Superior Oil Co. v. Humble Oil and Refining Company

TATE, Justice. I respectfully dissent. The majority refuses to consider evidence properly submitted for trial of the exception. I respectfully suggest that this view overlooks the purpose and availability of the dilatory exception urging the objection of prematurity as a threshold device for terminating litigation when, under no evidence admissible, can trial on the merits result in judgment for the plaintiff — to terminate litigation not yet ripe for judgment. A brief recapitulation of the issues may demonstrate this. The court of appeal sustained an exception urging an exception of prematurity. 226 So.2d 565 . In doing so, it construed the contract between the parties as requiring, first, a determination by the commissioner of conservation of the total well costs applicable to each of two sands. Only after that is done, as the court of appeal interprets the contract, is it possible to determine how much, if any, is Superior entitled to recover from Humble by the monied judgment sought. This court’s majority, however, refuses to construe the contract or to consider these contentions. We say that to do so will make the commissioner’s determination of well costs res judicata in any subsequent suit between the parties. We say this deprives the plaintiff Superior of its opportunity to litigate on the merits its contention that, under the contract between the parties, surface acreage (not commissioner-determined well costs) is the proper measure of reimbursement. The court of appeal may have construed the contract incorrectly. For that reason, or some other, the present suit may not be premature. We do not so hold, however. We remand. Superior loses no right of review if the courts consider the contract now and interpret it to see if the present action is in fact premature. Superior has direct review of any trial holding so interpreting the contract, by appeal to the court of appeal and by writ of review to this court. If under the contract this action is in fact premature, then our procedural system entitles the defendant to have the action dismissed for such cause. La.C.C.P. Art. 423 provides: “ * * * When an action is brought on an obligation before the right to enforce it has accrued, *215 the action shall be dismissed as premature, but it may be brought again after this right has accrued.” 1 The defendant has so pleaded by the dilatory exception pleading prematurity, La. C.C.P. Art. 926(1). It has offered evidence to prove this ground for dismissing the suit as premature, as it is entitled to do, La.C.C.P. Art. 930. Yet we do not consider this evidence. We remand for trial on the merits. But, if the trial court on remand interprets the contract as did the court of appeal before, the action may still be premature and not ripe for enforcement of Superior’s demand for a monied judgment. In failing to consider evidence properly .offered on trial of the exception pleading prematurity, we erroneously deny this procedural device its legislatively-intended function to serve as a threshold device to terminate litigation promptly when the action brought is premature, in fact or as a matter of law. I express no opinion at this time as to whether or not the exception pleading prematurity is well founded, since neither the majority nor myself reach consideration of whether or not, under the contract, the right to enforce the present obligation has accrued. For the reasons assigned, I respectfully dissent. . It may be that the right to enforce the obligation has accrued, even though some of the evidence necessary (the eommissioner’s determination of well costs) is not presently available. The majority does not so hold, however.