author: JASPER E. JONES, Judge.

text:
    ALLIED CHEMICAL CORPORATION, Plaintiff-Appellee, v. Maude S. DYE, et al., Defendants-Appellants.
    Nos. 15744-CA, 15745-CA and 15746-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Rehearing Denied Nov. 10, 1983.
    Writ Denied Jan. 16, 1984.

      Shotwell, Brown & Sperry by Edel F. Blanks, Jr., Monroe, for Allied Chemical Corp.
    Blanchard, Walker, O’Quin & Roberts by J. Jay Caraway, Shreveport, for Maude S. Dye.
    Plauche, Hartley, Lapeyre & Ottinger by S.W. Plauche, III, Lafayette, for Frank D. Rippy.
    Shuey & Smith by John M. Shuey, Jr., Shreveport, for O.B. Mobley, Jr.
    Napper, Waltman, Madden & Rogers by R.H. Madden, III, Ruston, for Peter Repet-to, Helen H. Repetto, Truman A. Potts, Ellen R.C. Potts, Richard H. Springer and Myrtis Cook Springer.
    M. Thomas Arceneaux, Shreveport, for Despot-Hawkins, Rentals.
    Snellings, Breard, Sartor, Inabnett & Trascher by D.R. Sartor, Jr., Monroe, for Harold L. Woods, Jr., William E. Dent, Jr., William E. Dent, III, Ralph N. Saber, John 0. Clay, Fred Pee and James H. Walters.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   JASPER E. JONES, Judge.

This is a concurcus proceeding initiated by the owner of leases covering three tracts of lands which are in producing units to determine who is entitled to receive the lessor’s part of the proceeds from the minerals. The appellants, who are designated by the trial court as the “Group ‘B’ Defendants,” contend that mineral reservations contained in 1971 sales to their ancestors in title were invalid. They contend the reservations were invalid because the vendor in these deeds, who had received the property in a 1967 partition, had in the partition agreement participated in the creation of servitudes covering all the minerals and for that reason he had no minerals to reserve in the 1971 deeds. The trial court found the 1971 mineral reservations valid and we AFFIRM.

The trial judge in his reasons for judgment set forth in a clear and concise manner the complicated facts which created the litigation and we quote the facts, which are not in dispute, from the trial judge’s reasons:

“OPINION

These three cases, consolidated for the purposes of trial and judgment because they originate from the same transaction and involve similar factual situations and common legal issues, are concursus proceedings brought by the plaintiff, ALLIED CHEMICAL CORPORATION, which is the stakeholder, against two groups of defendants in each case, designated as the “Group ‘A’ Defendants” and the “Group ‘B’ Defendants.” The “Group ‘A’ Defendants” in each of the cases are MAUDE S. DYE, FRANK D. RIPPY, and O.B. MOBLEY, JR.

In Civil Docket No. 30,501, the “Group ‘B’ Defendants” are HAROLD L. WOODS, JR., WILLIAM E. DENT, III, WILLIAM E. DENT, JR., RALPH N. SABER, JOHN 0. CLAY, and FRED PEE.

In Civil Docket No. 31,112, the “Group ‘B’ Defendants” are HAROLD L. WOODS, JR., WILLIAM E. DENT, III, WILLIAM E. DENT, JR., RALPH N. SABER, JOHN 0. CLAY, FRED PEE, and JAMES HASTINGS WALTERS.

In Civil Docket No. 31,113, the “Group ‘B’ Defendants” are PETER REPETTO, HELEN HOMAN REPETTO, TRUMAN A. POTTS, ELLEN RUTH COLLINS POTTS, RICHARD H. SPRINGER, MYRTIS COOK SPRINGER, and DESPOT-HAWKINS, RENTALS, a partnership composed of GREGORY A. DESPOT, CAMILLE C. DESPOT, GEORGE J. DESPOT, and GERALD W. HAWKINS.

The particular tracts of property and mineral interests thereto appertaining, which are the subjects of these suits, are as follows:

In Civil Docket No. 30,501—

Southwest Quarter of Northwest Quarter, Section 32, Township 19 North, Range 4 West, Lincoln Parish, Louisiana;

In Civil Docket No. 31,112—

South half of South half of Northeast Quarter, Section 31, Township 19 North, Range 4 West, Lincoln Parish, Louisiana;

In Civil Docket No. 31,113—

Northwest Quarter of Northeast Quarter, Section 31, Township 19 North, Range 4 West, Lincoln Parish, Louisiana.

The plaintiff, which is the present holder of oil, gas and mineral leases upon each of the tracts, granted by both of the respective “Group ‘A’ Defendants” and the “Group ‘B’ Defendants,” of each tract, has deposited into the Registry of the Court the portion of the proceeds claimed by the respective groups of defendants from the production of wells on units within which the tracts are located, as follows:

In Suit No. 30,501—

The Gertrude D. Crawford No. 1 Well to be drilled in search of oil and gas in Section 32, Township 19 North, Range 4 West, Lincoln Parish, Louisiana, which was completed as a producer from the Gray Sands Reservoir A in the Terryville Field, with production commencing on October 23, 1979. By Order No. 370-E dated effective May 23, 1979, the Office of Conservation of the State of Louisiana created units for the Gray Sands, Reservoir A in the Terryville Field, Lincoln Parish, Louisiana, one of which said units constitutes all of Section 32, Township 19 North, Range 4 West, identified as the Gray RA SU B Unit, including the property involved in this suit;

In Suit No. 31,112—

The Willamette Corp. No. 31-1 Well, to be drilled in search of oil and gas in Section 31, Township 19 North, Range 4 West, completed as a producer from the Gray Sands Reservoir A in the Ter-ryville Field, production commencing on February 12, 1980. By Order No. 370-E dated effective May 23, 1979, the Office of Conservation of the State of Louisiana created units for the Gray Sands, Reservoir A in the Terryville Field, Lincoln Parish, Louisiana, one of which units constitutes all of Section 31, Township 19 North, Range 4 West, identified as the Gray RA SU M Unit, which unit includes all of the property described in this suit.

In Suit No. 31,113—

The Willamette Corp. No. 31-1 Well to be drilled in search of oil and gas in Section 31, Township 19, North, Range 4 West, completed as a producer from the Gray Sands Reservoir A in the Ter-ryville Field, production commencing on February 12, 1980. By Order No. 370-E dated effective May 23, 1979, the Office of Conservation of the State of Louisiana, created units for the Gray Sands, Reservoir A in the Terryville Field, Lincoln Parish, Louisiana, one of which units constitutes all of Section 31, Township 19 North, Range 4 West, identified as the Gray RA SU M Unit, which unit includes all of the property described in this suit.

Prior to 1967, George H. Dye and other members of his family owned in indivisión various tracts of land in Lincoln Parish, Louisiana, including the properties above described and involved in these suits. Their co-ownership resulted from inheritance from the parents of George H. Dye, and in Mr. Dye’s instance, his purchase of undivided interest from a number of his co-heirs. By 1967, George H. Dye had acquired by inheritance and purchase an undivided 207/32oths interest in the entire property owned by the Dye family, which is described as follows:

NW ¼ of NE ¼, Section 31, ..., Section 30, Township 19 North, Range 4 West, ALSO:
SW ¼ of NW ¼, Section 32, S ½ of S ½ of NE ¼, Section 31, Township 19 North, Range 4 West, ...
All being situated in Lincoln Parish, Louisiana.

In 1967, the co-owners executed an Act of Partition of the above described property, which was executed by the various parties on August 12, and 18,1967, and on September 9, 1967. An error in the description of the lands being received by George H. Dye was subsequently corrected by an Instrument recorded December 23, 1970. The original Act of Partition was recorded on September 13, 1967, in COB 124 p. 462, Document No. C-59612, records of Lincoln Parish, Louisiana, and the Correction of the Act of Partition was recorded December 23, 1970, in COB 146 p. 197, under Document No. C-72680, records of Lincoln Parish, Louisiana.

The original Act of Partition contained the following provisions:

‘It is specifically agreed and understood that this partition shall not cover or af-feet the minerals lying in, on, under, or that may be produced from, the property herein partitioned.’ (Emphasis added.)

The particular portion of property acquired by George H. Dye by virtue of the Act of Partition, as subsequently corrected, is described as follows:

“... NW ¼ of NE ¼, Section 31 and S ½ of S. ½ of NE ¼, Section 31, ... SW ¼ of NW ¼, Section 32, Township 19 North, Range 4 West; ...”

By deed dated April 2, 1971, recorded in COB 149, p. 68, records of Lincoln Parish, Louisiana, George H. Dye conveyed to Frank Trussell the property involved in Suit 30,501, along with other land, reserving all of the oil, gas and other minerals owned by him on, in and under and that might be produced therefrom. By deed April 2,1971, recorded in COB 149, p. 68, records of Lincoln Parish, Louisiana, George H. Dye conveyed to Frank Trussell the property involved in suit No. 31,112, along with other lands, reserving all of the oil, gas and other minerals owned by him on, in and under and that might be produced therefrom. By deed dated April 2, 1971, recorded in COB 149, p. 67, records of Lincoln Parish, Louisiana, George H. Dye conveyed to Frank Trussell the property involved in Suit No. 31,113, along with other lands, reserving all of the oil, gas and other minerals owned by him on, in, and under and that might be produced therefrom. Maude S. Dye is the widow and sole heir and legatee of George H. Dye, deceased, and has succeeded to any interest in the minerals in and under the property that George H. Dye may have owned by virtue of these last-mentioned reservations. Mrs. Maude S. Dye has been interdicted and her curator, Willard Donald Wallace, appears in these proceedings on her behalf.

By deed dated May 13, 1971, recorded in COB 149, p. 850, and by deed dated August 7, 1973, recorded in COB 168, p. 410, all of the records of Lincoln Parish, Louisiana, Fred Pee purchased the property involved in Suit No. 30,501, and is the present owner of the property at the time of filing of that suit.

