text:
    Sybil Haydel, wife of/and Ernest MORIAL v. ORLEANS PARISH SCHOOL BOARD.
    No. 7290.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.
    Writ Refused Sept. 24, 1976.

      William F. Wessel, New Orleans, for Sybil Haydel, wife of/and Ernest Morial, plaintiffs-appellees.
    Franklin V. Endom, Jr., of Polack, Rosenberg, Rittenberg & Endom, New Orleans, for Drleans Parish School Bd., defendant-appellant.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

In this case the plaintiffs, Mr. and Mrs. Morial, have sued the Orleans Parish School Board for Mrs. Morial’s wages as a school teacher. The trial court rendered judgment in favor of plaintiffs in the amount of $912.00. Defendant has appealed and we affirm.

The facts show that on March 27, 1972 Mrs. Morial became ill with a back problem. At that time she had accumulated seven days of sick leave. Sometime later Mrs. Morial learned that she would be unable to return to work for an indefinite period of time. She attempted to obtain a sabbatical leave but was denied this since she did not meet the proper qualifications. She then applied for and was granted a sick leave of absence until June 2, 1972, the end of the school term. Following the end of the term she resigned her position with the school board and made a demand for payment of her salary during the time she had been ill and on sick leave. The school board, following its own policy regulations denied Mrs. Morial any payment for the days she was sick past her accumulated sick leave days. Mr. and Mrs. Morial then filed suit for these wages.

This case falls squarely within the provisions of LSA R.S. 17 Ú201-1202. Section 1202 provides a formula for discovering the amount to be paid a teacher who is absent on sick leave for a period in excess of her accumulated sick leave days. Applying this formula (her salary minus substitute teacher pay) to the facts in this case results in an award to Mrs. Morial of $912.-00. Appellant contests this award on several grounds.

Appellant’s first argument is that LSA-R.S. 17:1202 is unconstitutional in that payment of any salary without corresponding work is actually a gift from a state subdivision to a private person, in contravention of the Louisiana Constitution of 1921, Article IV, section 12. Obviously, the intent of the statute is to offer a fringe benefit to the teachers of this state in connection with their employment. If Appellant’s argument is taken literally then all situations in which a person received pay for hours or days not actually worked would have to be struck down as unconstitutional. This would include paid vacations, minimum sick leave pay and sabbatical leave pay to name but a few. The intent of the statute is to not only provide a benefit to the teachers but to also serve as an incentive to the school boards to hire substitute teachers. We find that the payment of the amount provided in section 1202 is not a gift, but rather a legislatively created benefit, earned by virtue of the employment itself.

Appellant’s second argument is based on statutory interpretation. Appellant argues that section 1202 is not applicable to this case and section 1201 alone is applicable. Section 1201 requires school boards to grant a minimum of 10 days per annum sick leave and permits them to grant additional sick leave without loss of pay, or with reduction of pay as it may fix. Section 1202 prohibits any deduction beyond the amount actually paid a substitute teacher. Appellant contends that its policy is to grant additional sick leave upon application, but, only with the understanding that the leave is to be without pay. This argument boldly denies the fact that section 1202 exists and grants benefits beyond the school board regulations.

In the case of Gayle v. Porter, 239 So.2d 739 (La.App. 4th Cir. 1970) this court had occasion to review a very similar situation and held that sections 1201 and 1202 should be interpreted and applied together. Historically sections 1201 and 1202 are parts 1 and 2 of Act 215 of 1940 and must be read together to gain the full intent of the legislature. School board regulations adopted pursuant to this legislative grant of authority cannot be more restrictive and grant less benefits than the minimum requirements of the legislature. In this case the teacher was granted the additional days of sick leave. Her pay cannot be reduced by the board below the standard set in Section 1202, concededly the sum of $912.00.

Plaintiffs, in their brief, have asked for frivolous appeal. Plaintiffs have neither appealed nor answered defendant’s appeal and therefore this issue is not before the court. LSA-C.C.P. Art. 2133; Young v. Warner, 283 So.2d 547 (La.App. 1st Cir. 1973).

Finally, defendant is uncertain of the extent of its liability for court costs under the decree of the trial court that it is to pay all “legal costs”. Legal costs include all costs legally assessable under the provisions of LSA R.S. 13:4521 and the Per Curiam in the Gayle case. This means that defendant is liable only for the cost of the transcript.

For the above reasons the judgment of the trial court is affirmed. Defendant-appellant is to pay all legal costs.

AFFIRMED.

      . “Section 1201. Amount of sick leave.
      “A. All teachers employed by the parish and city school boards of this State shall be entitled to and shall be allowed a minimum of ten (10) days absence per school year because of personal illness or because of other emergencies, without loss of pay. Such sick leave when not used in any year shall be accumulated to the credit of the teacher or superintendent without limitation. Provided that when a teacher is absent for six or more consecutive days because of personal illness, he shall be required to present a certificate from a physician certifying such illness; provided, further that the parish and city school boards are authorized to adopt such rules and regulations as are necessary relative to the use of such sick leave, either current or accumulated, for emergencies. The parish and city school boards may grant additional sick leave, without loss of pay, or with such reduction of pay as they may establish and fix.
      “B. Upon the retirement of any public school teacher or superintendent, or upon his death prior to retirement, his employer shall pay to such teacher or superintendent, or to his heirs or assigns, sick leave which has accrued to such teacher or superintendent, but which remains unused at the time of his retirement or at the time of his death if prior to retirement, not to exceed twenty-five (25) days of such unused sick leave. Such pay shall be at the rate of pay received by the teacher, or superintendent at the time of retirement or death prior to retirement; provided that any parish or city school board may pay such unused sick leave beyond twenty-five (25) days at its discretion.”
      Note: Section 1201 has been amended since this ease arose.
      “§ 1202. Deduction from absent teacher’s salary; limitations as to amount
      “Parish school boards are prohibited from deducting any amount whatsoever from a teacher’s salary, in case of absence, unless a substitute teacher was employed and actually served, during such teacher’s absence; and only such amount may be deducted as was actually paid to the substitute teacher. Any teacher who suffers deduction from salary, under the provisions of this section, shall be entitled, upon request, to be furnished with the name and address of the substitute teacher. Nothing contained in this section shall be so construed as to authorize or permit any deduction from the pay of a teacher because of the employment or assignment of a substitute teacher during the minimum leave of absence period, without loss of pay, provided for, established and fixed in R.S. 17:1201.


