author: McCALEB, Justice.

text:
    232 La. 655
    Levert R. RIZLEY v. R. V. CUTRER and Allstate Insurance Company.
    No. 42950.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.

      T. R. Broyles, J. L. Funderburk, Jr., Leesville, Herschel Knight, Jennings, for applicants.
    King, Anderson & Swift, R. W. Farrar, Jr., Lake Charles, for defendants-respondents.
   McCALEB, Justice.

At about 5 :00 a.m. on March 13, 1954, an automobile being driven by R. V. Cutrer on Highway 190, just east of the town of Elton, left its proper lane of travel and careened into the north lane of the highway where it crashed headon with an oncoming vehicle being driven by plaintiff, Levert R. Rizley. Rizley and his passengers, Clarence Mershon and William F. Meade, sustained severe and painful injuries in the accident and they thereafter instituted separate actions against Cutrer and his liability insurance carrier, All State Insurance Company, which were consolidated for trial, the issues involved being substantially identical with the exception of the quantum of damages. The injured plaintiffs are soldiers and, at the time of the accident, they were heading in a westerly direction in the car driven by Rizley on their way back to Camp Polk, where they were stationed. Cutrer’s automobile, with two young ladies as passengers, was approaching from the opposite direction and suddenly swerved into the north lane when Cutrer lost control of the car. The passengers in both cars were sleeping just prior to the impact and the only eye witnesses were the drivers of the cars involved.

The defense of Cutrer and his insurance company is that the accident was unavoidable, it being claimed that Cutrer’s loss of control of his car was exclusively due to its running onto the earthen shoulder of the south lane of the roadway which was caused by the unexpected termination of a concrete strip bordering the highway for a distance of some 500 feet east from the town of Elton. It is said that the abrupt ending of this strip, which is two feet wide for 250 feet and then narrows to a width of one foot for another 250 feet east of Elton, presented an unusual and unforeseen hazard to Cutrer in his passage over the highway on the morning of the accident and that, when he reached the end of the strip and rolled over the earthen shoulder adjacent to the edge of the road, which was slippery and muddy due to the weather conditions (it was drizzling at the time), he unavoidably lost control of his car, being unable to keep it from slipping or skidding into the wrong lane of traffic where it collided with the oncoming automobile. Alternatively, it is pleaded that Rizley and the occupants of his car were guilty of contributory negligence barring their recovery. After a hearing in the district court, there was judgment for defendants, the judge being of the opinion that Cutrer’s testimony was sufficient to exonerate him from all blame. On appeal, the Court of Appeal for the First Circuit affirmed the judgment for substantially the same reasons given by the trial judge. See Mershon v. Cutrer, 85 So.2d 639. On application of Rizley and the other plaintiffs, we granted certiorari and the case has been submitted for our decision.

Since the primary cause of the collision was Cutrer’s act in driving his car into that part of the roadway reserved exclusively for traffic proceeding from the opposite direction, a mere statement of the accident makes out a prima facie case of negligence against Cutrer and, therefore, it was incumbent upon defendants to show by clear and convincing evidence that Cut-rer’s sudden presence in plaintiff’s traffic lane was due to unexpected and unforeseen circumstances over which he had no control and that he did not in any particular contribute to the mishap. See Schick v. Jenevein, 145 La. 333, 82 So. 360; Miller v. Hayes, La.App., 29 So.2d 396 and Noland v. Liberty Mutual Ins. Co., 232 La. 569, 94 So.2d 671.

Highway 190 at and near the point of the accident is a straight two-lane thoroughfare running east and west. The paved portion of the highway is 18 feet in width and is bordered by earthen shoulders of six to eight feet, ample to accommodate parked cars. Running east from the town of Elton, the paved portion of the highway has been supplemented by concrete strips which, as heretofore stated, are two feet wide for 250 feet and then taper down to a width of one foot for another 250 feet, where they abruptly end. However, at the terminal of the strip, there is no appreciable drop onto the earthen shoulder but there exists a depression which has been caused by the repeated contact of motor traffic with the shoulder of the road.

It was dark on the morning of the accident and all vehicles were using their lights. It was raining or drizzling intermittently causing the shoulders of the highway to be muddy and insecure. In his explanation of the accident Cutrer testified that, soon after driving through the town of Kinder, or about 10 miles west of Elton, he began to encounter heavy trucks approaching from the opposite direction; that it was still dark, a drizzling rain was falling and that the headlights from the oncoming trucks interfered to some extent with his visibility; that, during the 10 miles to Elton, he glanced once at his speedometer which showed that he was travelling between 45 and 50 miles per hour; that, since the passing trucks were being driven close to the center line, he felt “-rather crowded” and that, upon reaching Elton, he noticed the strip bordering his lane, which gave him a little more room, so he moved over and drove with his right whéels on the strip. However, Cut-rer relates that, when his car approached the terminal point of the strip, he did not see it because he believes that he may have been partially and temporarily -blinded by headlights of an oncoming truck and he indicates that he expected that there would be a posted sign notifying motorists of the end of the strip. He stated “When the pavement stopped at a square end, well I ran off the square end of the pavement.” Although he was not sure whether his front wheels “fell off” the road and onto the shoulder, Cutrer says that he felt the back wheels go off the strip, at which time his car went out of control and swerved and skidded over into plaintiff’s oncoming car.