By deed dated May 13, 1971, recorded in COB 149, p. 850, and by deed dated August 7, 1973, recorded in COB 168, p. 410, all of the records of Lincoln Parish, Louisiana, Fred Pee purchased all that part of the South half of the South half of the Northeast Quarter, Section 31, Township 19 North, Range 4 West, lying East of the Center line of Lincoln Parish Road No. 233, together with other lands, and he is the present record owner of such property involved in Suit No. 31,112, as of the time the suit was filed.

According to the public records of Lincoln Parish, Louisiana, the property involved in Suit No. 31,113 is presently vested in the following persons:

“W/2 of W/2 of NW/4 of NE/4 Section 31, Township 19 North, Range 4 West
- In Peter Reppeto and Helen Homan Reppeto (husband and wife)
“E/2 of W/2 of NW/4 of NE/4, Section 31, Township 19 North, Range 4 West
- In Truman A. Potts and Ellen Ruth Collins Potts (husband and wife)
“E/2 of NW/4 of NE/4, Section 31, Township 19 North, Range 4 West -
In Richard H. Springer and Myrtis Cook Springer (husband and wife)”

(End of quote from trial court reasons)

The group ‘B’ defendants, who are the appellants, are the respective landowners of the three tracts involved in the consolidated cases and those parties who acquired mineral or royalty interest from certain of these owners in the parcels owned by them. The group ‘A’ defendants are Mrs. Maude S. Dye, and her curator, and parties who purchased royalty interest from Mrs. Dye prior to her interdiction.

Each group of defendants filed motions for summary judgment in each case and the trial court granted summary judgments in each case in favor of the group ‘A’ defendants.

There were eight parties to the partition wherein George H. Dye received the property involved in this litigation. Prior to the partition George H. Dye owned 20%2o of the property and his seven co-owners owned 113/32o of the property. There were 12 noncontiguous tracts involved in the partition. Three of the partitioners received tracts in full ownership that were part of one continuous parcel before the partition and two of the partitioners received parcels in full ownership from another tract that was one continuous parcel before the partition. With these exceptions all of the parti-tioners received in full ownership nonconti-guous tracts that were not part of a continuous whole tract before the partition. The tract involved in Suit # 15,745-CA was part of a tract received by George H. Dye that was noncontiguous to a tract received by him which included the two parcels involved in Suit # 15,746-CA and Suit # 15,744-CA. However, for ease of discussion we shall treat the three tracts included in the three suits as though they were part of one contiguous tract received by George H. Dye in order to eliminate the necessity of discussing two separate servitudes. The legal issues involved are the same except they would be applicable to two servitudes, one on each of the two noncontiguous tracts of which the property involved in this litigation was formerly a part.

The primary issue in this case is did the partition agreement create a single mineral servitude covering all the minerals on the property involved in this litigation owned in indivisión by George H. Dye and his former co-owners. If this did not happen the partition created only a 113/⅛ mineral servitude owned by George H. Dye’s former co-owners over the property received in full ownership by George H. Dye. Under the latter circumstance the remaining 207/32o mineral interest would not have been in the form of a mineral servitude but would have been a part and portion of George H. Dye’s full ownership of the property.

The foundation mineral cases held that you could create no separate mineral estate under our system of property law. A sale or reservation of minerals was found to create a real right in the nature of a servitude and was controlled by the rules in the civil code on servitudes insofar as the servitude principles were applicable. Frost Johnson Lumber Co. v. Salling’s Heirs, 150 La. 756, 91 So. 207 (1922); Wemple v. Nabors Oil & Gas Co., 154 La. 483, 97 So. 666 (1923); Lee v. Giauque, 154 La. 491, 97 So. 669 (1923); Long-Bell Petroleum Co. v. Tritico, 216 La. 426, 43 So.2d 782 (1949); Starr Davis Oil Co. v. Webber, 218 La. 231, 48 So.2d 906 (1950).

An owner of land encumbered by a mineral servitude affecting all of the minerals may not create another mineral servitude. He cannot contract with respect to the expectancy of a future reversion of the minerals. McMurrey v. Gray, 216 La. 904, 45 So.2d 73 (1949); Hicks v. Clark, 225 La. 133, 72 So.2d 322 (1954); La.R.S. 31:76.

A single mineral servitude may not be created on two or more noncontiguous tracts of land. Lee v. Giauque, supra, La.R.S. 31:73. An act creating mineral ser-vitudes on noncontiguous tracts creates as many servitudes as there are tracts. Lee v. Giauque, supra, La.R.S. 31:64.

When the owner in entirety of the servitude becomes the full owner of the land which is subject to the servitude, confusion extinguishes the servitude. Former C.C. 783, 805; La.R.S. 31:27; Arent v. Hunter, 171 La. 1059, 133 So. 157 (1931); Mire v. Chevron Oil Co., 353 So.2d 462 (La.App. 3rd Cir.1977). The general rule js that servitudes owned in indivisión by co-owners are indivisible. Lowry v. MRT Exploration Co., 382 So.2d 1034 (La.App. 2d Cir.1980), and authorities therein cited. La.R.S. 31:62.

There was no action taken by any of the parties to the partition that interrupted prescription during the 10 years following the partition and for that reason the servitude that was created in the partition was terminated by prescription in 1977. If a single mineral servitude covering all the minerals was created on the three tracts involved here in the 1967 partition this servitude would have been in existence in 1971 when George H. Dye sold the property and his mineral reservations in the 1971 sales could not create new servitudes.

The 1967 servitude prescribed in 1977 and the owners of property at the time prescription occurred acquired perfect ownership of the land free of any mineral servitude if the partition transaction created a single mineral servitude covering all the minerals. Under these circumstances the group ‘B’ defendants, who are the owners of the land, or those claiming through them, shall prevail.

If the partition created only a 113/32o mineral servitude in favor of George H. Dye’s former co-owners then the 20⅞20 remaining minerals were not part of that servitude. These minerals were included within the perfect ownership of the property received by George H. Dye in the partition. In this event George H. Dye created valid separate 20⅞20 mineral servitudes when he reserved the minerals in the 1971 sales of the property received by him in the partition. If this be true when the mineral servitude created by the partition prescribed in 1977 the former Dye property remained subject to the servitudes created by Dye in 1971 which have not prescribed because of production within ten years of their creation. In this event the group ‘A’ defendants would prevail.

In order to resolve the issue presented by this case we shall first determine if a single servitude affecting all the minerals on the property here involved and received by Dye could be created under our law. If we conclude this type servitude can be legally created we must interpret the partition agreement and determine if the parties agreed to create on each noncontiguous tract a single mineral servitude covering all the minerals.

The trial court held that a single mineral servitude partially created by and owned in part by the owner of the land subject to the servitude was a creation of a separate mineral estate which is prohibited subject to the exceptions contained in R.S. 31:66 and R.S. 31:67. He then found the exceptions not applicable to the facts.

In his very well reasoned opinion the trial judge stated that the mineral code only became effective in 1975 whereas the most important operative facts involved in this litigation occurred before the effective date of the code. We note that LA.R.S. 31:214 of the Mineral Code provides that the mineral code shall apply to mineral rights existing on the effective date of the code but that it shall not be applied to divest already vested rights. In our view there is no provision of the Mineral Code that will have the effect in this case of divesting rights vested at the time of its enactment.

The trial court correctly recognized that the provisions of LA.R.S. 31:67, which provides that co-owners of land constituting a continuous whole may partition it and reserve a single servitude in favor of one or more of them, states a rule that had been recognized in the pre-mineral code case of Whitehall Oil Company v. Heard, 197 So.2d 672 (La.App. 3rd Cir.1967). The facts of Whitehall and the rule of 31:67 are distinguishable from this case for the reason that the parties to the Dye partition did not receive parcels of a continuous whole tract but rather each received in full ownership property that was formerly part of noncon-tiguous tracts owned by them in indivisión. As we have earlier pointed out the three tracts involved in this litigation were formerly contained in two noncontiguous tracts owned by partitioned in indivisión.

The appellants acknowledge that the Whitehall rule as codified in 31:67 does not authorize the creation of a single servitude affecting all of the noncontiguous tracts involved in this partition. This is specifically prohibited. Lee v. Giauque, supra. The appellants contend that the partition created separate single servitudes covering all the minerals on each noncontiguous tract involved in the partition which is not contrary to the rule of Lee v. Giauque.

Whitehall relied upon the cases of Gulf Oil Corporation v. Clement, 239 La. 144, 118 So.2d 361 (1960), and Lenard v. Shell Oil Co., 211 La. 265, 29 So.2d 844 (1947), for the rule that co-owners could partition a single tract and subject the parcels received by each to a single mineral servitude over the whole tract. The principle contained in these cases is that where the tracts are contiguous there is no limitation on the creation of a single servitude.

While Whitehall is factually distinguishable from the case here presented there is no reason why the rule contained in the cases relied upon by Whitehall would not be applicable to each noncontiguous tract of the 1967 partition and permit the creation of a single servitude upon each of them.

Former C.C. Art. 709 provides that owners of property shall have complete freedom in the establishment of predial servitudes provided that they are not contrary to public policy. The comments under present Article C.C. 697, which replaces former C.C. Art. 709, indicate there is no change in the law and that owners of property shall have freedom to establish servitudes they see fit as long as the servitudes are not contra to public policy. LA.R.S. 31:72 of the mineral code provides that parties to an act creating a mineral servitude may alter the applicable legal rules subject to the limitations provided in Articles 73 through 79. None of the limitations contained in Articles 73 through 79 create any limitation to the co-owners of several noncontiguous tracts partitioning them and creating a single mineral reservation on each tract. There is no limitation precluding the parti-tioners from owning each of the servitudes in indivisión even though the partitioned tracts belong in full ownership to one of the partitioners.

The rules of servitude contained in the civil code are not inconsistent with co-owners of a continuous tract creating a single servitude owned in indivisión by them and vesting full ownership of the tract in one of the co-owners. The rules of confusion contained in Former C.C. Articles 783 and 805 provide that when the owner of the servitude becomes the owner of the land confusion occurs, however, the second paragraph of C.C. 805 specifically recognizes that the quality of ownership of the two estates must be identical for confusion to occur. Applying the second paragraph of 805 to the situation where the part owner of the single servitude becomes full owner of the land subject to the servitude no confusion would occur. These provisions are applicable to mineral servitudes. Arent v. Hunter, supra; Mire v. Chevron Oil Co., supra. The rules of former C.C. Articles 783 and 805 are maintained in present C.C. Article 765. Roberson v. Reese, 376 So.2d 1287 (La.App. 2d Cir.1979).