source: Caselaw Access Project

author: BEER, Judge.

license: Public Domain

text:
    Francis COUSINS v. Dr. Royce HENRY and Travelers Insurance Company.
    No. 7402.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.

      Stephenson & Fineran, Patrick C. Kelley, New' Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Steward E. Niles, Jr. and John J. Weigel, New Orleans, for defendants-appellees.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BEER, Judge.

At first blush, the generally uncontested fundamental facts of this episode give rise to a mind’s eye picture of the stereotype visit to the “painless” dentist in a wild west “B” movie. For, here, we are to deal with plaintiff’s claim that he suffered a broken arm occasioned in the course of a single tooth extration! Certainly, it is difficult to gainsay the proposition that a patient, seeking such professional services from his dentist, is entitled to the questionable solace of knowing that no matter how much his jaw may ache or his gums may throb, his arm will not be broken. Yet, there is much more to all of this than first meets the eye, and, so, we turn to a consideration of the factual and legal aspects of this unusual claim.

Suit was filed by plaintiff-appellant, Francis Cousins, against defendants-appel-lees, Dr. Royce Henry and his insurer, Travelers Insurance Company, alleging that his right arm was broken in the course of Dr. Henry’s extraction of one tooth on the lower left side. The date was September 24, 1973. From a judgment in defendants’ favor, Cousins devolutively appeals, urging the applicability of the doctrine of res ipsa loquitur or, alternatively, that there is sufficient evidence to warrant imposition of liability on the basis of Dr. Henry’s negligence.

Cousins’ claim is based upon his testimony that prior to his seeing Dr. Henry, he had no problem with his right arm, but, upon completion of the extraction, which he described as painful, his arm was broken.

He acknowledges that the site of the proposed extraction was locally anesthetized by Dr. Henry and, after a few minutes, became numb. However, he claims that he did experience some pain at the moment of the extraction and that, simultaneous with the pain of the extraction, he felt pain in his arm.

He testified that Dr. Henry apparently manipulated the extracting instrument in an upward direction until the tooth came out and that during this procedure, he had positioned his arms under the armrests of the dental chair with the palms of his hands facing upwards. At the moment of extraction, he claims to have been lifted about one inch from the chair and, at that moment, felt the sharp pain in his arm.

There is no contention that Cousins was, at any time during his visit, unconscious or so heavily sedated as to be considered unconscious for all practical purposes.

Cousins could not recall if, prior to the extraction, he indicated in any way that his arm had been previously broken and that, about a month before this visit, the metal corrective plate, inserted when the fracture was reduced, had been surgically removed. Hospital records indicated that Cousins had originally experienced a fracture of the radius of his right arm and that the break which is the subject of this litigation was located at one of the screw holes utilized in holding the metal plate in place following the reduction of the original fracture.

Dr. Henry testified that Cousins never mentioned his earlier broken arm until the extraction was completed and takes issue with Cousins description of the procedure followed in removing the tooth. According to Dr. Henry, the time lapse in actually removing the tooth was only a few seconds and was preceded by a five to six minute delay simply to be sure that two injections of lidocaine had taken effect. Before commencing extraction of the diseased tooth, he tested for numbness by pricking the gums which elicited no response. He observed that throughout the entire procedure, Cousins made no complaint of pain.

Dr. Henry testified that he stood behind Cousins on the right side, with the patient’s head positioned by means of a head rest. He held the extracting instrument in his right hand and his left hand “extracts” the cheek, allowing access to the operative area. Tooth removal was accomplished by gripping the tooth with the extracting instrument, rotating it from side to side, and then, when loosened, extracting it sideways toward the cheek. He points out that the upward pulling procedure described by Cousins is not used because of danger of damage to the upper teeth. Not much force was necessary and he describes the entire event as a normal procedure without any particular difficulty arising in the course thereof.

Dr. Henry observed that Cousins came into his office holding his arm and proceeded to grip his right wrist with the left hand throughout the extraction procedure. At no time during the preparation for or at the moment of extraction did Dr. Henry touch Cousins’ right arm.

While he noted that Cousins’ positioning of his hands and arms was somewhat unusual, Dr. Henry felt that this was merely a reaction to the mental reservations which predictably occur in some cases involving extraction. Moreover, he testified that during this procedure, he exercised no control over the movement of Cousins’ body, other than with respect to his head and mouth.

Dr. Henry described the extraction method as following the general procedure he has used throughout his thirty-two year career.

The only other witness was a friend of Cousins, Roger Terrio, who had accompanied him to Dr. Henry’s office. He did not observe the extraction. He stated Cousins had made no complaints of difficulty with his arm prior to the visit. While waiting in the waiting room, he recalls hearing “a hurting sound” emanate from the room where Cousins was being treated.

