a recleaning would have been unnecessary. In view of the testimony, we cannot say that the trial judge was clearly wrong in arriving at this conclusion.

In addition to the labor charges furnished to Guy’s by Supreme, for the cleanup which was reduced by the trial court, the invoice reflects charges for the use of a truck and tools that were used by the crew who performed the initial cleanup operation. The charge for the use of this truck and tools was $126.00. Also, an item, entitled “11% fuel surcharge,” in the amount of $14.49 appears thereon. Arceneaux stated that this was an extra charge that had been initiated by the labor companies after fuel costs increased. The trial court’s reasons for judgment make no mention of the disposition of those items. We conclude that such charges are reasonable and should be allowed. Counsel for both parties stipulated, as trial began, that a 20% “handling” fee should be awarded for the items furnished to Guy’s by Supreme. This item will also be allowed. The judgment of the trial court will be amended to include those items.

We have re-computed the claim by Guy’s for the services rendered by Supreme, taking into consideration the reductions made by the trial court and adding the charges above, and we conclude that a total of $622.18 would be the proper award to Guy’s for the services rendered by Supreme. By making these changes we arrive at a total award to Guy’s of $3,073.47. The trial court judgment will be amended accordingly-

ATTORNEY’S FEES

The trial judge also denied attorney’s fees to Guy’s. We agree for two reasons. First, Seaboard properly points out that a claim for attorney’s fees based upon an open account, LSA-R.S. 9:2781, must be strictly complied with. One of the provisions requires that the creditor make written demand correctly setting forth the amount owed. We agree with Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3rd Cir. 1979), which denied attorney’s fees as the demand was excessive to that amount actually owed.

Also, we find that there is actually no open account upon which a claim for attorney’s fees can be claimed. Monlezun v. Fontenot, 379 So.2d 43 (La.App. 3rd Cir. 1979), defined an open account as:

"... a situation where there [had] been running or current dealings between the parties and the account [had] been kept open with the expectation of further dealings. ”

Here, it is obvious that there is only one occurrence which gives rise to the debt. This is not a situation where there were running or current dealings between the parties. The account was not held open with the expectation of further dealings. For these reasons we find the claim for attorney’s fees to be unfounded and their denial proper.

For the reasons assigned, the judgment of the trial court is amended by increasing the award from $2,962.43 to $3,073.47. In all other respects the judgment of the trial court is affirmed. Seaboard is to pay all costs of this appeal.

AMENDED AND AFFIRMED.

      . Labor $ 378.00
      Truck and Tools 126.00
      Fuel Adjustment 14,49
      $ 518.49
      Plus 20% 103.69
      $ 622.18

      . Computation of total award:
      Guy’s wreckers $ 1,450.00
      Guy’s Flat Bed Truck Rental 270.00
      Storage 440.00
      Gaidry’s Hardware 40.59
      Labor, Truck, Fuel Adjustment and 20% (Supreme) 622.18
      Tractor and Low Boy (R. J.’s) 250.00
      $ 3,073.47.


author: STOKER, Judge.

text:
    Florence Comeaux PLACIDE, Plaintiff-Appellee, v. Herbert PLACIDE, Jr., Defendant-Appellant.
    No. 8500.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Simon & Dauterive, J. Minos Simon, Lafayette, for defendant-appellant.
    Roy, Forrest & Lopresto, Alex A. Lopres-to, III, New Iberia, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   STOKER, Judge.

When a husband is tortiously injured during marriage and the parties become judicially separated, to what portion of the husband’s recovery in his tort action is the wife entitled in a partition of the community property? The trial court decided the case under Louisiana Civil Code article 2402 and 2334 as these articles formerly read. The trial court held the former wife was entitled to one-half of the tort recovery.

In West v. Ortego, 325 So.2d 242 (La.1975) the Louisiana Supreme Court considered this question with reference to a husband’s recovery of workmen’s eompensation benefits. The Supreme Court concluded that Articles 2334 and 2402 were not enacted with the issue in question in mind. It further concluded “that there is no positive law resolving the issue before us. Resort to equity, i. e., to natural law and reason, is therefore in order.” The court invoked LSA-C.C. art. 21. It then pronounced the following rule:

“Applying the foregoing principles, we conclude that where a husband’s settlement monies, acquired after dissolution of the community, but based upon a pre-dissolution, accident-related cause of action, compensate for both pre-dissolution and post-dissolution losses, that portion of the settlement which compensates for post-dissolution losses falls into the separate estate of the husband.
“Ascertaining the post-dissolution portion of the settlement in the case at hand is quite simple in view of the fact that the bulk of the prospective compensation settlement represents weekly fixed sums. Ascertaining the respective portions of a non-workmen’s compensation personal injury settlement (or jury verdict, for that matter), while not quite as simple, is nonetheless possible.”