The general rule is that servitudes owned by co-owners are indivisible. Hodges v. Norton, 200 La. 614, 8 So.2d 618 (1942), Lowry v. MRT Exploration Co., supra. See also LA.R.S. 31:62. In the event one of the co-owners acquired the land subject to the servitude under the provisions of C.C. 805(2) there would be no confusion.

The trial judge found that Article 805 had no application to a mineral servitude because it was applicable only to predial estates. We disagree. Harriet Daggett, the renowned authority in the field of Louisiana mineral rights, in her well-known book, “Daggett on Louisiana Mineral Rights (Revised Edition)”, states in § 7 of her book, while discussing the case of Ohio Oil Co. v. Ferguson, 213 La. 183, 34 So.2d 746 (1947), ‘... the servitude was ‘likened unto’ a dominant praedial estate but again it was not put irrevocably into any category but marked as a right of individual and peculiar characteristics to which rules of both praedial and personal servitude might be applicable.’ In Section 10 she states, ‘The mineral servitude is neither praedial nor is it a usufruct. Indeed, it has been clear from the beginning that the mineral servitude fits perfectly into no civil code category but is only capable of being ‘likened unto’ the established classes.” In the Mire case, supra, the court considered Article 805(2) applicable to mineral servitudes but found it there inapplicable because all of the owners of the servitude acquired the land which was subject to the servitude and for that reason confusion occurred.

The only two contentions made as a basis for the legal impossibility of creating single servitudes owned by all the partitioners over each of the noncontiguous tracts in the Dye partition is that such result would create the prohibited separate estate in minerals and would violate the general rule of confusion. Both of these contentions are directed at the partial ownership of the servitude being vested in the full owner of the tract of land subject to the servitude. These contentions are without merit. This result is contemplated by the second paragraph of former C.C. 805, was approved by Whitehall, was incorporated in Articles 66 and 67 of the Mineral Code and has been applied in GMB Gas Corp. v. Cox, 340 So.2d 638 (La.App. 2d Cir.1976); Mire v. Chevron Oil Co., supra, and Wall v. Leger, 402 So.2d 704 (La.App. 1st Cir.1981). There is no doubt that rules of prescription are applicable to this type of servitude which would be totally inconsistent with the concept of a separate estate in minerals. See Cox v. Sanders, 421 So.2d 869 (La.1982). In the case of Wemple v. Nabors Oil & Gas Co., supra, the court recognized that the major difference between the prohibited separate estate in minerals and a mineral servitude is that the rules of servitude prescription would be inapplicable to the former.

The Dye partitioners could create single servitudes upon each of the many nonconti-guous tracts and be within the rule of Lee v. Giauque, supra. In the last analysis the single servitudes contemplated by appellant’s argument are in results exactly like those discussed in Whitehall, and recognized in the Mineral Code and approved by the jurisprudence subsequent to the Mineral Code. The creation of servitudes owned in part by the full owner of the land subject to the servitude is exactly the result contemplated by Mineral Code Articles 66 and 67.

Considering the freedom of contract permitted in connection with the creation of servitudes contemplated by former C.C. 709, which freedom of contract concept has been incorporated into the Mineral Code in Article 72, there is no sound reason why co-owners of noncontiguous property cannot partition it by giving full ownership of the non-contiguous tracts to the various participants subject to a single servitude owned in indi-visión by all of the participants including the party that received the tract in full ownership. There is no difference in the end results here created from the end results which occur when owners of a single tract partition it into separate tracts owned in their entirety by the respective parties to the partition subject to a single servitude owned in part by the full owners of each of the divided tracts which is specifically authorized by Art. 67 of the Mineral Code.

We have concluded that the parties to the 1967 partition could have legally created a single servitude of all the minerals over each of the two noncontiguous tracts included in this litigation. We now address the issue of whether the partition document provided for these single servitudes owned in indivisión by the party who received the property in full ownership and the parties who divested themselves of ownership in these tracts.

The partition agreement contained the following provision:

“It is specifically agreed and understood that this partition shall not cover or affect the minerals lying in, on, under, or that may be produced from, the property herein partitioned.”

Appellants contend that the parties to the partition could only have meant to continue as the owner of the minerals under all the land involved in the same manner as they owned the full fee title to the land.

The provision says that the partition shall not affect the minerals. Before the partition George Dye had perfect ownership of 20⅞20 of each tract received by him in the partition. There was no outstanding servitude affecting this ownership interest. An agreement which provides that this unsev-ered right to search for minerals and grant a servitude shall remain unaffected cannot be interpreted to mean that his mineral ownership has changed in form from an element of perfect ownership to an undivided interest in a servitude over the property received.

There was no necessity for any provision relating to minerals to be in the partition in order for the minerals under the tracts received by each of the participants in full ownership to remain unaffected and in the same form with relation to the undivided interest the full owner had in such tract before the partition. The reason why the provision was important and necessary was solely related to the interest in the minerals each owned in the tracts of land that were being vested in the other participants in full ownership by the act of partition. The only reason for the provision, providing that the minerals shall not be affected by the partition, was in order for those divesting participants to each retain an interest in the right to search on tracts being vested in full ownership in one of their co-partitioners. The sole intent of the clause requiring that the minerals were to remain unaffected was to preclude the loss of the pro rata share of the minerals by those participants who were being divested of their pro rata ownership in the tracts received by their co-participants in full ownership. The intent of the parties was not that the provision was to have an effect on the pro rata share of the minerals of the participant who was receiving the tract in full ownership. There was no intent that his initial interest which he had in the minerals by virtue of his perfect ownership in the undivided property be changed by the full ownership of the tract he received in the partition and be placed into a single servitude along with the mineral rights being reserved by his former co-owners.

Appellants rely upon GMB Gas Corp. v. Cox, supra, and Wall v. Leger, supra, each of which held that provisions of partition agreements being there construed created a single servitude affecting all the minerals under the tracts received by the parties to the partition. The clause construed in Cox was:

“It is understood and agreed, however, that no partition is made of the mineral interest and the parties shall continue to remain as owners in indivisión with respect to the oil, gas and other minerals in, on and under the property herein partitioned.” 340 So.2d at page 639.

We note that the language in the Cox provision specifically stated, “The parties shall continue to remain as owners in indivisión with respect to the oil, gas, etc.” This language establishes an intent of the parties to have a single servitude over all the minerals.

The provision in the Wall agreement spelled out that minerals under each tract would be owned “... in the proportion set out by each name,” which language carries the connotation that the minerals were to be owned in indivisión by each party on each tract and that the parties intended a single servitude.

The clause upon which appellants rely contains no provision similar to those found in the contracts construed in Cox and Wall and we find those cases inapplicable.

While we discern no ambiguity in the clause relied upon by appellants, assuming there is some justification for appellant’s contrary interpretation, then extrinsic evidence is admissible to assist in the determination of the intent of the parties. Rudman v. Dupuis, 206 La. 1061, 20 So.2d 363 (1944). The attorney who prepared the partition and who represented all of the parties to it, and particularly George H. Dye, testified in a deposition filed in these proceedings that there was no intent to create a single servitude owned in indivisión by all of the partitioned over each tract included in the partition. The totality of his testimony was to the effect that the intention of the parties was to receive their respective tracts in full ownership subject to a mineral servitude in favor of and for the pro rata part of those participants who were divesting themselves of their interest in the respective tracts.

We further note the rule of interpretation relied upon in Whitehall, supra, which provides that servitudes, which tend to affect the free use of property, in case of doubt as to their extent or the manner of using them, are always interpreted in favor of the owner of the property to be affected. If there can be said to be any doubt as to the extent of the servitude created by the clause in the 1967 partition and we believe there is none, this rule of interpretation mandates that the provision be interpreted as nothing more than a reservation of minerals by the divesting participants in each tract being received in full ownership by their co-partitioners.

The judgment in each of the consolidated cases is AFFIRMED and the costs of the appeal are assessed equally against all of the defendants in this proceeding.

      . We omitted the descriptions of the numerous tracts owned in indivisión by the Dye family from the facts set forth in the trial court’s reasons with the exception of the tracts involved in these cases.

      . We omitted the property received by George H. Dye that is not involved in this suit.

      . LA.R.S. 31:66:
      The owners of several contiguous tracts of land may establish a single mineral servitude in favor of one or more of them or of a third party.

      . LA.R.S. 31:67:
      Co-owners of land constituting a continuous whole may partition it and reserve a single mineral servitude in favor of one or more of them.

      . Former C.C. Article 709:
      Owners have a right to establish on their estates, or in favor of their estates, such servi-tudes as they deem proper; provided, nevertheless, that the services be not imposed on the person or in favor of the person, but only on an estate or in favor of an estate; and provided, moreover, that such services imply nothing contrary to public order.
      The use and extent of servitudes thus established are regulated by the title by which they are granted, and if there be no titles, by the following rules.

      .C.C. Article 697:
      Predial servitudes may be established by an owner on his estate or acquired for its benefit.

        The use and extent of such servitudes are regulated by the title by which they are created, and, in the absence of such regulation, by the following rules.

      . LA.R.S. 31:72:
      Parties to an act creating a mineral servitude may alter the applicable legal rules subject to the limitations provided in Articles 73 through 79.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    KING MUSICAL INSTRUMENTS, INC., Plaintiff-Appellant, v. ARCENEAUX MUSIC CENTER, INC. and Jack Arceneaux, Defendant-Appellee.
    No. 83-225.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Newman & Drolla, John D. Brady, Baton Rouge, for plaintiff-appellant.
    Charles N. Wooten, Ltd. by Keith A. Rodriquez, Lafayette, for defendant-appellee.
    Before DOUCET, LABORDE and KNOLL, JJ.
   DOUCET, Judge.

