author: HOOD, Judge.

text:
    William Jefferson GRIMBLE, Plaintiff-Appellant, v. RAPIDES PARISH POLICE JURY, Defendant-Appellee.
    No. 5010.
    Court of Appeal of Louisiana, Third Circuit.
    July 16, 1975.

      Edward Larvadain, Jr., Alexandria, for plaintiff-appellant.
    Voltz & Ware by Gus Voltz, Jr., Alexandria, for defendant-appellee.
    Before FRUGÉ, HOOD and WATSON, JJ-
   HOOD, Judge.

William Jefferson Grimble sues the Rap-ides Parish Police Jury for damages resulting from the construction of a canal across his land, and for the value of the property which defendant allegedly appropriated for that purpose. Judgment was rendered by the trial court in favor of plaintiff for $300.00. Plaintiff appealed.

The issues presented are whether plaintiff’s claim for damages has prescribed, whether plaintiff sustained damages as a result of the construction of the canal, and whether the award made by the trial court for the value of the property taken is adequate.

Prior to 1950 plaintiff owned a 15 acre tract of land in Rapides Parish which he used for grazing cattle and for raising corn, cotton and other crops. In 1949 he moved to Houston, Texas, and for several years thereafter he resided in that city with his daughter.

During the year 1950, while Grimble was in Houston, defendant dug a ditch or drainage canal on the north part of his property. Plaintiff alleges, and the evidence indicates, that the culverts under a road which bordered on plaintiff’s land were not large enough to take care of the increased flow of water which resulted from the digging of this ditch, and that a part of plaintiff’s property was subjected to periodic flooding for several years after 1950. The evidence does not show how much of plaintiff’s land overflowed, how often the flooding occurred, the length of time required for the water to drain off or the effect which the flooding may have had on the market value of all or any part of his property. The defect in the drainage was corrected sometime before the case was tried in 1974.

Prior to digging the canal, the defendant Police Jury obtained a “Right of Way Grant,” dated April 21, 1950, which purported to authorize defendant to construct and maintain drainage facilities through plaintiff’s property. That document was executed by “Jeff Grimble per Bessie Mae Culbert.” Plaintiff concedes that Bessie Mae Culbert was his daughter, and that she was living on his 15 acre tract of land when the above right of way deed was executed and while plaintiff was living in Houston. He stated that she died in 1966. Grimble denies, however, that his daughter actually signed the above document or that he ever authorized her to sign it for him.

The evidence fails to show that Bessie Mae Culbert had authority to sign the right of way deed for Grimble. We conclude, therefore, that defendant did not acquire a valid easement or servitude from the plaintiff. No one suggests, and there is nothing in the record to indicate that defendant acted in bad faith in constructing the canal. We find that defendant was in good faith in believing that it had a valid right of way when it dug the canal.

Plaintiff instituted this suit on April 11, 1972. He alleges in his original petition that the canal was dug without his permission, that the flooding of his land prevented him from farming it for 21 years, and that he is entitled to recover damages for his alleged loss of earnings during that 21 year period. Defendant filed an exception of prescription of one year. Plaintiff thereupon amended his petition alleging that his land was “wrongfully expropriated,” and he demanded judgment for the value of the property taken in addition to the damages previously claimed. Defendant answered, denying all of the material allegations in the original and amended petitions. The plea of prescription of one year was referred to the merits, and the case then was tried.

The parties stipulated that defendant had “expropriated” only 0.37 of an acre of plaintiff’s property for the above canal, and that his property had a value of $300.-00 per acre at the time of the taking. The trail judge refused to permit evidence as to the present value of plaintiff’s property, but Grimble was permitted to make an “offer of proof” which indicated that the land had increased in value since the taking, and that it was worth $1,000.00 per acre by the time the case was tried.

Judgment was rendered by the trial judge in favor of plaintiff for $300.00. No reasons for judgment were assigned, and the record does not show whether the exception of prescription was ruled on by the trial court, or whether the award was made for damages resulting from the construction of the canal or to cover the value of the property taken.

Defendant contends on this appeal that the action filed by plaintiff has been barred by prescription of two and ten years, under LSA.-R.S. 9:5624 and LSA-C.C. art. 3544. Defendant did not plead the prescriptions of two and ten years to any of plaintiff’s claims, and it apparently has abandoned its plea of prescription of one year. We thus have not considered defendant’s arguments relating to prescription.

We have concluded, however, that the evidence fails to establish that plaintiff sustained any damages as a result of the digging of the canal or the periodic flooding of a part of his property. The evidence tending to show that plaintiff sustained damage consisted of his own testimony, that of a member of the Police Jury and some photographs.

Mr. Charles P. DeVanie, Jr., a member of the defendant Police Jury, stated that there had been some “water problems” in that area of the parish, but that they had been corrected. He did not know whether plaintiff’s land had ever flooded. When asked whether the water problem had ever deprived Grimble of some use of his land, he replied:

“Uh — he said so. I just take his word for it. I mean, I — I couldn’t go back in there because at the time the water was up. But now it was not flowing over the property. At one time, it had come up to the road and flowed over the road, trying to get out, but this was right at the road itself, within (100) feet of the road.”

Although Mr. DeVanie conceded that there had been some “water problems” in that area, his testimony does not show that plaintiff’s land ever flooded or that the water problem ever prevented him from farming any part of his property.

Grimble’s testimony was confusing and was difficult to understand. We gather from it, however, that plaintiff moved to Houston in 1949, and began working at a “ship job” there. He returned to Rapides Parish every March or April, however, to “seed” his land, or to farm it, and he said that he did that each year up to and including 1972. He moved back to Rapides Parish sometime before the case was tried, and we assume that he resumed living there before this suit; was filed. Plaintiff observed, and he thus had knowledge of the fact, that the canal had been dug on his property very shortly after the construction was completed. No legal action relating to the canal was taken until this suit was filed 22 years later. Although Grimble stated that his land was rendered useless by flooding, he nevertheless came back to “seed” or to farm it every spring while he was living and working in Houston which covered a period of about 21 years.

Grimble testified that he sold parts of his property to three different purchasers after the canal was dug in 1950, and that he owned only eight acres at the time of the trial. He stated that two of those sales, to Chenevert and to Whitley, were made because the land conveyed to those purchasers was under water and thus was useless. According to his testimony, however, each of those sales involved the transfer of one acre of his parent tract, for a consideration of $300.00, which price was the stipulated value of the property per acre before the canal was constructed. It is apparent, therefore, that the alleged flooding did not decrease the value of the parts of his property which we assume was affected the most by the water. The third sale was forced because of an indebtedness owed by plaintiff which he was unable to satisfy in any other way.

Plaintiff claims that the flooding of his land caused him to lose $1,000.00 per year, for 21 years, making a total loss of $21,000.00. He itemizes his crop losses each years as follows :

(a) 10 bales of cotton $300.00
(b) 300 bushels of corn 400.00
(c) Truck farming 300.00

His general estimates of his crop losses are not supported by any other evidence. No income tax returns, no receipts, no documents of any kind and no testimony tending to confirm his estimates were offered. We also find that his testimony is conflicting in several respects. He testified, for instance, that he never sold any of his corn, but instead he fed it to his horses. He claims no income from the use of the horses, but if he used them for his cotton and truck farming then it would appear that the cost of feeding the horses alone consumed most of the total earnings of his other operations. There thus is no merit to his claim for $400.00, representing the loss of his corn crop.

Although he claims to have lost ten bales of cotton each year, his maximum allotment was only four acres of land for cotton, and he testified that his best crops did not yield over one bale per acre, and that the gross selling price of cotton was from $50.00 to $55.00 per bale. There is no evidence to support his general statement that he lost $300.00 per year from truck farming. His testimony also does not convince us that he could or would have farmed his property while he was living in Houston. He makes no claim for loss of rents or any other income from the land.

Our conclusion is that the evidence fails to show that plaintiff suffered any loss of income or damage as a result of the construction of the canal on his property in 1950.

Plaintiff contends that he is entitled to recover the value of the property taken, computed as of the time of the trial, rather than as of the time of the taking or the time he had knowledge of such taking.

The applicable rule is that where the landowner had knowledge of the taking he is entitled to recover the value of the property appropriated, computed as of the date of the taking. Where the property is taken without the knowledge of the landowner, however, then the value should be fixed as of the date the latter gained knowledge of the taking. Cruell v. Jefferson Parish, 216 So.2d 604 (La.App. 4 Cir. 1969); Veillon v. Columbia Gulf Transmission Co., 192 So.2d 646 (La.App. 3 Cir. 1966); A. K. Roy, Inc. v. Board of Com’rs for Pontchartrain L. D., 238 La. 926, 117 So.2d 60 (1960); Gumbel v. New Orleans Terminal Co., 197 La. 439, 1 So.2d 686 (1941).

In the instant suit, the evidence indicates that plaintiff had knowledge of the taking at the time or very slightly after the canal was constructed in April, 1950. His testimony is that he farmed the property every year, including the year 1950, and that he saw the canal when he came to “seed” the property. The value of the property taken, therefore, must be computed as of the time of the taking.

The case of Koerber v. City of New Orleans, 228 La. 903, 84 So.2d 454 (1955), is not controlling, for the reasons which were assigned by the Supreme Court in A. K. Roy, Inc. v. Board of Com’rs for Pontchartrain L. D., supra.