In the case before us the trial court held that what the Louisiana Supreme Court suggested in the last sentence quoted above, contrary to being possible, was “obviously impossible” of determination in this case. It so held on the ground that the personal injury award to the husband in this case was not itemized by the jury. The trial court said: “There is no way to discern what portion of the jury’s verdict was meant to compensate for ‘post-dissolution losses’.” As a result the trial court held the entire recovery was community property, one-half of which belonged to the plaintiff wife. The defendant husband appealed. We amend in favor of the husband.

A constitutional issue raised below appears to have been abandoned in this appeal as it has not been argued before us.

FACTS

The facts of this case are not in dispute. Plaintiff-appellee, Florence Comeaux Plac-ide, and defendant-appellant, Herbert Plac-ide, Jr., were married on December 24,1970, and Herbert was injured on June 12, 1975. As a result of that injury Herbert recovered a judgment in a jury trial which was affirmed in this court with amendment which resulted in a judgment in his favor of $250,-000 in general damages, $47,733 in past lost wages, and stipulated medical expenses of $17,365. Placide v. Jay, 378 So.2d 473 (La.App. 3rd Cir. 1979). The trial court described the chronology of events as follows:

1. December 24, 1970 — -marriage of plaintiff and defendant.
2. June 12, 1975 — date of injury sustained by the defendant herein, Herbert Placide.
3. June 3, 1976 — lawsuit filed by Herbert Placide for injuries sustained as a result of the above mentioned accident.
4. April 21, 1977 — community of acquets and gains dissolved (Judgment of Separation — community terminated as of date petition filed.)
5. December 15, 1978 — Jury verdict in favor of Mr. Placide in the above mentioned suit in the amount of $540,000.00. (This verdict was subsequently reduced by the Third Circuit Court of Appeal.)
6. April 22, 1980 — The instant lawsuit was filed.

The jury which heard appellant’s case in Placide v. Jay, supra, awarded him a total of $540,000 in answer to interrogatories on a verdict form furnished to them as shown by a copy admitted as evidence and filed in the record of the present case. Tr. 48. There was no apportionment between general and special damages.

The trial court in its reasons for judgment explained that because the jury award was not itemized it would be speculative to attempt to determine how much of the award under the formula provided by West v. Ortego, supra, was pre-dissolution loss and how much was post-dissolution loss. Therefore, it reasoned that the entire amount of the judgment should be considered community property. Appellant argues on the other hand that there is a rational basis for apportionment of the recovery into a portion which is community property and a portion which is appellant’s separate property under the West v. Ortega formula.

According to a stipulation in the record (Tr. 56) Herbert Placide, Jr., realized $361,-894.30 from the judgment in his tort suit including principal and interest. This gross recovery was reduced to a net recovery of $225,713.71 by the payment of the contingency attorney fees and expenses of the law suit. It was further stipulated that one-half of the net recovery, $112,856.86, was deposited with E. F. Hutton & Company and that Florence Comeaux Placide would be paid from this deposit whatever amount, if any, was determined by the court to be due her including principal and interest. Also the parties stipulated that the trial court’s first judgment (rendered February 25, 1981) should be reformed and modified so as to reflect the stipulations, and this was done in a second judgment signed April 7,1981. Thereafter, defendant appealed.

Appellant proposes an apportionment in his brief which reflects the amount paid to appellant’s workmen’s compensation carrier under an intervention in the tort suit. The stipulation indicates this amount was $36,-110.24.

IS THERE A RATIONAL BASIS FOR APPORTIONMENT OF THE TORT ACTION RECOVERY?

The trial court focused on the $540,000 injury award which covered both general and special damages without any allocation of the total to any category. It also felt that to make an allocation in this particular suit required attempting to read the jury’s mind which it thought was impossible. The trial court erred in adopting these approaches. As a first predicate we note that the jury award and trial court judgment based upon that award is not the actual award. The award to defendant Herbert Placide, Jr. is that award made in the judgment of this Court of Appeal, namely $250,-000 in general damages, and special damages of $47,733 in past loss wages and $17,-365 in medical expenses. In addition we do not think it is necessary to speculate on the jury’s thoughts on the matter to make a rational and equitable apportionment of the recovery between community and separate estates. An apportionment can be made by the court itself on the basis of equity without basing the apportionment on an inquiry into what the jury might have thought.