Plaintiff, King Musical Instruments, Inc., filed the present suit alleging payment was due on an open account. Named defendants were Arceneaux Music Center, Inc. and Jack Arceneaux. The corporate defendant responded with a peremptory exception of no right of action premised upon its pending Chapter 11 Bankruptcy petition. Jack Arceneaux responded with a dilatory exception of prematurity, alleging his exposure to the plaintiff, pursuant to his personal guarantee, must await resolution of the bankruptcy proceedings. The trial judge stayed all actions against Arceneaux Music Center and sustained the exception of prematurity. From that judgment, the plaintiff appeals the ruling relative to the exception of prematurity. We reverse.

Surety is an accessory promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation if the debtor does not. La.Civ.Code Art. 3035. Where the surety has renounced the plea of discussion the effects of his engagement are to be determined pursuant to rules established for debtors in solido. La.Civ.Code Art. 3045. Wooten v. Wimberly, 272 So.2d 303 (La.1972). The contract sued upon herein binds the appellee in solido with the corporate defendant stating “This is a guarantee of payment and not merely one of collecta-bility .... ” The guarantee further states that appellee is bound “jointly and severally” and included a waiver of notice of maturity of payments and default thereof and concludes that the guarantor’s liability shall be unconditional.

A contract of guaranty is similar if not equivalent to a contract of suretyship and in both there is an engagement to answer for the debt, default or miscarriage of another. American Bank & Trust Co. v. Blue Bird Restaurant & Lounge, Inc., 279 So.2d 720 (La.App. 1st Cir.1973) affirmed 290 So.2d 302 (La.1974). An absolute guaranty exists whenever the guarantor binds himself in solido with the principal debtor or when he waives benefit of discussion and division and the guarantee can proceed directly against the guarantor upon default of the principal debtor whereas a conditional guarantee obligates the guarantor to discharge the principal’s debt only in the event the creditor is unable to recover payment through legal action against the debtor and the guarantor is entitled to a discussion of the debtor’s effects. American Bank & Trust Co. v. Blue Bird Restaurant & Lounge, Inc., supra. The terms of the agreement clearly indicate the existence of an absolute guarantee. Thus the exception of prematurity was improperly sustained.

Defendant Jack Arceneaux, as soli-dary surety, has his remedy against the principal debtor upon payment of the debt. La.Civ.Code Arts. 2106, 3035, 3052, 3053, 3077; Louisiana Bank & Trust Co., Crowley v. Boutte, 309 So.2d 274 (La.1975). The extent of his recourse will, of course, have to await resolution of Arceneaux Music Center’s bankruptcy proceeding.

The propriety of the stay order is not at issue on appeal. Furthermore, no serious argument has been made that the bankruptcy stay order affects an action against a third party inasmuch as such provisions contained in 11 U.S.C. § 1301 restrain a creditor from collecting a debt from a co-debtor only where the petitioner in bankruptcy is a Chapter 13 wage earner debtor and the debt involved is a consumer debt. Moreover, any such stay against a co-debtor terminates once the case is converted to a Chapter 7 proceeding. Here, the corporate defendant originally filed for debtor rehabilitation, the debt is commercial, and the case has since been converted to a liquidation proceeding.

For the reasons assigned hereinabove, the judgment of the trial court sustaining the exception of prematurity is reversed and the case is remanded for further proceedings constant with this opinion. All costs of this appeal are taxed to defendant Jack Arceneaux.

REVERSED AND REMANDED.

      . The complete agreement is as follows:
      “PERSONAL GUARANTEE
      In consideration that King Musical Instruments, Inc., hereinafter referred to as the “CREDITOR” sell and deliver to Arceneaux Music Center, 2928 Johnston, Lafayette, LA 70506, hereinafter referred to as the “DEBTOR”, goods, wares and merchandise on credit on and after the date hereof, we hereby jointly and severally guarantee payment unto said Creditor and for all goods, wares and merchandise so sold and delivered from time to time, and also for all goods, wares and merchandise heretofore sold and delivered by the Creditor to said Debtor.
      This shall be a Continuing Guarantee to cover the existing balance of $54,458.36 and for all sales heretofore and hereafter made by said Creditor to said Debtor and shall continue until notice of its termination shall be given by the undersigned to said Creditor in writing thirty (30) days in advance of termination.
      The guarantors hereby waive notice of the acceptance of this Guarantee, notice of purchases and maturity of payments, notice of default in payment by the said Debtor, and all other notices required or customarily given under like circumstances, and we hereby agree that the said Creditor may, from time to time, extend the time payment of the whole or any part of the indebtedness, or receive other security from or on behalf of the Debtor, without, in any wise, discharging the undersigned from any of the obligations hereunder. Any account stated or settled between the Creditor and Debtor shall be conclusive on the Guarantors.
      This is a guarantee of payment and not merely one of collectibility and is assignable by the Creditor. In the event it is proposed that more than one person shall sign this guarantee, the failure of such additional person or persons to sign the same shall not affect the liability of any person or persons whose signatures are affixed or subscribed hereto, but such liability shall be absolute, fixed and unconditional upon the signing thereof.


author: BOWES, Judge.

text:
    Cheryl Sunseri DECUERS v. Waldo I. DECUERS.
    No. 83-CA-373.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Floyd J. Reed, New Orleans, for plaintiff/appellee.
    Robert L. Simpson, Harahan, for defendant/appellant.
    Before CHEHARDY, KLIEBERT and BOWES, JJ.
   BOWES, Judge.

The plaintiff, Waldo Decuers, takes this appeal from a judgment of the District Court dismissing his demand to set aside a voluntary community property partition on the grounds of lesion. For the following reasons, we affirm the district court judgment.

Cheryl Sunseri Decuers and Waldo De-cuers were divorced on November 21, 1978. On September 21, 1979, they entered into a voluntary compromise and settlement of their community property, by virtue of a duly notarized and recorded act which stated in pertinent part:

1. Mr. Decuers transferred full ownership of the family domicile to Mrs. Decuers, subject to a vendor’s lien (to Mutual Homestead Association) and a money judgment in favor of one Henry F. Jones.
2. Mrs. Decuers transferred full ownership to Mr. Decuers of a vacant lot in Chateau Estates; as consideration for this, Mr. Decuers assumed a collateral mortgage dated in 1974, during the existence of the community.
3. Mrs. Decuers paid to Mr. Decuers the sum of $5,000.00 cash and executed a promissory note to her husband for an additional $5,000.00.
4. Neither party made claim against the other for movable property in their possession.

Subsequently, Waldo Decuers filed a petition for recission of this agreement, alleging that at the time of the partition he was without counsel and in financial straits; further, and most importantly, that the value of the property received by his wife was worth $250,000.00, while the property received by him was worth no more than $20,000.00. Hence plaintiff alleged a cause of action under the lesion articles in Louisiana.

At the trial both plaintiff and defendant stipulated: (1) that the mortgage on the family home as of the date of the partition was $61,469.13; (2) the balance of the judgment in favor of Henry Jones referred to hereinabove was $19,133.60, which Mrs. De-cuers discharged in April, 1979; and the value of the Chateau Estates lot was $32,-500.00.

There are two values which are disputed and which are essential to resolve the issue of lesion. First, there were two collateral mortgages recited in the partition agreement, only one of which is a point of contention. (Neither the transcript nor the record discloses any reason why the other collateral mortgage was not figured in the balance of assets and liabilities, and neither plaintiff nor defendant raises the question on appeal). In the act, the collateral mortgage in question was stated to be in the amount of $17,200.00. However, testimony at the trial, as well as a letter introduced into evidence without objection by Mrs. De-cuers from Commercial Bank, indicated that the balance due on this mortgage as of September, 1979, was actually $13,359.56. We accept the latter figure for our purpose. The pre-trial stipulations verify that the mortgage certificates referred to in the partition reflect the original obligations as undertaken, not as they stood in September of 1979. Since Mr. Decuers was unable to contradict Mrs. Decuers’ figure in this regard, we feel that the amount due on the collateral mortgage was proven with sufficient specificity.

Next, we must consider the value of the family home, the only other pertinent issue. Mr. Decuers produced an expert appraiser, Mr. Walter Wetta, at trial, who testified that the home in its present condition in September of 1979 was valued at $146,-000.00. Mrs. Decuers’ appraiser, Mr. Robley Gelpi, appraised the same property at $133,-000.00. The disparity between the two appraisals is the result of major repairs which Mrs. Decuers undertook just prior to and after the agreement was actually signed, the value of which repairs were taken into account in Gelpi’s appraisal. The trial court did not admit evidence of the repairs, and so could not have considered such testimony as that of Mrs. Decuers and her contractors in its decision. However, the evidence was proffered for our purposes and will be weighed by this court on appeal.

Gelpi did not subtract the actual costs expended by Mrs. Decuers, but rather discounted some $4,700.00 of the reported expenditures. In so doing, he attempted to equalize the “age factor” by testifying that an allowance of $12,000.00 for the repairs was suggested by using a market data approach on comparable properties with some degree of depreciation. This “market data” approach is one reliable and generally-accepted method of real estate appraisals, (used by both experts in this case), along with a cost approach also used by Gelpi.

We find that Mrs. Decuers proved, by her testimony and that of several contractors, as well as by the bills and cancelled checks proffered, the general condition of the house at the time of the partition. The repairs considered by Gelpi were necessary and substantially affect the value of a house — painting, carpentry, roof repairs, etc. Expenses in the area of redecoration (placement of ceiling fans, a wrought iron gate, and the entrance door) were not considered.

It is our opinion that the record clearly substantiates the fact that the home, at the time of the partition, was generally in disrepair. Further, we find that the method used by Gelpi to determine the value of the repairs was not speculative, but rather a generally-accepted approach to real estate appraisals. Therefore, we find no abuse of discretion in the trial court’s acceptance of Gelpi’s figure.

