author: SCHOTT, Judge.

text:
    Clarence J. ALOMBRO, Jr. v. CAMPBELL “66” EXPRESS, INC., et al.
    No. 8809.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 27, 1977.
    H. F. Foster, III, and James C. Wilbert, New Orleans, for relator.
    M. H. Gertler, New Orleans, for respondent.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

This is before us on an application for writs of certiorari, prohibition and review by Campbell “66” Express, Inc., hereinafter referred to as relator, with respect to a judgment of the district court ordering relator to pay one-half of the costs due the clerk of the district court in connection with relator’s appeal. The chronological summary of the proceedings follows:

November 10, 1976, pursuant to a verdict of the jury plaintiff’s suit against relator and a co-defendant was dismissed and a third party demand of relator against several third party defendants was likewise dismissed as moot.

November 16, 1976, application for new trial by plaintiff scheduled for trial on December 3, 1976.

January 17,1977, relator filed petition for devolutive appeal from the judgment of November 10, dismissing its third party demands against third party defendants “as a protective measure, since the delays for de-volutive appeal will expire prior to the time original plaintiff may be required to appeal within the delays set forth by the law.”

January 27, 1977, clerk mailed notice of estimated appeal costs to attorney for relator pursuant to Act 708 of 1976, requiring costs of $10 to be paid, apparently to cover costs after judgment in event plaintiff did not appeal and relator dismissed the “protective” appeal.

January 28, 1977, aforesaid statement paid by relator.

February 9, 1977, plaintiff filed devolu-tive appeal, the application for new trial having been denied.

February 15, 1977, notice of estimated appeal costs sent by clerk to attorney for plaintiff, showing total estimated costs of $260 due.

February 18, 1977, amended notice of estimated appeal costs by clerk to attorney for relator, showing $130 estimated costs due.

February 18, 1977, similar amended notice of estimated appeal costs to attorney for plaintiff, showing $130 of estimated costs due.

Relator filed a motion to be relieved of these appeal costs in this court, which motion on March 20, 1977, was transferred to the district court for adjudication. See Alombro v. Campbell “66” Exp. Inc., 344 So.2d 1066 (La.App. 4th Cir. 1977).

After hearing argument and taking evidence on the matter, the trial court ordered that relator pay one-half of the costs as aforesaid, whereupon relator replied to this court for supervisory relief.

Relator was justified in taking the appeal in view of the decision reached in Mire v. Fidelity & Cas. Co. of New York, 338 So.2d 351 (La.App. 3rd Cir. 1976) which held that in the event a third party plaintiff fails to take an appeal under circumstances identical to those in which relator found itself, the dismissal of its third party demand would be considered res judicata irrespective of the result in the appellate court on the main demand.

C.C.P. Art. 2082 defines an appeal as the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside or reversed by an appellate court. Since relator won its case in the trial court, its taking an appeal seems to contradict the definition of an appeal since relator is surely not interested in or desirous of having the judgment of the trial court in any way disturbed. Nevertheless, relator was required to take an appeal to protect itself against the situation which occurred in the Mire case. Under these circumstances it seems unjust to require that relator bear the ordinary burden of the costs of the appeal in which relator has only a contingent interest. Relator’s appeal was taken with full reservation and understanding that it would be dismissed in the event that plaintiff took no appeal. At all times plaintiff was regarded as the true appellant, and any expenses incurred in the preparation of a record will be for plaintiff’s benefit and not for the benefit of relator as third party plaintiff.

Consequently, we grant certiorari, reverse the judgment of the trial court dated April 26, 1977, and relieve Campbell “66” Express, Inc. of the obligation of paying estimated costs of appeal in excess of $10. In the event that plaintiff wishes to pursue his appeal he is to pay all estimated costs, exclusive of such $10.

CERTIORARI GRANTED, REVERSED.

      . This does not mean that we approve of the holding in the Mire case.


source: Caselaw Access Project

author: LEMMON, Judge. STOULIG, Judge,

license: Public Domain

text:
    Gary AMACKER et al. v. Mary Ellen McEniry WEDDING et al.
    No. 8557.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Oct. 25, 1978.
    Writ Refused Dec. 8, 1978.

      Sutterfield & Vickery (James R. Sutter-field), New Orleans, for plaintiffs-appellants.
    Buchler, Morel & Hanewinckel (Ernest H. Hanewinckel), Metairie, for defendants-ap-pellees.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   LEMMON, Judge.

This litigation involves a dispute over the amount of monthly rental payments contemplated by a written contract of lease with subsequent written and verbal modifications. The lessors and the lessees have both appealed from a judgment, rendered in one of two consolidated eases, which awarded the lessors the amount of rent found to be due and further ordered the lessees to vacate the premises. However, because this money judgment (which awarded the lessors almost everything they demanded) was rendered in the lessees’ suit for a declaratory judgment, rather than in the consolidated suit by the lessors for rental payments, complex procedural problems are presented. We must initially review the factual background to determine what issues are before the court in the appeals from that judgment.

I

The parties originally entered into a written lease, whereby the lessees rented 1,500 square feet of retail store space in a shopping center then under construction for $750.00 per month (being the basic store rental price of $6.00 per square foot per year), plus 750 square feet of mezzanine space for a monthly rental sum of 2% of the actual construction cost of this upper area. For the mezzanine area the lessors agreed to construct “one access stairway, floor, ceiling, one wall, lighting, air conditioning, heating and sprinkling”, the plans and specifications for which were to be approved by lessees prior to construction.

While this phase was under construction, the lessees, who intended to operate two businesses on the premises, contracted in writing to rent an additional 750 square feet of mezzanine space for 2% of the actual construction cost, not to exceed $8,500.00. Finally, while construction of the additional mezzanine area was underway, the lessees contracted in writing to rent an additional 1,125 feet of ground floor space at the basic rate (making a total of 2,625 feet of ground floor space at $1,312.50 per month) and agreed verbally to rent an additional 1,125 feet of mezzanine space at 2% of the actual construction cost (making a total of 2,625 feet on the mezzanine level).

A dispute arose as to the mezzanine space when the lessors billed a monthly rental calculated on a construction cost of $41,-377.92 for the 2,625 feet. The lessees contended (1) they had never received plans and specifications for approval, (2) the lessors had verbally guaranteed the cost of construction would not exceed $10.00 per square foot, and (3) the construction of that area had only been partially completed, in that only about 750 feet was usable and then only for storage. The lessees accordingly paid only the amount of rent agreed upon for the ground floor space and filed a petition for declaratory judgment, seeking a declaration of their rights under the contract, particularly in respect to the cost limitation of the rental calculation for the upper area and to the rental due for this area during the period construction remained incomplete. The lessors answered, denying such an agreement for construction cost limitation and stating that the general contractor had halted construction of the mezzanine prior to completion at the request of the lessees, who indicated they would complete the work themselves. The lessors then filed a separate suit to recover rent payments due in excess of the amount tendered by the lessees and to seek possession of the premises.

At a scheduled hearing on the rule for eviction the lessees agreed to pay $525.00 per month into the registry of court for the mezzanine space (based on 2% of 2,625 square feet at $10.00), until the matter could be heard in its entirety, and the court referred the eviction issue to the merits.

The two suits were consolidated for trial. The trial court, finding that there was no agreement as to a cost limitation of $10.00 per square foot and that the lessees had occupied the entire 2,625 feet of mezzanine space, rendered judgment awarding the lessors everything they had demanded except liquidated damages. However, this judgment was inadvertently rendered in the declaratory judgment action filed by the lessees, and in the consolidated suit (the lessors’ action for overdue rent) the trial court simultaneously rendered a judgment which stated “(t)his cause came on for trial . on a petition for declaratory judgment filed herein by the plaintiff” and which dismissed “the plaintiffs’ demands” for the reasons assigned in the other suit.

The lessees suspensively appealed from the money judgment, and the lessors appealed devolutively, reurging their demand for liquidated damages. The judgment in the action for declaratory judgment, brought up by these two separate appeals, is now before us for review.

On appeal the lessees argue that the lessors in their pleadings demanded only the dismissal of the action for declaratory judgment and that the judgment must be set aside as granting the lessors affirmative relief in excess of that which was demanded. In effect the lessees contend the lessors appealed from the wrong judgment and are stuck with this procedural error.

This characterization of the procedural posture of this case is incorrect. The more accurate analysis is that the trial court committed the procedural error by filing the money judgment, based on evidence presented in two related and consolidated actions, in the wrong suit. The lessors, possessed of a judgment granting them virtually all of their demands, had no reason to appeal, except from that portion of the judgment implicitly denying liquidated damages. The lessors, with a favorable judgment in one of the consolidated cases and with reasons for judgment made applicable to both cases, cannot reasonably be required to check the docket number and suit title to determine whether the trial court had erroneously filed the favorable judgment in the wrong suit and whether the judgment dismissing “plaintiffs’ demand” actually dismissed their demand, rather than that of their opponents. Basic justice and fair play dictate that lessors, misled by the inadvertent error of the trial court under the pressure of handling a busy docket, should not be restricted to the relief demanded in the pleadings in this particular suit, but rather should have this appeal decided on the merits of the consolidated cases and not on a procedural error primarily caused by the court’s confusion of docket numbers and suit titles.

Accordingly, the judgment will be reviewed in the manner in which it was intended to be rendered—a declaration of the lessees’ rights and a contemporaneous granting of relief to the lessors in accordance with the declaration.

II

As to the merits of the appeal, the trial court properly found the parties had not agreed on a cost limitation of $10.00 per square foot on mezzanine construction. This resolution of conflicting testimony is supported not only by the denial of the lessors and their leasing agent (who allegedly made the statement as to the limitation), but also by the fact that the written lease for the first mezzanine addition contained an express limitation which amounted to over $11.30 per square foot. Furthermore, the lessors’ contractor’s admitted representation to the leasing agent prior to any construction that $10.00 was a reasonable “budget figure” can only be taken in the context of basic mezzanine construction, without extras or change orders. In this case the several additions and the changes directed by the lessees during the course of construction obviously had an effect upon the ultimate cost per square foot.