Res ipsa loquitur should be sparingly applied by courts and resort thereto will be justified only in those cases where demands of justice make its application necessary. Spiers v. Lane, 278 So.2d 549 (La.App. 1st Cir., 1973); Day v. National U. S. Radiator Corporation, 241 La. 288, 128 So.2d 660 (La.1961). Moreover, this doctrine does not apply to an accident when the facts are such that one could reasonably infer that it was due to some cause other than defendant’s negligence. Taylor v. CNA Insurance Group, 300 So.2d 479 (La.1974). Thus, “when it is shown that the accident might have happened as the result of one of two causes, the reason for the rule fails and it cannot be invoked.” Larkin v. State Farm Mutual Automobile Insurance Company, 233 La. 544, 97 So.2d 389 (La.1957). The doctrine will be applied only “when the facts shown suggest the negligence of the defendant as the most plausible explanation of the injury.” McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973); King v. King, 253 La. 270, 217 So.2d 395 (La.1968).

Here, the trial court was confronted with conflicting versions of what took place: either Cousins had his arms positioned under the armrest and, upon being jerked upward, broke his weakened arm, or Cousins, himself, grasped or extended his arm in some way that caused it to be re-broken during the course of the extraction.

Res ipsa is “irrelevant when a body of direct evidence is available explaining the activity leading to the injury.” McCann, supra. Furthermore, conflicting testimony concerning the whole procedure was offered by the two litigating parties, and res ipsa will not apply if “an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to his negligence.” Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (La.1972). In Wells v. Women’s Hospital Foundation, 286 So.2d 439 (La.App. 1st Cir., 1973), the court clearly indicated that one essential element necessary for the application of the doctrine was that “the information as to the true cause of the accident is more readily available to the defendant than to the plaintiff.” Here, the plaintiff had a greater opportunity than the defendant to know what, in fact, occurred, since he, alone, was privy to the information about the recent removal of the plate. In both Wells and McCann, injuries to the plaintiff occurred while the plaintiff was sedated and unaware of what was done. Such is not the case here. We find no error in the apparent rejection of the applicability of res ipsa by the trial court.

Likewise, we find no manifest error in the trial court’s apparent resolution of the conflicting testimony of the litigants nor in the ultimate conclusion reached with respect to liability. See Canter v. Koehring, 283 So.2d 716 (La., 1973). No testimony or evidence of any kind was introduced to support the contention that Dr. Henry was under a duty to demonstrate to Cousins some foolproof way to position his arms prior to the commencement of the extraction.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is affirmed. Costs of this appeal are to be paid by appellant.

AFFIRMED.

      . There are, indeed, factual issues existent in this case. But there is no dispute about the basic happening.

      . Cousins, by his own testimony, weighs 266 pounds.


author: SCHOTT, Judge.

text:
    Linda A. HALL v. MANAGEMENT RECRUITERS OF NEW ORLEANS, INC.
    No. 7409.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.

      Chaffe, McCall, Phillips, Toler & Sarpy, G. Phillip Shuler, III, New Orleans, for plaintiff-appellant.
    Occhipinti, Tamberella & Grace, Christopher T. Grace, Jr., New Orleans, for defendant-appellee.
    Before LEMMON, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

Plaintiff’s “Petition For Back Wages And Breach Of Contract” contained the following pertinent allegations: She was originally employed by defendant as an account executive between April, 1972, and September, 1973, when she resigned; she was re-employed by defendant as a manager in October, 1973, pursuant to an employment contract subsequently amended in March, 1974; the contract, as amended, provided for salary, commissions and vacation pay; because of defendant’s breach of the employment contract she resigned on April 30 and she demanded her unpaid wages and accrued vacation pay. The petition then continues:

“12.
Defendant refused to pay all amounts due to petitioner but instead tendered only $363.65.
“13.
Petitioner, pursuant to R.S. 23:631, is now due the following amounts:
1. Unpaid Wages.$136.35
2. Accrued Vacation Pay . 825.00
3. Wages in the form of commissions and profit sharing funds in an undetermined amount but believed to equal or exceed six.hundred dollars ($600)

In addition to these amounts she claimed penalties and attorney’s fees under LSA-R.S. 23:632, and damages of $2,000 for defendant’s alleged breach of the employment contract.

In its answer, defendant alleged that plaintiff was paid all wages due her as of the date of her resignation and that she compromised her claim by accepting defendant’s check for $342.38. Defendant also reconvened against plaintiff for damages resulting from plaintiff’s alleged breach of an employment contract entered into on March 16, 1972.

Defendant moved for summary judgment for a dismissal of plaintiff’s petition. The motion was supported by an affidavit of defendant’s president in which he recited that on April 29, 1974, in behalf of his company, he tendered a check to plaintiff for $342.38, on the back of which was the wording “For final payment of all back due salaries, commissions, or any other emoluments.” The affidavit recited that the check was endorsed by plaintiff and deposited in her account shortly thereafter, and.at the time of the tender of the check there was a dispute between the parties as to what, if any, amount was due plaintiff by defendant.

No counter-availing affidavit was filed by plaintiff, and the trial court granted the motion for summary judgment in favor of defendant with the restriction “as it relates to the provisions of R.S. 23:631 & R.S. 23:632, dismissing her claim for unpaid wages, interest and attorney’s fees only.”

From this judgment plaintiff has appealed.

The summary judgment does not grant defendant all of the relief prayed for but was limited to unpaid wages and attorney’s fees. It does not purport to dispose of her claim for accrued vacation pay or for damages allegedly resulting from the breach of the employment contract, so that the trial court has ostensibly retained jurisdiction with respect to these other matters pursuant to LSA-C.C.P. Art. 968.

Notwithstanding the discrepancy between plaintiff’s allegation that she was tendered $363.65 and defendant’s allegation and affidavit to the effect that she was tendered $342.38, plaintiff merely asserted a claim for unpaid wages, including a portion thereof resulting from commissions which greatly exceeded the amount which defendant established in its affidavit to have been tendered and accepted by plaintiff.