Appellant urges that a proper apportionment of the special damages may be based on the relationship of the time elapsing from the date of the accident (June 12, 1975) until the date of dissolution of the community estate (April 21, 1977) and the time elapsing from the date of the accident until the date of the jury verdict (December 15, 1978). These periods are 1.86 years and 3.5 years. Therefore, the period from accident to dissolution of the community is 53% of the time from accident to the date of the jury verdict. Appellant suggests that the community estate should be allowed no more than 53% of the lost wages and medical expenses.

With respect to the general damage award of $250,000 appellant suggests his life expectancy should be a factor. He then urges that the community estate should be entitled to no more than the percentage which 1.86 years bears to the number of years which represent appellant’s life expectancy.

The case of West v. Ortega, supra, dictates that we resort to equity to apportion monies acquired after dissolution of the community for damages awarded in compensation for an accident which occurred before the dissolution of the community when the award covers both pre-dissolution and post-dissolution losses. We find that there is sufficient evidence before us to permit an equitable apportionment of the damages awarded to appellant.

The court in Placide v. Jay, supra, outlined the damages to the appellant as follows:

“After the accident on June 12, 1975, plaintiff was first seen by Dr. Roy Landry who found plaintiff, then 27 years of age, suffering moderately severe pain and swelling from an injury at the base of the penis. No injury to the back was diagnosed by Dr. Landry. He referred plaintiff to urologists for a possible injury to the urethra, but tests indicated healing had begun and plaintiff was discharged from the hospital on June 15, 1975.
“Plaintiff saw his family physician, Dr. G. D. Sagrera, on June 19, 1975, complaining of tenderness in his penis. Dr. Sagrera referred plaintiff to Dr. Blac-ham, a urologist.
“On June 30, 1975, plaintiff was examined by Dr. Spencer Walton, an orthopedic surgeon, who diagnosed a muscle strain in the low back. Plaintiff continued to see Dr. Walton for his back strain until April of 1976. There are no residuals of the back injury.
“Plaintiff was seen by Dr. Sagrera again on July 11, 1975 and July 22, 1975 for complaints or impotence, i. e., the inability to have an erection sufficient for penetration.
“On August 8, 1975, plaintiff began a long course of treatment by Dr. Brantly Scott, a urological surgeon in Houston, Texas. Dr. Scott specializes in impotency. He diagnosed that plaintiff was impotent. More specifically, Dr. Scott explained that the blow to the base of the penis left scar tissue which impaired the blood supply into the penis to the extent that plaintiff could not have a full erection. He recommended the only treatment available, a surgically implanted silicone-rubber prosthesis.
“On October 10, 1975, Dr. Scott surgically implanted this prosthesis. It consists of two cylindrically-shaped silicone-rubber cylinders, which are expansive. The cylinders are placed inside the erectile bodies of the penis. They are connected by tubes to a pump implanted in the scrotum. The pump is connected by tubing to a silicone-rubber fluid reservoir, which is placed in the abdomen near the bladder. When the patient wants to have an erection, he squeezes with his fingers the pump inside the scrotum a sufficient number of times to pump fluid from the reservoir into the cylinders in the penis. This procedure takes about five minutes. After completing intercourse, the patient then squeezes a valve, also in the scrotum, which allows the fluid to flow from the cylinders in the penis back into the reservoir in the abdomen.
“After the implant of the prosthesis and recovery from the initial surgery, plaintiff returned home and was able to have an erection. His wife testified they had intercourse two or three times a week, which was about the same as before the accident.
“In February of 1976, plaintiff erected his penis but was unable to deflate the cylinders because of a malfunction. He returned to Houston, where Dr. Scott replaced the prosthesis on February 24, 1976.
“In April of 1977, the prosthesis developed a leak. Plaintiff returned to Houston and Dr. Scott replaced it again. In August of 1977, there was a fourth surgical procedure to shorten a portion of the tubing, but the device was not replaced.”

In the Placide v. Jay opinion this court found that the appellant was entitled to $250,000 in general damages and $65,098 in special damages. The special damages consist of $47,733 for past loss of wages, and $17,365 as the stipulated medical damages. The parties also stipulated that the entire award to the appellant at the time of the trial in the present suit was $225,713.71. This figure includes the principal and the interest accrued up to the time that the judgment was satisfied, but excludes the one-third contingency attorney’s fees, the amount recovered by the compensation insurer, intervenor and the out-of-pocket expenses.

NET AMOUNTS TO BE APPORTIONED

By apportioning the interest, attorney’s fees, and expenses between the general and special damages, we can arrive at workable figures to distribute between pre-dissolution and post-dissolution losses. The amount of $65,778.69 represents the interest added to the general damages of $250,000. From the sum of these two figures ($315,-778.69) the attorney’s fees of $105,246.31 and expenses of $2,799.91 are subtracted, leaving a total of $207,732.47. This figure represents the total award for general damages actually received by the appellant.