The lessees also questioned the lessors’ contractor’s calculation of the cost of mezzanine construction, particularly the basic cost of $16,076.71 for the third phase (1,125 feet) and the $5,592.00 cost of interi- or partitions.

As to the charges of the general contractor, the lessors calculated the amount allo-cable to the mezzanine area by reconstructing the contractor’s time sheets and material invoices in accordance with the superintendent’s daily log or' diary. The time sheets showed the hours worked and the type of labor performed, while the diary showed the daily progress on each store and area of that store. Although the superintendent admitted he did not keep an accurate record itemized by hours for each employee in a particular area of the shopping center, he stated his determination was “pretty close to the accurate number of hours” for the employee on the particular phase of the job at a particular store. Furthermore, the greater cost per square foot of this phase was reasonably attributable to the on-the-job extras and changes (such as moving walls, building false fireplaces, and having a wide second floor expanse without supporting walls or columns on the ground floor) directed by one of the lessees. Additionally, this lessee, who was to operate a business on the mezzanine floor, terminated his relationship with the other principal individual lessee around the time of completion of construction, and the managing lessor testified that the remaining principal lessee’s initial objection was that he had no use for the expanded mezzanine area because of this termination of the business relationship. Indeed, this lessee conceded he may have tried to get out of the mezzanine lease when the other principal lessee terminated their relationship.

As to the charges of the subcontractors, the lessors allocated the costs of air conditioning, electrical work and sprinkler system by dividing the total cost of the third phase by two, since the square footage of the mezzanine floor in that phase was exactly the same as the square footage of the ground floor. The record supports a conclusion that this allocation is reasonable, especially since the mezzanine construction was more expensive in some areas, such as special lighting fixtures, more extensive air conditioning ductwork, and greater air conditioning capacity due to a greater heat factor.

An additional consideration is the fact that the third phase required removal and reconstruction of some work done in earlier phases. Moreover, the managing lessor testified that they were rushed for completion and would have preferred to secure cost estimates on fixed plans as they did for other tenants.

There is no manifest error in the trial judge’s determination that the monthly rental for the mezzanine space was $827.56, calculated on a total construction cost of $41,377.92.

III

The lessees correctly point out a miscalculation in the judgment, in that the additional monthly rental should have been calculated from February, 1974 rather than 1973.

IV

The lessors’ appeal raises the issue of a contractual stipulation for liquidated damages in the amount of $15,000.00 in the event of a breach. The written lease provided:

“Failure of Lessee to pay any installment of the guaranteed rental or additional rental, or failure of Lessee to comply with any other obligation of this lease . shall give Lessor the right, at Lessor’s option, (a) to cancel this lease, in which event there shall be due, from Lessee to Lessor, as liquidated damages, a sum equal to the amount of the guaranteed rent for one year; or (b) to sue for the rent as the same accrues.”

Ordinarily, legal agreements have the effect of law between the parties and will be enforced by the courts. While damages due for the breach of a contract (other than for the payment of money) are the amount of the loss the creditor has sustained or the profit of which he has been deprived, the parties by their contract may determine the sum that shall be paid as damages for its breach. C.C. art. 1934(1) and (5).

In the present case the lessors will sustain damages from the loss of revenue when the lessees are evicted, and the parties freely contracted to estimate these damages in relation to the costs expended and amount of monthly rental lost during a reasonable period for obtaining another tenant. Since the agreed damages are not disproportionate to the probable loss, there is no basis for denying recovery, once the court determined that a breach did in fact occur.

Accordingly, the judgment of the trial court is amended to reduce the amount of the award for rental payments for the mezzanine area through July 2, 1976 by $9,930.72 ($827.56 per month for 12 months) and to award liquidated damages in the amount of the guaranteed rent for one year. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

STOULIG, Judge,

concurring in refusal to grant rehearing.

I concur in the refusal to grant the rehearing. I still concur in the result awarding liquidated damages. However, I am of the opinion that under Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970), no inquiry should have been made as to the reasonableness or the motive for the liquidated damage provision in the contract. Further LSA-C.C. art. 21 (equity article) cannot be applied where there is a clear and unambiguous liquidated damage provision in the agreement.

      . Under their agreement the lessees could either complete the construction at their cost or have the lessors’ contractor complete the construction at the lessors’ cost and pay 2% of that cost as monthly rental.

      . The lessors also appealed in the action for overdue rent, apparently after they realized the judgment had been rendered in the wrong suits. That appeal was filed after the delay for appealing had elapsed and was dismissed as untimely.

      . A declaratory judgment generally only declares rights and does not grant relief. This judgment can be viewed as properly granting relief because of the demands and the evidence in the consolidated case. The correctness of both the declaration of rights and the extent of relief is thus raised by the lessees’ appeal.

      . The basic mezzanine cost of the first phase (750 feet) was $8,590.62 and of the second phase (750 feet) was $6,592.97.

      . The basic rental price of ground floor space was fixed because of a firm construction contract for this area. The rental price for mezzanine space could not be fixed at the time of execution of the contract, and this construction was done on a “cost plus” basis, with its inherent problems of overruns created by extras and change orders directed during the course of construction.

      . Arguably, if the parties could not reasonably have expected a breach to cause damages fairly proportionate to the agreed damages, the lessees could have contended the contractual provision was an illegal attempt to collect future rentals beyond the termination of the lease, as was the issue in Executive Car Leasing of N. O., Inc. v. Alodex Corp., 279 So.2d 169 (La.1973). However, the use of the amount of monthly rentals over a reasonable period to estimate reasonably anticipated damages is not such an attempt.


author:
LEMMON, Judge.
      BEER, Judge,

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Lydia N. BOUGERE et al.
    No. 8953.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Writ Refused Oct. 26, 1978.

      William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Bryan Miller, Baton Rouge, and Jesse S. Guillot, New Orleans, for plaintiff-appellant.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Herschel L. Abbott, Jr., New Orleans, for defendants-appellees.
    Before LEMMON, SCHOTT and BEER, JJ.
   LEMMON, Judge.

The State of Louisiana, through the Department of Highways, has appealed in this expropriation case from a judgment awarding defendants-landowners (1) the value of property taken for the construction of Interstate Highway 10, (2) the rental value of property required for a temporary construction servitude, and (3) severance damages. Defendants answered the appeal, seeking an increase in the awards and in expert fees.

Prior to the expropriation defendants’ property was a 2,464-acre tract, roughly rectangular in shape (with several indentations), located (as shown on the attached map exhibit) in St. John the Baptist Parish north of U. S. Highway 61 (Airline Highway) and south of Lake Maurepas. The property was uninhabited, consisting generally of wet tree swamp land about one or two feet above sea level, and was accessible only by two canals and by two private roads (abandoned oil field roads, one shell and one dirt) which terminated south of I — 10.

The Department expropriated 55.084 acres in full ownership and 179 acres for a temporary construction servitude parallel and adjacent to the north boundary of the highway. The east-west route of the highway cut the property approximately in half, leaving a remainder of 1,202 acres south of the highway and 1,207 acres on the north.

Value of the Parcel Taken

The date of the taking was December 17, 1969.

The Department’s expert considered the property’s highest and best use to be for timber, hunting and trapping, as well as holding for speculation. He appraised the value of the tract at $125.00 per acre on the basis of comparable sales adjusted to reflect differences in time, size, location and other factors. However, by restricting his analysis to large tracts, he considered only one comparable in the parish or the general area, and that parcel was much further away from present development.

Defendants’ experts, on the other hand, placed substantial reliance on several sales of smaller tracts in the general area. The first was the sale of an 18-acre tract six years prior to the taking. The comparable was located to the east of the subject and about the same distance north of Airline Highway, was similar in topography, and was sold for $200.00 per acre with the seller reserving the timber rights (valued on the subject by stipulation at $42.00 per acre).

Another comparable sale was a 160-acre tract of inaccessible swamp land for $350.00 per acre in 1969, which was used for sales of “paper subdivision” lots. That comparable was much further from present development to the south than the subject, but was within two miles of the isolated north-south U. S. Highway 51 and significantly was adjacent to another tract which the purchaser had developed similarly. Two other comparables in the general area were negotiated sales in 1969 to the Department for 1-10 construction, one with 20 acres at $200.00 per acre (plus damages) and one with 125 acres and some access to Highway 51 at $322.00 per acre.

Other comparables on the east bank, considered by all three appraisers, were informative as to values generally of landlocked tracts in swampy areas north of the Airline Highway and west of Lake Pontchartrain. However, the four comparables discussed above, like the subject, were closer to presently developed areas, a factor which bears substantially on attractiveness to the market. Moreover, the alleged com-parables on the west bank of the Mississippi River, while also. informative in some respects, were not significantly persuasive.

The trial court found that the only comparable considered by any of the experts which was truly comparable was the tract expropriated by the Department in the case of State, Department of Highways v. Guste, 319 So.2d 468 (La.App. 4th Cir. 1975). On the basis of the $250.00 per acre value judicially determined in that expropriation (20 months before the present taking), the trial court fixed the value in this case at $250.00 per acre.

The greatest evidentiary weight which can be accorded the judicial determination of value in the Guste case is the presumption that $250.00 per acre was the correct value of that tract. For the judgment in the Guste case to be used as a comparable for estimating the value of the subject property, there must be expert evidence of comparability of the two properties.

The sole factual testimony of defendants’ expert was that the Guste property was 260 acres of treeless marsh about four miles east of the subject. While he “gave no weight to the decision of the Court”, he opined without explanation that the Guste property was inferior because the subject “had greater utility for potential industrial use”. He made no attempt to adjust the comparable value to that of the subject.