Defendant relies on the equitable doctrine of accord and satisfaction applied in such cases as Lorio v. Safeco Insurance Company of America, 316 So.2d 744 (La.App. 1st Cir. 1975), Miller v. Oak Builders, Inc., 306 So.2d 449 (La.App. 1st Cir. 1975) and Braudaway v. United Equitable Insurance Company, 208 So.2d 359 (La.App. 4th Cir. 1968) ,

These cases and others cited therein show that there are three necessary elements for the application of the doctrine of accord and satisfaction; namely, an un-liquidated or disputed claim, a tender made by the debtor in full settlement of the claim, and an acceptance of the tender by the creditor. Stated differently, there must be a contract to make a full settlement of a claim for a specific consideration. As in the case of any contract there must be an offer, an acceptance and a meeting of the minds of the two parties.

Defendant’s position should also be considered in the light of the Civil Code articles with respect to transaction or compromise. Under C.C. Art. 3071 a compromise is a contract to settle a disputed claim. Thus, there must be an offer, an acceptance and a meeting of the minds. Under C.C. Art. 3073, contracts of compromise “regulate only the differences which appear clearly to be comprehended in them by the intention of the parties.”

This appeal involves a summary judgment, which is rarely an appropriate procedure for determining intention. Berger v. Fireman’s Fund Insurance Company, 305 So.2d 724 (La.App. 4th Cir. 1974), Johnson v. Fairmont Roosevelt Hotel, Inc., 286 So.2d 177 (La.App. 4th Cir. 1973).

The simple notation on defendant’s check hardly establishes so as to entitle mover to a summary judgment as a matter of law, that it offered the payment under the condition that it be accepted as full settlement of all wage-related claims or not at all. Plaintiff’s cashing the check does not establish a clear intention on her part to accept defendant’s offer to compromise their differences. Such issues are questions of fact and in the absence of an explicit and detailed contract of compromise, are rarely appropriate for summary judgment.

The very posture of the case as it stands before us demonstrates that there was not necessarily a meeting of the minds between these parties so as to bring about a binding contract of compromise.

Defendant alleged in its motion for summary judgment “that at the time plaintiff accepted [the] check, there was a dispute between the parties as to the amount due her, if any.” Defendant moved to dismiss plaintiff’s entire claim. The inscription on the check, as well as the affidavit of defendant’s president, were relied upon by defendant to show that it had offered to settle plaintiff’s entire claim by the tender of the amount of the check. At no time did defendant in its affidavit or motion take the position that it offered to settle only the wage portion of plaintiff’s claim when it tendered the check to her. Yet the trial court granted the summary judgment with respect to plaintiff's wages only thereby finding that there was an offer by defendant, and an acceptance by plaintiff, of a settlement which neither party intended to make. Under the circumstances the summary judgment was inappropriate.

Accordingly, the judgment appealed from is reversed and set aside and the case is remanded to the trial court for proceedings consistent with the views expressed herein. Defendant is to pay the costs of this appeal. All other costs are to await a final judgment.

REVERSED AND REMANDED.

      . Plaintiff argues persuasively that application of the doctrine of accord and satisfaetion to a wage claim would violate public policy. It is unnecessary for us to decide this issue in order to decide the case,


author: SCHOTT, Judge. LEMMON, Judge

text:
    Mrs. Bessie Vial, widow of Louis J. VIAU, Sr., et al. v. Clinton BATISTE et al.
    No. 7446.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.
    Writ Refused Sept. 24, 1976.
    Thomas L. Giraud, Salvador M. Cusi-mano, Charles A. Verderame, New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, John J. Hainkel, Jr. and E. Ross Buckley, Jr., New Orleans, for defendants-appellees.

      Before LEMMON, SCHOTT and MO-RIAL, JJ.
   SCHOTT, Judge.

This appeal is from a judgment sustaining exceptions of no right or cause of action and dismissing the wrongful death action brought by two grandchildren of the decedent.

Appellants’ argument that the word “children” in LSA-C.C. Art. 2315 includes grandchildren by virtue of definition No. 8 in C.C. Art. 3556 was specifically rejected in Hunt v. New Orleans Ry. & Light Co., 140 La. 524, 73 So. 667 (1916) and Walker v. Vicksburg S. & Pry. Co., 110 La. 718, 34 So. 749 (1903). However, appellants argue that these cases are not controlling because when they were decided Art. 2315 contained special provisions for the “minor child or children” as opposed to “major children,” whereas the present article as amended by Act 30 of 1960 speaks only of “child or children.” That no significance should be attached to the deletion of the words “minor” and “major” from the article, as most recently amended, is supported by dicta in Levy v. State, Char. Hos. P. of La. at N. Orleans Bd. of Ad., 253 La. 73, 216 So.2d 818, 820. Furthermore, the issue was just recently decided by this Court in Smith v. Manchester Insurance & Indemnity Co., 299 So.2d 517 (La.App. 4th Cir. 1974), writ refused 302 So.2d 617 (1974), where it was said:

“Monteil is not entitled to damages for the loss of her grandfather since she is not a member of the class of statutory beneficiaries recognized by Article 2315 of the Civil Code. Moreover, she is not entitled to recover damages for mental anguish which she might have sustained as the result of seeing her grandfather gravely injured.”

Accordingly, the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

LEMMON, J., concurs specially and assigns reasons.

MORIAL, J., concurs for the reasons specially assigned by LEMMON, J.

LEMMON, Judge

(concurring specially)-

I have signed the majority opinion, but am writing this separate opinion to respectfully state my disagreement with the Walker and Hunt decisions by a court of higher authority.

The court in Walker reasoned that the orphaned grandchildren (dependent upon the tort victim for support) had no right of action for wrongful death because the legislature could not reasonably have intended by the words “minor children” to include minor grandchildren, although the article of the Code providing for interpretation of terms of law employed in the Code specifically stated that the term “children”, unless particularly defined, shall be understood to comprehend grandchildren. The court expressly adopted this view in reliance on two earlier decisions which held that the term children, used in a will, does not necessarily include grandchildren.