Defendant appropriated 0.37 of an acre of plaintiff’s land. The land had a value of $300.00 per acre at the time of the taking. The value of the property taken thus was $111.00. Defendant has not appealed or answered the appeal, however, so the award to plaintiff cannot be reduced. Since we cannot reduce the award to plaintiff, it is unnecessary for us to consider defendant’s additional argument that it acquired a servitude of drainage by prescription of ten years, under LSA-C.C. arts. 727, 728 and 765, and that it thus is not obliged to compensate plaintiff for that right.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

Affirmed.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Sidney W. GRISHMAN v. Barbara Winn GRISHMAN.
    No. 6996.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Laborde & Brooks, John H. Brooks, New Orleans, for plaintiff-appellant.
    Steven R. Plotkin, Theresa A. Tamburo, New Orleans, for defendant-appellee.
    Before SAMUEL, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

This is an appeal by the husband from a judgment finding him guilty of contempt for nonpayment of alimony and support, and reducing alimony pendente lite and support payments from $100.00 per week to $75.00 per week. Defendant husband contends that the circumstances of this case warrant a rescission of the contempt order as well as termination of the alimony and support award.

Five children were born of the Grishman marriage. On January 11, 1974, Mrs. Grishman was awarded custody pendente lite of the four minor boys (ages 10, 11, 14 and 16) as well as custody of a little girl (age 4). Alimony pendente lite was set in the sum of $40.00 per week and support for the children was set in the sum of $60.00 per week.

Thereafter, on February 19, 1974, by consent, the custody of the four boys was placed with the father and alimony and support was set in the sum of $100.00 per week. Between the initial alimony award and the September 13, 1974 judgment appealed from, intervening judgments of contempt were rendered against the husband.

The trial judge found, and the record supports the conclusion, that Grishman has a net income of $121.00 per week. Mrs. Grishman’s net income includes $75.00 per week earnings, $75.00 per week alimony and support, and $53.14 per week from a garnishment- of the husband’s earnings, resulting from nonpayment of accumulated alimony and support. The total spendable income of the wife for herself and one child is approximately $203.00 per week.

Conversely, after deducting the $75.00 per week alimony and support payment from Grishman’s net income of $121.00 per week, the husband’s spendable income for support of himself and the four boys amounts to approximately $45.00 per week.

When we consider the comparative earnings and income of the husband and wife, together with the fact that the defendant husband has the custody of and supports four teenage children, and the plaintiff mother has the custody of one younger child, we are compelled to grant the relief sought by the husband.

While it is well settled in our jurisprudence that great weight is given to the findings and judgments of the trial judge in alimony and support matters and will not be disturbed absent a finding of an abuse of the much discretion rule, nevertheless, it is the responsibility of the appellate court, in reviewing law and fact, to revise a judgment when circumstances warrant such a finding. Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Micheli v. Toye Brothers Yellow Cab Company, 174 So.2d 168 (La.App., 4th Cir. 1965). Also, we are mindful of the mutual parental responsibility of a mother and father to support and maintain their children. See LSA-C.C. art. 227 and Fellows v. Fellows, 267 So.2d 572 (La.App., 3d Cir. 1972).

Furthermore, we do not overlook the obligation of a working mother to support her minor children. Moreland v. Moreland, 279 So.2d 266 (La.App., 2d Cir. 1973), writ refused, 281 So.2d 749 (La. 1973).

Under the circumstances in the instant case, we conclude the judgment requiring weekly alimony and support payments in the sum of $75.00 per week is unwarranted.

We decline to consider the merits of the contempt order. It is arguable that the appeal from the trial court’s order imposing a jail- sentence is now moot. The six consecutive weekend sentences commencing on September 14, 1974 and ending on October 20, 1974, had been served when the matter was filed with the Court of Appeal on March 26, 1975. Moreover, there exists a line of appellate jurisprudence that a judgment of contempt is not appealable and that the appropriate vehicle for review is by way of supervisory writs. Weaver v. Weaver, 181 So.2d 61 (La.App., 1st Cir. 1965), writ refused, 248 La. 1031, 183 So. 2d 652 (1966); Advertiser, Division of Independent, Inc. v. Tubbs, 199 So.2d 426 (La.App., 3d Cir. 1967); Pearce v. Dozier, 181 So.2d 432 (La.App., 2d Cir. 1965).

We are in agreement with our brothers in the other circuits that the contempt order is not an appealable judgment.

Included in the judgment appealed from is an executory judgment in favor of the wife for past due alimony and support payments. However, the motion for appeal specifies error only in the contempt order and in the alimony and support reduction judgment.

We do not disturb that part of the judgment making past due alimony and support executory.

An amount of alimony which has become past due is a vested property right of the one to whom it is owed. Unverzagt v. Galjour, 182 So.2d 140 (La.App., 4th Cir. 1966); Rodriguez v. Rodriguez, 245 So.2d 765 (La.App., 4th Cir. 1971). We cannot disturb the executory judgment because no modification was sought and obtained from the alimony award upon which the execu-tory judgment was based. Sampognaro v. Sampognaro, 222 La. 597, 63 So.2d 11 (1953); Duplechan v. Duplechan, 270 So.2d 264 (La.App., 3d Cir. 1972).

Accordingly, that part of the judgment ordering alimony and support payments is reversed. Alimony and support payments are terminated effective October 1, 1975. That part of the judgment which awards an executory judgment against the husband for accrued past alimony and support is affirmed.

Affirmed in part; reversed in part.

      . This judgment does not prohibit the rendition of a later order requiring Grishman to pay support and/or alimony payments upon a showing of a change of circumstances sufficient to warrant rendition of such an order.


author: HALL, Judge. BURGESS, Judge PER CURIAM. PRICE, Judge

text:
    Flossie B. TAYLOR and Charles D. Heck, Jr., Plaintiffs-Appellants, v. MFA MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    No. 12725.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Granted Jan. 30, 1976.

      Martin S. Sanders, Jr., Winnfield, for plainti f f s-appellants.
    Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for defendant-appellee.
    Before PRICE, HALL and BURGESS, JJ-
   HALL, Judge.

Plaintiffs, Flossie B. Taylor and Charles D. Heck, Jr., her son, sued defendant, MFA Mutual Insurance Company, to recover insurance proceeds under the collision and medical payments provision of an automobile insurance policy issued by defendant to plaintiff Taylor. Plaintiffs alleged that the policy was in effect and provided coverage on April 6, 1974, when plaintiff Heck was involved in an accident. Defendant denied any liability under the policy on the ground that the policy had expired some three weeks before the accident for failure of plaintiff to pay the renewal premium. Plaintiffs argued that the policy was still in effect because defendant failed to give notice of its cancellation of the policy. The trial court found for the defendant, and plaintiffs have appealed. We reverse.

The facts of this case are relatively simple. Plaintiffs were the co-owners of a 1973 Ford Bronco. Taylor carried the automobile insurance in her name because the rates were lower for her than they would have been for Heck, a young male driver. The policy originally issued by defendant was for a three-month period from September 6, 1973 to December 9, 1973. Plaintiff failed to pay her renewal premium prior to December 9, and defendant considered the policy coverage as lapsed. When plaintiff belatedly paid her renewal premium, defendant reinstated or renewed the policy for an additional three-month period from December 15, 1973 to March 15, 1974, in accordance with the policy provision concerning renewals which states that, subject to the consent of the company, the policy period shall be “for terms of such duration each thereafter as the required renewal premium is paid by the insured and received by the company on or before expiration of the current term.”

During this second three-month period, the local insurance agent advised plaintiffs that the rates for the Bronco would have to be adjusted substantially to reflect the fact that the chief driver of the Bronco was Heck. The local agent and plaintiffs discussed the matter in the agent’s office, at which time plaintiffs indicated that they could not pay the increased premium. There is no evidence that defendant sent any kind of notice of premium due, renewal premium due, lapse of policy, or otherwise, prior to March 15 or prior to the date of the accident on April 6.

The contract expiration date of March 15 passed without plaintiffs paying any renewal premium. Heck was involved in a one car accident on April 6, 1974. When contacted by plaintiffs concerning their claim under the insurance policy, defendant informed them that the policy had expired on March 15 for nonpayment of premium. Plaintiffs then filed this suit to recover proceeds under the collision and medical payments provisions of the policy.

On its face this appears to be a simple case of expiration of an insurance policy at the end of the policy term for failure of the insured to pay the renewal premium. If such were the case, plaintiffs would not be entitled to any sort of notice and defendant would be correct in its contention that it has no liability under the policy in question.

However, plaintiffs cite and rely on LSA-R.S. 22:636.1, subd. A(5), which provides that “any policy with a policy period or term of less than six months shall for the purpose of this chapter be considered as if written for a policy period or term of six months.” Plaintiffs contend that this language means that the three month policy involved in this litigation must be considered as a six month policy. Therefore, it follows that the policy did not expire on March 15, 1974. Under plaintiffs’ argument, it was incumbent on the insurance company to cancel the policy for nonpayment of premium if it no longer wished to provide coverage. LSA-R.S. 22:636.1, subd. D provides that no notice of cancellation on the ground of nonpayment of premium shall be effective unless the insured is given at least ten days written notice of cancellation. Defendant admits it gave no notice of cancellation because it considered the situation to be one of simple expiration rather than cancellation. Since there was no notice of cancellation, the plaintiffs argue the policy was in full force and effect on the date of the accident.

The issue before the court is whether the language from LSA-R.S. 22:636.1, subd. A(5) quoted above has the meaning which plaintiffs attribute to it.