On the foregoing testimony, the trial judge and the Court of Appeal concluded that the defendants had successfully shown that Cutrer was without any fault in the premises and that the accident was solely attributable to the State Highway Department in not providing a safe road for traffic. And, to buttress their rulings, both courts relied on a line of jurisprudence which recognizes an exception to the general rule that a motorist travelling on a highway at night must have his vehicle under such control so as to be able to stop within the range of vision of his headlights. This exception is that, where the driver’s vision is impaired by fog, rain, smoke, blinding headlights or abnormal conditions, one will not be presumed to be negligent in striking unforeseen or unusual objects in the road which he has no reason to anticipate lie in his path. See Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377; Dodge v. Bituminous Casualty Corporation, 214 La. 1031, 39 So.2d 720 and Vowell v. Manufacturers Casualty Insurance Co., 229 La. 798, 86 So.2d 909.

We think that the courts erred in their conclusions of fact and law. Primarily, it is to be observed that the line of cases which excuse a motorist from fault where he collides with an unlighted vehicle negligently parked in the highway at night or into obstructions in his own lane of traffic, are without any pertinence to the situation presented in this case. Those decisions, which we have cited above (and there are many others decided by the Courts of Appeal too numerous to mention), involved situations in which a plaintiff, injured by the primary negligence of a defendant who either placed the obstacle in the road or allowed a condition dangerous to the travelling public to exist therein, was excused for his failure to observe the obstruction within sufficient time to avoid a collision by reason of its unforeseeable and unexpected presence in what could reasonably be presumed to be a safe and unimpeded lane of traffic. And, in all of them, the negligent defendant was pleading contributory negligence and shouldered the burden of proving such negligence by a preponderance of evidence.

Here, the situation is different because Cutrer, having caused the accident by leaving his own traffic lane, is presumed guilty of negligence and the onus rested on him to demonstrate that the accident resulted from such a state of unforeseeable circumstances beyond his control (and to which he did not contribute), that he could not extricate himself, despite the efficient use of all protective measures at his command. In other words, it was his burden to show that he was not guilty of any dereliction, however slight, which may have had causal connection with the accident. We say this because it seems only reasonable to resolve that a motorist owes to the travelling public the duty of remaining in his own lane of traffic and, when he undertakes to enter the lane devoted to approaching traffic, he must be held strictly accountable for all damages resulting therefrom unless he clearly exhibits that his conduct in no wise contributed to the accident. By this, of course, we do not mean that such a motorist is the insurer of the safety of those injured in an accident such as the one in the instant case but only that, in order to be exonerated, he must establish his freedom from all fault by convincing proof.

In the case at bar, we think that the evidence submitted by defendants falls far short of that mark as a careful scrutiny of Cutrer’s testimony makes it evident that he did not have his car under such control, prior to the accident, as was required by the circumstances of the occasion. Faced with unseemly weather conditions and oncoming trucks from the opposite direction, whose lights admittedly interfered with his vision, while travelling on a road which he found to be too narrow to comfortably accommodate the heavy trucks and his car, it was imprudent for Cutrer to continue to drive at an admitted speed of 45 to 50 miles per hour. We believe that a reasonably prudent man would have also anticipated and expected that the concrete strip, which began at the town of Elton and on which he was travelling, would not long continue and that it would come to an end soon after he passed the town.

It is doubtful that, if Cutrer had had his car under proper control, it would have slid across the roadway onto the opposite lane upon encountering the earthen shoulder of the highway at the point where the concrete strip terminated. Except for his assertion that the shoulder was muddy, Cutrer makes no attempt to explain why he lost control or what measures were taken by him to keep the car from running into the other lane. Such a statement is wholly insufficient to exonerate him from fault (see Noland v. Liberty Mutual Ins. Co., supra) and it is just as reasonable to conclude that he lost control by a hazardous attempt to regain the paved portion of the road as it is to say that the car slid over from its own momentum despite the efforts of the driver to prevent it from doing so.

Since we find that Cutrer was at fault, we take note of defendants’ plea of contributory negligence. Counsel for defendants suggest that Rizley, the driver of the car, and the passengers (who were all asleep) were intoxicated at the time of the accident and that, if Rizley had been maintaining a proper lookout, he could have avoided Cutrer’s oncoming swerving automobile.

These contentions are not impressive. Initially, there is no evidence to substantiate counsel’s claim that the occupants of the Rizley car were intoxicated. The evidence discloses that Rizley had consumed one beer and one bourbon and soda the previous evening or early that morning. Furthermore, the contention that Rizley and the other plaintiffs could have extricated themselves from the emergency created by the Cutrer automobile is, in our opinion, most unrealistic.