To the $65,098 awarded to the appellant for special damages, $17,128.25 is added for interest and the figures of $27,405.30, $729.07, and $36,110.64 are subtracted from the total, representing the attorney’s fees, expenses, and the intervenor’s claim, respectively. The intervenor’s claim is subtracted from the special damages because the intervenor paid compensation to the appellant for lost wages and medical damages. This leaves a total of $17,981.24 in special damages which the appellant actually realized.

We now must decide what proportion of the figures we have arrived at for special and general damages falls into the community property of the parties to this suit. The remainder is the separate property of the appellant.

APPORTIONMENT OF SPECIAL DAMAGES

With respect to the special damages, we find that, according to the evidence adduced at trial, the bulk of that award should be considered community property. The special damages are divided into compensation for past loss of wages and the medical expenses incurred by the appellant. Dr. F. Brantley Scott, who performed the implant surgery on appellant, testified in his deposition that he recommended that the appellant return to work in August of 1975. Dr. Spencer Walton, who treated appellant for back strain resulting from his accident, testified that the appellant’s back condition had improved enough for him to return to work as of March of 1976. The community was dissolved on April 21, 1977. Therefore, the lost wages compensation is solely for damages incurred before dissolution of the community. Hence, the entire amount awarded to appellant for lost wages should be considered to be community property.

Furthermore, the only item of the medical damages incurred by the appellant after dissolution of the community was for the surgical procedure performed in August of 1977. The other three surgeries and numerous visits to various doctors occurred before the community was dissolved. The amount of $17,365 was stipulated by the parties as the total amount of medical damages incurred by the appellant, but that figure was not broken down for each surgery. Therefore, we cannot exactly determine the cost to appellant of the final surgery. However, we will estimate the amount of $500 to account for the post-dissolution medical damages from the fourth surgery to appellant. This leaves a remainder of $17,481.24 from the total special damages of $17,981.24. This remainder will be apportioned to community property.

APPORTIONMENT OF GENERAL DAMAGES

As to the award for general damages, appellant contends that the general damages were awarded to him to compensate for a loss which he will suffer for his entire lifetime. On the other hand, appel-lee in her brief argues that the general damages included a portion to compensate appellant for temporary pain and suffering incurred for the most part before the dissolution of the community. All but the last surgical procedure was performed during the existence of the community between appellant and appellee. It is clear that at least some part of the general damages awarded to appellant was intended to compensate him for his pain and suffering resulting from the injury to his penis and back and from the four surgeries. It is equally clear, however, that the greater part of the award for general damages was intended to compensate the appellant for the loss of normal sexual function which he will suffer for the remainder of his life. Although there was evidence at trial that the appellant could perform sexual intercourse as often after the accident as he did before, there was also evidence that the use of the prosthesis was a source of embarrassment and inconvenience to the appellant and that intercourse after the implant was not very satisfactory. Accordingly, on an equitable basis, we find that the general damages of $207,713.71 compensates the appellant for $20,000 of pre-dissolution losses and $187,713.71 of post-dissolution losses. That portion which compensates for post-dissolution losses falls into the separate estate of the husband, and that portion for pre-dissolution losses falls into the community.

CONCLUSION

As we have found above, $17,481.24 from the award for special damages, and $20,-000.00 from the award for general damages should be considered to be community property. The total of these two figures is $37,451.24. Therefore, the appellee is entitled to half of this amount, or $18,740.62, as her share of the community property. We will amend the trial court’s judgment accordingly.

For the foregoing reasons, it is hereby ordered, adjudged and decreed that judgment of the trial court be affirmed in all particulars except insofar as it awards plaintiff-appellee, Florence Comeaux Plac-ide, the full amount of $112,856.86 on deposit with E. F. Hutton & Company with accrued interest. The judgment of the trial court is hereby amended and it is ordered, adjudged and decreed that of the amount on deposit plaintiff-appellee Florence Co-meaux Placide is awarded the sum of $18,-740.62 with interest accrued on that amount, and defendant-appellant is awarded the amount of $94,116.24 with accrued interest on that amount. As thus amended the judgment of the trial court is affirmed.

The cost of this appeal are assessed equally to appellee and appellant.

AMENDED AND AFFIRMED AS AMENDED.