Counsel have not cited to the court any cases considering the meaning of the language of the statute here in question, nor has our research revealed any. The only case involving a three month policy that this court discoverd is Harrington v. Alabama Farm Bureau Mutual Casualty Insurance Co., 295 So.2d 210 (La.App. 3d Cir. 1974). The insured in that case did not urge the applicability of LSA-R.S. 22:636.-1, subd. A(5) and that court did not mention the statute.

Passed by the legislature in 1968, Revised Statutes 22:636.1 deals specifically with the cancellation and renewal of automobile insurance policies. The meat of the statute is the notice provisions required in cases of cancellation and nonrenewal. The purpose of the notices required by the statute is to make the insured aware that his policy is being terminated and to afford him time to obtain other insurance protection. Broadway v. All-Star Insurance Corporation, 285 So.2d 536 (La.1973).

The pertinent part of the statute for our purposes defines “renewal” and states:

“(5) ‘Renewal’ or ‘to renew’ means the issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term; provided, howeverthat any policy with a policy period or term of less than six months shall for the purpose of this chapter he considered as if zvritten for a policy period or term of six months. . . .”

(Emphasis supplied)

Reading this language in the context of the definition of “renewal” and keeping the legislative purpose behind R.S. 22:636.1 in mind, we construe the statutory provision to mean that a policy with a term of less than six months is not to be considered in a renewal/nonrenewal context at the end of its three month contract term because the policy is deemed to be written for a six month period. Therefore, the “renewal” premium that falls due within the statutory six month term should be treated as an installment premium payment on the six month term.

The effect of the statutory provision as we construe it is to require an insurer who wishes to terminate coverage during the statutory six month policy period for any reason (including the failure of the insured to pay a “renewal” premium which fell within the six month period) to comply with the cancellation provisions of the statute. Apparently, the legislature felt there was a danger in writing a policy for a short period of time in that the insured might not be aware that his coverage had terminated. We believe the legislature intended that an insured under a policy written for a short term of less than six months should have the benefit of the cancellation provision of the statute so that he would have adequate notice and opportunity to procure other insurance protection.

The insurance policy involved in this case contains a provision which apparently reflects the insurance company’s attempt to implement the statutory provisions in question in its insurance contract. The provision states:

“If this policy is written for a policy period of less than six months, the Company agrees that it will not refuse to renew except as of the expiration of a policy period which coincides with the end of a six months period commencing with its original effective date.”

The insurance company could argue the statute only means that the company cannot refuse to renew a policy with a term of less than six months. It might contend it never refused to renew plaintiff’s three month policy but to the contrary stood ready to provide coverage if plaintiff paid her renewal premium. Since she did not pay the renewal premium, the policy simply expired at the end of its three month term. No notice would be required because this would simply be a case of expiration and not one of cancellation.

This construction of the statute would effectively sidestep the purpose of the statutory provision because it does not require notice to the insured of termination of his insurance protection. Although the policy provision is not in direct conflict with the statutory provision, it fails to incorporate the full reach of the legislative intent behind the statute. A clause in an insurance contract may not vary or restrict the effect of a statutory provision of the Insurance Code. LSA-R.S. 22:653. Accordingly, the policy provision in this case does not relieve defendant of its obligation under the statute to give notice of cancellation to plaintiff if it wishes to terminate coverage during the statutory six month policy period for nonpayment of premium.

To recapitulate, defendant issued plaintiff a policy for a three month period from December 15, 1973, to March 15, 1974. According to the statute, this three month policy must be considered as if written for a term of six months. Therefore, when plaintiff failed to pay her “renewal” premium on March 15 (three months after date of issuance), defendant had to comply with the cancellation provisions of the statute relative to cancellation for nonpayment of premium if it wished to terminate coverage under the policy. Since defendant admittedly gave no notice of cancellation, the policy was in effect on the date of the accident on April 6, 1974.

Having found liability under the policy, we now turn to the amount plaintiffs are entitled to recover. At trial the parties stipulated the Bronco had a value of $3300 immediately before the accident and the car had a salvage value of $750. Therefore, there should be judgment in favor of plaintiffs under the collision provision of the insurance policy in the amount of $2550.

Plaintiffs introduced medical bills of Heck totaling $922.40, to which defendant made no objection. Therefore, there should be judgment in favor of plaintiffs under the medical payments provision of the policy in the amount of $922.40.

Accordingly, and for the reasons assigned, it is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Flossie B. Taylor, and against defendant, MFA Mutual Insurance Company, in the amount of $2550, and in favor of plaintiff, Charles D. Heck, Jr., against MFA Mutual Insurance Company in the amount of $922.40, together with legal interest on said amounts from date of judicial demand until paid and for all costs of this proceeding, including the cost of appeal.

Reversed and rendered.

BURGESS, J., concurs with written reasons.

BURGESS, Judge

(concurring).

I concur in the result reached by the majority of the panel hearing this appeal. However, I differ from the majority in the construction of R.S. 22:636.1, subd. A(5) by which they reach their result.

The pertinent part of the statute provides :

“(5) ‘Renewal’ or ‘to renew’ means the issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term; provided, however, that any policy with a policy period or term of less than six months shall for the purpose of this chapter be considered as if written for a policy period or term of six months. . . .”

I interpret the statute to mean that an insurance company may write a policy initially for whatever term it desires. However, if it chooses to renew the policy for a term of less than six months, the renewal period will be considered as if written for six months. The statutory language in question is contained in the definition of “renewal”. Therefore, I do not believe the legislature intended the provisions of R.S. 22:636.1, subd. A(5) to apply to the initial policy period.

Under my interpretation of the statute the renewal of plaintiff’s policy on December 15 for a three month term must be considered as a renewal for a six month period. Therefore, the policy was in effect on the date of the accident since that date fell within the statutory six month period and defendant failed to comply with the cancellation provisions of the statute relative to cancellation for nonpayment of premium.

Before BOLIN, PRICE, HALL, MARVIN and HEARD, JJ.

PER CURIAM.

In connection with defendant’s application for rehearing, our attention has been called to Arceneaux v. Broussard, 319 So.2d 846 (La.App. 1st Cir. 1975), decided by the First Circuit on September 2, 1975, and published in the November 13, 1975 Southern Reporter Advance Sheet shortly after rendition of our opinion on November 6, 1975. In Arceneaux, the First Circuit reached a result squarely contrary to that reached in our opinion. In considering defendant’s application for rehearing, this court, en banc, has carefully reviewed the First Circuit’s well-written and reasoned opinion. We, nevertheless, adhere to the result reached by this court and, accordingly, deny the application for rehearing.

Rehearing denied.

PRICE, J.., dissents from refusal to grant a rehearing and assigns written reasons.

PRICE, Judge

(dissenting from the refusal to grant a rehearing) :

After giving this matter further consideration on application for rehearing, I am of the opinion our prior decision is in error and should be set aside and reconsidered.

The Arceneaux v, Broussard case, 319 So.2d 846 (La.App. 1st Cir. 1975), cited in application for rehearing, set forth the proper interpretation of L.S.A.-R.S. 22:-636.1.

Had the legislature intended to prohibit the issuance of automobile liability insurance policiees with a term of less than six months, it would have so provided direct language to this effect.

The effect of our decision is to extend the period of coverage to an insured who purchases a ninety-day policy and does not elect to renew by timely payment of the renewal premium for the period of time required for the insuror to give notice of cancellation. Such a result is unreasonable as the insurer would receive no premium for this extended period of coverage and the ultimate effect will probably deprive the public of these short term policies.

I respectfully dissent from the refusal to grant a rehearing.


author: SCHOTT, Judge. MORIAL, Judge

text:
    Mildred Rojas, wife of/and Eddie COLLINS, et al. v. Mack C. WHITTINGTON et al.
    No. 6085.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975,
    Writ Refused Dec. 19, 1975.

      Greenberg, Cohen & Dallam, Gilbert P. Cohen, Gretna, for plaintiffs-appellees.
    White, Fray & White, William J. White, Jr., Robert Fray, Gretna, for defendants-appellants.
    Before REDMANN, STOULIG, SCHOTT, MORIAL and BEER, JJ.
   SCHOTT, Judge.

Defendants, Mack C. Whittington, Harry S. Kaufman Jr. and W. Richard White, have appealed from a judgment ordering the reformation of an act of sale dated July 5, 1966, before William J. White, Notary Public, in which plaintiffs sold their interest in a large 6400 acre tract of land located in Jefferson and Plaquemines Parishes to defendants. The issue is whether the parties to that act by mutual error or mistake included a naked ownership of an interest which was equivalent to 33 acres.

The 6400 acres were owned by Rojas-Adams Corporation until 19S2 when the corporation was liquidated. In connection therewith Mrs. Collins received a 4.16 per cent interest in the.land in exchange for her interest in the corporation, and her mother also received a percentage interest. In 1958 Mrs. Collins inherited a fractional interest of her mother’s percentage interest and shortly thereafter she acquired an additional .537 per cent of ownership in the 6400 acres, subject to a usufruct in favor of Varice Curol in an act of compromise or partition before Nathan Greenberg, Notary Public dated April 16, 1958. In the meantime, on May 28, 1952, Mrs. Collins sold an undivided half interest in the 4.16 pgr cent she acquired from the corporation to defendant White and others, and in December, 1959, Mr. and Mrs. Collins sold an undivided one-half interest in the percentage of ownership she inherited from her mother to defendants Whittington and White and another party. For clarity these percentages of ownership acquired and conveyed by plaintiffs are best expressed in acres and were equivalent to 255 acres acquired in 1952 and 162 acres in 1958 and to 128 acres conveyed in 1952 and 81 acres conveyed in 1959 with the result that they had 208 acres in full ownership. In addition, they had the naked ownership of a 33 acre equivalent acquired in the April 16, 1958, act of compromise.