We conclude that defendants are responsible and, in accordance with the policy established by us in matters of this type (see Mataya v. Delta Life Insurance Co., 222 La. 509, 62 So.2d 817; White v. State Farm Mut. Auto Ins. Co., 222 La. 994, 64 So.2d 245, 42 A.L.R.2d 338; Herget v. Saucier, 223 La. 938, 67 So.2d 543 and Thomas v. Checker Cab Company of New Orleans, 229 La. 1079, 87 So.2d 605) the case will be remanded to the Court of Appeal for the fixing of the amount of damages to which plaintiff is entitled.

The judgment of the Court of Appeal is therefore reversed and the case is remanded to that court for further proceedings consistent wtih the views herein expressed. The defendants shall pay all costs.

        . The trial judge found Outrer’s explanation to be supported by visual observations, past records of accidents and personal experiences which led him to believe that the abrupt ending of the strip presented a serious traffic hazard.


source: Caselaw Access Project

license: Public Domain

text:
    232 La. 666
    Clarence MERSHON v. R. V. CUTRER et al.
    No. 42950.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.
    T. R. Broyles, J. L. Funderburk, Jr., Leesville, Herschel Knight, Jennings, for applicants.
    King, Anderson & Swift, R. W. Farrar, Jr., Lake Charles, for defendants-respondents.
   McCALEB, Justice.

This is a companion case to that of Rizley v. Cutrer, 232 La. 655, 95 So.2d 139.

For the reasons given in that case, the judgment of the Court of Appeal is reversed and the case is remanded to that Court for further proceedings consistent with the views therein expressed. The defendant shall pay all costs.


text:
    232 La. 667
    William F. MEADE v. R. V. CUTRER et al.
    No. 42950.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.
    T. R. Broyles, J. L. Funderburk, Jr., Leesville, Herschel Knight, Jennings, for applicants.

      King, Anderson & Swift, R. W. Far-rar, Jr., Lake Charles, for defendants-respondents.
   McCALEB, Justice.

This is a companion case to that of Rizley v. Cutrer, 232 La. 655, 95 So.2d 139.

For the reasons given in that case, the •judgment of the Court of Appeal is reversed and the case is remanded to that Court for further proceedings consistent with the views therein expressed. The defendant shall pay all costs.


author: FOURNET, Chief Justice.

text:
    232 La. 668
    The MISSISSIPPI RIVER BRIDGE AUTHORITY Acting Herein For And On Behalf of the State of Louisiana, v. Miss Louise SIMON, Single.
    No. 42982.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.
    McDermitt & McDermott, Stanley Mc-Dermott, Jr., for defendant-appellant.
    . John W. Bryan, Jr., J. Raburn Monroe, Bartholomew P. Sullivan, Jr., Walter J. Suthon, III, New Orleans, for plaintiff-appellee.
   FOURNET, Chief Justice.

The Mississippi River Bridge Authority, incorporated pursuant to. R.S. 48:1091 et seq. and availing itself of powers therein granted by the Legislature, including the power of expropriation, filed its petition to expropriate certain property belonging to the defendant, Miss Louise Simon, femme sole, consisting of three contiguous parcels forming the corner of Camp Street and Howard Avenue in the City of New Orleans, alleging that the property was necessary in connection with the approaches to a bridge and works and appurtenances thereto being constructed by the plaintiff over the Mississippi River at New Orleans, and praying that the property be adjudicated to> the State for the use and benefit of the plaintiff upon deposit in the registry of Court of an amount determined to be just compensation for damages sustained by the defendant. Following trial on the merits; where the sole question was the value of the property, there was judgment in favor of plaintiff as prayed with damages fo the defendant in amount of $70,000. The defendant appealed, and the only matter presented for our determination is' as to the sufficiency of the award.

The land expropriated covers an area of 16,622.683 square feet, is a quadrangle measuring 111 feet 5 inches on Camp Street by 145 feet on Howard Avenue, and at the time of the expropriation was improved by three buildings; the corner area, including the entire Camp Street frontage, was occupied by a three-story brick and concrete building bearing municipal numbers 1000 through 1014 Camp Street, consisting of four stores on the street level and 22 rooms, destined for living quarters, on the second and third floors; on-.the land adjoining the rear and fronting -on Howard Avenue, bearing municipal number 534 Howard, was a two-story brick residence; and next to that was 526 Howard Avenue, a one-story brick and frame galvanized iron building. The three-story building, through choice of the owner (an elderly lady), was unoccupied at the time of the expropriation — the corner store, suitable for use as a drug store, having been the most recently rented of the store units. The brick residence was occupied by families, the lower floor being divided into two apartments, the upstairs rooms and the slave quarters being occupied as separate units. The remaining building was rented to a tinsmith.

The testimony of the experts offered by the plaintiff and the defendant covered the comparable qualities of a number of Camp Street properties in the same and adjoining blocks which had changed ownership in recent years. In calculating a square-foot value for each parcel they took into consideration the area, frontage, location in the block, type of improvements, age and condition of the improvements, and the income derived therefrom; yet there was a marked divergence of views between the two expert appraisers who testified for the plaintiff and the two who testified for the defendant, the former estimating a value of $3.90 a square foot, or approximately $64,828, the latter a value of $6.00 a square foot, or approximately $99,736.