I respectfully suggest that, under the civil law approach, the Walker decision should have followed the plain terms of the Code rather than previous decisions involving interpretation of the word “children” in wills.

The Hunt case was decided after the 1908 amendment, which granted a right of action to major children only when there was no surviving widow (later changed to spouse) or minor children. The court again theorized that the legislature could not reasonably have intended either (1) to make minor grandchildren “concur with the widow and minor children”, when the minor children (presumably being the living parents of the tort victim’s grandchildren) already had a right to sue, or (2) to prefer minor grandchildren over the major children.

It seems to me a reasonable interpretation that the legislature intended to insure support for all support-needing minor descendants as part of the obvious concern for those relatives most likely to be worst harmed by the wrongful death of a wage earner, especially since the right of action was accorded originally only to the widow and not the widower. The court’s interpretation denied the right of action to all grandchildren, rather than allowing the action and adjusting the amount of recovery according to whether or not the grandchildren were dependent for support.

In this case the majority opinion turns on an interpretation of the 1960 amendment, one of the express purposes (see Explanatory Note) of which was to broaden the primary class of survivors to include major children. The amendment deleted the words “major” and “minor” and placed all children in the primary class.

Both counsel have rendered excellent briefs and arguments in support of their position as to the 1960 amendment. Plaintiffs argue that the common law approach of narrow construction in wrongful death actions was repudiated in King v. Cancienne, 316 So.2d 366 (La.1975), which also criticized the case of Hubgh v. N. O. C. R. Co., 6 La.Ann. 495 (1851), relied on in the Walker and Hunt cases. They further argue that every legislative amendment resulted from the original error of narrow construction. On the other hand, defendants argue that the legislature, in response to Hubgh (whether or not correctly decided), provided a limited wrongful death remedy and that the 1960 amendment was a continuation of a series of changes, this one being expressly intended for a specific purpose and not for overruling Walker and Hunt.

I agree with appellants that Hubgh, Walker and Hunt were incorrectly decided. Nevertheless, this court does not have the authority to change those decisions. Since I believe it would be improper for an intermediate appellate court to use a legislative amendment, obviously intended for another purpose, to rule contrary to a higher court decision with which this court disagrees, I respectfully state my views in a concurring opinion.


author: PETERS, Judge ad hoc.

text:
    Mrs. Alice PRADO, Plaintiff-Appellee, v. HYDROCARBON TESTERS, INC., and Hartford Accident & Indemnity Company, Defendants-Appellants.
    No. 5466.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.

      L. H. Oliver, Lafayette, for defendants-appellants.
    J. Minos Simon, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, PETERS and HOOD, JJ.
   PETERS, Judge ad hoc.

Defendant-appellant neither appeared nor filed brief prior to the time this case was called for argument. Therefore, the court considers this appeal abandoned and dismisses it at defendant-appellant’s cost. Rule 7, Section 5(b), Uniform Rules, Courts of Appeal.

Plaintiff-appellee filed a brief praying that the court amend the lower court judgment to increase the award made in favor of plaintiff. Plaintiff-appellee filed no formal answer to defendant’s appeal and the court therefore cannot consider her claims. LSA-C.C.P. 2133.

Appeal dismissed.


text:
    Thomas GUIDRY, on behalf of Nancy Guidry, Plaintiff-Appellee, v. IGF, INCORPORATED, d/b/a Maison De Hallmark, Defendant-Appellant.
    No. 5481.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Davidson, Meaux, Onebane & Donohoe by John C. Folkenroth, Lafayette, for defendant-appellant.
    David F. Hutchins, Lafayette, for plaintiff-appellee.
    Before CULPEPPER and WATSON, JJ., and PETERS, Judge ad hoc.
   PETERS, Judge ad hoc.

This is a suit for damages for false arrest, mental anguish, embarrassment, humiliation, and injury to reputation allegedly resulting from a shoplifting investigation in defendant’s shop. The lower court awarded damages of $500.00 and defendant appealed, contending defendant’s actions were privileged because defendant’s employees had reasonable cause to believe Nancy Guidry had shoplifted a ring and these employees acted reasonably in conducting the investigation.

The incident occurred in defendant’s store on January 18, 1975. The store is located in Northgate Mall in Lafayette. Nancy Guidry and her sister Lennie had gone to the store because Lennie wanted to buy a turquoise ring. Once inside the store, the girls approached a ring display rack located on top of a glass counter. Beryl Mouton, a sales girl for defendant, worked in a kiosk situated outside the store in the mall area where one of her job duties was to watch for shoplifters. She testified her attention was drawn to the Gui-dry girls because one of them was “looking around.” She stated she watched them carefully while they were in the shop and saw Lennie pull a card of turquoise rings from the display rack and Nancy pull a card of initial rings from the rack. She said she saw Nancy put one of the initial rings on her finger. Several minutes later Nancy and Lennie went to the cash register and paid Isom Fontenot, the store manager, for a turquoise ring Lennie had chosen. Miss Mouton immediately sent Linda Mor-vant, another sales girl, to ask Mr. Fonte-not if the Guidry girls had paid for an initial ring. He replied they had paid for only one ring — a turquoise ring — and Linda Morvant conveyed this message to Beryl Mouton, who approached the Guidry girls in the mall, touched Nancy Guidry on the arm to get her attention and then asked Nancy to come back into the store. One of the girls asked why Nancy should return to the store and Beryl replied it was concerning the ring Nancy was wearing that she had taken from the store. The Guidry girls returned to the store with Beryl where Mr. Fontenot asked the girls to follow him into a wrapping room in the back of the store. When they arrived in the small room Lennie demanded that Beryl point out the ring case from which the ring was allegedly stolen. Mr. Fontenot and the girls went to the ring case and when they arrived there Nancy showed Mr. Fontenot the initial ring Beryl had accused her of stealing. It was an initial ring Nancy had owned for several years. Mr. Fontenot examined the ring and discovered that it was not from his store. He asked the Guidry girls to return to the wrapping room with him. There, he told the girls Beryl had made a mistake and apologized for the incident.