The Department’s expert testified that the Guste tract is immediately adjacent to a drainage district and to a subdivided tract with streets and utilities. Furthermore, the maps in evidence show that the Guste tract is closer to higher land and present areas of development. However, the record shows the Guste tract had no trees, while the subject had a stipulated forestry value of $42.00 per acre. On the record, without reasonable adjustments by the experts, we cannot consider the value of the Guste tract as controlling in this case. However, on the basis of the overall record we hold that the sale of smaller tracts in the area, proximate in time and adjusted for other considerations (primarily size), as well as the unadjusted decision in the Guste case, support an estimated value of $250.00 per acre.

Value of Temporary Construction Servitude

The temporary construction servitude, acquired on December 17, 1969 and released to the owners on January 13,1975, was used for muck disposal during construction. Using the method proposed by the Department’s appraiser and approved by the trial judge, we calculate the rental value of 179 acres at the after taking value of $230.00 per acre (179 X $230.00 7e $41,-170.00) minus timber value ($41,170.00 - $7,476.00 = $33,694.00) at 8% per year for 5.083 years ($33,694.00 X .08 X 5.083 = $13,701.00). To the rental value of $13,-701.00 must be added the value of the destroyed timber, $7,476.00, making a total of $21,177.00 due for the temporary servitude.

Severance Damages

Defendants’ demand for severance damages is principally based on the contention that the northern half of the property was cut off from all possibility of access from the areas to the south.

South of the property is development along the River Road and the Airline Highway. There is no development whatsoever and no highway or traffic arteries for many, many miles to the north of the property.

I—10 is a controlled access highway, with no entrances or exists in the area of the subject property. No new roads or waterways will be allowed to cross the highway, and the nearest point of crossing is at Laplace, about ten miles to the east.

Prior to the taking there were two private roads which were used for access to the property from Airline Highway. While these roads ended before reaching the present location of I—10, they provided a possible means of reaching any point on defendants’ property, which was a contiguous single tract. Furthermore, there was a north-south drainage canal which permitted drainage and passage of small boats from Airline Highway all the way to Lake Maurepas. The expropriation eliminated the possibility of using any of these means of access to reach the north half of the property.

Obviously, the attractiveness of an undeveloped, landlocked tract of ground to a potential purchaser is enhanced considerably by the existence or the potential availability of some access road, even one across the property of others, or even by small boat access. Conversely, the psychological attractiveness (which of necessity bears upon market value) is diminished by loss of all possibility of access from the nearest area of present development.

A land owner is constitutionally entitled to recover as damages the diminution in value caused by an expropriation to the remainder of his property. There is no single formula by which such damages must be proved, such as only by comparable sales. La. Power & Light Co. v. Churchill Farms, Inc., 292 So.2d 183 (La.1974). Moreover, the difficulty of measuring such damages does not justify the denial of any reasonable amount.

Basic reasoning and common sense dictate that the north half of defendants’ property sustained some diminution in value as a result of the expropriation, which left that parcel surrounded by uninhabited swamp for many, many miles to the north, west and east, with no possibility of access to the relatively close area of development to the south. The gist of the testimony of defendants’ experts was that after the taking a buyer would pay less per acre for the north half of the property than for the south half, not only because the south half was closer to high ground, existing development and traffic arteries, but also because the north half no longer had any possibility of access across the highway to the high ground, existing development and traffic arteries to the south.

The amount of the diminution in value is very difficult to evaluate and must be left largely to the informed and reasoned opinion of those who have expertise in the field of estimating real estate values, supported by facts in the record. One of defendants’ experts referred to sales of land comparable in remoteness and accessibility to the severed north half (although some of the sales occurred prior to the taking) and noted the lower sales prices. The appraisers, however, generally relied upon their judgment, and the trial judge tempered this judgment and set the severance damages at $20.00 per acre, representing the difference in the value immediately before the taking and the value after the taking. We find no abuse of discretion.

Interest

The trial court awarded interest from the date of the taking on the amounts awarded for the value of the property taken and of the temporary servitude, but awarded interest only from the date of judgment on the amount awarded for severance damages.

R.S. 48:455 provides:

“The judgment rendered therein shall include, as part of the just compensation awarded, legal interest on the amount finally awarded as of the date title vests in the plaintiff to the date of payment, but interest shall not be allowed on so much thereof as has been deposited in the registry of the court.”

While arguably interest on severance damages, which are calculated as of the date of trial, might reasonably be held to commence as of the date of trial, the statute clearly provides for interest from the date of the taking on the entire amount finally awarded for just compensation in excess of the amount deposited. The judgment must be amended accordingly.

Expert Fees

Defendants’ two appraisers testified that their agreed fees were $2,500.00 and $2,000.00 respectively, plus $150.00 per day for court service. The trial court set the expert fee at $300.00 for each.

A witness who testifies as an expert at trial is entitled to compensation for his appearance in court and for his preparatory work, fixed with reference to the value of his services and the degree of skill required. The amount of his contractual fee with the litigant, while admissible, is not determinative of the fee to be awarded.

Here, the experts did not specifically itemize the amount of hours spent in preparation for trial. However, it is evident that they spent a considerable amount of time gathering and analyzing information for the initial appraisal and the updated appraisal, and they referred in their testimony to visits to the property and discussions with the parties to the comparables studied. Moreover, the award of the trial court (more than $60,000.00) when the deposit was less than $16,000.00, had to be influenced to some extent by the expert testimony-

The amount of expert fees is generally within the discretion of the trial court. The award in this case was reasonable for the days of testimony at trial and by deposition, but apparently did not compensate the experts for their preparatory work. The lack of evidence does not justify the total denial of compensation for preparatory work, and on the basis of the work evident in the record, we increase the expert fee of each appraiser by $1,000.00.

A forestry expert prepared a report on the value of the timber and the loss of forestry benefits. On the basis of this report the parties stipulated as to the value of the timber taken on the parcel expropriated and on the parcel used for muck disposal. Defendants’ expert, therefore, did not testify, and the trial court did not award an expert fee.

An expert fee should be awarded to compensate an expert whose services form the basis of a stipulation of value at time of trial. This expert rendered a 1967 report, for which he charged $500.00, and then spent six days in 1975 in preparation the month before trial, for which he charged $150.00 per day, plus travel expenses of $184.24. His entire bill of $1,584.24 should have been awarded.

Decree

The judgment of the trial court is amended to decrease the compensation for the temporary servitude to $21,177.00, to award legal interest on the amount of severance damages from December 17, 1969 until paid, to increase the expert fees of Omer Kuebel and L. X. Lamulle by $1,000.00, and to set the expert fee of Keith Cranston at $1,584.24. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

BEER, J., dissents and assigns reasons.

[See following illustration]

BEER, Judge,

dissenting.

I dissent for the reasons set forth in State of Louisiana, through the Department of Highways v. Lutcher and Moore Cypress Lumber Company, Ltd., 364 So.2d 134, Number 9044 on the docket of the Court of Appeal, Fourth Circuit, State of Louisiana.

      . Since the entire servitude is north of I—10, which had a lower value after the taking, it is appropriate to use the after taking value, as discussed later in the section on severance damages.

      . There still remained water access from south of I — 10 to the north half of the property by means of a canal which touched the southwest corner of the property, but this was a circuitous route 20 miles in length.

      . The Department is correct in the observation that the north half of the property was not deprived of any existing means of access (except by small boat in proper seasons). However, the damage resulted from the loss of any possibility of public road access from a southerly direction.

      .Indeed, the Department’s expert lent credence to the basic reasoning of our approach when he adjusted a comparable upward by $20.00 per acre because the “subject property is nearer to the higher lands and nearer to traffic arteries”.


author: SAMUEL, Judge. STOULIG, Judge, REDMANN, Judge,

text:
    Mrs. Dorothy Yarls Gordon, wife of/and James T. GORDON, Sr. v. CITY OF NEW ORLEANS, New Orleans Police Department, Donald Lagarde and Marcel David.
    No. 9253.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Oct. 25, 1978.

      Gertler & Gertler, M. H. Gertler, New Orleans, for plaintiffs-appellants.
    Wayne G. Cresap, Asst. City Atty., and Philip S. Brooks, City Atty., New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   SAMUEL, Judge.

This is an action for wrongful death. Plaintiffs allege their son, a senior high school student, was negligently shot and killed by Donald Lagarde and Marcel David, officers of the New Orleans Police Department. Named as defendants are the City of New Orleans, the New Orleans Police Department, Lagarde and David. The defendants’ answer denies liability and pleads self-defense on behalf of Lagarde and David. Charity Hospital of Louisiana at New Orleans intervened for medical services rendered to the decedent.

After a trial on the merits (the trial was held before the judge alone and not to a jury), there was judgment in favor of all defendants, dismissing plaintiffs’ suit at their cost. Plaintiffs have appealed.

The undisputed facts are:

Shortly before 9 p. m. on February 15, 1975, three New Orleans police officers, La-garde, David and Gordon Hagen, all dressed in plain clothes, were cruising in an unmarked police automobile on Dale Street in New Orleans. They were attempting to locate two persons, a man suspected of perpetrating an armed robbery and an informant who knew the suspect’s whereabouts. While traveling at a speed of about 15-20 m. p. h. in a lakebound direction, they observed a group of about 10 to 12 males congregated on the sidewalk. Unknown to the officers, the group was engaged in a dice game. The police vehicle stopped in the middle of the street adjacent to the group of men. The vehicle was recognized by members of the group as a police car. One Ernest Brock, nicknamed “Yogi” by his friends, and decedent were members of the group. After the officers exited from the police car, gunfire broke out. (Who initiated the gunfire and who actually fired guns are issues of fact disputed by the parties.)

Prior to or during the gunfire almost all of the members of the dice-playing group dispersed. The decedent, however, remained on or near the sidewalk. During the gunfire, in which decedent did not participate, he was hit by a .38 caliber bullet fired by Lagarde. David and Lagarde each fired two shots. Hagen did not fire any shots but witnessed most of the events leading to decedent’s death. Decedent was transported to Charity Hospital by an emergency unit called to the scene by Lagarde. Later that night (at 11:30 p. m.), he died at the hospital from the bullet wound. Sometime after the gunfire ceased, Ernest Brock walked over to Lagarde and David unarmed. He was arrested and charged with the attempted murder of Lagarde, David and Hagen. Brock was not prosecuted for this charge.