On April 11, 1963, plaintiffs borrowed $12,000 from defendant W. Richard White and others and on October 16, 1964, plaintiffs borrowed $15,000 from W. Richard White and others, with both loans secured by mortgages. In both acts the real estate descriptions are identical in that they describe the entire 6400 acres less and except certain portions transferred to members of the Rojas family other than Mrs. Collins, but the descriptions differ with respect to the acquisitions. The earlier mortgage in this respect reads as follows:

“Being the same property acquired by Mildred Rojas Collins from Rojas-Adam Corporation of Delaware by act before Severn T. Darden, Notary Public, dated April 21st, 1952 and registered in C. O. B. 319, Folio 364, Jefferson Parish, Louisiana and registered in C. O. B. 161, Folio 174, Plaquemines Parish. Louisiana.
“LESS AND EXCEPT: An undivided one-half of an undivided 4.16% interest conveyed to W. R. White et al by act before Fred S. Bowes, Notary Public, dated May 28th 1952, registered in C. O. B. 321, Folio 424, of the records of the Parish of Jefferson and C. O. B. Folio of the records of Plaquemines Parish.”

The latter mortgage contains the following:

“Being the same property acquired by Mildred Rojas Collins from Rojas-Adam Corporation of Delaware by act before Severn T. Darden, Notary Public, dated April 21st, 1952 and registered in C. O. B. 319, Folio 364, Jefferson Parish, Louisiana and registered in C.O.B. 161, Folio 174, Plaquemines Parish, Louisiana.
“Being the same property acquired- by Mildred Rojas, wife of Eddie Collins, by judgment of possession in the Succession of Lithia Lena Brown Rojas Curol, bearing Docket No. 45-326 of the Twenty-Fourth Judicial District Court for the Parish of Jefferson, registered in C.O.B. 445, folio 520, Entry No. 121097, and being farther acquired by act of compromise passed before Nathan Greenberg, Notary Public, dated April 16, 1958, registered in C.O.B. 145, folio 523, bearing Entry No. 121098, Jefferson Parish, Lotiisiana, and in Plaquemines Parish said judgment is recorded in C.O.B. 205, Folio 1251, and said act of compromise is recorded in C.O.B. 206, folio ll.
“LESS AND EXCEPT: As undivided one-half of an undivided 4.16% interest conveyed to W. R. White et al by act before Fred S. Bowes, Notary Public, dated May 28th, 1952, registered in C.O.B. 321, Folio 424, of the records of the Parish of Jefferson and C.O.B. Folio of the records of Plaquemines Parish.
“ALSO LESS AND EXCEPT: Sale of one-half interest by Mortgagors to Mack G. Whittington, et al, by act passed before W. J. White, Notary Public, dated December 16, 1959, registered in C.O.B. 495, folio 591, Jefferson Parish, Louisiana.
“This mortgage also includes and covers all of the undivided right, title and interest belonging to mortgagor in the above described property, including that interest of which Verice Curol has the usu-fruct in accordance with agreement and compromise executed before Nathan Greenberg, Notary Public, dated April 16, 1958, and registered C.O.B. 445, folio 523, Jefferson Parish, Louisiana, or any other document creating said usu-fruct.”

The description of the property sold by plaintiffs to defendants in the act of sale on July 5, 1966, which is the subject of the judgment of reformation, is identical to the description in the later mortgage quoted above except that the paragraph beginning “LESS AND EXCEPT” is omitted, the paragraph beginning “ALSO LESS AND EXCEPT” is included with the beginning “LESS AND EXCEPT” and significantly the final paragraph making specific reference to the undivided interest subject to the usufruct is omitted. Nevertheless, the part of the acquisition in the later mortgage and given emphasis above was included in the sale and provided the basis for ostensible inclusion of the 33 acre equivalent which the trial court’s judgment of reformation would exclude.

At the outset it must be understood that plaintiffs sued for and were awarded a judgment reforming the sale. Their case is not based upon allegations or proof of fraud but rather on the theory that both parties to the sale, plaintiffs on the one hand and defendants on the other, intended to exclude the 33 acre interest and its inclusion resulted from mutual error or mistake.

Our jurisprudence is replete with decisions on the law respecting reformation of instruments. For instance in Agurs v. Holt, 232 La. 1026, 95 So.2d 644, it is said that reformation “is an equitable remedy and lies only to correct mistakes or errors in written instruments when such instruments, as written, do not express the true contract of the parties.” In Wilson v. Levy, 234 La. 719, 101 So.2d 214, the court, quoting Reynaud v. Bullock, 195 La. 86, 196 So. 29, said that “Either party is always permitted, in a suit between the parties to a contract, to correct any error in the instrument . . . so as to make it express . the intention of the parties”.

As in all cases the plaintiff, in a suit for reformation, has the burden of proof but this burden has been said to require “clear and convincing proof” or evidence which is “strong and convincing,” Agurs v. Holt, supra. It has even been said that “the strongest possible” proof is required for plaintiff to prevail. Wilson v. Levy, supra, Reynaud v. Bullock, supra.

When these standards are applied to the proof offered to support plaintiffs’ case we are led to conclude that plaintiffs’ proof fell short with the result that the judgment of the trial court is reversed.

After considering the evidence which consisted of the written documents and the testimony of plaintiffs, the three defendants and the notary public, William John White, who passed the later mortgage as well as the act of sale, the trial judge set forth the following reasons for judgment:

“Plaintiffs contend that the act of sale of July 5, 1966, should be reformed to delete therefrom the 33 acres subject to the usufruct. The testimony clearly discloses the lack of education of the plaintiffs and the inability of plaintiff Eddie Collins to multiply. However, plaintiff, Eddie Collins, knew that he and his wife were to sell 208 acres at $160.00 per acre. Although Mr. Collins did not testify as to the total amount of the purchase price because he admittedly could not multiply, he did know the terms of the transaction as the terms related to the price per acre.
“On the other hand, defendant, W. R. White, who apparently was the only defendant with actual contact with the plaintiffs at first contended that there was no agreement as to a certain number of acres at a stipulated price. Thereafter, he admitted that the property in question was normally sold on a basis of acres, and that the sale of 208 acres at $160.00 per acre would yield the amount of the selling price set forth in the sale of July 5, 1966, namely, $33,280.00. If defendants were to purchase 208 acres only at the agreed price of $160.00 per acre, then it is clear that the 33 acres in usu-fruct should not have been included within the sale in question.
“In the recent case of Prejeant v. Hero Lands Company, 244 So.2d 613 (La.App. 1971) the Fourth Circuit Court of Appeals held:
‘We note defendant’s argument that reformation can only be had in case of mutual error, and that defendant shows it was not under any error. This argument ignores the paradoxical truism that every defendant in a case alleging mutual error denies the error; otherwise he would have consented to an extrajudicial act of correction and there would have been no lawsuit. Unilateral error would at best void a contract, for lack of meeting of minds; it could never reform a contract. A contract is reformed only when the evidence shows that the parties did mutually agree to a bargain erroneously recorded in the written contract.’
“The evidence presented to the Court shows that the parties did mutually agree to a bargain erroneously recorded in the Act of Sale of July 5, 1966.”

As to plaintiffs’ unilateral error we have no problem. The trial judge’s belief of their testimony that they didn’t intend the 33 acre naked ownership interest to be included in the act is accepted by us. But to reach his result the trial judge had to disbelieve the testimony of defendant W. Richard White and his Notary brother, William John White, that the inclusion of the interest was intended. Plaintiffs cannot prevail if the trial judge concluded or if we were to conclude that defendants knew about the inclusion at the time of the sale and took advantage of it. Fraud is not the issue here. The issue is whether or not defendants made a mistake at the sale and later at trial lied when they testified that they made no mistake.

The testimony of defendants Kaufman and Whittington was valueless as they admitted that they had no knowledge of exactly how much property they were acquiring and that they were relying exclusively on defendant W. Richard White with respect to the transaction.

Defendant White testified unequivocally that he intended to purchase all of the property, including the 33 acres subject to the usufruct, that both mortgages were in default and that it was his intention to take title to all of the property which was subject to the mortgage. Corroborative of his testimony was a letter he wrote to his brother the Notary, William John White, on June 6, 1966, in anticipation of the sale:

“Dear Bill:
“On April 11, 1963 you passed an act of mortgage for Mildred Rojas, wife of, and Eddie Collins in the amount of $12,000.00, covering on their property located in the Parishes of Jefferson and Plaquemine, more fully described in your act of mortgage.
“On October 16, 1964 you passed an act of mortgage in the amount of $15,000.00 covering on the property of Mildred Rojas, wife of, and Eddie Collins, more fully described in this act of mortgage.
“Will you please prepare at your early convenience, not later than July 1, 1966, an act of sale wherein Mr. and Mrs. Collins sell all of their right, title and interest, including minerals, in all of the property that they now own in the Rojas Tract, both in Jefferson and Plaquemine Parishes, the consideration being $33,-280.00, the purchaser to be W. Richard White, et ais. I will notify you before July 1, 1966 who the other purchasers will be.” (Our emphasis)

Defendant’s testimony was further corroborated by that of his brother. He testified that he drew the act of sale in accordance with a request from his brother and that he knew plaintiffs before the transaction. In answer to the question o'f whether he explained to Mr. and Mrs. Collins as to what they were selling he said: “I explained to them definitely that this was all of their interests in those two tracts in Jefferson Parish and Plaquemines Parish. It was well understood that way and that was the reason why they asked for this other letter or asked for permission to trap it and it was my thought to get that letter from the purchasers authorizing them to trap this property. Actually, I told them that at a time .later when Mr. Collins came in and said something about him not selling it all, and I said, I explained to you that you sold it all. We talked about it and I showed him and we discussed it. I knew Mr. Collins wasn’t well educated and I made sure he knew about it. He knew he was selling all of the property.”