The Guidry girls testified Nancy never touched any of the store’s rings while in the store. They testified Lennie was wearing a graduation ring and one other ring when she entered the store. She removed the rings she was wearing and handed them to Nancy so she could try on the turquoise ring she wanted to buy. Nancy was already wearing her initial ring. She held one of Lennie’s rings in her hand and she slipped Lennie’s graduation ring onto her finger. The Guidry girls stated that after they left the shop Beryl Mouton grabbed Nancy by the arm and started pulling her back toward the store, at the same time accusing Nancy of stealing the initial ring she wore on her finger. The Guidry girls said the accusations were made in such a manner that other shoppers in the mall area heard them. In most other respects the testimony of the Guidry girls regarding the incident coincided with that of the other witnesses.

It is well-settled that a merchant who has reasonable cause and not a mere suspicion, to believe a shopper has committed a theft of goods from his place of business may detain such a shopper and may conduct a reasonable investigation. LSA-C.Cr.P. 215; Eason v. 1. Weingarten, Inc. (La.App. 3rd Cir., 1969), 219 So.2d 516; Durand v. United Dollar Store of Hammond, Inc., (La.App., 1st Cir., 1970) 242 So.2d 635; Clark v. I. H. Rubenstein, Inc., La., 326 So.2d 497 (1976).

Although the trial judge handed down no written reasons for judgment, it is apparent he found either there was no reasonable cause for detention or the detention and investigation were carried out in an unreasonable manner. As already-pointed out, the evidence on these issues was conflicting. It was the duty of the trial judge to determine credibility and his factual findings will not be disturbed on appeal absent manifest error. Canter v. Koehring Company, La.App., 283 So.2d 716 (1973). Our review of the record discloses evidence upon which the trial judge could reasonably have reached either of the conclusions given above and we therefore will not disturb the lower court’s judgment.

For the reasons assigned, the judgment of the lower court is affirmed at defendant-appellant’s costs.

AFFIRMED.


text:
    ST. CHARLES PARISH WATERWORKS DISTRICT NO. 2 v. POINT LANDING, INC., et al.
    No. 7306.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.

      Vial, Vial & Lemmon, Leon C. Vial, III, Hahnville, for plaintiff-appellee.
    Campoy, Stone & Harvey, William S. Stone and George Oubre, New Orleans, for Point Landing, Inc., defendant-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, George A. Frilot, III and Ashton R. O’Dwyer, Jr., New Orleans, and Becnel & Kliebert, Thomas J. Kliebert, Gramercy, for defendants-appellants Sioux City & New Orleans Barge Lines, Inc. and Wisconsin Barge Line, Inc.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre Ignatz G. Kiefer, New Orleans, for defendant-third-party plaintiff (appellee) Port City Barge Lines, Inc.
    F. A. Courtenay, Jr., New Orleans, for intervenor.
    Phelps, Dunbar, Marks, Claverie & Sims, Gerard T. Gelpi, New Orleans, for defendant-appellant Point Landing, Inc.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

On Sunday morning, March 7, 1971, plaintiff’s water intake facility in the Mississippi River was damaged when struck by a runaway barge, WBL-131. Made defendants were Wisconsin Barge Line, Inc. (Wisconsin) owner of the WBL-131, Port City Barge Lines, Inc. (Port City) owner of a second barge, PCBL-105, which was involved in the casualty, Sioux City and New Orleans Terminal Corp. (Sioux City) and Point Landing, Inc. Various third-party demands for indemnity and contributions were filed among the defendants. The trial court awarded a judgment in favor of plaintiff against Point Landing for $216,153.91, and in favor of Port City, Sioux City and Wisconsin against Point Landing for full indemnity including attorney fees, expenses and court costs. From this judgment only Point Landing has appealed. At issue are the liability of Point Landing, the exoneration from liability of Sioux City for contribution to Point Landing, the amount of damages' awarded, and the right of Port City and Wisconsin to indemnity.

LIABILITY

Point Landing operated a public fleeting facility for barges about 1400 yards upriver from plaintiff’s water intake facility. Sioux City maintained its own fleet just above Point Landing’s fleet. On February 28, 1971, Barge PCBL-105 was tied into the Point Landing fleet where it remained without incident until March 5, 1971. On that day Sioux City towed to its own fleet a number of barges, including the WBL-131, whereupon Sioux City’s tug, Rock Bluff, separated WBL-131 from the other barges in the tow and tied it into the Point Landing Fleet, fastening it to PCBL-105. The log of the Rock Bluff indicates that this occurred at approximately 5:40 in the afternoon. Approximately 40 hours later WBL-131 struck plaintiff’s water intake facility having broken loose from the Point Landing Fleet with PCBL-105. The two barges separated a short distance from the water intake facility with PCBL-105 running on the bank of the river a short distance before reaching the water intake. The captain of Rock Bluff testified that WBL-131 had been properly secured to PCBL-105.

Point Landing attempted to show that it had no notice of the arrival of WBL-131, but there is testimony from two witnesses to the effect that Point Landing was notified on March 5 that the barge was tied into the fleet.