APPENDIX

TABLE OF APPORTIONMENT

General Damages $ 250,000.00 + 65,778.69 interest

315,778.69 - 105,246.31 attorney’s fees

210,532.38 - 2,799.91 interest

$207,732.47

Special Damages $ 65,098.00 + 17,128.25 interest

82,226.25 - 27,405.30 attorney’s fees

54,820.95 - 729.07 expenses

54,091.88 - 36,110.64 intervenor’s claim

$ 17,981.24

$ 207,732.47 + 17,981.24 general damages special damages

$ 225,713.71 amount stipulated

      . The issues involved in this case are now regulated by LSA-C.C. art. 2344 as amended, effective January 1, 1980. As the accident which befell Herbert Placide, Jr. occurred prior to the effective date of this amendment, former Articles 2402 and 2334 apply in this case.
      As they formerly existed, these articles provided:
      “Art. 2402. This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. But damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone; ‘provided where the injuries sustained by the wife result in her death, the right to recover damages shall be as now provided for by existing laws.’ ”
      “Art. 2334. The property of married persons is divided into separate and common property.
      Separate property is that which either party brings into the marriage, or acquires during the marriage with separate funds, or by inheritance, or by donation made to him or her particularly.
      The earnings of the wife when living separate and apart from her husband although not separated by judgment of'court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property.
      Actions for damages resulting from offenses and quasi offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property.
      Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared. But when the title to community property stands in the name of the wife, it cannot be mortgaged or sold by the husband without her written authority or consent.”

      . See Table of Apportionment appended to this opinion.


text:
    Gladney PRATT, et al., Plaintiffs-Appellants, v. STATE of Louisiana, Defendants-Appellees.
    No. 8506.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.
    Writ Denied March 19, 1982.

      Eugene P. Cicardo, Gravel, Robertson & Brady, James J. Brady, Alexandria, for plaintiffs-appellants.
    David C. Kimmel and Janice M. Hornot, La. Dept, of Justice, Baton Rouge, Gist, Methvin, Hughes & Munsterman, David Hughes, Alexandria, for defendants-appel-lees.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is one of two cases which were consolidated for trial. We render a separate opinion in the companion case on this date.

Both cases are wrongful death and survival actions growing out of the drownings of Mark S. Pratt and Darrell Ray Burgess at Indian Creek Reservoir and Recreation area.

In both cases the trial court granted motions for summary judgment based on a state statute purporting to exempt or grant immunity from liability to owners of land used for recreational facilities. The statute is LSA-R.S. 9:2795. The statute does not apply to “an owner of commercial recreational developments or facilities.” One of the principal issues is whether the recreational area at which the drownings occurred was a commercial development or facility. The trial court held it was not so that the defendants were exempt from liability from negligence.

Plaintiffs in both cases base their cases on alleged acts of negligence of a state agency and the Rapides Parish Police Jury. The Indian Creek Reservoir and Recreational Area contains an artificial lake with adjacent recreational areas. The lake and facilities are located on land owned by the State through the Department of Natural Resources, Office of Forestry. That agency and the Rapides Parish Police operate and maintain the facility under a contract entered into by the two public bodies. The statute on which the summary judgments were granted, LSA-R.S. 9:2795, provides as follows:

“A. As used in this Section:
(1) ‘Land’ means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(2) ‘Owner’ means’ the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
(3) ‘Recreational purposes’ includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized vehicle operation for recreation purposes, nature study, water skiing, ice skating, sledding, snow mobiling, snow skiing, summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.
(4) ‘Charge’ means the admission price or fee asked in return for permission to use lands.
■ (5) ‘Person’ means individuals regardless of age.
B.Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(1) Extend any assurance that the premises are safe for any purposes.
(2) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(3)Incur liability for any injury to person or property incurred by such person.
C. Unless otherwise agreed in writing, the provisions of Subsection B shall be deemed applicable to the duties and liability of an owner of land leased for recreational purposes to the federal government or any state or political subdivision thereof or private persons.
D. Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Act to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.”

The trial court gave extensive well written reasons for judgment. We take the liberty of quoting portions of those reasons which we adopt as our own and to which we will add further comment. The trial court’s reasons for judgment state:

“ * * * The legal responsibility of the defendants in these suits is predicated upon negligence. While the specific allegations of negligence vary somewhat in each suit, generally plaintiffs aver that defendants were negligent in failing to provide lifeguards, adequate warnings, proper rescue equipment, properly trained rescue personnel, and further aver that defendants were negligent in maintaining and operating the swimming area which they knew, or should have known was unsafe for such purposes.

“The defendants, Rapides Parish Police Jury (hereinafter sometimes referred to as ‘Police Jury’) and the State of Louisiana, through the Department of Natural Resources, Office of Forestry (hereinafter sometimes referred to as ‘the State’), have filed Motions for Summary Judgment in each of the suits. The defendant Police Jury contends that the Indian Creek Reservoir and Recreation Area was under the exclusive operation, maintenance and control of the State of Louisiana and as such, the Police Jury did not have any right, duty or obligation to maintain, and operate the recreation and swimming area. The Police Jury contends in the alternative, that it is exempted from liability for damages which occurred under the circumstances involved in this matter by [LSA-R.S.] 9:2795. The State of Louisiana contends that it also is exempt from liability under the same statute.