The stage of the shooting incident was set in the following manner: On the date of the incident, the area of its occurrence was the 4300 block of Dale Street, a two-lane, bidirectional street, intersected by Warfield on the south or uptown end, and by Ransom on the north or lake end. The street was illuminated by street lights. An establishment called the Dreamland Lounge was located across the street from where the group was playing dice. A black Chevrolet was parked in front of the lounge and a brown Oldsmobile was parked at 4825-27 Dale Street, across the street from the lounge and adjacent to the dice game. The police car was parked approximately in the middle of the street between the black Chevrolet and the brown Oldsmobile. Other cars were parked along both sides of Dale Street.

There is contradicting evidence on the pertinent question presented, who initiated the gunfire. The trial judge resolved this question in favor of the defendants. He concluded that when the police vehicle stopped and the officers disembarked therefrom some gunshots were fired at them by “some individual from around the dice game area”, that fire was returned by two of the officers, and thus the defendants were not negligent in causing the death of young Gordon.

On appeal defendants primarily rely on our settled jurisprudence that when the evidence is conflicting an appellate court should not disturb the trial court’s “. . . reasonable evaluation of one set of witnesses as credible, and its consequent rejection of the testimony of the opposing set of witnesses . . . ” Billiot v. Bourg, La., 338 So.2d 1148, 1152; Canter v. Koehring Company, La., 283 So.2d 716; Robertson v. Palmer, La.App., 74 So.2d 408. Ordinarily in the absence of manifest error we cannot disturb the trial judge’s findings of fact. Echizenya v. Armenio, La.App., 354 So.2d 682.

However, in response, and this is their primary complaint on appeal, plaintiffs point to the fact that, despite timely objections thereto, the trial judge allowed the attorney for defendants to cross examine plaintiffs’ witnesses regarding their pri- or arrests. Plaintiffs argue this was error and could have improperly affected the weight placed by the trial judge on the credibility of those witnesses.

We agree the ruling complained of was error. Although plaintiffs cite only criminal cases to support their contention, evidence of a witnesses’ arrest record also is inadmissible in a civil action. Jacobs v. Landry, La.App., 82 So.2d 481. While we feel that in all probability the trial judge was not improperly influenced by testimony showing prior arrests of some of plaintiffs’ witnesses, in an effort to be completely fair to the plaintiffs, we will consider the cross examination of their witnesses regarding prior arrests as consequential or prejudicial error. As a result of this consideration, we cannot give the usual weight to the trial court’s findings of fact.

In Louisiana, as provided by both the Constitutions of 1974 and 1921, the jurisdiction of appellate courts in civil cases is and has been expressly extended to the review of facts as well as law. These provisions are implemented by Code of Civil Procedure Article 2164, which in pertinent part provides: “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.”

Under these provisions our settled jurisprudence is that, even where the trial court has committed consequential or prejudicial error in the admission or refusal to admit evidence, or in instructing a jury, when the appellate court has all of the facts before it such error will not warrant remand and the appellate court must make its own independent conclusion as to the facts as revealed in the record before it. Accordingly, as the entire record is now before us, rather than remand this case for a new trial, we proceed to an independent consideration of the facts revealed in the record. In our review we completely disregard any testimony or other evidence concerning pri- or arrests of any of plaintiffs’ witnesses.

An alleged eyewitness of the incident, Shirley Williams, testified to the most complete version of plaintiffs’ several versions of what happened. He testified: The group of men were playing dice on the sidewalk across the street from the Dreamland Lounge when an unmarked police car stopped in the middle of the street, adjacent to the dice game. The police officers immediately opened fire on the crowd playing dice. All members of that crowd were unarmed. The police officers were the only ones shooting during the gunfire. Everyone in the crowd of dice players, except decedent, ran to the north or south ends of the street. Four or five quick shots were fired from the direction of the police car. When the shooting ceased, decedent crawled across the street on his stomach and knees and asked the police officers, “Why you all shoot me?” In response to the decedent’s question, the officers “collared” decedent “up as high as the car tire” and stated, “you black mother_, if you don’t tell who had the gun, I’ll blow your brains out.”

Williams admitted having a “couple of beers” before the incident and recalled the weather was dry. (Regarding the condition of the weather, the testimony of other witnesses, including the decedent’s father, is to the contrary.) Williams further stated he was standing in the doorway of the Dreamland Lounge when he viewed the incident, and that he knew the decedent.

Jerry Bell, another plaintiff alleged eyewitness, corroborated Williams’ testimony to the effect that the police officers immediately opened fire on the crowd playing dice, and that the police officers were the only persons armed. Bell, who admitted decedent was his lifelong friend, testified that before shooting, the police officers shouted “hold it”. Bell further said he saw decedent standing with his hands over his head, and that he heard 3 or 4 quick shots sounding from the police car area.

The following four witnesses also testified for the plaintiffs:

(1) Dewitt Galman, Jr.;
(2) Anthony Bernard;
(3) Ernest Brock; and
(4) Larry Kennedy.

Although none of the above four witnesses testified he actually saw the police officers firing, all of them but Brock testified they heard 3 or 4 quick shots. Brock testified he did not see or hear gunfire even though he also said that during the shooting he was standing a block away from where the shooting occurred. All of the above four witnesses corroborated Bell’s and Williams’ testimony that all members of the dice game were unarmed. Brock specifically denied he possessed a weapon on the evening in question, and claimed he did not understand why he was arrested. He acknowledged his friends called him “Yogi”.

Brock’s landlord of five years, a man who allegedly routinely cleaned Brock’s room, testified he had never seen a weapon in Brock’s possession. However, two lay witnesses for the defense, employees at the Owl Food Market, testified that Brock was known as “Yogi” and that Brock often bragged about getting away with shooting at the police.

Defendants’ version of the incident, as testified by Lagarde and David, was that while driving on the 4300 block of Dale Street they saw the group of men and that at least two members of the group were armed with guns. One man appeared to be armed with an automatic. Lagarde told Hagen, who was driving, to stop the car. When the car stopped, Lagarde opened the car door and shouted “police, drop it”, while simultaneously exhibiting his I.D. folder. Members of the group began to run in different directions. However, one of the group, Ernest Brock, after feigning that he was about to put his weapon down, placed his gun in both hands and opened fire on the officers. Lagarde was standing about 15 feet away from Brock when Brock first started shooting. The lighting was good and enabled Lagarde to see Brock’s face. Unaware of how many people other than Brock were in the vicinity, Lagarde fired two shots at Brock. Because he was concentrating exclusively on Brock when he fired, Lagarde did not know whether decedent was in the line of fire. After Brock fired a total of three shots at Lagarde and one shot at David, Brock retreated down Dale Street towards Warfield Street waving his weapon at the officers, and firing one additional shot in their direction. .

David fired two shots at Brock before Brock retreated. While Brock was backing down Dale Street, the officers heard gunfire coming from both the north and south ends of the street. They estimated a total of about 20 shots were fired. Throughout the gun battle, both officers were frightened for their lives. During the gunfire, young Gordon staggered towards David from across the street and said, “I’m shot”. After searching Gordon for weapons and finding none, David protected him from the gunfire. In response to David’s question “Who was that crazy man shooting at us?”, decedent answered, “Yogi did it.”

In pertinent detail Hagen corroborated the testimony of Lagarde and David. Ha-gen further testified:

(1) Brock fired a shot directly at him;
(2) Brock’s weapon sounded like a cannon and looked like a large caliber automatic;
(3) he was “frightened to death”; and
(4) during the shooting he crawled to the Dreamland Lounge to call for help.

The physical evidence collected during two investigations of the scene after the incident — a spent .45 caliber bullet, a bullet graze on the windshield of the brown Oldsmobile, a spent .38 caliber bullet, and three .45 caliber Winchester Wesson shell casings — indicates that the police officers were not the only ones shooting during the incident in suit.

Sergeant Norman Knaps, a police investigator, testified a strike or graze found on the windshield of the brown Oldsmobile could only have been caused by someone shooting in an uptown direction from the location of the dice game. He stated the police officers could not have caused the strike or graze on the windshield because the officers were shooting in a downtown direction from the middle of the street.

Plaintiffs additionally contend on appeal that the defendants’ version of the shooting incident is “implausible” for the following reasons:

(1) no weapon was found at the scene;
(2) none of the participants of the dice game were shown to have owned or possessed a gun;
(3) although there were approximately 20 shots fired according to the officers’ testimony, not one bullet hole was found at the scene, other than from police weapons;
(4) the prosecution dropped its case against Brock; and
(5) Brock returned to the scene after he allegedly attempted to murder the police officers.

We do not agree with any of these additional plaintiff contentions. If any of the dice-playing group actually had a weapon, and we are convinced that at least one of them did, he would not be expected to leave his weapon at the scene. Regarding the second additional contention, as we have just said, we are convinced at least one member of the group, Brock, did possess and, additionally, fire a hand gun. We find that no bullet holes, other than such as would appear to have been made by .38 caliber ammunition, were found during the investigations of the incident is not significant in light of all of the evidence contained in the record. The two police investigations had been conducted in a hurried manner (hereunder we set forth testimony relative to the hostility of the crowds during the investigations) and it is quite possible that .38 caliber ammunition was used by persons other than the police officers. That the prosecution against Brock was dropped by the district attorney’s office (a matter solely within the discretion of the district attorney) is of no significance here because considerations enter into such a determination in a criminal matter which play no part in a civil suit as, for example, in a criminal case the fact that the state must prove guilt beyond a reasonable doubt while in this, a civil case, the burden of proof is upon the plaintiffs. Finally, the fact that Brock returned to the scene does not impress us in any way; and we certainly would not expect him to return while carrying a weapon.