One of these witnesses, the vice president of and dispatcher for Wisconsin testified that Point Landing had been its agent for the handling of Wisconsin’s barges since 1964 and following the usual established practice Point Landing was informed several days prior to March 5 that WBL-131 was expected to arrive at Point Landing’s fleet on March 5, and this witness further testified that Point Landing’s personnel informed his company on March 6 that WBL-131 was then in its fleet. This evidence was sufficient to support a conclusion by the trial judge that Point Landing had actual knowledge that the barge was there. In any event, the evidence also showed that it was not unusual for a barge to be placed in the fleet without notice and that Point Landing routinely billed the owner after the barge’s presence was noted by Point Landing’s personnel. That being the practice, it was unreasonable for Point Landing to have no personnel on the shore or in the river watching or checking on the fleet between Friday afternoon and Sunday morning.

The testimony of Point Landing’s vice president, its shore superintendent and the captain of its fleeting tug clearly demonstrates that Point Landing was aware of its responsibility for maintaining the security of its fleet, but none of Point Landing’s personnel took any measure with respect to that security from the time WBL-131 arrived until, as a result of the barges breaking out of the fleet, the damage was done some 40 hours later. No one checked the lines securing PCBL-105 to the rest of the fleet, a duty clearly indicated from the prevailing condition of rising water on the Mississippi River and the existence of eddy currents at the Point Landing location. No attempt was made to put lights on the fleet, a duty clearly indicated in view of the warning such lights might have provided to passing river traffic so as to minimize the possibility of such traffic causing wakes which would disturb the security of the fleet during the nighttime hours of March 5 and March 6.

Point Landing’s man in charge of fleet safety and security had inspected the fleet and made some adjustments on March 1 and 2 when he found no eddy currents. But when he returned the WBL-131 to the fleet after the collision on March 7 he found a “pretty good eddy working there.” He said the condition of the river was such at that time that he took some of the up-river lines out of service “until the river calms down.” We can only speculate as to what caused the barges to break loose, but the most reasonable explanation would seem to be the combination of the rising river with eddy currents forming in or around the fleet after WBL-131 was tied off there.

In deciding this issue of Point Landing’s maritime liability we are bound by the decisions of the Federal Courts. When these decisions are applied to the facts of this case as we find them there is no basis for disturbing the trial court’s decision that Point Landing was legally responsible for this casualty. See Dow Chemical Company v. Barge UM-23B, 424 F.2d 307 (5th Cir. 1970).

In attempting to have Sioux City held liable for contribution, Point Landing attempts to discredit the testimony of the Rock Bluff’s captain and to cast suspicion on its log. Point Landing also makes much of conflicts between the testimony of the Rock Bluff captain and the captain and engineer aboard a ferry boat operating in the river at the time of the accident. The latter two witnesses insisted that they saw not only WBL-131 and the PCBL-105 floating down the river prior to the accident but also a great number of barges, from which Point Landing would have us infer that a large scale breakaway occurred from Sioux City’s fleet, sweeping WBL-131 and the PCBL-105 into their wake. But these conflicts in testimony along with a number of others were resolved by the trial judge in favor of Sioux City and there is no basis for our disturbing that decision.

Point Landing makes much over evidence and testimony indicating that Sioux City’s employees did not tie off WBL-131 properly and that this was the ultimate reason for the catastrophe. Had the collision occurred only a short time after WBL-131 was tied into Point Landing’s fleet, its case might be more convincing; but we have concluded that the WBL-131 was necessarily tied off properly in the first instance because nothing happened to it for almost 40 hours and the many unfavorable inferences concerning Sioux City’s conduct, which Point Landing would have us draw, do not detract from the probability that the collision would never have occurred had Point Landing been reasonably prudent in the performance of its duty as the operator of a public fleet. Even a minimum amount of care on the part of Point Landing in checking the moorings at some point between Friday afternoon and Sunday morning would have, in all likelihood, prevented this catastrophe. Thus, there is ample evidence to support the trial judge’s conclusion of liability on the part of Point Landing and no evidence to show that the trial judge committed manifest error in rejecting Point Landing’s case for liability on the part of Sioux City.

We are aware of the fact that the trial judge in his reasons for judgment did not elucidate findings of fact and said only that he was adopting the brief of plaintiff’s counsel as his own reasons for judgment, and we note that this brief contains the statement that Sioux City was the last party to secure WBL-131 at the Point Landing Fleet and therefore “was responsible also for insuring that the mooring lines of the PCBL-10S was sufficient to hold both the WBL-131 and PCBL-105 in the fleet under normal expected conditions that could exist or arise during that period of the year in the River.” But the statements of fact in the brief all serve to support a finding of liability on the part of Point Landing alone. The trial judge concluded that “the negligence of Point Landing was the proximate cause of the accident and but for their negligence damages would not have occurred.” This exonerated Sioux City from any negligence with respect to tying off the barge and found Point Landing solely liable for failing in its duty to check the security of its fleet over the long period of time intervening between Sioux City’s activities and the occurrence of the collision.

QUANTUM

We are unable to find an explanation for the $216,153.91 figure awarded to plaintiff. The amounts sued for in the petition were itemized as follows:

Fromherz Engineers $1,870.49
Luling Construction Co., Inc. (For emergency services and reconstruction) ■ 211,221.54
Abadie Electric 959.80
Lloyd Alexander, Photographer 25.00
Edward Dufresne, Clerk of Court _20.00
$214,096.83

The judgment also set expert witness fees, including $2,500.00 for Frank From-herz.

There is no evidence in the record to support inclusion of amounts for Abadie Electric and Lloyd Alexander. The amount paid to the clerk of court should not be included since plaintiff was awarded all court costs. As to the figure of $1,870.49 for Fromherz Engineers, after some initial testimony which indicated a higher figure the record was clarified to show that plaintiff incurred engineering expenses with From-herz in the amount of $1,943.54 which it is entitled to recover, but the record does not justify the expert witness fee of $2,500.00. Fromherz testified that he spent seventeen hours in preparation for the trial and we estimate that he was on the witness stand for about five hours. His stated hourly fees were $25 for trial preparation and $50 for testifying, so that the judgment will be amended to set his expert witness at $700.00 instead of $2500.00.