“In all questions of lesion the value of the property which was the subject of the contract at the time it was entered into is the criterion by which lesion is to be ascertained. LSA-C.C. Art. 1871. The burden of proof is upon the complaining party to prove (1) the value of the property sold in the state in which it was at the time of the contract, according to the usual terms of credit given on sales of that nature, and (2) the difference between such value and the price received. From such difference, a determination must be made as to whether the lesion is sufficient to invalidate the contract. LSA-C.C. Art. 1870.” (Emphasis added.) Ozane v. Ozane, 392 So.2d 774 (La.App. 3rd Cir.1980), quoting Beatty v. Vining, 147 So.2d 37, 45 (La.App. 2nd Cir.1962).

That some of the repairs taken into consideration in Gelpi’s appraisal were undertaken shortly before the agreement was actually signed is of no importance as Mrs. Decuers paid for them. Part of the stated consideration in the contract was the assumption of the Jones judgment by Mrs. Decuers, which judgment was paid off prior to September 1979. In point of fact, it was paid off in April 1979, at the same time Mrs. Decuers began making repairs. The compromise took place over a period of months as reflected in the testimony at trial. Each party had equal opportunity to bargain for their advantage. The date the agreement was signed was a finalization of these negotiations, begun months earlier. It is evident that neither party intended to be bound by the September 21,1979 date, or else the payment of the Jones judgment would not have been recited as consideration.

This partition is, after all, an agreement between a former husband and wife, not strangers dealing at arm’s length. Besides the stated repairs, Mrs. Decuers paid several other debts on the community property for which no credit was acknowledged in the agreement, including back taxes on the lot which Mr. Decuers was eventually granted. By so doing, she prevented sale of the property for redemption.

While the agreement in question is most certainly a partition, and as such subject to recission on grounds of lesion (C.C. Art. 1860, 1861), to ignore such evidence as outlined above would be to negate the compromise quality of all such agreements, and discourage such non-judicial partitions.

With this in mind, we have computed the community property as follows:

Community Assets:
Chateau Estates Lot $ 32,500.00
Family home 133,000.00
Total Assets $165,500.00
Community Debts:
Mortgage on Family home $ 61,469.00
Judicial Mortgage (Judgment) 19,133.60
Collateral Mortgage 13,359.56
Total Debts $ 93,961.56
RECAPITULATION:
TOTAL ASSETS $165,500.00
TOTAL DEBTS 93,961.56
NET ASSETS $ 71,538.44

Louisiana jurisprudence states the formula for determining lesion as follows:

The proper way to determine lesion beyond one-fourth is to first determine the true value of the property partitioned and to then calculate whether a party received three-fourths of his share. La.Civ.C. arts. 1860, 1861 and 1398; Bedwell v. Bedwell, 399 So.2d 685 (La.App. 1st Cir.1981). Gordon v. Gordon, 424 So.2d 1042 (La.App. 1st Cir.1982)

PLAINTIFF’S SHARE (or ½ of
Net Assets) $35,769.22
¾ OF PLAINTIFF’S SHARE $26,826.91
PLAINTIFF RECEIVED:
Lot $32,500.00
Note from Mrs. Decuers 5,000.00
Cash from Mrs. Decuers 5,000.00
TOTAL $42,500.00
Less mortgage debt . 13,359.56
Net Received. $29,140.44

As can be seen from the above formula, there was no lesion in the partition agreement between plaintiff and defendant. There is no manifest error in the judgment of the trial court and it is, therefore, affirmed. All costs of this appeal are to be paid by plaintiff/appellant.

JUDGMENT AFFIRMED.


author: KLEES, Judge.

text:
    STATE of Louisiana v. Charles WASHINGTON.
    No. KA-0336.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, Asst. Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appellee, State of Louisiana.
    Dwight Doskey, Frank Larre, Orleans Indigent Defender Program, New Orleans, for appellant, Charles Washington.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   KLEES, Judge.

On May 18, 1981, the defendant, Charles Washington, was charged with possession with intent to distribute pentazocine (Tal-win), then a violation of LSA-R.S. 40:969.

The jury returned a verdict of guilty as charged and the defendant was sentenced on August 7, 1981 to serve 3½ years in the custody of the prison with credit for time served. On December 28, 1981, the defendant was resentenced as a multiple offender and sentenced to serve 3½ years in prison with credit for time served.

Upon initial review, this Court transferred jurisdiction to the Louisiana Supreme Court by Per Curiam opinion of June 23, 1983. The Supreme Court remanded on July 1, 1983, having determined this Court as the court of proper jurisdiction pursuant to Article 5, Section 5(E) of the Louisiana Constitution of 1974 as amended by Acts 1980 No. 843 § 1.

Defendant, through counsel, urges this Court to review the record for errors patent and pro se assigns one error with regard to certain expert testimony adduced at trial.

On May 9, 1981, pursuant to an anonymous tip that drugs were being sold in the area, four members of the NOPD set up surveillance on the corner of Delery Street and St. Claude Avenue. The officers worked in pairs from two separate vantage points. They observed the defendant on the corner in front of an establishment known as “Shirley’s Bar”. The defendant participated in a series of four or five transactions each following a pattern. Wherein a person, “X”, would approach defendant and engage him in brief conversation. The defendant would walk to the end of the building, reach behind a board, grab a brown paper bag, remove something from it, replace the bag, return to the spot where “X” was waiting and hand over something to “X” in exchange for cash.

The defendant was arrested, the bag confiscated and found to contain pills which were later analyzed as Talwin and Pyraben-zamine. Washington had $69.00 in his pocket upon arrest. It was further established that the going rate for “t’s and blues” (Talwin and Pyrabenzamine) was $10.00 per set at the time of the arrest.

At trial Officer Elder of the NOPD was qualified as an expert in the use and distribution of Talwin.

Officers McCord, Deal and Gonzales, three of the four officers involved in the surveillance gave testimony. Officer McCord’s testimony at the hearing on a motion to suppress differs somewhat from the account he and his fellow officers gave at trial. At the suppression hearing, McCord stated that there may have been 8 or 9 transactions and that “a couple of hundred” or $180.00 in cash was found on the defendant when he was arrested.

On cross examination, defense counsel tried to impeach Officer McCord’s credibility by way of the foregoing inconsistencies. The defense called only one elicited witness. An investigator testified that the officers could not have seen the supposed transaction if they were in fact at their surveillance point.

The state then offered three witnesses in rebuttal. Officer Deal a member of the surveillance team, testified as to whether his view was obstructed on the date of the arrest. Donald Guillot, an investigator/photographer for the District Attorney’s office, evaluated the camera equipment and quality of the photographs taken by the defense. Sam Mulldaven gave an account of his on-site inspection of the scene and his ability to observe activity under conditions similar to the original surveillance. After closing argument, the jury retired for half an hour and returned a verdict of guilty as charged.

A review of the record discloses no errors patent.

The defendant was sentenced on August 7, 1981 and resentenced as a multiple offender on December 28, 1981, to serve 3½ years with credit for time served. Although it would appear that this was defendant’s fourth offense and that he was sentenced only as a second offender, when the multi-bill is reviewed in light of the five year cleansing period provided in LSA-R.S. 15:529.1(C), it can be determined that the first two offenses were correctly excluded and that the sentence is within the minimum legal limits found in the relevant statutes. LSA-R.S. 40:969 and LSA-R.S. 15:529(A)(1).

There is sufficient evidence on each element of the offense for a jury to have found the defendant guilty beyond a reasonable doubt when the evidence is viewed in the light most favorable to the prosecution. Jackson v. Virginia, 343 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Although the contraband was not found on the defendant’s person, the testimony clearly establishes that it was located in an area over which defendant exercised dominion and control. State v. Walker, 369 So.2d 1345 (La.1979); State v. Gann, 319 So.2d 396 (La.1975). In Walker, and Cann, the state failed to establish that either defendant knew where the contraband was located. Not so here, where three police officers saw the defendant repeatedly walk to the site where the narcotics were found, reach for the bag that contained them, remove them, and exchange them for cash.

The defendant argues that it was error for the trial judge to allow Officer Elder of the NOPD to be qualified as an expert in the field of narcotics. He argues that Elder lacked sufficient training in the field, that Elder’s testimony as to distribution was hearsay, and that Edler’s detailed account as to use of Talwin was inflammatory and so prejudicial as to be deemed reversible error.

Officer Elder testified that he had spent 6V2 years with the NOPD, the last 2 in narcotics. He further testified that he had participated in 150-200 Talwin-related investigations and arrests. Of those, 100 had involved surveillance, and of those hundred, approximately 75, where a subject was using a stash. Although Elder admitted that he had not attended special classes outside his course of study at the police academy, the competency of an expert is based upon “his knowledge of the subject about which he is called to express an opinion.” LSA-R.S. 15:466. On the basis of the officer’s first-hand experience with Tal-win, it cannot be said that the trial court abused its discretion in admitting Elder as an expert witness. In State v. Clay, 408 So.2d 1295 (La.1982),.a police officer of 1½ years experience, who had participated in 30 hasish related arrests, was qualified as an expert on the packaging and distribution of marijuana. In State v. Carter, 347 So.2d 236 (La.1977), two police officers, one of whom had no special training in narcotics, were both accepted as experts. The court stated that:

[s]ince the officers had a great deal of practical experience and knowledge in the techniques and procedures employed in the sale of controlled dangerous substances in the City of New Orleans, the defendant has not demonstrated that the judge abused his discretion in accepting the officers as experts in this area. Carter, at 238.

The defendant next argues that Elder’s testimony as to the manner in which Talwin is customarily sold was hearsay and that it was error for the trial judge to admit said testimony over counsel’s objection. However, opinion testimony of an expert is admissible when that opinion is based on the expert’s special knowledge obtained through training or experience. LSA-R.S. 15:464. In Clay, the court said that “it is well established that a witness may draw inferences from facts personally observed by him.”, 408 So.2d at 1299, citing State v. Stewart, 357 So.2d 1111 (La.1978) and State v. Clark, 340 So.2d 1302 (La.1976). In the instant case, Officer Elder testified only as to matters based upon his direct observation. He offered no testimony as regards to defendant Washington: no opinion as to Washington’s guilt or innocence. See State v. Wheeler, 416 So.2d 78 (La.1982) and State v. Montana, 421 So.2d 895 (La.1982), wherein both convictions were reversed because the officer/experts made conclusory statements on the ultimate issue of guilt usurping thereby the jury’s functions.