The trial judge seemingly attached much significance to the mathematical equivalent between the price of the property, $33,280, and the number of acres without the 33 acres, i. e., 208 times the price of $160, but we do not find this to be persuasive. Defendant White testified that he was aware of the ramifications of a usufruct and had declined to buy the property once before because it was so burdened. According to White, when the first mortgage had become delinquent and the time came for the second mortgage he decided that he should have some additional security and for that reason included the naked ownership of the 33 acre interest, but he made it clear that he did not attach the same value to that 33 acre interest as he. did to the 208 acre interest.

In any event, it seems equally clear from the testimony of defendant as well as Notary White that it was White’s intention to purchase all of the property subject to both mortgages, which unquestionably included the 33 acre interest at the time of the sale. By reference to the excerpt above from the description in the second act of the mortgage it can be seen that there was not only the reference to the acquisition by the act of compromise (which is emphasized above) but there was the specific recitation that the mortgage includes “that interest of which Verice Curol has the usufruct . . .”

While it may be that the omission of this specific recitation from the sale demonstrates that it was not purchasers’ intention to acquire the interest, there are too many factors which must be overlooked to arrive at this conclusion. Did White make a mistake by including the naked ownership interest in the second mortgage? The language is so specific that we cannot assume this to be so. Holding a delinquent mortgage on the naked ownership interest, why would he exclude this from a sale designed to satisfy the mortgage? What about the letter making specific reference to the second act of mortgage and instructng his brother to include all of plaintiffs’ interest written at an unsuspicious time? Can we believe that this letter was not written at the time but perhaps manufactured at a later date? There is no one scintilla of evidence to support such a serious charge. Yet if the letter is accepted at face value it was either a part of a scheme to acquire the interest without plaintiffs’ knowledge or it clearly precludes any possibility of error. Assuming the first alternative solely for purposes of discussion, plaintiffs lose because fraud is not the cause of action on which their case is based.

The trial judge placed much reliance on Prejeant v. Hero Lands Company, supra, but a reading of that case readily demonstrates its distinction. Hero’s primary defense was that the 3.67 acres was omitted on purpose as the result of some compromise it reached with plaintiffs following their delinquency in payments on a bond for deed contract. Once that defense was rejected the conclusion was inescapable that an error existed in the exclusion since the sale was designed solely to carry out the terms of the original contract which included the 3.67 acres. Whether this evidence was tested by the “clear and convincing” formula of Agurs v. Holt, supra, or the “clear, and the strongest possible, proof” formula of Wilson v. Levy, supra, reformation was indicated in the Prejeant case but the same cannot be said for plaintiffs’ proof in the instant case.

It will serve no useful purpose in this opinion to recite and analyze a multitude of cases where reformation has been ordered because a reading of each will readily reveal the kind of facts needed to support such an action. Examples of such cases are Agurs v. Holt, supra, and Waller v. Colvin, 151 La. 765, 92 So. 328.

Since we have concluded that plaintiffs’ evidence was insufficient as a matter of law to support the judgment appealed from, it is reversed and plaintiffs’ suit is dismissed at their cost.

Reversed and rendered.

MORIAL, J., dissents with written reasons.

MORIAL, Judge

(dissenting).

Mildred Rojas Collins inherited in full ownership 25S acres of land from her father and 162.2 acres from her mother. As a result of a compromise settlement she acquired an additional 33 acres of land from her stepfather who retained the usufruct. All were various acquisitions of adjacent acreage in Lafitte, Louisiana.

Mildred Rojas joined by her husband Eddie Collins sold 127 acres to defendant W. Richard White and several other individuals. Sometime thereafter plaintiffs sold another 81 acres to defendants, White and Whittington, and one named Perrin. Thereafter, plaintiffs had remaining 208 acres in full ownership plus the 33 acres subject to usufruct. Plaintiffs then mortgaged the 208 acres for $12,000.00 in favor of Wilhemina K. White, the wife of defendant White, on April 11, 1963. The property was further mortgaged by plaintiffs on October 16, 1964 in favor of Wilhemina K. White for an addition $15,-000.00. The 33 acres subject to the usu-fruct was also included in this mortgage as additional security.

In 1965, with foreclosure imminent, plaintiffs, as an alternative, decided upon a sale of property to defendants White, Whittington, and Kaufman. This sale which included the 208 acres plus the 33 acres subject to usufruct was reformed by the district court.

Plaintiffs contend it was their understanding and the understanding of defendants that at the time of the sale they were selling only the 208 acres which were security for the mortgage of April 11, 1963. Defendants argue they intended to purchase plaintiffs’ interest to all of the property that plaintiff had at the time of the sale; and, it was the intention of the parties to include all the property which was subject to the mortgage of October 16, 1964.

Written instruments are to be reformed when such instruments as written, do not express the true contract of the parties. Agurs v. Holt, 232 La. 1026, 95 So.2d 644 (1957); Ober v. Williams, 213 La. 568, 35 So.2d 219 (1948). Further, the Louisiana Civil Code provides in Article 1950:

“When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.”

For reformation of an agreement there must be mutual error or mistake; however, the burden is on the one seeking reformation to prove the mutual error or mistake by clear, strong, and convincing evidence. Ferguson v. Belcher & Son, 230 La. 422, 88 So.2d 806 (1956); Agurs v. Holt, supra. Parol evidence is admissible for this purpose. Agurs, supra.

Both plaintiffs testified. Mrs. Collins has a seventh grade education. Her husband has no schooling and is unable to read or write, other than to sign his name. He can add, but cannot multiply. He stated that he was offered $160 per acre for the land in dispute by Mr. White with whom he dealt exclusively. He further testified that he was offered that price per acre without an appraisement. He testified of his simple knowledge of mortgages and the fact that the sale was the alternative to foreclosure. He stated that he was sure that they were selling only 208 acres which they owned and had no intention of selling the 33 acres. He further stated that he was never explained that the act of sale included those 33 acres. He also testified that on a previous occasion he asked Mr. White if he wanted to buy the 33 acres. He stated White replied it wasn’t worth anything because he (White) couldn’t have the mineral rights to it and, therefore, didn’t want to buy the property.

Mrs. Collins also testified that Mr. White told her that he didn’t want to buy the property since he could not receive the mineral royalties because of the usufruct. She stated that she had no intention of selling the 33 acres subject to the usufruct as the value of the 208 acres that she owned was sufficient to cover the money she owed on the mortgages. She further testified that she didn’t know that the 33 acres were in the act of mortgage of October 1964.

W. Richard White, a defendant, stated the purchase price was determined by the mortgages, plus interest, and the Collins’ equity in the property. When asked how the figure of $33,280.00 for the sale was reached, Mr. White stated: “It would be based, like you said, 208 at $160, but the other 33 acres was included in the sale.” This adds strong credence to plaintiffs’ version. At $160 per acre the price for 208 acres amounts to exactly $33,280.00, the sale price. After my careful review of the record I am unable to find from the testimony of defendants how the sale price of $33,280.00 was reached with no apparent consideration being given in that sale for the 33 acres subject to the usu-fruct.

This is a classic case where those of a less fortunate educational background learned some five years after a sale that they had disposed of property which they did not intend to sell and which their vend-ees did not intend to acquire. Considering all the circumstances surrounding the acquisition of the Rojas properties by the defendants, I am compelled to conclude that the intention of the defendants was to acquire by the act of sale of July 5, 1966, only those properties which Mrs. Collins had previously acquired in full ownership. See Prejeant v. Hero Lands Company, 244 So.2d 613 (La.App. 4 Cir. 1971). I am convinced that the district court made a proper evaluation of the evidence presented as to the intention of the parties.

For the foregoing reasons, I respectfully dissent.

      . Emphasis added for our later reference herein.

      . In fairness to plaintiffs, it may be noted that White is mistaken in implying that the only additional security he got for the second mortgage was the 33 acres. In fact, he also included for the first time the interest (a net 81 acres) inherited from Mrs. Collins’s mother. Other mistakes appearing in the record included the second mortgage’s referring twice to the 33 acres (one reference being added after the original typing) ; the first mortgage’s describing the entire 6400 acre tract, rather than only the mortgagor’s interest acquired from the corporation (as presumably intended) ; and White’s initial testimony that the sale price was not calculated by multiplying 208 acres by $160. But those mistakes do not prevent our conclusion that White always intended to acquire the 33 acres, and its inclusion in the deed was no mistake on his part.


author: PICKETT, Judge.

text:
    Rene CASADABAN and Ernest Casadaban d/b/a Casadaban’s Nursery, Plaintiffs-Appellants, v. BEL CHEMICAL & SUPPLY CO., INC., et al., Defendants-Appellees.
    No. 10472.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.

      Garic K. Barranger, Covington, for plaintiffs-appellants.
    Frederick B. Alexius, and Carl J. Schu-macher> Jr>) New Orleans, for defendants-appellees
    Before SARTAIN, BAILES and PICKETT, JJ.
   PICKETT, Judge.