Plaintiffs also point out that the second investigation of the scene was not made until after decedent’s death and they argue the evidence produced by the second investigation was gathered and disposed of under these suspicious circumstances, i. e.,

(1) no photographs were taken at the second investigation;

(2) the evidence of the casings was turned in on March 29, 1974, six weeks after the date of the investigation; and

(3) all of the evidence, although described and recorded in the police department's evidence books, was destroyed prior to trial. We are not impressed by these arguments.

Two investigations of the scene were made by the police department. The first began at approximately 9:10 p. m. on the night the incident occurred and lasted approximately 45 to 50 minutes; the second began at approximately 12:25 a. m. the following morning and lasted approximately 35 minutes. Sergeant Norman Knaps, who was assigned to the homicide division, was the commanding officer for both investigations. He testified he was not satisfied with the time consumed in the first investigation and would have stayed “possibly two hours longer” if circumstances had permitted. It is apparent he would have stayed longer in both investigations except for the fact that they were impeded by a hostile, rowdy crowd. His police report states no photographs were taken at the second investigation because he feared a “senseless, and possibly violent, confrontation with the crowd”.

As to the above arguments (2) and (3), Lieutenant Kenneth Knapp testified he ordered the destruction of the evidence on October 11, 1975 because it is a routine practice of the department to discard evidence if it is not needed for use in the Criminal District Court. He said that when he ordered the destruction of the evidence he was unaware of the plaintiffs’ suit. However, he explained that even if he had known about the plaintiffs’ case, he would have still ordered the evidence destroyed because the police department does not have the room to store evidence needed for civil proceedings. Officer Waguespack corroborated Knapp’s testimony as to the police department’s policy for destruction of evidence. Waguespack also testified it is customary to receive evidence from a policeman six weeks after it is obtained. He explained that evidence is turned over at different times, sometimes late and sometimes early, but generally within two or three weeks.

We accept as correct the testimony set forth in the two immediately preceding paragraphs. Although the rule relative to destruction of evidence may not be the best possible rule under all circumstances, it was nonetheless the rule in effect at the time and the police officers were simply following a rule they were required to follow.

Accordingly, we accept the defendants’ version of the manner in which the incident occurred. Our conclusion is that three police officers were fired upon by Brock without provocation after they had gotten out of their automobile and that Lagarde and David returned the fire, shooting at Brock, and young Gordon was inadvertently struck by one of the bullets fired by Lagarde.

Under these facts, Lagarde was shooting with ample provocation; he was shooting to save his own life as well as the lives of his fellow officers. Because he was not the aggressor in the shooting incident, the defense of self defense is available for him to urge against any instigators of the gun battle. Officer Lagarde may not, however, urge the defense of self defense against plaintiffs, because the decedent was not an instigator or aggressor. Stone, 12 Louisiana Civil Law Treatise § 149, 191-94 (1977); Stone, 21 Tul.L.Rev. 368-70 (1947). However, while the “aggressor doctrine” alone will not defeat plaintiffs’ claim against Lagarde, plaintiffs still must meet the requirements of La.C.C. Art. 2315 in order to recover. That article requires plaintiffs prove fault on the part of La-garde. See Anderson v. Clements, La.App., 284 So.2d 341; Whittington v. Levy, La. App., 184 So.2d 577; Davis v. McKey, La. App., 167 So.2d 416, writ refused 246 La. 910, 168 So.2d 822 and writ refused 246 La. 914, 168 So.2d 823; Graham v. Ogden, La. App., 157 So.2d 365. Plaintiffs did not sustain their burden of proving Lagarde was negligent. Under the facts Lagarde acted as a reasonable man, and did not use “excessive force”; his use of his service revolver was justifiable and did not constitute fault. See Patterson v. Kuntz, La.App., 28 So.2d 278; Byrd v. Isgitt, La.App., 338 So.2d 374.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

STOULIG, J., concurs with written reasons.

REDMANN, J., dissents with written reasons.

STOULIG, Judge,

concurring.

The factual resolution of the conflicting versions of the shooting incident is a credibility determination of the trial judge. Under the mandate of Canter v. Koehring, 283 So.2d 716 (La.1973), not to disturb the factual findings of the trial judge absent manifest error, I concur in the affirmation of the judgment.

I agree with the statement in the dissenting opinion that under the theory of reacting in self-defense the police officers would not be justified in discharging their weapons indiscriminately into a group that includes innocent persons. However, it is my appreciation of the evidence that upon their arrival at the scene and upon identifying themselves as policemen the participants in the dice game and the onlookers scattered and one or more of them began firing at. the police. Unfortunately the decedent remained on the scene and became the innocent victim.

The trial judge obviously found the action of the police officers in returning fire not to be unreasonable under the stress of the circumstances.

REDMANN, Judge,

dissenting.

All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights. La.Const.1974 art. 1 § 22.
Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property. Id. art. 12 § 10(A).

It is one thing to say that a police officer acting as such is immune from personal liability for shooting an innocent bystander to death. It is another thing to say that the innocent bystander has no remedy because his injury was not the result of “fault” (La.C.C'. 2315), “negligence . . or . . want of skill” (C.C. 2316).

Under either saying the policeman is not liable. But if the policeman escapes liability on the theory of immunity, his governmental employer cannot escape liability because the Louisiana constitution expressly prohibits holding the government immune.

The trial judge’s and the majority’s radical error is that, in their reasonable resolve to protect the policeman from liability (especially for a snap-judgment under fire), they unnecessarily declare that he behaved reasonably — without fault, negligence or even want of skill — in responding to a shot from a crowd of citizens by shooting an inexactly-aimed shot towards the crowd from which the first shot came. Such a declaration is unnecessary because a judgment against the policeman and the city will be collected from the city alone, effectively giving the policeman immunity.

Fault

To categorize the policeman’s behavior as non-tortious is unsupportable. It is simply not reasonable to fire a weapon towards a group that includes innocent persons.

A sharp-shooter might justify doing so (as in the case of an airplane hijacking) by reliance on his great skill: but if his skill is insufficient and his bullet strikes an innocent person, Louisiana law, C.C. 2316, declares him “responsible for the damage he occasions ... [by] his want of skill.” One who cannot unerringly direct his bullet into the attacker alone has no business firing towards the crowd.

An added ground of liability of one who fires a bullet which injures an innocent person is one’s responsibility under C.C. 2317 “for the damage occasioned by . the things which we have in our custody.” Under this article the owner of a tree, for example, is responsible for damage caused by its fall; Loescher v. Parr, La.1975, 324 So.2d 441.

Thus, in the absence of some immunity, the individual police officer must be held at fault and liable for plaintiffs’ damages, as must the policeman’s employer, the city.

Immunity

Immunity of individual police officers for official acts has its merits. Judges are immune from civil liability for judicial acts, even if done maliciously, except “in the ‘clear absence of all jurisdiction’ ”, Stump v. Sparkman, 1978, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (quoting Bradley v. Fisher, 1872, 13 Wall. 335, 351, 20 L.Ed. 646). But judges’ immunity does not extend to all police officers, Pierson v. Ray, 1967, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288; society has a “deep-rooted feeling that the police must obey the law while enforcing the law”, Spano v. People of State of N. Y., 1959, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265, although federal officers do enjoy immunity similar to that of judges, Gregoire v. Biddle, 2 Cir. 1949, 177 F.2d 579.

Louisiana appears not to have considered the question whether police officers should enjoy immunity for their torts in the course of official duty. Comment, 1968, 29 La.L. Rev. 130,143, suggests “imposition of liability on the [governmental] agency together with immunity of the officer” as “the only rational way” to the goals of protecting citizens from both crime and police-caused damage. See also Mathes and Jones, Toward a “Scope of Official Duty” for Police Officers in Damage Actions, 1965, 53 Georgetown L.J. 889, 912, arguing “that the expansion of the official immunity doctrine in recent times makes the individual police-officer liability more the exception or the anomaly to what is really a general rule of public-officer immunity.”

The Louisiana Supreme Court has, however, impliedly rejected police immunity, at least for use of excessive force, in Kyle v. City of New Orleans, La.1977, 353 So.2d 969, which nevertheless conceded immunity for damages from false arrest and imprisonment. Several decisions by Louisiana Courts of Appeal have also held police officers liable for their torts while acting as police officers.

Indistinguishable from our case is London v. Ryan, La.App. 1 Cir. 1977, 349 So.2d 1334, writ denied 351 So.2d 171 (La.), where the individual police officer was held liable for shooting the innocent plaintiff in response to a shot from inside the barroom to which the police had been summoned. (Also held liable were the police supervisory officer on the scene and the city itself.)

Other cases in which officer and governmental employer have been held liable include Cheatham v. Lee, La.App. 1 Cir. 1973, 277 So.2d 513, writ denied 279 So.2d 696 (La.), and Taylor v. City of Baton Rouge, La.App. 1 Cir. 1970, 233 So.2d 325, writ refused 256 La. 255, 236 So.2d 32. The Supreme Court has also held liable a governmental employer sued alone for an officer’s lack of care of an arrested drunk, in Barlow v. City of New Orleans, 1970, 257 La. 91, 241 So.2d 501.

Accordingly, adoption of police officer immunity is not an option easily available to a Louisiana Court of Appeal, irrespective of its theoretical possibility (despite great constitutional obstacles).

Furthermore, expansion of immunity is both wrong and pointless. Louisiana’s constitutional guaranty of remedy for injury and prohibition of governmental immunity proclaim protection that is practical: a substantial judgment against the governmental employer can be collected, and a substantial judgment against the ordinary public employee cannot. The practical fact is that tortfeasant police officers are joined as defendants primarily to protect against complete dismissal should the tortious act be held outside the course and scope of employment; no plaintiff needs a judgment against the police officer if he has the judgment against the city.

There is a theoretical objection that lack of immunity would enable the city, if cast in judgment, to obtain judgment over against the officer, its employee for whom it is only vicariously liable. If such a third-party demand arises, the courts should deny indemnity to the city — to us, the taxpayers — on the ground that the police officer’s act, though negligent in the calm view of armchair hindsight, was fully understandable as an intuitive reaction under the pressure and danger into which we (as the city) sent him to protect us and our property. To thus deny the city’s demand for indemnity from the officer would afford to the officer the practical immunity from ultimate loss which his importance to our society demands. No more immunity than that is necessary or appropriate.