Perhaps the most serious contention offered by the defendant is that Elder’s testimony as to the use of Talwin was irrelevant to the offense charged (possession with intent to distribute) and was so inflammatory and prejudicial that it led to his conviction.

In the instant case, Officer Elder testified, in pertinent part, as follows:

“... He’ll then tie off his arm. They shoot in numerous places on their bodies. I’ve spoken to people that have shot into their legs, they’ve shot into the veins in their-neck, females have shot in the veins in their breasts. The majority of people will shoot into veins in their arms until their veins collapse, where they can’t shoot into them anymore, so they have to look for new places to shoot. But, the majority of people will shoot in their arms. They’ll take a belt, a scarve, or a piece of rubber, a rubber tube and tie off their arm so their veins sticks out more.... ”

The defendant contends that Elder’s testimony, when taken as a whole, created an inference that Washington was a drug user financing his habit through drug sales and that this, in turn, influenced the jury’s deliberations and resulted in his conviction.

Without expressly designating a specific assignment of error, Washington, pro se, is essentially challenging the trial court’s denial of the defense’s motion for mistrial and alternatively, the court’s failure to admonish the jury when Elder was permitted to testify as to the use of Talwin.

Prejudicial remarks by a judge or district attorney may result in a mistrial. C.Cr.P. 770. Those by an investigating officer may be the basis for an admonition to the jury. C.Cr.P. 771. In some instances, “a prejudicial remark by an experienced police officer should be viewed with considerable concern as to the fairness of the trial, and may require granting of a mistrial, especially if the remark was precipitated by or should have been anticipated by the district attorney.” State v. Douglas, 389 So.2d 1263, 1264 (La.1980).

In Douglas, it was argued that the testifying officer had implied that the defendant was recently released from Angola and that the testifying officer had therefore made an impermissable reference to other crimes. The Supreme Court concluded that

“[t]he decision as to the necessity of granting a mistrial in these circumstances was left to the sound discretion of the trial court. See State v. Madison, 345 So.2d 485 (La.1977); State v. Brown, 322 So.2d 211 (La.1975); State v. Schwartz, 354 So.2d 1332 (La.1978). The present case does not reveal a manifest abuse of discretion warranting the substitution of our judgment for that of the trial judge who conducted the trial heard the remark, and was in the best position to assess its impact.” Douglas at 1266.

In the instant case, Elder’s testimony was of questionable relevance and perhaps unnecessarily lurid. Nonetheless, the trial court was in the “best position to assess its impact” and that it was not an abuse of discretion so manifest as to merit reversal.

C.Cr.P. Art. 921

A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.

To trigger the need for an admonition, “the remark must refer to a crime alleged to have been committed by the defendant.” State v. Hayes, 414 So.2d 717, 721 (La.1982). No direct references to Washington as a user were made by Elder or for that matter, by any of the witnesses or counsel at trial.

Accordingly, for the reasons stated, the conviction and sentence are affirmed.

AFFIRMED.

      . LSA-R.S. 40:964, which lists controlled dangerous substances according to various schedules, was amended in July of 1981. Talwin was removed from Schedule IV, governed by LSA-R.S. 40:969 and added to Schedule II, governed by La.R.S. 40:967. The effective date of the legislation was September 11, 1981. As the offense here was committed in May of 1981, LSA-R.S. 40:969 is the applicable statute.

      . The record does not contain a statement as to the quantity of drugs contained in the bag.


text:
    Charmaine HOUSEY v. The CITY OF NEW ORLEANS, Rinal Martin, and Onterio Smith.
    No. CA-0762.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1983.

      J. Paul Demarest, Favret, Favret, De-marest & Russo, New Orleans, for plaintiff-appellee.
    Salvador Anzelmo, City Atty., Douglas P. Wilson, Chief Deputy City Atty., Bernette J. Johnson, Deputy City Atty., New Orleans, for defendants-appellants.
    Before REDMANN, C.J., and KLEES, and BYRNES, JJ.
   KLEES, Judge.

This suit arose as a result of a rear-end collision between the plaintiff, Charmaine Housey, and the defendant, Onterio Smith. The plaintiff also named as defendants in this suit, Rinal Martin of the New Orleans Police Department and the City of New Orleans as Mr. Martin’s employer. Ms. Housey brought suit against Mr. Martin and the City alleging their liability for her damages because of an illegal right turn Mr. Martin made which allegedly caused Ms. Housey to stop, resulting in her being rear-ended by Ms. Smith.

The City and Rinal Martin made a third party demand against their co-defendant Ms. Smith, which was not answered. Ms. Smith failed to respond to the plaintiff’s petition and preliminary defaults were entered against her. She was not present at trial.

The trial court rendered judgment for the plaintiff, Charmaine Housey, and against the defendants, City of New Orleans and Rinal Martin, only, in the amount of $5,363.57. It is from this judgment that the defendants appeal. The issues presented on appeal are that 1) the trial court erred in not finding plaintiff negligent, in that she was following too close, and 2) the court erred in not holding that a following motorist who strikes a preceding motorist is presumed to have breached the standard of care required by LSA R.S. 32:81. We affirm the judgment of the trial court.

FACTS

On December 20, 1980 at approximately 10:45 p.m., the defendant, Rinal Martin, the plaintiff, Ms. Housey, and the defendant, Onterio Smith, were proceeding in a westerly direction on Palmetto Street in the City of New Orleans. All three vehicles were in the right lane of the street as they travelled across the Palmetto Street overpass. Martin, driving an unmarked police vehicle, preceded Housey who in turn preceded Smith.

With regard to the first issue, the testimony of both Housey and Martin was to the effect that Housey was following at a safe distance behind Martin. Martin testified that he signalled and slowed to make a right turn onto Hamilton Street at the bottom of the overpass. There is a no right turn sign at Hamilton Street which Mr. Martin stated he was not aware of at the time he turned. Yet to get onto Hamilton Street, which is just at the bottom of the overpass, a driver must go over a roll curbing which projects from the bottom of the overpass to a point beyond Hamilton Street. The plaintiff testified that she saw no turn signal, only the defendant’s brake lights as he turned. Housey indicated that she was about 30 feet away when she noticed his turn and Martin stated that no vehicles were close to him when he began his turn. Housey also testified that she anticipated that he was going to make an illegal turn. Housey testified that she was forced to come to a sudden and complete stop in order to avoid hitting Martin. She was then hit from the rear by the defendant, Onterio Smith, immediately upon stopping.

Even though the testimony as to most of the sequence of events is conflicting and contradictory, there is sufficient evidence in the record which indicates that Housey was not following too close. LSA R.S. 32:81(A) requires that a driver shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway. If a driver observed LSA R.S. 32:81(A) they would have their vehicle under such control and at such a distance that they could stop safely without hitting the preceding motorist. Housey did not hit Mr. Martin and there is no evidence other than that presented by the plaintiff and the defendant, Martin, which would indicate that Housey was following too close. Based on the evidence and testimony presented, the trial court’s conclusion that Housey was not negligent in following too close was correct.

The second issue, the presumption of negligence relates to the defendant, Onterio Smith, who neither answered nor appeared at trial. There is no question from the record that this was a rear-end collision and that Smith rear-ended Housey. The burden was then on Smith, as the following motorist, to exculpate herself by establishing that she kept her vehicle under control, closely observed the forward vehicle and followed at a safe distance under the circumstances. Eubanks v. Brasseal, 310 So.2d 550 (La.1975) at p. 583. The record is completely devoid of any testimony or evidence to this effect. Smith did not answer this suit and chose not to defend herself for whatever reason and the plaintiff is entitled to proceed to judgment against Smith.

The trial court in its reasons for judgment stated that:

The sudden turning by Rinal Martin caused plaintiff to suddenly stop her vehicle, and, in so doing, she was rear-ended by a vehicle which was travelling in the rear of her vehicle. The impact caused the injury from which plaintiff has been suffering, and which forms the basis of the within suit. While the city-owned vehicle did not come into contact with the vehicle being driven by plaintiff, the fact remains that had Rinal Martin not made the illegal turn, plaintiff would not have had reason to stop her vehicle. The Court is of the opinion that the ‘but for’ doctrine is applicable in this case. Had it not been for the illegal turning of the vehicle being driven by defendant’s employee, the accident would not have happened.

It would appear to this court that under the particular set of circumstances which occurred in this case, the trial court found that defendant Martin breached a duty of care to plaintiff Housey and' became liable.

There is presumably a reason why the City saw fit to make a right turn at the bottom of the Palmetto Street overpass illegal. Allowing vehicles to turn at the base of the overpass over a curb would create a hazard for following vehicles traveling on the overpass. Mr. Martin created just such a hazardous situation. A cautious or an inattentive driver would be entitled to rely on the assumption that a right turn will not be executed where it is forbidden. Mr. Martin had a duty to observe this city ordinance, he did not observe it. He thereby created a situation in which the following motorists were forced to abruptly stop resulting in this rear-end collision. Plaintiff was one of the persons to be protected by such an ordinance. Mr. Martin’s negligence is the cause in fact of the subsequent collision under the duty/risk analysis expounded in Dixie Drive It Yourself System v. American Beverage Co., 137 So.2d 298 (La.1962) as this accident would not have occurred had Rinal Martin not ma’de his turn.

Accordingly, for the reasons stated above, the judgment of the trial court in finding no negligence on the part of plaintiff is affirmed. We affirm the finding of the trial court as to Mr. Martin’s negligence and the City of New Orleans’ liability. Costs to be borne by appellant.

AFFIRMED.


author: BYRNES, Judge.

text:
    STATE of Louisiana v. Rodney STERLING.
    No. KA 0543.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1983.

      Harry F. Connick, Dist. Atty., Orleans Parish, Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Wiley J. Beevers, Metairie, for defendant-appellant.
    Before BYRNES, REDMANN and KLEES, JJ.
   BYRNES, Judge.

Defendant-appellant, Rodney Sterling, was charged by Bill of Information with two counts of simple burglary in violation of La.R.S. 14:62. After pleading not guilty the defendant was tried by a jury and found guilty on both counts. On October 22, 1981, the defendant pled guilty to a habitual offender charge and he was sentenced to twenty four years at hard labor.