The trial judge, having made a personal inspection, gave written reasons in which he'noted his own estimate of the value (totaling $54,000), reached by considering the properties separately as three units, assigning a value to each “if in good condition” and deducting an amount estimated as the minimum required for repairs; how'ever, in fixing the award he accepted the estimate of plaintiff’s appraisers, i. e., $64,828, and on rehearing, “in order to allow a margin for error,” raised the amount to be paid the defendant to $70,000.

A perusal, of the record shows that plaintiff’s experts, Max Derbes and E. Holland Johnson, were in - agreement in their valuation of the land at $3.90 a square foot. In explaining how the said value was reached, Mr. Derbes stated that due to the fact that the buildings were in bad condition and would require heavy expenditures for repair to meet present day requirements, he gave no value to the improvements, being of the opinion that- by treating the improvements as nonexistent he could evaluate the property as a whole piece and thus give the owner the advantage of a plottage value. In arriving at the price of $3.90 per square foot he considered the sales prices of various comparable properties in the vicinity, as affected by the fact that the corner influence of the subject property was worth an additional 10% and plottage value was also worth 10%, but he deducted therefrom 15% for the asserted reason that the “river side” of Camp Street was less desirable than property on the opposite side because the latter forms part of the square bounded by St. Charles Avenue and Lee Circle. He considered, but refused to use as comparable, what he termed “monopoly sales” in the area because in his opinion the high prices — $7.10, $7.27, $8.00, $12.75, and up to $15.10 per square foot — paid for those properties were induced by the fact that owners who were already established in a location wished to purchase adjoining land so as jo expand, or for convenient parking facilities.

On the other hand, the two expert appraisers who appeared for the defendant, Cliff Probst and B. Van Pelt Biggar, calculated in separate estimates that the properties were worth in excess of $99,000. Both disagreed with the view of plaintiff’s appraisers that the other side of Camp Street had higher value; in their opinion, for business purposes the side on which the subject property was located held the advantage of being on the right side going down the one-way street. Mr. Probst arrived at a figure of $6 a square foot by considering sales of comparable property, the best example being, in his opinion, 901-911 Camp Street, a block away from defendant’s holdings — identical in area, an improved corner property (two-story single rooming houses), which was sold to the Y. M. C. A. four years previous to this expropriation for $4.92 a square foot. By using a round figure of $5.00 a square foot and allowing for an increase of 20% for property in the area during the period from 1952 to 1956, he thought the resulting $6 per square foot was amply sustained by other comparable sales in the vicinity, among these being the sale of 1051 Camp Street, in 1955, for $8 a square foot, and of the improved corner of Camp and Poey-farre (1034 — 1040 Camp) with less area, to Mississippi Bridge Authority, for $6.94 per square foot, as well as the American Bank “assembly,” those recent purchases averaging $9.90 a square foot for inside, not corner, property. This witness thought that with the expenditure of about $1,000 the properties could be placed in condition to bring $750 a month in rentals, and that the tinsmith shop, which needed no repairs, would rent for $75 per month rather than the $40 then received as monthly rental for it.

Mr. Biggar used two methods of calculation; in one he assumed a value of $4,025 a square foot for the land alone, or $66,897.51, and calculated the 22,000 square feet of improvements at $1.50 per square foot, or $33,000 — a total of $99,897.51, or a price per square foot of $6.01. By another method of appraisal, based on comparable sales, including those rejected as “monopoly sales” by the plaintiff’s experts, Biggar also estimated a valuation of $6 per square foot, or $99,736.10, and to prove the correctness of the figure he “broke down” the rental area of the property into units, calculated the income each unit would produce under proper management even in its then condition (he mentioned that structurally the three-story building was very sound, being 14" brick walls against 12" brick walls) and arrived at a gross monthly rental figure usually to be expected from an investment of like amount.

As has often been stated by this Court, the best guide in determining the market value to which the owner is entitled under the law in expropriation suits is evidence of sales of similar or comparable properties in the vicinity. We are not here faced with the situation, often causing serious difficulty, where there is no evidence of such sales; on the contrary, in the instant case there is almost an excess of material, since the record abounds with information concerning a large number of fairly recent sales of Camp Street properties in the immediate business district, evidencing considerable activity in the real estate market in that area— frontage often improved with substantial structures of varying age and value, rented as a rule to business enterprises. Our problem is one of evaluation, to determine which properties were in fact comparable, not losing sight of those transfers most recently effected directly from the owners to the plaintiff in connection with the same bridge project for which the defendant’s property was expropriated.