Certainly the police officer should not be obliged personally to bear the damages an innocent bystander sustains from a shot the officer understandably but unskillfully fires in the reasonable discharge of his official duty.

But neither should the innocent bystander.

      . The bullet recovered during the coroner’s autopsy matched Lagarde’s service revolver.

      . Papers from the office of the district attorney, Parish of Orleans, introduced into evidence, indicate the state’s case against Brock was dismissed because there was “insufficient evidence to obtain a conviction”.

      . 2 LSA Const. Art. 5, § 5(C) and Art. 5, § 10(B).

      . 2 LSA Const. Art. 7, § 10 and Art. 7, § 29.

        . Gonzales v. Xerox Corporation, La., 320 So.2d 163; Miller v. Employers Mut. Liability Ins. Co., La.App., 349 So.2d 1353; Wilkinson v. Travelers Insurance Company, La.App., 330 So.2d 351; Morgan v. Liberty Mutual Insurance Company, La.App., 323 So.2d 855; Palmisano v. Sluch, La.App., 207 So.2d 203; Broussard v. State Farm Mutual Automobile Ins. Co., La.App., 188 So.2d 111 (Writ refused 249 La. 713, 190 So.2d 233, cert. denied 386 U.S. 909, 87 S.Ct. 855, 17 L.Ed.2d 783).

      . Anthony Bernard’s testimony was discredited by his admission that he viewed the incident from behind a pool table directly in front of the open door of the Dreamland Lounge. This is the same open door in the middle of which Shirley Williams testified he was standing. Williams is 5' 10" in height, and was wearing 2" heels at the time in question.

      . Larry Kennedy admitted he had known the decedent all of his life.

      . Neither Officer Lagarde nor Officer David saw their bullets take effect nor did they see bullets fired by anyone else take effect.

      . The .38 caliber bullet had pierced through a home and television cabinet and was found at 4325 and 4327 Dale Street.

      .This contention is based on the fact that the police officers fired only .38 caliber ammunition.

      . The transcript erroneously placed Wagues-pack’s testimony under Lieutenant Knapp’s name. This error becomes apparent upon reading counsel’s comments at 160 of the transcript, Vol. III. See also, 129 of the transcript, Vol. III.

      . In this connection we note the plaintiffs’ version of the shooting incident (that the officers began firing at the dice-playing group without provocation immediately after getting out of their police vehicle) is more “implausible” (as plaintiffs describe defendants’ version) than the defendants’ version of the incident.

      . Bridges v. Alaska Housing Auth., Alaska 1962, 375 P.2d 696, held a public agency liable for damages caused by immune employees. See also Lipman v. Brisbane Elem. Sch. Dist., 1961, 55 Cal.2d 224, 11 Cal.Rptr. 97, 99, 359 P.2d 465, 467.

      . In our civil law forebear France, “the existence of state liability in practically all cases where a private individual is injured by state action tends to all but eliminate the personal responsibility of the officers whose acts caused the damage.” Schwartz, Public Tort Liability in France, 1954, 29 N.Y.U.L.Rev. 1432, 1451. Governmental liability for police-caused damage also exists in Quebec: “an innocent victim should not have to support alone the costs of the inherent malfunctions of an activity bene-fitting the whole population.” Giroux, Municipal Liability for Police Torts in the Province of Quebec, 1970, 11 Les cahiers de droit 407, 451. See also Comment, 1932, 42 Yale L.J. 241, 244, describing the “overwhelming opinion throughout the world in favor of the assumption of community liability for the torts of public officers” as “a growing moral conviction to which the Courts should not remain impervious.”


author: SAMUEL, Judge.

text:
    William E. LAIRD v. Jacqulyn Moore LAIRD.
    No. 9358.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Meunier, Martin & Meunier, Marcel J. Meunier, Jr., New Orleans, for plaintiff-appellant.
    Leon I. Brainis, Kenner, for defendant-appellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff, William E. Laird, appeals from a judgment of $600 for the support of his two minor children following his divorce on January 4, 1978. He contends the amount is excessive. Appellee avers (and the trial judge agreed) there has been no change which warrants a deviation from the child support originally agreed on at the time of the separation. We disagree.

At the time of the consent judgment the husband, a doctor, was earning $3,000 per month. Subsequently, a brain abscess requiring a delicate operation left him disabled. Prior thereto he had been working toward specializing in internal medicine, but following his illness he was unable to continue work in that area, and the only medical field he believes is open to him is psychiatry. He is now interning at Charity Hospital to qualify as a psychiatrist. His monthly income has been reduced' to his $700 salary from Charity Hospital and $1,000 from a disability policy, totaling $1,700.

Mrs. Laird is a School Work Linkage Coordinator for a United States government apprenticeship program administered by Delgado College. She has been earning $831 per month but recently has received a raise in salary, unspecified as to amount. She itemized her expenses for the two children at $1,270 per month as follows:

Housing_$ 142.00
Food _ 220.00
Utilities_ 62.00
Clothing_ 115.00
School expenses _ 32.00
Medical bills (including group hospitalization) . . 45.00
Entertainment_ 40.00
Miscellaneous_ 10.00
Music lessons_ 20.00
Summer camp_ 55.00
Child care_ 125.00
Vacation_ 50.00 ’
Gifts _ 45.00
Grooming_ 20.00
Home repairs _ 97.00
Auto expenses
(including childrens’ share of car note, upkeep, insurance and gas) . - 192.00
Total $1,270.00.
Dr. Laird itemized his monthly expenses approximately as follows:
Rent_$ 220.00
Loan repayment
(for life insurance, naming the children beneficiaries)_ 177.00
Loan repayment (to medical school)_ 167.00
Food.. 250.00
Gasoline_$40 to 50.00
Car repairs (vary)_ _
Childrens’ allowances and weekend entertainment_ 100.00
Laundry and cleaning_ 137.00
Maid _ 135.00
Disability insurance policy (favor Mrs. Laird)_ 23.00
Drugs_ 36.00
Clothing and toilet articles _ _. 100.00
Psychiatry (to adjust to his disability)_ 140.00
Other loan and yearly insurance_ _.
Total ...$1,525.00.

For the court to alter a child support agreement established by a consent judgment or otherwise, the party seeking modification must show a change in circumstances of either party.

We are of the opinion the husband has proven a change in circumstances sufficient to justify a decrease in child support. He has shown his income decreased from $3,000 per month to $1,700 per month and that his health has declined substantially.

The jurisprudence is also to the effect that judgments awarding alimony and support, including consent judgments, are always subject to modification and may be adjusted at any time to meet the needs of the wife and/or children and the husband’s ability to pay, or revoked entirely if it becomes necessary or (as to alimony) if the wife remarries.

We note the wife asks nothing for her own support, and that she has an income of $831 (plus the salary increase) per month. Dr. Laird’s itemized list of monthly expenses appears reasonable. On the other hand, we are of the opinion that the monthly amount of $1,270 attributed by Mrs. Laird solely to the needs of the two children is excessive. Under “Housing” she lists $142 as the children’s share of that expense but her testimony is that the total monthly rent or note is $157. As to that item her further testimony is that this first figure of $142 under “Housing” includes basic maintenance which she described as replacing light fixtures, replacing a heating unit and plumbing repairs, etc. We do not feel that this so-called maintenance as described is a recurring monthly expense and it appears to be repeated under the $97 item designated as “Home repairs”. Nor does Mrs. Laird adequately inform the court as to the $192 lump sum figure she attributes to the children’s share of the item listed as “Auto expenses”.

We have no doubt that while Mrs. Laird continues working she needs care for the children from the time they return from school until she arrives home from work. However, this function has been undertaken by the maternal grandparents at their home and we feel that the $125 item listed as “Child care” is at least questionable. We note the grandparents did not testify. We also feel some of the other expenses claimed by Mrs. Laird overlap or are higher than they should be, especially considering the reduction in Dr. Laird’s income. Monthly summer camp expenses of $55 amounts to $660 per year; the $50 monthly item listed as “Vacation” amounts to $600 per year; and the two items seem to be in conflict or overlap, if to no other extent than that the child care item would be unnecessary during vacation and summer camp. The $45 per month item listed as “Gifts”, which she testified refers to birthday and Easter gifts, totaling $540 per year, clearly appears to be excessive especially in view of the fact that Dr. Laird lists $100 per month for the children’s allowances and weekend entertainment.

In this court appellant requests a decrease in child support from $600 to $400 per month. Considering all of the facts, we feel the request is reasonable and should be granted.

For the reasons assigned, the judgment appealed from is amended so as to reduce the amount of child support from $600 per month to $400 per month. As thus amended, and in all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . The wife, as plaintiff in reconvention had been awarded the separation, and child support of $600 per month by consent on June 10, 1976. On August 16, 1977 the husband filed suit for divorce, silent as to child support. Thereafter, the wife filed a rule to set child support. On January 4, 1978 the husband was granted a default divorce; by agreement of the parties, the wife was awarded custody, and after a hearing on the rule the child support payments were continued at $600 per month. The children are two girls now 12 and 8 years of age.

      . Ducote v. Ducote, La., 339 So.2d 835; Stolier v. Stolier, La.App., 357 So.2d 1334; Swider v. Swider, La.App., 314 So.2d 372.

      . Ward v. Ward, La., 339 So.2d 839; Smith v. Smith, 217 La. 646, 47 So.2d 32; Russo v. Russo, 208 La. 17, 22 So.2d 671; Stolier v. Stolier, supra, note 2.


text:
    SECURITY INSURANCE COMPANY OF HARTFORD v. Russell HOLLIDAY, Sr.
    No. 9855.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.