“The two issues presented for decision on these motions are:

1) Whether a genuine issue of material fact exists as to the control over the Indian Creek Reservoir and Recreation Area;
2) Whether the defendants are exempted from liability by [LSA-R.S.] 9:2795.

PART I. CONTROL

“The Police Jury’s principal contention presupposes, and in effect admits, that the existence of a duty for which liability may be established, is premised on a finding that the defendant exercised some degree of control over the recreation and swimming area. In support of the motion, defendant relies heavily on a contract and agreement dated April 22, 1974 between the Police Jury and the State of Louisiana, and the deposition of Mr. Lamar Joffrion, District Forester for the Office of Forestry.

“The contract clearly states:

‘The Louisiana Forestry Commission shall operate and maintain and manage the Indian Creek Recreational Area and shall have the right and authority to assess and collect fees for the use of the recreational area which funds so collected shall be used exclusively for the maintenance and operation of the Indian Creek Reservoir and Recreational Area.’

“In his deposition, Lamar Joffrion, in response to questioning regarding the state’s control over the operation of the recreation area, testified that they ‘basically, administer it.’ (Depo., P.8).

“The general tenor of the contract and deposition is that the day-to-day operation of the recreation area has been left largely to the State.

“However, the contract of April 22, 1974 also recognizes and provides for certain duties to be performed by the Police Jury. The Police Jury is charged with responsibility for the maintenance and operation of the reservoir and spillway, and maintenance of blacktopped roads within the recreation complex. The agreement also provides for the establishment of an advisory committee, ‘in order to insure the effective operation of the reservoir and recreational area.’ That committee is composed of eight (8) members, two of which come from the Police Jury.

“In reference to the committee, Lamar Joffrion testified:

‘Basically whenever we do something new out there, we pass it through that committee. Raise fees, raise and lower the water level, you know, and new construction that’s going on, any road work that needs to be done, boat dock that needs— things below the water line which we can’t do, or whenever we need help, we call on them and they do it.’

“Lamar Joffrion also testified to the effect that he was under the impression that the Police Jury had passed ordinances on certain aspects of the recreation area activities. Plaintiffs have not complied with law relative to the introduction into evidence of ordinances and so this Court is unable to take judicial notice of those local laws, if any.

“From the items submitted to support or oppose the motion, it is apparent, that the State, in large measure, controls the operation of the recreation area. It is equally apparent that, to some small degree, the Police Jury also exercises control.

“The degree of control each body exercises is a fact question. At this point, it cannot be said that the issue is resolved. Accordingly, the Motion for Summary Judgment on the basis of lack of control is inappropriate.

PART II. EXEMPTION FROM LIABILITY

“Movers have contended that regardless of the control issue, they are exempted from liability by [LSA-R.S.] 9:2795 which reads in pertinent part:

‘B. Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:

1) Extend any assurance that the premises are safe for any purposes;
2) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed;
3) Incur liability for any injury to person or property incurred by such person.’

“The statute defines ‘owner’ as the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.- Somewhat inconsistently with its position discussed earlier, the Police Jury urges that it has the status of an ‘owner’ for the purposes of exemption under this alternative basis for summary judgment.

“Both sides have extensively briefed and argued the effect of [LSA-R.S.] 9:2795. Movers contend that LSA-R.S. 9:2795 operates to immunize them from any liability under circumstances such as are present in this case unless there is a finding that they are guilty of a willful or malicious failure to warn against a dangerous condition or that Indian Creek Reservoir and Recreation Area is a commercial recreational development or facility.

“Primary emphasis has been placed by both parties on the interpretation of the phrase, ‘commercial recreational developments or facilities’. Movers contend that [LSA-R.S.] 9:2795 should be read in pari materia with [LSA-R.S.] 9:2791 which equates a commercial recreational enterprise with an establishment run for profit. Mover argues that the Indian Creek area is not run for profit and therefore is not to be considered a commercial recreational enterprise with an establishment run for profit. Mover argues that the Indian Creek area is not run for profit and therefore is not to be considered a commercial recreational development or facility within the meaning of [LSA-R.S.] 9:2795. Defendants in Motion have argued that the Indian Creek area is run for profit. Alternatively, plaintiffs have argued that it was not the intent of the legislature to create an immunity in a situation such as here present, particularly, in light of the abolition of sovereign immunity contained in Article 12, Section 10 of the Louisiana Constitution of 1974.