ISSUES

Appellant makes two assignments of error regarding an inculpatory statement he made to the arresting officer. He contends that the trial judge erred in admitting the statement into evidence over the objections of the defense counsel because:

1.) There was not sufficient inquiry into the voluntariness of the statement and the Miranda warnings were not repeated immediately prior to the confession; and
2.) Defense counsel was not informed of the inculpatory statement during pretrial discovery.

FACTS

On September 5, 1980 at approximately 1:00 A.M. John Abbott was notified that an alarm had sounded at his office, located at 1609 Canal Street in New Orleans. When he arrived he saw the police escorting the defendant, Rodney Sterling, out of the building. Sterling was found hiding in a closet in Abbott’s office. Abbott testified at trial that the storeroom in the office was disrupted and that he had not given the defendant permission to enter the building.

There were no signs of forced entry into the building. However, upon being placed in a police car, Sterling told the arresting officer that he entered the building through an unlocked window. He then proceeded to show the officer the window’s location.

ASSIGNMENT # 1

By this assignment appellant contends that the trial court failed to properly determine whether his confession was given voluntarily. Defendant further contends that he was not advised of his Miranda rights prior to his statement to the arresting officer.

The prosecution has the burden of proving that an inculpatory statement was given freely and voluntarily. State v. Burkhalter, 428 So.2d 449 (La.1983). Irrespective of whether C.Cr.P. Art. 703(F) might have foreclosed defendant’s attack on the inculpatory statement’s admissibility, the trial judge held a hearing, out of the presence of the jury, to determine whether the defendant’s statement was freely and voluntarily made. The judge determined that the statement was admissable. This finding is amply supported by the evidence.

The State must also prove that the defendant was properly advised of his Miranda rights and that he knowingly waived his right to counsel prior to making the statement. State v. Harper, 430 So.2d 627 (La.1983)). Where a defendant is advised of his Miranda rights at the time of his arrest and subsequently makes an incul-patory statement while being booked at police headquarters the statement is admissa-ble. See State v, Mitchell, 421 So.2d 851 (La.1982).

The record establishes that immediately after arriving at the scene the police apprehended the defendant. The arresting officer read Sterling his Miranda rights and inquired if he understood. The defendant answered affirmatively and he was put in the back seat of the patrol car. The defendant then stated that he entered the building through an unlocked window and proceeded to show the officer the window’s location. He also identified a plastic bag containing a pair of black shorts belonging to him which was found at the scene.

The exact time at which the statement in question was made is not given. However, it is evident that no more than a few minutes had elapsed between the time appellant was given the Miranda warnings and the time he made the statement. Under the circumstances we find the statement was admissable and the defendant intelligently waived his Miranda rights.

It is well settled that the trial court’s determination regarding the admissibility of a confession will not be disturbed unless it is not supported by the evidence. State v. Burkhalter, supra. After careful review of the record we find that the trial court’s determination that the defendant’s statement was admissable is supported by the evidence.

ASSIGNMENT #2

By this assignment appellant contends that the trial court erred in admitting his confession into evidence because the State did not inform the defendant of its existence during pretrial discovery.

During discovery, appellant filed an Application for Bill of Particulars in which he asked if the State had any inculpatory or exculpatory statements regarding the crime. The State replied, stating only that the defendant identified some seized property which was found at the scene. The State did not mention the existence of the inculpatory statement at issue herein. However, prior to beginning their opening statement the State filed its written Notice of Intention to Use Confession in accordance with C.Cr.P. Article 768. Appellant contends that Article 768 only applies where no pretrial discovery has-been granted. We disagree.

Appellant relies on Article 768 as amended in 1982 which states:

Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissable in evidence.

This version of Article 768 became effective September 10, 1982. The trial in this case took place on July 23, 1982. For the amended version of this article to apply, it would have to have been effective prior to the trial date. See State v. Burge, 362 So.2d 1371 (La.1978). Accordingly, the pre-amendment version of Article 768, which does not contain the sentence regarding pretrial discovery, should be applied herein.

The State clearly complied with the version of Article 768 which was effective at the time of trial by providing written notice of its intent to use the confession prior to its opening statement.

Absent a showing of either bad faith by the State in not informing the defense of the inculpatory statement during pretrial discovery or substantial prejudice to the defendant the ruling of the trial court, will be affirmed. See State v. Davis, 357 So.2d 1125 (La.1978). Allowing the statement into evidence, we have found nothing to support a finding of bad faith on the State’s part. Further, the record reflects that: the defendant was found hiding in Abbott’s office; he was not given permission to be there; and his clothes were found in a bag at the scene. In view of this evidence we find that the introduction of the inculpatory statement did not substantially prejudice defendant’s case.

For the foregoing reasons the conviction and sentence are affirmed.

AFFIRMED.


author: CIACCIO, Judge.

text:
    STATE of Louisiana v. David DENIS.
    No. WRIT K-1408.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 1983.
    Harry F. Connick, Dist. Atty., Anne Lambert, Donal D. Winston, Asst. Dist. Attys., New Orleans, for relator.
    James C. Lawrence, New Orleans, for respondent.
    Before SCHOTT, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

We granted certiorari on the application of the State in order to review a judgment of the trial court granting defendant’s motion to suppress evidence. Defendant filed a brief in opposition to the application and was given the opportunity to present additional briefing and oral argument. The record contains the entire transcript of testimony taken at the trial of the motion to suppress. We have concluded that the trial judge erred in granting defendant’s motion and reverse his judgment.

On July 27,1982 New Orleans Police Officers Michael Fejka and Elizabeth Joseph were on routine patrol on North Carrollton Avenue, which is an area with a high rate of burglaries. The officers observed David Denis carrying a bulky object covered by a blue cloth (the object being a portable television set) and because of their previous experience, they suspected the cloth was covering a stolen television set. The defendant was walking in the opposite direction on the sidewalk. Denis appeared nervous and continually looked back over his shoulder at the officers as they slowed and passed him. The officers drove down Carrollton Avenue to City Park where they made a U turn and retraced their route.

Upon seeing the police vehicle return the defendant hid behind a large tree. The defendant then reversed his direction of travel and, in a quickened pace, proceeded back up North Carrollton Avenue. The officers stopped Denis for investigation. After informing him of his rights and confirming that the object held was a television set and upon observing a bulge in the defendant’s clothing, Officer Fejka performed a “pat down” for a weapon. Instead he found a box containing jewelry. It was later discovered that the television set and jewelry had been taken in a burglary some four blocks away.

Under these circumstances we find that reasonable suspicion existed for the investigatory stop. State v. Wade, 390 So.2d 1309 (La.1980), cert. den., 451 U.S. 989, 101 S.Ct. 2326, 68 L.Ed.2d 848. Moreover, the search of the defendant’s pockets was based upon the reasonable belief that the defendant was in possession of a dangerous weapon. C.Cr.P. Art. 215.1. State v. Wade, supra.

Accordingly, the judgment of the district court granting the motion to suppress the evidence is reversed and the case is remanded to the trial court for further proceedings.


text:
    Patricia Ford O’BRIEN, et al. v. DELTA GAS, INC., et al.
    No. C-1486.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 23, 1983.
    Robert E. Leake, Jr., Robert M. Johnston, New Orleans, for relator.
    Robert M. Murphy, Kenner, for respondents.
    Before GULOTTA, CIACCIO and WARD, JJ.
   ORDER

Defendant-relator seeks supervisory writs to rescind and set aside the trial court’s denial of its motion to have a judgment declared satisfied.

Plaintiff-respondents initially filed their tort action on May 23, 1978, in the United States District Court, Eastern District of Louisiana. Defendant-relator was joined as a defendant in this federal suit on January 9,1979. The Federal Court action was subsequently dismissed for lack of jurisdiction, however, and plaintiffs filed their suit in the Civil District Court on April 3, 1980.

After plaintiffs obtained a final judgment in their favor in state court, defendant-relator tendered into the registry of the court the principal amount of the judgment, costs, and legal interest calculated from April 3,1980 (the date of judicial demand in state court).

The sole issue on our grant of certiorari is whether legal interest is due from the date of judicial demand in the state court suit, from the date of the prior demand in federal court, or, alternatively, from the date defendant-relator was joined in the federal court action.

The record and briefs considered, we rescind and set aside the trial court’s judgment denying defendant-relator’s motion for an order declaring the judgment satisfied and the appeal bond canceled. Legal interest on the judgment runs from the date suit was properly filed in the state court, rather than from the date of the earlier filing in federal court. See LSA-C.C. Art. 1938; LSA-R.S. 13:4203; Merchant v. Montgomery Ward & Company, 83 So.2d 920 (La.App. 1st Cir.1955); Hidalgo v. Dupuy, 122 So.2d 639 (La.App. 1st Cir.1960).

Accordingly, the trial court’s judgment denying defendant-relator’s motion is rescinded and set aside. The matter is remanded for further proceedings consistent herewith.


author: NORRIS, Judge.

text:
    Conrad D. WIGGINS, Plaintiff-Appellee, v. ARKANSAS LOUISIANA GAS COMPANY, Defendant-Appellant.
    No. 15,843-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Rehearing Denied Dee. 22, 1983.

      Emmons, Henry, Reeves & Stokes, Jones-boro, by Joseph A. Reeves, Jr., Houston, Tex., for plaintiff-appellee.
    Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for defendant-appellant.
    Before PRICE, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Arkansas-Louisiana Gas Company appeals a judgment awarding Conrad D. Wiggins damages in the amount of $106,174.50 for burn injuries sustained in a natural gas fire and explosion at the Jamestown Baptist Church on November 27, 1968. The pivotal issues presented by this appeal are: (1) Should Wiggins’ suit have been dismissed as abandoned for lack of prosecution? (2) Did the trial court err in determining that Ark-LaGas was liable for Wiggins’ injuries? and (3) Are the damages awarded adequate for the injuries suffered? For the reasons hereinafter stated and for those reasons given by the trial court which we incorporate by reference and summarize, we affirm.