      Rudolph R. Schoemann, New Orleans, for appellee.
    Samuel W. Ethridge, Kenner, for garnishee-petitioner Glen Rogers.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

Security Insurance Company of Hartford, Appellee, is the judgment creditor of Russell Holliday, Sr. After obtaining a writ of fieri facias appellee caused Glen D. Rogers, appellant, to be cited as a garnishee and appellant was served in person with the supplemental petition and interrogatories. On March 8, 1977, appellee filed a contradictory motion against appellant for the amount of the judgment against Holliday, and this motion was served on appellant by domiciliary service on March 12, 1977, pursuant to LSA-C.C.P. Art. 2413. Appellant made no appearance and a judgment was taken against him on March 25, 1977. Notice of this judgment was served on appellant on April 25, 1978. Appellant filed a motion for a new trial on May 2, 1978, the same was denied on June 1,1978, a petition for suspensive appeal was filed on June 27, 1978, and a petition for a devolutive appeal was filed on July 25, 1978.

Appellee has filed a motion to dismiss the suspensive and devolutive appeals on the ground that the delay for taking an appeal commenced to run within seven days after the judgment was taken against appellant, i. e., in 1977. It contends that even though personal service of the contradictory motion against appellant was not made on him a notice of judgment was unnecessary because the supplemental petition against appellant as garnishee and the interrogatories were served in person on him.

The garnishee’s failure to answer interrogatories which are served pursuant to Art. 2412 provides a procedural basis for the judgment creditor to move against the garnishee for a judgment. The supplemental petition and interrogatories of themselves do not provide a basis for judgment in the absence of a contradictory motion against the garnishee as provided by Art. 2413. The failure of the garnishee to answer prior to the filing of the contradictory motion is prima facie proof that the garnishee is indebted to the judgment debtor, but the law affords garnishee at the hearing of the motion with an opportunity to rebut the judgment creditor’s prima facie proof under the clear wording of Art. 2413. Not until the motion is filed is the stage set for a default judgment against the garnishee. See Midcity Investment Co. v. Batiste, 248 So.2d 88 (La.App. 1st Cir. 1970).

Art. 1913 provides that notice of the signing of a default judgment must be served against a defendant who was not served personally, and the delays for the taking of suspensive and devolutive appeals do not commence to run under these circumstances until such a notice of judgment has been served. In the instant case, the record shows that the petitions for the appeals were timely filed since notice of judgment was not given to appellant until April, 1978.

Accordingly, the motion to dismiss the appeal is denied.

MOTION TO DISMISS DENIED.

      . In its motion appellee states that service of the notice of judgment on appellant, while unnecessary, was made “from an abundance of caution only.”


author: COFER, Justice,

text:
    Mrs. Kathryn GARCEAU v. Leon ROBERTS.
    No. 50718.
    Supreme Court of Mississippi.
    Oct. 18, 1978.
    Jimmie H. Fields, Meridian, for appellant.
    No brief for appellee.
    Before SMITH, LEE and COFER, JJ.
   COFER, Justice,

for the Court:

Appellant in the Circuit Court of Dade County, Florida, on January 12, 1968, procured an uncontested divorce, following an adjudication of default on appellee’s part. The judgment awarded to her custody of the parties’ two children and support money of $25 per week beginning retroactively on December 15, 1967. The payments were to be made through the alimony and support division of the court, but the parties, believing it to be for their convenience, agreed instead that the payments would be made directly by the father to the mother.

Prior to September 14, 1973, appellant filed a suit, on a duly authenticated copy of the Florida judgment in the Circuit Court of the First Judicial District of Jasper County, Mississippi, for amounts allegedly owing on the judgment, which case was transferred to the chancery court.

To appellant’s pleadings recast to conform to chancery procedure, appellee filed an answer.

Hearing was begun on the pleadings as they then were and on the conclusion of complainant’s evidence, the chancellor sustained appellee’s motion to exclude the proof and dismiss the bill of complaint. From that decree appellant appealed to this Court, in which, by opinion dated December 21, 1976, the decision was reversed and the case was remanded for new trial. Garsceau v. Roberts, 340 So.2d 740 (Miss.1976). In our opinion in that case, we summarized the facts relevant to the decision.

On the remand of the case, appellant sought permission “to update her pleadings,” and did so, by amendment and supplement filed May 19, 1977. Appellee answered and incorporated a cross bill praying that the Florida judgment be modified by awarding to him the custody of the children or by their placement in a suitable place.

A hearing was afforded on the pleadings with results little improved over those causing Justice Smith to conclude in the opinion in the earlier appeal above, that “the evidence was in considerable disarray.” Nevertheless, the chancellor adjudged that appellant was not due recovery for 1967-74, inclusive; appellee owed her $652.50 accrued since the beginning of 1975 to July 21, 1977, gave to appellee visitation rights, denied attorney fees, and taxed the costs in equal parts.

Appellant has appealed the decision, and has filed abstract and brief. Appellee, summoned by publication (Mississippi Code Annotated, section 11-51-57 (1972)), returnable on the first Monday of July 1978, has not chosen to file any brief in the cause, and the sixty days authorized therefor (Supreme Court Rule 7) have expired.

Appellant filed motion for reversal on her brief because of appellee’s default, which action this Court often takes. See Westinghouse Credit Corporation v. Deposit Guaranty National Bank, 304 So.2d 636, 637 (Miss.1974), wherein we said, “The failure of the appellees to file briefs in this Court is tantamount to a confession of error and will be accepted as such.” See also Jackson v. Walker, 240 So.2d 606 (Miss.1970), and Lawler v. Moran, 245 Miss. 301, 148 So.2d 198 (1963).

We refrain from that peremptory course here, however, the interests of the children prompting us to review the record for basis upon which to make conclusion. Green v. Green, 317 So.2d 392 (Miss.1975); Hale v. Hood, 313 So.2d 18 (Miss.1975).

We find in the record adequate basis for affirming the chancellor’s decision against changing the children’s custody and in his providing for visitation rights with the father.

Appellant prepared and made a part of the record a statement of amounts accrued under the Florida judgment and the credits to which appellee is entitled, these being described as only to the best of her memory. Appellee, in a general way, asserted he owed nothing on the judgment except a part of what the chancellor found him to owe. While courts approach child support orders and credits thereon in a somewhat different manner from ordinary debts, it remains in the child support area, too, that when the creation of an indebtedness is established, as is admitted by appel-lee in this record, then payment of it is an affirmative defense which must be pleaded, Hannan Motor Co. v. Darr, 212 Miss. 870, 56 So.2d 64 (1952). The burden to prove that defense is, as in other affirmative allegations, upon the party relying thereon. In Germany v. U. S. F. & G. Co., 168 Miss. 854, 152 So. 275 (1934), we said:

The burden of proof was upon appellant to establish his defense of payment. His original liability for the account was not in issue. The plea of payment is a plea of confession and avoidance. It seeks to avoid the confession of original liability by showing its payment and this must be shown by a preponderance of the evidence. (168 Miss, at 862, 152 So. at 276).

We find that appellant is entitled to $5,502.50 as arrearage on the judgment. The costs will be taxed against the appellee, rather than divided equally as the chancellor divided them. (We would not hesitate to remand this case for statement of account between the parties by a master, but for our conviction that that course would afford no more benefit or enlightenment than now furnished in the record.)

This case underscores two truths which are noticed here:

1. Support payments, whether for children or as alimony, should be paid to the person or officer designated in, and in the manner directed by, the decree fixing such payments.

2. When the trial court has decided a case, the appellee should, if he conscientiously can, diligently undertake to procure affirmance of that decision.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and BOWLING, JJ., concur.

SUGG, J., took no part.


text:
    Dorothy O. FROST v. William R. DEFENBAUGH d/b/a Defenbaugh and Company.
    No. 50519.
    Supreme Court of Mississippi.
    Sept. 13, 1978.
    Rehearing Denied Nov. 1, 1978.

    Hugh L. Bailey, Winona, for appellant.
    Keeton, Cofer & Embry, Edwin Tharp Cofer, Stephen Scott Cooke, Grenada, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
    PATTERSON, C. J., ROBERTSON, P. J., and SUGG, BROOM, and LEE, JJ., concur.
    COFER, J., took no part.

      . Cofer, J., took part in the rehearing.

   Appeal from Chancery Court, Grenada County; L. E. Hannaford, Sr., Chancellor.

Affirmed.


author: BROOM, Justice, for the Court:

text:
    Gilbert SWAGGART and Amoco Oil Company v. Richard E. HANEY.
    No. 50442.
    Supreme Court of Mississippi.
    Sept. 13, 1978.
    Rehearing Denied Nov. 1, 1978.

      Shell, Buford, Bufkin, Callicutt & Perry, Richard S. Bush, Cary E. Bufkin, Jackson, for appellants.
    Mulhearn & Mulhearn, Wells & Blalock, Tim D. Blalock, Natchez, for appellee.
    Before PATTERSON, C. J., and BROOM, and LEE, JJ.
   BROOM, Justice, for the Court:

Tort action (personal injury) is the nature of the suit of Richard E. Haney (plaintiff, appellee) against Gilbert Swaggart and Amoco Oil Company (defendants, appellants). Trial in the Circuit Court of Adams County resulted in a verdict of $100,000 in favor of Haney. Amoco and its driver, Swaggart, seek reversal of the judgment against them on the grounds that (1) the evidence was insufficient, (2) the verdict was excessive, and (3) inadmissible testimony was accepted. We reverse.

Amoco’s truck (weighing 34,800 pounds, cargo included), driven by Swaggart and hauling 1,615 gallons of propane gas, was traveling west toward Natchez on Liberty Road in Adams County on December 18, 1975, after 7:00 p. m. (dark), when it collided with a pickup truck driven by plaintiff, Haney. The pickup, traveling east on Liberty Road, had just entered a gradual curve at which the road turned in a southeasterly direction. The Amoco truck, coming from the opposite direction, had almost completely gotten past or through the curve at the place where the accident occurred. Amoco’s driver, Swaggart, testified that he observed a pickup approaching him on the wrong side of the road, causing him to respond by driving Amoco’s truck off the road to the right and onto the north shoulder in an attempt to avoid the collision. Then, according to Swaggart, Haney’s pickup struck the Amoco truck just behind its cab at a time when the Amoco truck was almost off the north margin of the road. Haney’s version is to the contrary: He was driving his pickup in his proper right-hand lane, the south portion of the road (eastbound traffic lane), and almost off the south margin; Swaggart, in the Amoco truck, had crossed the “center line” and struck the pickup on Haney’s side of the road.