Plaintiffs Rene and Ernest Casadaban are the proprietors of a large nursery business near Abita Springs in St. Tammany Parish, Louisiana. In the summer of 1964, the Casadabans purchased a herbicide known as Dacthal 75 for weed control on approximately twelve acres of their property, being the portion of their operation devoted to growing azaleas. The herbicide was applied to the azalea beds and, during the months that followed, the azalea crop sustained substantial damages. A large number of the plants died and others were rendered unmarketable.

This suit for damages to the azalea crop was instituted against Diamond Alkali Co., Inc., the manufacturer, and Bel Chemical and Supply Co., the distributor, of the herbicide Dacthal 75, and Aetna Casualty and Surety Co., Diamond’s insurer.

The trial judge found that the herbicide did cause damage to a large number of the azaleas but held that the plaintiffs had failed to prove with reasonable certainty the number of plants damaged or the extent of their commercial losses. The Judge did render judgment in the principal amount of $11,424.00, apparently on the basis of Rene Casadaban’s testimony the damages necessitated about six months of remedial and restorative work by his employees, at a weekly payroll rate at that time of $476.00.

The plaintiffs have appealed contending that the evidence was sufficient to support an award for their commercial losses. The defendants answered the appeal, contending that the trial judge erred on the question of liability and that the evidence was insufficient to support even the award for restoration expenses. We affirm with respect to the findings of the defendant’s liability and the plaintiffs’ failure to prove commercial losses; the award for the actual expenses incurred by plaintiffs, for reasons hereinafter stated, will be amended.

In August of 1964, Mr. Ronald Dezem-ber, a Bel sales representative, visited the Casadaban’s nursery and discussed the use of Dacthal, for weed control purposes, with Mr. Rene Casadaban. Mr. Casadaban had heard of the product through an acquaintance, a nurseryman in Texas, who had had satisfactory results with it, so that the question of Dacthal’s effectiveness in this respect was not crucial in Mr. Casadaban’s mind. The testimony of both Mr. Casada-ban and Mr. Dezember shows, however, that the former was quite concerned about the effect Dacthal might have on his azaleas, and that he repeatedly sought (and thought he had received) a guarantee against any harmful results. Mr. Dezem-ber’s version was that he tried to explain he was without authority to make any such guarantee but said his company did recommend Dacthal as safe for use on azaleas and marketed the product for such use.

The parties eventually agreed upon the sale and other representatives of the defendants came to the nursery to help with the mixing of the Dacthal compound and the application of it to the azalea beds.

Within a few weeks, Mr. Henry Rester, a long-time employee of the plaintiffs, noticed that a number of the plants showed signs of problems. Leaves were drooping and discolored, and the plants failed to set buds as they should have done at that time of year, according to the normal life cycle. The difficulties continued over the next several months, and despite attempts to save the azaleas by fertilizing and pruning, a large number died or were rendered unmarketable for commercial purposes. During this period, Mr. Dezember and others visited the nursery at Mr. Casadaban’s request to survey the situation, and Mr. Cas-adaban believed, according to his testimony at the trial, that he was receiving acknowl-edgements of the damage and assurances that his losses would be paid from these representatives of the defendants. Again, Mr. Dezember said he explained that he was without authority to do this and could only communicate the complaints to his superiors.

One morning in April of 1965, Mr. Casa-daban and Mr. Dezember began a tour of the affected areas for the purpose of compiling an estimate of the extent of the damage. The azalea beds had dimensions of about eight or nine feet by two hundred feet and each contained as many as 3,500 young plants. The estimates were in the form of fractions of the total contents of each bed, with the predominant figure of “1/2” being shown on Mr. Casadaban’s notebook, together with an occasional “1” or “1/4”. At noon, the two men broke for lunch with the estimates incompleted, and in mail, Mr. Casadaban found a letter from Diamond Alkali Company stating that the Company had heard of his problems from Mr. Dezember but was surprised to hear that Dacthal was thought to be the cause, in view of the Company’s widespread, successful experience with the product.

Despite the import of this letter, Mr. Casadaban proceeded to dig up and dispose of the damaged plants and to restore and replant the affected areas for the following year’s crop.

At the outset, we note that no question is raised with respect to the proper chemical composition of the Dacthal compound, the proper method of applying it, or the fact that Mr. Casadaban experienced substantial damage to his 1964-65 azalea crop.

The question is whether the Dac-thal, properly manufactured and properly used, harmed the azaleas at the plaintiff’s nursery.

The circumstantial evidence in this case suggests an affirmative answer. In their years of growing azaleas both before and after the 1964-65 season, the plaintiffs never had a comparable experience. And even during the season at issue herein, the evidence shows that one entire bed contained normal, healthy plants; fortuitously, this bed was not treated with Dacthal because the supply plaintiffs had purchased was slightly less than enough for the total acreage.

In a civil case of this nature, the plaintiff’s burden is to prove causation by a preponderance of the evidence and this burden may be met either by direct or by circumstantial evidence. Weber v. Fidelity & Casualty Insurance Co. of N. Y., 259 La. 599, 250 So.2d 754 (1971). In Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395 (1963), the Court stated the following :

“Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation.” 153 So.2d at 397.

The trial judge in the instant case, however, determined causation on the basis of the testimony of Dr. James A. Foret, professor of horticulture at the University of Southwestern Louisiana, and appointed by the Court as an expert at the instance of both parties. Dr. Foret performed on-site tests on azaleas at the Casadaban’s Nursery and attempted to duplicate as nearly as possible the conditions existing in 1964— 65. The Court accepted Dr. Foret’s reported findings that Dacthal, as applied, was injurious to the test azaleas.

The defendants, on the other hand, presented documentary evidence of literally hundreds of tests involving the use of Dac-thal on a wide variety of crops, including azaleas, and having satisfactory results when the Dacthal was applied in the manufacturer’s recommended amounts. The defendants also showed that Dacthal had been approved by the U. S. Department of Agriculture and that evidence of satisfactory test results was a prerequisite to obtaining such approval.

Some of the test data, however, showed a positive reaction to Dacthal by some varieties or sub-varieties of azaleas. Basically, the Indica azalea is a larger, stronger variety and was generally found to be unaffected. The Kurume azalea is a smaller and apparently more sensitive variety and includes a number of subvarieties such as Hampton Beauty, Snow, Christmas Cheer, Hinodegerii, and others, each of which was affected to a different degree in many tests.

The defendants further presented expert testimony by Dr. Lawrence Limpel, of the Boyce Thompson Institute for Plant Research, and by Dr. Joseph Ignatoski, of the Diamond Shamrock Corporation, generally to the effect that their experiences with Dacthal showed it to be a safe and effective product, though most of their testing was done on other crops. Dr. Raymond Self of Auburn University, also testified as an expert. He had visited the Casadaban Nursery in April of 1965, and had also made an inspection of Dr. Foret’s experiments. In both instances, it was his opinion that the unhealthy condition of the azaleas was attributable to soil deficiencies, freeze damage or other causes.

In sum, the scientific evidence is somewhat in conflict but we can find no error in the trial judge’s decision to accept the opinion of Dr. Foret. Certainly from a scientific standpoint, tests performed on the subject property and under similar conditions should be more reliable than tests performed elsewhere in the United States, under different soil and climatic conditions.

The defendants also deny liability notwithstanding proof of causation on the basis of the following declaration by Diamond Alkali on the Dacthal label:

“We guarantee the contents of this package to conform to the labeled composition. Since use of this material is beyond our knowledge and control, we make no warranty, express or implied, as to the effects of such use whether or not in accordance with directions.”

Defendants refer to Landreth Seed Co. v. Kerlec Seed Co., 12 La.App. 506, 126 So. 460 (Orl.App.1930) and California Chemical Co. v. Lovett, 204 So.2d 633 (La.App. 3rd Cir. 1967) for the proposition that such disclaimers should be recognized. We find these cases to be distinguishable from the instant case. Those cases involved purchasers aggrieved by the failure of the products to do what they were purchased to do. The respective disclaimers in those cases were clearly and expressly aimed at avoiding responsibility for such an eventuality. In the instant case, no complaint is made with respect to Dacthal’s weed-killing effectiveness; the complaint is that it produced an effect it was warranted not to produce. Furthermore, in the Lovett case, the disclaimer specified the secondary or side effects, responsibility for which the manufacturer was seeking to avoid, viz, the effects of the pesticide on crops. In the instant case, the disclaimer fails to identify such secondary effects; we find that it does not expressly or fairly inform the purchaser of the nature or the scope of the potential liability sought to be avoided. Moreover, the interpretation urged by the defendants in this case would result in a direct conflict between the scope of the disclaimer and the representations that Dacthal was safe for use on azaleas, which characteristic or quality was admittedly the primary concern of the Casadabans. We do not find merit in the defendants’ argument on this point.