We are not impressed with the soundness of the opinion, expressed by plaintiff’s experts, that property on the opposite side of Camp Street from defendant’s property was more valuable by 15% ; it appears to have no other basis than a comparison of two sales in 1952, one on either side of Camp Street, in which a vacant lot on the “River side” sold for $2.75 a square foot while a vacant lot on the opposite side sold for $3.22. Isolated instances could no doubt be found to show various “differentials” of this type, but they are not persuasive. While property lying within a square bounded on one side by St. Charles Avenue might well have added value for some purchasers, it must also be recognized that business property on the side of the street where traffic could conveniently stop would have added value for other investors, and there is nothing in the record to warrant a hard and fast rule. Nor is there merit in the assumption that improvements must be treated as non-existent in order to give a tract of land the benefit of plottage value; a larger tract has additional value because of that fact alone. On the other hand, to disregard substantial improvements because they are in need of some repair is without precedent, and the fact that the owner in recent years had made no effort to keep the various units occupied or to make the properties attractive for rental purposes does not warrant a conclusion that they were worthless. We are of the further view that plaintiff’s experts were in error in discarding the so-called “monopoly sales” as not reflecting a price between a willing buyer and a willing seller; not only is such a conclusion unrealistic but, as shown by the record, higher prices were paid, not in one or two instances, but in numerous transactions in the vicinity.

Taking the record as a whole, assisted by photographs of the subject property and of many of the parcels considered by the experts, it is our opinion that the appraisal of the defendant’s experts of $6 a square foot is fully warranted, and that the defendant is entitled to an award on that basis for the total area of 16,622.683 square feet. We are fortified in this conclusion when we consider that the plaintiff paid $6.94 for improved property occupying the same relative corner a short block away; that inside lots directly across the street brought prices ranging from $7.10 to $15.10 a square foot; and that in the case of comparable properties which sold a few years back for less than $6, the recent increase in real estate value would warrant that price today.

For the reasons assigned, the judgment appealed from is amended by increasing the amount of the award to be paid defendant from $70,000 to $99,736.10, and as thus amended, it is affirmed.

PIAMITER, J., recused.

      . By motion filed in this Court, and on showing that Miss Louise O. Simon, defendant and appellant, died while this appeal was pending, her testamentary executor, Dr. H. Theodore Simon, was substituted as party-appellant in this cause.

      . By stipulation it was agreed that the testimony of Mr. Johnson on these matters would be the same as that of Mr. Derbes.

      . Among examples of “monopoly sales” were acquisitions on Camp Street by the Federal Land Bank, the Y.M.C.A., Pan American Petroleum Corporation, and the American Bank.

      . He stated that ground with a frontage on Camp Street was worth $3.50 per square foot, to which he added 15% for “assembly value and corner increment,” or a total of $4,025 per square foot.

      . In Mr. Biggar’s opinion the Camp Street building, in its then condition, if properly managed would bring in a monthly rental of: corner drug store, $200; 1006% Camp, a barber shop, $25; 1008 and 1010 Camp, two stores, $50, and 1014 Camp, a restaurant, $75. The residence should bring in $30 each for the two lower-floor apartments; the upstairs rooms, if rented to individuals at $3 per week, would produce $54, and the slave quarters, with like arrangement, another $35. Although he did not include the rental value of the upstairs 22 rooms and four baths in the corner building, those should, if in good condition (and on the basis of figures given him by a contractor, with the expenditure of $11,000, or $500 per room, they could be put in good condition), rent for 50$ per room per day, or $330 per month. In all, including the tinsmith’s shop, the property should produce between $870 and $950 per month.

      . See Texas Pacific-Missouri Pacific Terminal R.R. v. Dittmar, 161 La. 444, 108 So. 877; City of New Orleans v. Noto, 217 La. 657, 47 So.2d 36; Rapides Parish School Board v. Nassif, 232 La. 218, 94 So.2d 40.


text:
    232 La. 679
    John C. DAVES, Jr. v. SEWERAGE DISTRICT NO. 1 OF The PARISH OF JEFFERSON, State of Louisiana.
    No. 43506.
    Supreme Court of Louisiana.
    May 14, 1957.

      Ray C. Clement, New Orleans, for plaintiff-appellant.
    McDonald & Buchler, Willis C. McDonald, Metairie, Patrick E. Carr, New Orleans, for defendant-appellee.
   McCALEB, Justice.

Acting- under the provisions of Act 119 of 1950, as amended by Act 21 of the Extraordinary Session of 1951, the Board of Supervisors of Sewerage District No. 1 of the Parish of Jefferson caused to be published a series of notices of its intention to construct sewers and sewage disposal works within the confines of Sub-Sewerage District No. 1 of said sewerage district and, following disposal of all objections which were filed to the plan, advertising for bids, letting contracts, ordering commencement of the work and taking all other preliminary action required by the above cited acts, adopted, on October 17, 1956, local or special assessment Ordinance No. 1 of 1956, wherein it assessed all properties fronting on certain streets listed therein on the basis of $9.60 per front foot, to provide for the payment of the cost of the sewer lines, the construction of the lift stations and the construction of the sewage disposal plant. This ordinance was amended in minor respects on January 17, 1957, and again, on April 9, 1957, when the Board of Supervisors provided for the acceptance of a bid by Scharff & Jones, Inc. and others for the purchase of $1,525,000 of sewer certificates to be issued by the District, representing the unpaid cost of construction of the sewerage system.

On April 22, 1957, plaintiff herein, a resident of the Sub-Sewerage District Noi 1 and an owner of real property on which a front footage assessment has been levied by the ordinance of October 17, 1956, brought the instant suit in which he seeks to have the'assessment declared illegal, null and void and also to have the defendant sewerage district restrained from delivering the $1,525,000 of sewerage certificates to the purchasers thereof.