“From the wording of the statute, it is clear that the legislature has envisioned some situations where an owner of land would be immune to liability even if he receives some financial remuneration for the use of his property. It is equally clear that there are some situations in which an owner of land may be exposed to liability even if the use of his land is a pure gratuity. Taken in this light, resolution of the question of whether or not profit is made is not necessarily determinative of the issue of whether or not immunity is available.

“Having considered the arguments of counsel, depositions and affidavits filed in the record, this Court finds that within the intendment of the statute, a commercial recreational development or facility is one which is run for profit and further finds that the Indian Creek Reservoir Recreational Area is not run for profit. Accordingly, under the terms of this statute, the defendants are not owners of commercial recreational developments or facilities.

“This does not end the inquiry however. As previously discussed, this finding that the defendants were not owners of a commercial recreational development or facility does not in and of itself mean that they are immune from liability.

“The precise nature and extent of the immunity granted by LSA-R.S. 9:2795 is not clear. This Court has endeavored to employ the canons of statutory construction embodied in Civil Code Articles 13 through 21 and jurisprudence to interpret the statute.

“In a Louisiana Law Review article which examined the phraseology of [LSA-R.S.] 9:2791 (which is similar in wording to [LSA-R.S.] 9:2795), the author wrote:

‘The statute refers broadly to an absence of a ‘duty of care to keep premises safe from injury.’ Presumably, the measure refers only to the physical condition of the land and does not purport to grant any immunity to the landowner with reference to the activities in which he may engage in the presence of trespassers or licensees. But again, the act invites the argument that a carelessly conducted activity is merely one aspect of the maintenance of unsafe premises, and that the legislature intended an immunity here also. If so, the jurisprudence of Louisiana will have received serious setbacks.’

“Defendants have argued persuasively that the broad grant of immunity is precisely what the legislature intended and that this interpretation is clear from a plain reading of the text. From the urging of the parties and the obvious difficulties in interpretation of the statutes, it is clear that an examination of the legislative intent is appropriate. In attempting to discern the legislative intent, this Court has examined, among other things, the title of the act and the existing law which may have prompted enactment of that statute. While not part of the statute, the title of an act may be used to determine legislative intent. State v. Madere, 352 So.2d 666 (La.1977).

“The title of the act states:

‘An act to provide for the limitation of tortious liability to landowners where property is made available to the public for recreational purposes.’

“The statement of the purpose of the act is contained in Section 1. It states:

‘That the purpose of the act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.’

“It is clear from the foregoing that the legislature intended to grant an immunity to landowners who allow their property to be used for recreational purposes. The extent of that grant of immunity is not yet clear.

“The jurisprudence is to the effect that the legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject. Legros v. Conner, 212 So.2d 177 (La.App., 3rd Cir. 1968).

“Prior to the enactment of [LSA-R.S.] 9:2795, the legislature had enacted [LSA-R.S.] 9:2791 (Acts 1964, No. 248). That statute was virtually identical to the one in question, with the exception of certain language contained in the new statute which would extend the immunity even if a nominal fee is charged for the use of the property. There is an absence of applicable legislation (sic) on [LSA-R.S.] 9:2791. It is clear however, that prior to the enactment of that statute and after its enactment, presumably due to ignorance of its provisions, owners of land were often held liable for injuries which occurred on their property.

“Prior to this statute’s enactment, it was generally held that a landowner owed a duty to a licensee to provide safe premises and to warn of defects on his property. Cf. Cothern v. LaRocca, [255 La. 673], 232 So.2d 473 (1970). It is quite possible, as the defendants contend, that the legislature intended to alter the state of the jurisprudence. This contention is supported by the statement of purpose of the act, by the title of the act, and by the relative narrowness of the scope of the act. The grant of immunity is limited to those landowners who allow their property to be used for recreational purposes. The statute specifically provides that a landowner who permits another to use his land for recreational purposes does not constitute (sic) such person the legal status of an invitee or licensee to whom a duty of care is owed. The statute also specifies that the owner is not to incur liability for any injury to person or property incurred.

“Plaintiffs have argued that such a grant of immunity to the state or its political subdivisions would be contrary to the prohibition against sovereign immunity contained in Article 12, Section 10, of the Louisiana Constitution of 1974. This argument is without merit. [LSA-R.S.] 9:2795 is not designed to re-establish immunity on the basis of a sovereign status.

“By its terms, the grant of immunity is made to any landowner who has made his land available for certain recreational purposes. The State, for the purposes of the statute, stands in the same position as would any other private litigant.

“Having considered the text of the statute and its stated purposes in light of the state of the law at the time of the enactment of [LSA-R.S.] 9:2795, this Court finds that the legislature intended to grant an immunity from liability under the circumstances of this case.