The trial Judge’s findings on the issue of proof of damages are reflected in the following portions of his reasons for Judgment:

“Several reviews of my notes of the several days of testimony and an examination of the transcript of the testimony failed to show where counsel for plaintiff had proved just what monetary damages the plaintiff suffered.
“The only evidence which the plaintiff presented to prove the number of plants lost or their market value was Mr. Cas-daban’s own testimony, as to his and Mr. Rester’s guestimate (sic) of the number of plants that were not capable of being sold and the value which Mr. Casadaban placed upon each of the lost plants.
sfs % 5H ‡
“- - - The plaintiff failed to bring forth any evidence as to sales and profits in any years preceding, or following, the year of the damage in question, nor did he produce any other corroberative evidence to prove that there was actually a pecuniary loss suffered by the nursery after the use of the herbicide.
í|í íjí
“Then defense counsel, in his brief, repeatedly hammers at the fact that plaintiff knew defendants were denying his claim against them, before he destroyed and removed the plants, and therefore he should have been on his guard to establish with certainty his damages. Had he done so, this Court could award to him some of the money he is seeking. This Court is distressed to find, frankly, that it cannot find evidence in the record to reach that kind of conclusion. This Court must therefore hold that the plaintiff’s own estimate of approximate losses, unsubstantiated by detailed and corroborative evidence, which should have been produced at the trial, does not meet the requisite burden of proof.
“There is testimony in the record of approximately $8,323.00 of harvest cost which Mr. Casadaban contends he expended. This Court’s appreciation of the law is that in a case for a loss of a crop, it is correct to give a credit against the amount of the loss equal to the amount that would normally have had to be spent to harvest or produce the crop. Here, however, the Court has not been able to reach a determination as to the value of the “crop” itself, and it would appear proper that the credit not be applied.
“However, Mr. Casadaban did testify to additional expenditures in the amount of $11,424.00 made in order to bring his operation back into normal conditions after the removal of the damaged plants. The Court will award plaintiff a judgment in the amount of $11,424.00, plus those amounts in the record for his expert’s preparation and testimony.”

These were the conclusions of the trier of fact, who otherwise would have been disposed to award damages to the plaintiff.

While the absence of independent, corroborating evidence may not be fatal to the plaintiff’s burden of proof, the lack of even a minimal degree of detail or specificity in his own testimony as to the extent of the loss precludes an award, even under the holding in Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971), relative to the degree of certainty required to support an award of monetary damages.

With respect to actual expenses incurred as a result of the damage, the only statements in the record to support the amount awarded were Mr. Casadaban’s estimates that it took “six or seven months to straighten the place out,” and his testimony that his weekly payroll at the time was $476.00. ($476.00 X 24 weeks = $11,424.-00). Of this amount, the sum of $8,323.00 was explained in reasonably certain terms as representing the time required to dig up and dispose of the dead and damaged plants. (Although the trial judge stated that this represented the estimated harvest cost, and Mr. Casadaban so testified in response to a hypothetical question asked on this point at pages 454-456 of the Record, he also testified that the same costs were incurred in digging up and disposing of the plants, at page 470 of the Record). But beyond this figure, Mr. Casadaban’s testimony is simply lacking in any quantitátive description of the work done or of the hours, days or weeks required to do it.

Accordingly, the judgment of the Trial Court is amended to reduce the amount of the principal award from $11,424.00 to $8,323.00 and, as amended, is affirmed. The costs of this appeal is to be borne by plaintiff-appellants. All other costs in these proceedings are assessed against defendants-appellees.

Amended and affirmed.


author: SARTAIN, Judge.

text:
    Joseph A. GETTYS, Plaintiff-Appellant, v. Norris J. BROUSSARD, Sr., and Allstate Insurance Company, Defendants-Appellees.
    No. 10501.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.

      George M. Papale, Gretna, for plaintiff-appellant.
    John W. Anthony and Brad Lewis, Bo-galusa, for defendants-appellees.
    Before SARTAIN, BAILES and PICKETT, JJ.
   SARTAIN, Judge.

Plaintiff-appellant Joseph A. Gettys brings this appeal seeking an increase in damages awarded him in judgment rendered in his favor and against Norris J. Broussard, Sr. and his insurer, Allstate Insurance Company, as a result of an automobile accident. Defendants stipulated liability prior to trial leaving quantum the only disputed factor in this suit.

The record before us shows that plaintiff was injured in an accident near Slidell, Louisiana on May 4, 1972 when defendant’s car struck plaintiff’s car beside which plaintiff was standing and caused plaintiff to jump or be flung over his car into the mud on the opposite side. Following the incident plaintiff was helped to his feet by Reneldar Nata, proprietor of a restaurant from which plaintiff had exited moments before the accident. Plaintiff was not hospitalized and in fact drove himself home from the scene of the accident in his own car.

The following day plaintiff consulted Dr. Richard R. Howard in Slidell. Dr. Howard’s deposition was taken and introduced into evidence. The testimony therein reveals that plaintiff had had a prior accident in 1967 wherein he sustained multi-pie pelvic abrasions and multiple lacerations on the hands and face, injury to the chest with contusions and fracture of the ribs, as well as sprain of the upper lumbar, sprain of the right ankle, and a minimal cervical whiplash. Plaintiff recovered from this accident in the early part of 1970. Plaintiff’s history also showed that he had moderately severe coronary artery disease and severe angina with definite myocardial damage and an old healed myocardial infarction.

Plaintiff’s examination on the day following the accident which is the subject of the present suit revealed that plaintiff had developed a “rather marked pain in the lumbar region with radiation down both groins”. The doctor also stated that plaintiff suffered superficial abrasions on the fingers of his left hand which required an ointment and bandaids as treatment. Further examination revealed positive muscle spasm in the lumbar region. Dr. Howard diagnosed plaintiff’s injury as a lumbar sprain which he attributed to plaintiff’s accident. He then started plaintiff on physical therapy using Medithern treatments which were described as a combination of “ultra sonic and muscle massage.” Plaintiff received this treatment seven additional times between May 8, and May 23 of 1972. On June 14 plaintiff was checked again complaining of low backache but no muscle spasm was found.

On July 25, 1972, examination by Dr. Howard revealed general muscle spasm and tenderness over the abdominal region which Dr. Howard again associated with the accident. Plaintiff complained further of soreness around his groins.

Dr. Howard saw plaintiff again on September 13, 1972 at which time plaintiff stated that he felt he had injured his penis in the accident but had been too embarrassed to mention it. The doctor stated that plaintiff had informed him at that time that his penis had been sore and subsequently tender and that the soreness increased with a change of position on erection. Dr. Howard stated that at the time he felt it was only a bruising which caused the plaintiff’s condition. However, he later advised plaintiff to consult a G.U. specialist as the condition became progressively worse. The doctor then diagnosed plaintiff’s condition as a “chordee penis traumatic” which he attributed to the trauma plaintiff suffered in the present accident.

Plaintiff consulted Dr. Howard on numerous occasions thereafter for backache and the problem he was having with his penis. The doctor felt that the plaintiff’s subsequent pains were associated with the normal aging process and his arthritic condition, both of which he felt were aggravated by the injuries plaintiff had sustained in the accident. It appears further that some of the problems plaintiff experienced after the 1967 accident reoccurred following the 1972 accident despite the fact that plaintiff had not had any problems with the prior injuries since the latter part of 1970. Plaintiff was still seeing Dr. Howard for these complaints up until the time the deposition was taken which was October 1, 1974.

Apparently heeding the advice of Dr. Howard plaintiff was examined by a Dr. Jacob Fischman whose practice is limited to urology. Dr. Fischman’s examination revealed “a typical Peyronie’s Disease with stiffening and hardening of the median septum on the dorsum of the penis.” He stated that the Peyronie’s Disease caused plaintiff’s chordee which he defined as “a band of scar tissue causing deviation of the direction, if you will, of the penis from what it normally would assume.” Dr. Fischman indicated that chordees could be caused by other factors but that he felt in plaintiff’s case it was caused by Peyronie’s Disease because of the lack of evidence of any other cause.

Dr. Fischman was of the opinion that a single trauma could not cause Peyronie’s Disease and that the disease would take at least six months to manifest itself. He noted in the present case that no bruise of plaintiffs penis was recorded at the time of the accident in spite of Dr. Howard’s thorough examination and further, the disease manifested itself only three months after the accident and since that time had progressed very slowly. He thus concluded that the accident had nothing to do with plaintiff’s chordee. He further felt that trauma could not cause Peyronie’s Disease even though authorities produced by plaintiff’s counsel indicated that trauma was a possibility, but in fact, the etiology of the disease was unknown.

It appears from the record that plaintiff suffered some dental injuries as well in the accident. Dr. Hallonquist, plaintiff’s dentist, testified that he extracted a tooth from plaintiff on May IS, 1972. The tooth was a lower central tooth and the extraction, in his opinion, was necessitated by the trauma suffered in plaintiff’s second accident. The necessary restorative work would cost $250.00 for a removable bridge and $900.00 for a fixed bridge. The doctor stated that either bridge would be satisfactory but that he preferred the fixed bridge.

Plaintiff’s testimony adduced at trial shows that at the time of the accident he was working with St. Tammany Realty Company as a real estate salesman. He stated that he had been unable to work since the accident due to pain and that the medicine he took for the pain made him too drowsy to pursue his duties. His working ability was further complicated in the latter part of 1973 when he suffered a heart attack which is not claimed to be related to the present accident.

Miss Joan O’Brien, owner of the St. Tammany Realty Company, testified at trial that plaintiff worked part time prior to 1971, but in 1972 immediately before the accident he was working full time. She estimated that he would have earned an income of $12,000.00 during the year 1972 had he continued to work the entire year. This was based in part upon the fact that he had earned over $3,000.00 during the first four months of 1972 and future prospects were favorable since plaintiff was working intimately in a popular housing program existing at that time referred to as the “235 Program”.

After receiving the above evidence the trial judge, in his written reasons, awarded plaintiff $5,000.00 for pain and suffering and concluded that the Peyronie’s Disease was not a result of the accident. He also found that plaintiff had failed to prove by a preponderance of the evidence any loss of income and plaintiff’s claim in that respect was denied.

The final judgment was ultimately signed and contained an award of $5,250.-00. We assume that $250.00 was added to the original amount stated in the written reasons to compensate plaintiff for his dental injuries which were not mentioned in the written reasons.