In his original petition, to which an exception of no cause of action was filed and overruled, plaintiff set forth three grounds of attack which were later stipulated as the only questions presented to the district court for decision. However, in a supplemental and amended petition filed on May 3, 1957, plaintiff added over 21 other grounds of complaint and the case thereafter proceeded to trial on the issues thus presented by the numerous contentions.

Following a hearing, the judge, finding; that none of the complaints was meritorious, dismissed the suit assigning written reasons therefor. Plaintiff has appealed, and the case has been submitted for our decision without oral argument on joint motion of the parties in accordance with. Section 9 of Rule IX of this Court.

We note at the outset that the defendant board is pleading, as a bar to plaintiff’s, suit, the peremption of 60 days provided' by the amendatory Act 21 of the Extraordinary Session of 1951 and, the judge sustained this plea as to most of the grounds. of attack asserted by plaintiff.

We have no doubt of the correctness of the judge’s ruling on this phase of the case and are of the opinion that all of plaintiff’s many complaints directed against the legality of the assessment levied on his-property are barred by the statutory per-emption.

Sub-Sewerage District No. 1 of Sewerage District No. 1 of the Parish of Jefferson was created pursuant to the authority of Section 37 of Article 14 of the Constitution, as amended by Act 543 of 1948, see Redmon v. Sub-Sewerage District No. 1, etc., 226 La. 245, 75 So.2d 854, and, con-formably with the provisions of Act 119 of 1950, the Sewerage District was vested with authority to establish, construct and maintain a sewerage system and issue negotiable coupon certificates for the payment of the cost of the improvements secured by local and special assessments levied on the property within the area benefitted by said sewerage system. Section 11 of the statute, as amended, reads:

“For a period of sixty (60) days from the date of the adoption of the ordinance levying a local or special assessment as provided for in Section 6 herein, any person in interest shall have the right to contest the legality of the said local or special assessment ordinances; after which time, no one shall have any cause or right of action to contest the legality, formality or regularity of said assessments for any cause whatsoever. Sewer certificates issued hereunder shall have all the requisites of negotiable paper under the law merchant, and shall not be invalid for irregularity or defect in the proceedings for their issuance, sale or delivery, and shall be incontestible in the hands of bona fide purchasers or holders for value thereof.” (Emphasis ours.)

The foregoing provision is explicit and, since plaintiff’s suit was not filed until long after the sixty days from the adoption of the assessment ordinance had elapsed, his right to attack the legality, formality or regularity of the assessment on his property, or any proceeding upon which said assessment is founded, has been foreclosed. See Nanney v. Town of Leesville, 198 La. 773, 4 So.2d 825; Carnahan v. Calcasieu Parish Police Jury, 199 La. 262, 5 So.2d 766; Humphreys v. City of Jennings, 185 La. 814, 171 So. 41; Sansing v. Rapides Parish School Board, 211 La. 936, 31 So.2d 169; Browning v. Webster Parish School Board, 212 La. 139, 31 So.2d 621; Dresser v. Recreation and Park Commission, 213 La. 85, 34 So.2d 384; Harrell v. Winn Parish School Board, 214 La. 1095, 39 So.2d 743; Redmon v. Sub-Sewerage District, 226 La. 245, 75 So.2d 854; McLavy v. American Legion Housing Corp., 227 La. 300, 79 So.2d 316.

Plaintiff’s complaints respecting the legality of the assessments and the proceedings upon which they are founded, must then be segregated from those complaints in which he challenges the right of the defendant Board to deliver the $1,525,000 of sewerage certificates and seeks to enjoin it from doing so. The latter are not subject to the pleaded peremption as the ordinance accepting the bid of Scharff & Jones, Inc. for these certificates was not passed until April 9, 1957.

We find the following contentions of plaintiff barred by the 60-day peremption:

(1) That the contracts for the construction of the project are invalid because the engineer’s report was filed more than 10 days after the opening of bids in violation of Act 119 of 1950, as amended.
(2) That the assessment is void because the engineer’s report to the Board of May 10, 1956 does not comply with the provisions of law in that it fails to show the amount chargeable to each lot or parcel of real estate and omits the legal descriptions of the various lots.
(3) That, in violation of Act 119 of 1950, as amended, the contract with Clement Betpouey, Jr. and Co. was signed more than 60 days after the receipt of bids.
(4) That, in violation of law, the Board, at a hearing on April 11, 1956, included certain streets in the project which had been eliminated therefrom at the original hearing and that this action was taken after the Board had received bids for the construction of the project.
(5) That the construction contracts awarded by the Board are invalid since they were signed without the Board having passed a resolution accepting the plans and specifications for the construction added by the hearing held on April 11, 1956, in violation of the specific provisions of the law.
(6) That the law was violated because the Board added cer-streets to the contract let to Clement Betpouey, Jr. and Co. without an advertisement for bids and the award of a new contract.
(7) That the Betpouey contract is invalid because the streets, as assessed on the assessment ordinance, are at variance with the streets upon which the contractor bid.
(8) That the Board was without authority to rescind the award of a contract to Binnings Construction Co. Inc., since it was the low bidder.
(9) That the contracts awarded by the Board are invalid because it has not included in said contracts any of the specifications or documents pertaining thereto.
(10) That the Betpouey contract is invalid because additional streets were added after the signing of the contract and the cost of the sewerage for these additional streets was increased.
(11) That the contracts are invalid because the engineering report, as revised, was filed more than ten days after the opening of bids and said report omits the amount chargeable to each lot ór parcel and the legal description of said lots.
(12) That the assessment ordinance is invalid in that it provides that interest on the time installments shall be paid annually notwithstanding that Act 119 of 1950, as amended, provides that the interest payments shall be semi-annual.
(13) That the assessment ordinance is invalid for the reason that it provides that the first installment shall become due on December 31, 1957, whereas the law provides for the collection of said assessments on December 31st of the then current year, which should have been 1956, as the ordinance was adopted in that year.
(14) That the inclusion in the total cost of the project of the cost of a complete sewage treatment plant and the collection of such a cost under the special assessments levied by the 1956 ordinance is illegal because such contemplated sewage treatment plant cannot be considered sufficiently local in its nature to be paid for out of the special sewer assessments.
(15) That the proceedings on which the assessments are founded are invalid because the notice for the hearing which was held on April 11, 1956 with respect to the increased cost of the entire project did not show the cost of the project insofar as the new streets to be added thereto were concerned and, therefore, was not sufficient notice to the parties owning property on the new streets which were included.
(16) That the proceedings on which the assessments are founded are invalid because, at the hearing held on April 11, 1956, there was a finding of benefits only with respect to the streets which were added to the project and no finding that the property originally assessed would continue to be benefited in an amount equal to the amount of the assessments levied against it, all in violation of the due process clause of the federal and state Constitutions.
(17) That the total assessment under the ordinance, amounting to $2,-420,351.32, is invalid and excessive because it includes therein the sum of $232,000 which is being furnished by the Federal Government as a grant to cover part of the cost of the construction of the sewage treatment plant.

There remains for consideration eight other complaints of plaintiff not barred by the statutory peremption to which we now address our attention.

Plaintiff contends that the issuance of the sewerage certificates to be dated May 15, 1957 and to mature annually on May 15th of each of the years 1958 to 1971, violate Section 7 of Act No. 119 of 1950, which declares that the sewerage certificates to be issued cannot extend over a longer period of time than that provided for by the ordinance levying the local or special assessments. Plaintiff’s counsel points out that, since the special assessment ordinance adopted on October 17, 1956 provided for a first payment to be due on December 31, 1956 and for continuing payments on December 31st of each of the following years, 1957 to 1970 inclusive, there will not be sufficient funds collected to make the payments of principal and interest on the certificates as they mature and, therefore, it will be necessary to levy an additional assessment under the provisions of Section 8 of Act 119 of 1950.

We find no merit in the contention. The assessments levied are payable over a period of 14 years and are sufficient to liquidate the sewerage certificates, which extend over a like period of 14 years, on their due dates. This is all that the Act requires. At any rate, should the Board levy an additional assessment under the provisions of Section 8 of Act 119 of 1950, plaintiff will have the right to complain at that time.

Plaintiff’s next contention is that the proceedings authorizing the issuance of the certificates are null and void because the certificates bear interest at the rate of 6% per annum up to May 15, 1958, whereas the installments to be paid by the property owners bear interest at the rate of only 5j4% and, therefore, the Board will not have sufficient funds to meet the payment of interest when it becomes due on May 15, Í958.

The contention is likewise without substance for a number of reasons but we need only refer to one—that is, that the interest on the assessments levied under the ordinance of October 17, 1956 began to run from the date of its adoption and, hence, the 5Y2% rate payable from October 17th to December 31st 1956 will be sufficient to cover the additional Yz oí \% which will be required to be paid during the first year of the' life of the certificates.

Plaintiff asserts that the resolution of April 9, 1957 authorizing the issuance of the sewerage certificates is illegal because it shows the cost of the project to be $2,-580,351.32, whereas the engineer’s report approved on the same date indicates that the cost will be $2,532,893.45.

The proposition is groundless. The difference between the engineering report and the statement of costs in the resolution is that the former does not include attorney’s fees and legal expenses, amounting to $47,457.87.

Plaintiff assails the resolution authorizing the issuance of the certificates because it provides that the interest on said certificates shall be paid semi-annually, whereas the resolution of the Board providing for time payments by the property owners prescribes that the interest thereon be paid annually. It is said that, since the property owners are not going to pay interest on the unpaid installments semiannually, the Board will not have sufficient funds to meet the interest payments due the certificate holders as they mature.

This conclusion drawn by plaintiff is factually inaccurate. Since the Board will be collecting interest from the property owners prior to the time that the interest on the certificates will become due, there should always be ample funds on hand to meet the semi-annual interest requirements applicable to the certificates.