“Accordingly, for the foregoing reasons, judgment is rendered herein in favor of defendants granting the Motions for Summary Judgment.”

Act 591 of 1970 of the Louisiana Legislature authorized the Louisiana Forestry Commission to manage and maintain the Indian Creek Reservoir and Recreational Area. Section 2 of the Act authorized the commission “to assess and collect fees for use of the Reservoir and Recreational Area,” but further provided that “the funds so collected shall be used exclusively for the maintenance and operation of” the facility. A similar provision appears in the contract between the defendants. The attachments to the motions for summary judgment indicate that the various fees charged are nominal.

Plaintiffs place heavy reliance on the fact that fees are charged for use of the recreational facilities. Regarding this point some reasonable effect must be given to the use in LSA-R.S. 9:2795 of the words “with or without charge.” The critical words are: “an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes . . . does not thereby . . . (3) Incur liability for any injury to person or property incurred by such person.” (Emphasis added.) Clearly the use of the words “with or without charge” must be construed to mean that charging fees for use of recreational facilities does not in itself render the operation and maintenance of such facilities a commercial venture. Logically there would have been no reason to include these words in the statute unless it was for the purpose of providing that charging fees would not render an operation commercial. The provision becomes significant only when a fee is charged.

In view of these conclusions, what factors render a recreational facility a commercial one? The trial court worked the matter out on the basis of whether the enterprise contemplates the earning of a profit. Section 2, Act 591 of 1970 as noted above specified that the Indian Creek Reservoir and Recreational Area should be a non-profit enterprise. Reference to standard dictionary definitions of the word “commercial” convince us that in the context of the facts of the case before us, profit as a primary objective of the venture would be essential to render it commercial. Thus we conclude that the Indian Creek Reservoir and Recreational Area is not a commercial enterprise within the contemplation of LSA-R.S. 9:2795. Under the circumstances it was the purpose and policy of the Legislature to provide non-liability of defendants for the acts of negligence alleged in plaintiffs’ petition.

With reference to the Rapides Parish Police Jury a further point should be emphasized. This agency first contended that it was entitled to be dismissed on motion for summary judgment on the ground that it neither owned nor controlled the reservoir and recreation facilities. The trial court found that it was clear that the Police Jury did exercise control over the facility to some degree. Hence, a motion for summary judgment in favor of the Police Jury on this ground was inappropriate. On the other hand this finding that the Police Jury exercised control to some degree was sufficient to make the Police Jury an “owner” under the statute in question. This was the Police Jury’s alternative position.

The definition of “owner” is contained in subparagraph (2) of Paragraph A of LSA-R.S. 2795. It provides as follows:

“ ‘Owner’ means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.” (Emphasis supplied.)

Considering this statutory definition we think the trial court was correct in deeming the Police Jury to be an owner within the contemplation of the statute. Therefore, this defendant enjoyed the protection of the statute.

Plaintiffs cannot complain of this interpretation and holding. In the Pratt case plaintiffs alleged in Paragraph 11 of their petition that “[t]he Indian Creek Reservoir and Recreation Area, at the time, was under the exclusive control of the defendants.” In the Maxwell case the plaintiff named the defendants in paragraph one of her petition, stating in part: “Made defendants herein are: (a) The Rapides Parish Police Jury . .. among whose duties is the supervising and maintaining of the Indian Creek Recreation Area .. . ”.

For the foregoing reasons the judgment of the trial court in this case is affirmed. The costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

      . The companion case is Maxine B. Mitchell v. Rapides Parish Police Jury, et al., 408 So.2d 343 (La.App. 3rd Cir. 1981).

      . The trial court refers to a review in 25 La. Law Review 47 by Professor Wex Malone and the quotation appears on page 49.


text:
    Maxine B. MITCHELL, Plaintiff-Appellant, v. RAPIDES PARISH POLICE JURY, et al., Defendants-Appellees.
    No. 8507.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.
    Writ Denied March 19, 1982.
    Eugene P. Cicardo, Gravel, Robertson & Brady, James J. Brady, Alexandria, for plaintiffs-appellants.
    David C. Kimmel and Janice M. Hornot, La. Dept, of Justice, Baton Rouge, Gist, Methvin, Hughes & Munsterman, David Hughes, Alexandria, for defendants-appel-lees.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   STOKER, Judge.

For the reasons stated in the companion case of Gladney Pratt, et al v. State of Louisiana, et al, 408 So.2d 336 (La.App. 3rd Cir. 1981), in which a separate decision is being rendered by us this date, the judgment of the district court in the present case is affirmed. All costs of this appeal are assessed against the appellant.

AFFIRMED.