During the Fall of 1967, members of the Jamestown Baptist Church in Jamestown, Louisiana, with the assistance and under the supervision of ArkLaGas employees, converted from a system fueled by butane gas to one fueled by natural gas. ArkLa-Gas had located a two inch main line steel natural gas transmission line eight or ten feet from and parallel to the two laned blacktopped road in front of the church which transmitted natural gas under pressure of twenty-one pounds. At each point where there was to be a service connection with this line, the contractor installed a “T” pipe on the line. For each service connection, ArkLaGas customarily furnished the meter and the pipe between the steel “T” and the meter connection as well as labor and materials. Customarily, the meter was placed at or near the end of the “T”. Accordingly, the pressure of gas which passed through the regulator and the meter was reduced from 21 pounds to approximately 6 to 8 ounces. As is reflected in the diagram below, the service connection for the church deviated from this customary practice:

It appears that ArkLaGas’ supervisor-employee, who assisted with the connection of the church’s service, changed the location of the meter from the point of the “T” (Site A) to a point some fifty feet away adjacent to the northeast corner of the church (Site B) in order to protect the meter from heavy traffic in the church parking lot. Additionally, he recommended that plastic pipe rather than steel pipe be utilized between Site A and Site B resulting in twenty-one pounds of pressure being placed on the plastic line which ran under the church’s parking lot. No special precautions were taken in the laying of this pipe to the meter which connected to the pre-existing butane lines of the church.

In early November, 1968, members of the church complained of burning eyes. Thereafter, the church’s outlets were checked and no leaks were found. On Wednesday, November 27, 1968, the natural gas fire and explosion made the subject of this suit occurred. The church was completely destroyed and plaintiff was severely burned.

This suit was filed November 20, 1969. Trial was held in March and April of 1980. Initially, in written reasons, the trial court rejected the demands of plaintiff; however, a new trial was granted after which the trial court reversed its earlier ruling. In written reasons for judgment, the trial court found that the natural gas leak which caused the fire and explosion occurred on the gas company’s side of the meter thereby rendering ArkLaGas liable for plaintiff’s injuries.

ArkLaGas appeals assigning the following errors:

(1) The trial court improperly overruled Ark La’s rule to show cause why the suit should not be considered abandoned.
(2) The trial court improperly concluded that Ark La Gas was guilty of negligence which was the legal cause of the accident.

Wiggins timely answered this appeal requesting an increase in damages.

ArkLaGas first argues that this suit should be considered abandoned under La.C. C.P. Art. 561. The suit was actually filed November 20, 1969 and answered on December 5, 1969. Interrogatories were filed December 22,1969 and answered January 3, 1970. Defendant contends that no further steps were taken in the prosecution or defense of this action until June 8, 1976 when a pre-trial order was filed. It is true that no further activity is reflected within the suit record between January 3, 1970 and June 8, 1976. Therefore, the disposition of this issue is controlled by the effect of a motion and order dated November 8, 1974, prepared by Wiggins’ counsel and signed by the trial court which set the case for trial and ordered a pre-trial conference. This document was given to the clerk on November 8,1974 and contains the following handwritten notation “Filed November 8, 1974, H. Rupert Sledge, Clerk.” However, it was never physically placed in the suit record but remained in the possession of the clerk. No copy was served on defense counsel nor was a bond amount fixed in the order. ArkLaGas argues that because the order was not filed in the suit record it cannot be considered to be a step in the prosecution of the suit.

The trial court ruled that the motion and order constituted a step in the prosecution of the case and dismissed ArkLaGas’ rule to show cause why the suit should not be considered to be abandoned. This court denied a subsequent writ application stating: “The judgment of the district court is correct.” We have found no compelling reason to alter this court’s earlier ruling in this matter, and in fact, have found additional support for the ruling in Ellzey v. Employer’s Mutual Liability Ins. Co., 388 So.2d 843 (La.App. 2d Cir.1980) which held that delivery of a document to the clerk of court constitutes a filing under the provisions of La.C.C.P. 253 sufficient to constitute a step taken before the trial court in the prosecution of the action and that the failure of the clerk to comply with his responsibility to place the document in the record cannot detract from the actions of the party to constitute an abandonment of the prosecution of a suit. Accordingly, this specification of error is without merit and the ruling of the trial court was correct.

The thrust of ArkLaGas’ argument on appeal is that Wiggins failed to prove by a preponderance of the evidence that the explosion and fire resulted from the negligence of ArkLaGas and that the trial court’s finding is manifestly erroneous because it is not supported by the evidence. ArkLaGas concedes that the duty of a distributor of natural gas is high and that it consists of safely furnishing natural gas to its meter and maintaining the meter in good working order; but that absent any knowledge of a dangerous condition existing on the customers side of the meter, no further duty is owed. In fact, when specifically questioned at argument, ArkLaGas’ counsel conceded that if the gas leak which caused the fire and explosion was proven to be on ArkLaGas’ side of the meter, that ArkLaGas is liable.

The rule is well established that the degree of care owed others increases in relation to the increase of inherent danger. Culpepper v. Leonard Truck Lines, 208 La. 1084, 24 So.2d 148 (1945); Reggio v. Louisiana Gas Service Company, 333 So.2d 395 (La.App. 4th Cir.1976); Pagitt Well Service, Inc. v. Sam Broussard, Inc., 293 So.2d 631 (La.App. 3d Cir.1974).

It is undisputed that the explosion and fire were caused from an accumulation of natural gas in the attic and ceiling of the church. Because of its highly inflammable and explosive character, natural gas is recognized jurisprudentially as an inherently dangerous instrumentality and those who handle and distribute it are charged with the duty to exercise that degree of care commensurate with its dangerous character for the protection of the public from any foreseeable injury. Reggio v. Louisiana Gas Service Company, supra. Accordingly, ArkLaGas owed the duty to safely furnish natural gas to its meter and to maintain the meter in good working order. Huggins v. Hartford Accident and Indemnity Co., 271 So.2d 876 (La.App. 4th Cir.1973); Surry v. Arkansas Louisiana Gas Company, 170 So.2d 133 (La.App. 2d Cir.1964). Included within that duty is the duty to adopt some reasonable method of safeguarding against the escape of its dangerous instrumentality — the gas. Reggio v. Louisiana Gas Service Company, supra.

Wiggins contends that the totality of the evidence clearly proves that ArkLa-Gas failed to fulfill its high duty of care. In support of his argument, Wiggins points to the evidence that the service connection was not made in accordance with ArkLa-Gas’ customary practice in that the location of the meter was changed from the usual point near the highway right of way to a point adjacent to the church and that plastic rather than steel pipe was recommended for use in this situation where twenty one pounds of pressure would be placed on the line which ran directly under a heavily used parking lot. It is further contended that the evidence shows that the ground was not properly prepared for the use of this plastic line, that the line was not properly tested and inspected, and that it was simply buried after which it was virtually forgotten. Wiggins argues that it was proven by a preponderance of the evidence that the explosion was the result of a gas leak- which did not occur within the church’s system of distribution but occurred at the connection of the plastic pipe to the “T” connection installed and connected by ArkLaGas on its side of the meter.

The trial court found that Wiggins had proved by a preponderance of the evidence that the leak that caused the fire and explosion resulting in the injuries existed “upstream” of the church’s meter, i.e., on defendant’s side of the meter. After reviewing the record, we conclude that the totality of the evidence supports such a finding and that it is not clearly wrong. The testimony preponderates that the leak occurred where the plastic line connected to the ¾ inch steel “T” attached to the main line and that the gas which was under 21 pounds of pressure escaped and migrated through the subsurface soil in the direction of the church to the season cracks in the church slab going up the inside and outside walls of the church into the attic and sanctuary where it gathered until ignited. More probably than not, the leak occurred because the plastic line was unable to withstand the stress placed upon it by the soil conditions coupled with the traffic on the driveway in the absence of special soil preparations and pressure testing which were not accomplished at the time of the installation of the line. While the evidence before the court was largely circumstantial, it was sufficient to support a conclusion that this was the cause of the fire and explosion and that ArkLaGas should have known of the hazard and taken reasonable precautions to prevent the catastrophe. See Reggio v. Louisiana Gas Service Company, supra. Accordingly, as a natural gas distributor, ArkLa-Gas breached its duty to safely furnish natural gas to its meter located adjacent to the church and this breach of duty was the legal cause of Wiggins’ injuries. Therefore, the trial court’s finding of liability on the part of ArkLaGas is not clearly wrong nor manifestly erroneous.

Unquestionably, Wiggins was seriously burned as a result of the fire and explosion which caused third degree burns over 24 to 29% of his body. In summary, skin grafts were necessitated on Wiggins’ hands and face, his ear was deformed and his face retained scar tissue and discoloration. However, the treating physician did not consider the ear deformity or the facial scar tissue so extreme as to recommend plastic surgery. Certainly, the injuries suffered were extremely painful. On three occasions, Wiggins was hospitalized for a total of thirty-eight days. As a direct result of his injuries, Wiggins was unable to work for thirty weeks, and he continues to be unable to participate or enjoy certain activities such as hunting and fishing which he actively participated in prior to the accident.

Based on the nature and degree of the injuries suffered, the trial court awarded general damages in the amount of $100,000 plus special damages in the amount of $6,174.50 for lost wages and medical expenses.

The function of an appellate court in reviewing a damage award is not to decide what it considers to be an appropriate award on the basis of the evidence, but rather only to review the exercise of the trial court’s discretion. Reck v. Stevens, 373 So.2d 498 (La.1979); La.C.C. Art. 1934(3). While the reviewing court might disagree with the amount of the award, it should not substitute its opinion for that of the trier of fact but rather should limit its determination to whether the trial court abused its much discretion. Kalmn, Inc. v. Empiregas Corp., 406 So.2d 276 (La.App. 3d Cir.1981). Our review of the factual basis on which the award for general damages was made discloses no abuse of the trial judge’s great discretion.

Accordingly and for the foregoing reasons, the judgment of the trial court is affirmed in its entirety at the cost of the appellant.

JUDGMENT AFFIRMED.