Plaintiff’s next claim is that the resolution authorizing the issuance of the sewerage certificates is invalid because it provides that the certificates may be called in their inverse numerical order at a premium of 5% notwithstanding that the 1956 ordinance makes no provision for the payment of any premium in the event of prepayment of installments and, therefore, at the time that any pre-payment of an assessment may be made and the Board collects only the amount due, there would not be sufficient money to call the said certificates for pre-payment.

It is difficult to perceive how this complaint, even if factually correct, could possibly affect the validity of the certificates. At best, it poses contingencies which may never occur and which could not adversely affect plaintiff even if they come to pass.

Plaintiff claims that the issuance of the certificates is unlawful for the reason that Section 8 of Act 119 of 1950 empowers and obligates the sewerage district to levy and collect additional local and special assessments on each lot or parcel in the area involved to pay in full the principal and interest on the certificates in the event the special assessments originally levied are insufficient to pay the principal and interest falling due in any one year. It is said that this provision grants to the district arbitrary powers and constitutes the taking of private property without due process of law.

We do not see how or why the assailed provision is illegal or unconstitutional. Obviously, the property owners receiving the benefit of the improvement must pay for its cost and, if the first levy proves to be inadequate, it is only proper that additional assessments be made, as long as they fall equally upon the abutting landowners.

Plaintiff charges that Act 119 of 1950 is wholly unconstitutional for two reasons. The first ground advanced by him is that the Act was introduced in the House of Representatives as a general statute, which was read the first and second times in that form and, afterwards, amended to apply only to Jefferson Parish; that it was read only once in its amended form before its passage and that it should have been read three times as a special or local Act in order to fulfill the requirements of the Constitution.

The contention is not well founded. The Act was read on three different days in each House and that is all that is required by Section 24 of Article 3 of the Constitution. The fact that it was amended after the second reading to apply to. Jefferson Parish alone did not necessitate that it be read, as amended, three more times as the subject matter of the bill had been read to the House twice previously. See Allopathic State Board of Medical Examiners v. Fowler, 50 La.Ann. 1358, 24 So. 809 and State v. Bauman, 148 La. 743, 87 So. 732.

Plaintiff’s second contention is that the statute is unconstitutional because it was amended to apply solely to the Parish of Jefferson on the 26th legislative day of the Session and that this was not legally possible as it was the introduction of new matter after the expiration of the first twenty-one days of the legislative session.

The proposition is insubstantial. The hill, as originally drawn, was introduced within the twenty-one day time limit prescribed for the reception of bills by either branch of the Legislature. Its subsequent amendment restricting its application to the Parish of Jefferson was not the introduction of new matter within the meaning and intendment of Section 8 of Article 3 of the Constitution.

In a revised report of the engineer in connection with the project, which was adopted by the Board’s resolution of April 9, 1957, there was shown a reduction in the number of the front feet of property previously assessed and a conformable reduction in the cost of the project. Yet, since the $9.60 per front foot assessment against property benefited by the proposed construction was not changed, plaintiff contends that the assessments previously made have become invalid and that the Board should be enjoined from issuing the certificates.

If it appeared that there had been a substantial reduction in the cost of the project or that there had been an increase in the number of front feet to be benefited with no increase in cost, plaintiff’s complaint might be well founded, as this would constitute a material departure from the contract as contemplated without giving the abutting property owners credit for the reduced cost in one case and reducing the benefits to the property owners in the other. See Adams v. Town of Leesville, 210 La. 106, 26 So.2d 370. But we do not understand that any such thing occurred in this case. The supplemental and amended engineer’s report of April 9th simply shows a reduction in the number of front feet involved in the project and a consequential reduction in the total cost thereof. The cost for the total front footage which will be benefited by the project still remains at $9.60 per front foot. In other words, by elimination of a number of front feet for which sewerage had been contemplated, the total cost of the project has been automatically reduced but the cost to the property still included in the project remains the same.

The judgment appealed from is affirmed.

Motion to Waive Fourteen Days for Rehearing and Agree for the Judgment to Become Final Immediately

To the Honorable, the Supreme Court of the State of Louisiana:

On joint motion of both parties to the above entitled and numbered suit, appearing herein through their undersigned counsel, and on suggesting to this Honorable Court that they desire that the judgment rendered in this matter on the 14th day of May, 1957 become final immediately upon its rendition, and do hereby jointly waive the fourteen days provided for an application for a rehearing in this Honorable Court.

It Is' Ordered that the judgment rendered herein on the 14th day of May, 1957, be, and the same is hereby, made final, as of the date of its rendition.

      . The ordinance was adopted on October 17, 1956 and the suit was not filed until April 22, 1957.

      . In the foregoing cases pleas of peremption were sustained under constitutional and statutory provisions quite similar to those contained in Act 119 of 1950, as amended. There are many other cases in which like conclusions have been reached. Indeed, they are so numerous that it would be superfluous to cite them in this opinion.

      . The case of State ex rel. Caillouet v. Laiche, 105 La. 84, 29 So. 700, relied on by plaintiff is not apposite as, there, the bill was amended by one House, which amendments were never concurred in by the other House, nor were such amendments included in the bill as finally passed.