Plaintiff now alleges that the trial judge erred in not finding that plaintiff’s chordee was traumatically induced, in awarding insufficient general and special damages, and in failing to compensate plaintiff for loss of income as a result of his injuries.

For reasons hereinafter stated the decision of the trial court is affirmed in part and amended in part.

It is well settled that great discretion is vested in the trial judge in determining facts and assessing damages. Such conclusions shall not be disturbed absent manifest error in factual determination and abuses of discretion in quantum assessments.

With respect to plaintiff’s chordee the trial judge determined as a matter of fact that it was not related to the trauma suffered by plaintiff in the accident here in question. This was likewise the opinion of Dr. Fischman, whose expertise in the field of urology well qualifies him in these types of determinations. The only evidence offered by plaintiff in support of his position is the testimony of Dr. Howard who ultimately referred plaintiff to Dr. Fischman due to Dr. Fischman’s specialization in the field. In light of all the medical evidence offered we can not say the trial judge committed manifest error in reaching the conclusion that the accident played no part in the causation of plaintiff’s chordee.

With respect to plaintiff’s second allegation of error in that the trial judge failed to award sufficient general and special damages, we find partial merit. In considering the general damages awarded plaintiff, which was apparently $5,000.00, we find no error noting that plaintiff did not require hospitalization, drove himself home immediately after the accident, hut did experience a lumbar sprain which in and of itself caused pain and which further aggravated certain preexisting arthritic conditions and prior injuries.

With respect to the award of special damages in the amount of $250.00 for necessary restorative dental work, we find that an increase of $650.00 is warranted as we are convinced from Dr. Hallonquist’s deposition that the fixed bridge work would restore plaintiff to a condition more like that which he enjoyed immediately prior to the accident.

We find no merit to plaintiff’s last allegation of error in the trial judge’s conclusion that the plaintiff failed to show by a preponderance of the evidence any loss of income resulting from this particular accident. The only testimony concerning disability was that elicited from Dr. Howard wherein he indicated that there was not anything in plaintiff’s injuries which would have kept him from pursuing the type of work (real estate salesman) in which he had been engaged just prior to the accident. The doctor further indicated that Soma compound, which he had prescribed for the plaintiff to alleviate plaintiff’s backache, could cause “slight drowsiness but this is usually very transient and minor in nature.” He testified that none of the other drugs which plaintiff was taking for injuries received in the accident could cause drowsiness. Thus we are unable to find sufficient evidence of any disability.

Accordingly, for the above and foregoing reasons, the decision of the trial court is affirmed in part and amended in part to increase the award of special damages by $650.00. All costs of this appeal are to be borne by defendant-appellee.

Affirmed in part and amended in part.


author: LOTTINGER, Judge.

text:
    Darrel T. WHEAT and Sharon K. Wheat v. Kathryn Rhodes SENG and the Travelers Ins. Co.
    No. 10492.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.

      John N. Gallaspy, Bogalusa, for appellants.
    France W. Watts, III, Franklinton, for Kathryn Rhodes Seng & Travelers.
    John W. Anthony and R. Bradley Lewis, Bogalusa, for Darrel T. Wheat and Dixie Auto Ins. Co.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This suit arises out of an automobile accident which occurred in the City of Boga-lusa, Louisiana, on December 8, 1972. The petitioners are Darrel T. Wheat, the operator of his automobile, and his wife, Sharon K. Wheat, who was a passenger in the Wheat automobile. Defendants are Mrs. Kathryn Rhodes Seng, the operator of the other vehicle, and her liability insurer, Travelers Insurance Company. Mrs. Seng and Travelers filed a third party demand against Darrel T. Wheat and his liability insurer, Dixie Auto Insurance Company. Mrs. Wheat amended her original petition to allege, in the alternative, that, if her husband’s negligence contributed to the accident, then his insurer, Dixie, was liable to her for damages she suffered because of her personal injuries resulting from the accident.

Following trial on the merits, the Lower Court rendered judgment in favor of Mrs. Wheat and against Mrs. Seng and Travelers, jointly and in solido, in the sum of $11,000.00. A judgment was rendered in favor of Darrel T. Wheat and against Mrs. Seng and Travelers, jointly and in so-lido, for the sum of $3,301.15 for property damages. Judgment was rendered in favor of Dixie denying the demands of Mrs. Wheat and in favor of Mr. Wheat and Dixie denying the third party demand of Mrs. Seng and Travelers.

A devolutive appeal was filed by Mrs. Wheat in which she seeks more quantum for her personal injuries. A suspensive appeal was taken by Mrs. Seng and Travelers.

The Lower Court found that at the time of the accident Mr. Wheat was proceeding south on Austin Street and his wife was a passenger in the right front seat of his car. Mrs. Seng was in her father’s car in the driveway to his house located on the east side of Austin Street. She backed into Austin Street intending to proceed south as Mr. Wheat was proceeding in that same direction. After backing out, she pulled her car forward on the east side of Austin until it was parallel with the curb. She then proceeded to turn and enter the southbound lane of Austin Street, striking the Wheat vehicle on the left rear fender. The damages to the Seng automobile was to the right front bumper. The Lower Court held that the evidence indicates that the collision occurred in the southbound lane of traffic and that, accordingly, the accident was the sole result of negligence on the part of Mrs. Seng.

There is conflict between the evidence as given by the occupants of the Wheat vehicle, on the one hand, and the occupants of the Seng vehicle, on the other hand. There is, furthermore, some conflict as to the testimony of the various occupants of the Seng vehicle. However, both police officers testified that at the time they arrived at the scene the Wheat vehicle was in the southbound lane of traffic. Findings of fact as arrived to by the Lower Court should not be disturbed on appeal in the absence of manifest error. Canter v. Koehring Co., La., 283 So.2d 716 (1973). The record of this proceeding overwhelmingly supports the findings of the Lower Court as correct, and we find no manifest error in the conclusion of the Trial Court as to liability for the accident.

With regard to quantum, the Lower Court said:

“Mrs. Wheat- suffered back pains immediately after the accident which occurred on a Saturday night. Monday morning she went to Dr. Crooks and he referred her to Dr. Dyas in Hattiesburg whom she consulted on December 28, 1972. She was sent home for two weeks conservative treatment. She returned on January 13, 1973, was admitted for a myelogram on January 19, 1973, and a laminectomy was performed removing a ruptured intervertebral disc at L-7, L-S.
“The evidence indicates that Mrs. Wheat had consulted Dr. Dyas in July of 1972 with reference to a back problem. A ruptured disc was suspected but no surgery was performed or recommended at the time. Mrs. Wheat was able to perform her duties as a bar maid up to the time of the accident in December. The court therefore concludes that if there was a ruptured disc prior to the December accident there was no necessity for surgery before then and she was able to perform the duties of her job which includes some lifting. Thus, the accident at least aggravated the disc which aggravation necessitated the surgery, and the possibility exist that it caused the disc since no positive diagnosis was made until after the accident.
“According to the testimony of Dr. Wicker, who performed the laminectomy, the surgery precludes Mrs. Wheat from doing any lifting of objects weighing more than 10 or IS pounds, and she suffers 15 or 20 percent disability of the entire body. The court believes that under these circumstances Mrs. Wheat will be adequately compensated by a judgment in her favor in the sum of $11,000.00 for her pain, suffering and disability.”

Of course the petitioner seeks an increase in quantum and defendants seek a reduction. LSA-C.C. art. 1934(3) provides in part as follows:

“In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will full indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.”

In Shephard v. Checker Cab Co., 230 So.2d 343 (La.App. 3rd. Cir. 1970), the Court said:

“The trial judge has great discretion in fixing general damages for personal injuries and his award will not be disturbed in the absence of a clear abuse of his discretion. LSA-C.C. art. 1934(3); Thibodeaux v. Travelers Indemnity Company, La.App., 215 So.2d 215; Hall v. State Through Department of Highways, La.App., 213 So.2d 169; Desselle v. Wilson, La.App., 200 So.2d 693; Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127. Considering the evidence, and the fact that our law requires each case of personal injury to be evaluated according to its own peculiar facts and circumstances, we cannot say that the trial judge is guilty of manifest abuse of his discretion in fixing the damages as he did. Richard v. American Oil Company, La.App., 213 So.2d 158; Desselle v. Wilson, supra.

There is evidence in the record to the effect that Mrs. Wheat had sustained a ruptured disc from an accident which occurred during the month of July, 1972. Dr. Ralph Wicker testified that he first saw Mrs. Wheat during August, 1972, when she was under treatment of Dr. Dyas and that he placed her in the hospital because of some type of back pain. The history which she gave him was to the effect that she had injured her back approximately six months before. Dr. Ralph Wicker stated that he felt that she had a ruptured disc during August of 1972. There is evidence in the record to show that she was admitted to the hospital during August of 1972 for possible surgery, however, she chose to go home for two weeks and have strict bed rest rather than submit to a myelogram and possibly surgery.

It therefore appears that there is a question as to whether this injury of which Mrs. Wheat complains existed prior to the accident and whether or not the accident caused an aggravation of said injury. Her mother testified that Mrs. Wheat has returned to her job as bar maid, however, she is unable to lift as heavy objects as she did prior to the accident.

We find no manifest error on the part of the Lower Court and, under the provisions of Civil Code Article 1934(3) and the jurisprudence of this state, the decision of the Lower Court should be affirmed.

For the reasons hereinabove assigned, the judgment of the Lower. Court will be affirmed, all costs of this appeal to be paid by defendants.

Affirmed.