No damage to the Amoco truck occurred in the forward portion or grill, but both sides of the top were damaged. Haney’s pickup received damages to the left fender and center portion of the door. Although just how the collision occurred is not clear, it was not “head-on.” Other facts will be stated where appropriate as to the different aspects of the accident which, so far as appears in the record, was witnessed only by plaintiff Haney (appellee) and the individual defendant Swaggart (one of the appellants).

WAS THE EVIDENCE INSUFFICIENT AS A MATTER OF LAW TO MAKE A JURY ISSUE? Amoco and Swaggart argue that Haney’s case was based upon a “factual and physical impossibility” and lacked proper proof to support the jury verdict. They further contend that Haney’s testimony is so incredible and inherently and physically impossible that it is totally unreliable and unacceptable. Amoco and Swaggart cite numerous cases which hold, in the main, that verdicts and judgments must be based upon the probabilities of the case, and not on possibilities.

The case must be decided largely upon the diametrically opposed testimony of the two drivers along with the physical facts and testimony of witnesses who arrived at the scene sometime later. It is unfortunate that investigating officers did not promptly arrive after the accident occurred. Before they arrived, considerable vehicular traffic traveled over the accident scene. Plaintiff Haney stated: “I met these headlights and I could see at the time that I met them that he was hogging my side of the road. . . ” His testimony indicated that the curve was bearing to his right and, according to him, he did not get into the westbound traffic lane occupied by the Amoco truck, driven by Swaggart. Although the plaintiff’s version is difficult to reconcile with physical facts in some of the particulars, there are physical facts which substantially support his version. After the collision his truck was overturned in the eastbound lane of Liberty Road and facing east, partially off the pavement. Extending about twenty yards behind Haney’s truck, and in about the center of the eastbound traffic lane (his lane), was a trail of broken glass and metal parts.

Scuff marks and gouge marks inside the north portion or westbound traffic lane of Liberty Road, it is argued by appellants, are conclusive evidence that the collision occurred in that lane rather than in the eastbound traffic lane where the plaintiff says the accident or collision occurred. After the collision, Amoco’s truck was lying upside down in the ditch on the north side of the road approximately sixty-five yards from where Haney’s pickup came to rest upside down. Appellants argue that tire marks left by the Amoco truck when Swag-gart drove off the road in an effort to avoid the collision negates completely the plaintiff’s version.

Conflicting evidence presented by the parties (without any expert witnesses) makes it almost impossible to determine precisely how the accident occurred. Having considered all the evidence, the jury found for the plaintiff and we cannot say that the verdict was not supported by sufficient evidence. It cannot be said that any laws of physics or sound logic clearly negate either negligence on the part of Swaggart, or Haney’s version of the facts. Particularly supportive of the jury’s verdict is the fact that so much broken glass and debris were found to the rear of Haney’s vehicle, in his proper lane of traffic. Moreover, certain of the photographic evidence indicates that the collision occurred on Haney’s (plaintiff’s) side of the road.

WAS THE JURY AWARD ($100,-000) SO EXCESSIVE AS TO WARRANT A NEW TRIAL OR REMITTITUR?

According to the evidence, Haney received the following injuries: chemical burns over a large portion of his body caused by raw gasoline running from his truck onto him after the accident; fracture of his pelvis bone; rupture or puncture of his bladder; all over bruises; and a cut just under his left eye and another cut on his right eyeball. He was hospitalized at least seventeen days and incurred medical expenses of $4,422.07. That he experienced considerable pain and suffering is beyond question. During 1975 before his injury he earned $11,448 in wages, and from 1976 after the injury he earned only $600. In addition to the above evidence pertaining to Haney’s injuries, Dr. Ball, an orthopedic surgeon, testified that Haney would have a fifteen to twenty percent permanent disability due to the hip injury. This expert medical witness further testified that Haney would have difficulty doing the work of a welder and that arthritis may later develop as a result of the injury. Although the $100,000 jury verdict might possibly be higher than another jury would render, we cannot say that it was so high as to evince bias or prejudice, or that it was completely against the overwhelming weight of the evidence.

DID THE COURT COMMIT REVERSIBLE ERROR BY ALLOWING INTO EVIDENCE INFLAMMATORY AND PREJUDICIAL PHOTOGRAPHS SHOWING HANEY’S BURNS? Reversal is urged here based on our holding in Butler v. Chrestman, 264 So.2d 812 (Miss.1972). There we held that the admission into evidence of motion pictures “depicting excruciating pain and suffering rather than attempting to reveal the actual state of the injuries” was erroneous. In Chrestman the motion picture was several minutes in duration and pictured the plaintiff moving from place to place with the aid of a physical therapist. There the opinion by Patterson, Justice, noted that the camera “zooms in periodically” to show grimaces upon the plaintiff’s face and ended showing her apparent crying because of excruciating pain. In the present case the photographs of Haney were still photographs with evidentiary value, and they show no grimace or expression of pain on his face. Absent any showing of facial expression of pain, crying, or the like, we do not think the trial judge abused his discretion by allowing the jurors to see the pictures.

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN ALLOWING OFFICER STUTZMAN TO TESTIFY AS TO WHAT PLAINTIFF HANEY TOLD STUTZMAN A FEW DAYS AFTER THE ACCIDENT? During the trial the defense called as its witness Deputy Sheriff Stutzman, who testified on direct examination that he arrived at the scene about 8:30 p. m. and investigated the accident. Stutz-man also related what he saw as to physical facts. Then on cross-examination (but without any objection) the deputy testified to what Swaggart told him a few days after the accident. Subsequently, while Deputy Stutzman was still on cross-examination by plaintiff's counsel, he was asked if Haney also provided him with a statement, and Stutzman said: “He did.” Following is the controversial question propounded to Stutzman (still on cross-examination) by plaintiff’s counsel, along with the objections of defense counsel, court rulings, and Stutzman’s answer:

Q. Would you indicate, please, to the Jury, what statement Mr. Haney gave to you?
BY MR. BUFKIN:
If the Court please, this would be self-serving, and we are going to object to it.
BY THE COURT:
I am sorry, I didn’t get your question,
Mr. Mulhearn.
BY MR. MULHEARN:
The record now has Mr. Swaggart’s statement as to what he told the Sheriff’s Department, what is reflected in their records, and I am now asking him what the record shows with reference to Mr. Haney’s statement.
BY THE COURT:
All right, overruled.
BY MR. BUFKIN:
He would only be entitled to show what Mr. Haney said if it was an admission against interest, your Honor. He would not be able to make a reproduction of a self-serving statement on the part of Mr. Haney.
BY THE COURT:
This is a statement that he took out there, and I will overrule it.
BY MR. BUFKIN:
No, sir, he didn’t take it out there. BY THE COURT:
It’s a statement he took from the man. I am going to overrule the objection and let it in.
BY MR. MULHEARN:
Q. Go ahead, Mr. Stutzman.
A. Driver of vehicle number one, which was Mr. Richard E. Haney, stated he was travelling toward Thirty-three on Liberty Road and vehicle number two came around a curve to his right on the wrong side of the road and he had to put two wheels off his right blacktop when the gas truck hit him.

The general rule in Mississippi is that statements in a police report containing conclusions or opinions as to how an accident occurred are inadmissible. Hall v. Boykin, 207 So.2d 645 (Miss.1968). Such testimony is generally inadmissible for the further reason that it is hearsay unless made in the presence of the opposing party. The plaintiff argues that the error, if any, was “harmless.” We note that the objection made at the trial was not on the grounds that the testimony would be hearsay or because it was part of a police report, but that the statement would be “self-serving.”

The plaintiff argues that although the “statement could have been deleted, it was, nevertheless, cumulative in nature, being the same thing to which the appellee had previously testified on direct examination.” Amoco and Swaggart contend that the error was harmful and reversible because their counsel was unable to cross-examine Haney about what Stutzman testified Haney told him. They note that the statement coming from the mouth of a local deputy sheriff made it more credible in the eyes of the jury. With this we agree and hold that upon the peculiar facts of this record presenting a highly disputed and hotly contested question of fact as to how the accident occurred, allowing Deputy Stutzman to relate to the jury self-serving testimony given him by plaintiff, Haney (outside the presence of Swaggart), a few days after the accident can hardly be allowed to stand on the ground of harmless error. Scott County Co-Op v. Brown, 187 So.2d 321 (Miss.1966); Bullard v. Citizens Nat’l Bank, 177 Miss. 735, 171 So. 540 (1937).

The effect of the self-serving testimony was to allow into evidence Haney’s out-of-court testimony to supplement his in-court testimony making his testimony double-bar-relled in the sense that it came from two witnesses, one of them a law officer. Both the Co-Op and Bullard cases condemn allowing a litigant to “testify for himself out of court.” Of course, the testimony was (as plaintiff points out) cumulative in nature, but coming from a witness (deputy sheriff) wearing the badge of the law, it could very likely have been given more weight and worth than it would have had it come from only the plaintiff himself. Here the issue of which driver was negligent was a very close factual question, making the self-serving testimony of greater significance than would be the case if the proof were overwhelming that Haney did not invade Swag-gart’s correct (westbound) traffic lane. The absence of any eye-witness to the collision (except Haney and Swaggart) added to the likelihood that the self-serving testimony improperly influenced the jury. Although the objection as made did not raise the issue of the statement being hearsay, or the content of a police report, the objection based on the self-serving aspect was specific and valid. It was erroneously overruled and requires another trial of the case.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.