We come now to plaintiff’s right to recover the $211,221.54 allegedly paid to Lul-ing Construction which presents a number of problems.

Immediately after the collision Luling Construction Company and P & L Contractors together were employed by plaintiff to provide temporary water intake service which had been disrupted. Between March 8 and March 28, 1971, these contractors were paid the sum of $32,330.37. On March 29, 1971, plaintiff contracted with them now as a “joint venture” (hereinafter referred to as Luling-P&L) to replace the damaged water intake structure and to supply temporary water for the duration of the project for the sum of $171,880.00 plus the cost of their surety bond in the amount of $1,461.50. Over and above these amounts, Luling-P&L charged the Waterworks the sum of $5,549.-67 for furnishing labor, material and equipment to recondition two of the water pumps on the structure. Thus, the $211,221.54 paid to Luling-P&L consisted of those four items.

The water intake structure consisted of three pumps mounted on a platform in the river with the platform protected by a V-shaped fender system with the point of the V facing upstream. A bridge or catwalk connected the platform to the levee. After the collision, one of the pumps went out of service immediately, and by the second day after the collision a second pump was out of service. It was immediately apparent that some arrangements for temporary water service had to be made while the structure and the pumps were repaired. This led plaintiff’s Board of Commissioners to take immediate action to obtain a temporary water supply. Luling-P&L accomplished this by installing two pumps on the batture and tying them into the water intake pipes. For the next three weeks an inspection of the structure was conducted by a diver, marine surveys were made and questions of how to repair the structure and to continue providing temporary water intake service were considered at a number of meetings by the plaintiff’s Board in consultation with their engineer. During this time representatives of Point Landing offered an alternative method of providing water by means of pumps mounted on a barge in the river itself. Point Landing attacks the recovery by plaintiff of the item it paid to Luling-P&L for temporary water service between March 8 and March 28 on the ground that plaintiff did not minimize its damage by utilizing the plan proposed by Point Landing, and on the ground that the judgment did not provide a credit for the cost plaintiff would have incurred in the operation of the water intake structure during this period even if the collision had not occurred.

The evidence shows that Board members and their engineer considered the proposal of Point Landing and concluded that there were a number of unknown factors, such as the availability of a barge together with the cost of renting and insuring same, and the feasibility of mounting pumps on the barge which would operate in security and in a satisfactory manner, which led them to accept the simpler though perhaps more expensive plan put into effect by Luling-P&L. While it is well settled that a plaintiff must take reasonable steps to minimize damages he is not required to undertake á risky venture. Halliburton Oil Well Cementing Co. v. Millican, 171 F.2d 426 (5th Cir. 1948). Under the emergency circumstances which existed we cannot say that the plaintiff acted improperly in its decision to have Luling-P&L perform the services for the first three weeks, and the trial court correctly awarded this item to plaintiff.

As to the contention that Point Landing should be given a credit for plaintiff’s normal operating costs for its water intake system, a review of plaintiff’s annual audits does not demonstrate that the costs in question would have been significant so that the record does not support any such credit. Accordingly, insofar as the $32,330.37 item for temporary water service between March 8 and March 28 is concerned the judgment of the trial court is affirmed.

The critical question faced by the Waterworks and its engineer, Frank Fromherz, was the method of repairing the structure. Initially, the engineer had hoped to repair the existing structure, but on the basis of his inspection, corroborated by the opinions of Marine Surveyors who inspected the structure, it was decided that repair was not feasible and that replacement of the structure was indicated. During this period of time Point Landing secured a proposal from H. B. Fowler & Company to replace the structure at a cost of $71,000.00. At the same time Luling-P&L proposed a replacement structure at a cost of $122,290.00. Fromherz rejected the Fowler proposal because he felt that the replacement structure was unlike the original structure in that the Fowler proposal was for an integrated structure mounted on five pilings with no separate fender system, while the Luling-P&L structure would consist of a platform mounted on four pilings to support the pumps with a separate fender system mounted on five pilings. In either case the structure (s) would be fabricated at a shop, floated to the site, put in place and then tied down to the pilings which would be driven through or around the structure (s),. He testified that this was essentially the same as the structure which was damaged except that the replacement structure would have one additional piling at the point of the V in the fender system whereas the damaged structure did not include this piling. Plaintiff, on the recommendation of its engineer, rejected the Fowler proposal and accepted the proposal of Luling-P&L. Thereafter a contract was signed between plaintiff and Luling-P&L, authorizing the construction and installation of the structure for $122,290.00, the supplying, of water during the construction period for $49,590.-00 and the cost of a surety bond for $1,461.-50. The trial judge awarded these amounts to plaintiff. Point Landing strenuously attacks these amounts, and we find merit in some of its contentions.

Beginning with the cost of replacing the structure, Point Landing contends that the structure provided by Luling-P&L was practically the same as the one offered by Fowler but at a cost of $49,000.00 more. Evidence shows that the members of the plaintiff’s Board relied exclusively upon the expertise of their engineer in deciding to award the contract to Luling-P&L. The record shows that Fromherz was the only qualified expert to testify on the subject of the two bids and the engineering basis for rejecting Fowler’s. He testified without equivocation that the Fowler plan was not adequate and the differences between it and the one accepted by plaintiff were substantial. Point Landing makes much over the fact that the bid of Luling-P&L, which led up to the contract it was awarded, incorporated much of the very language used in the Fowler bid which had been prepared earlier. This formal similarity can hardly provide a basis for rejecting the un-contradicted testimony of the engineer that the bids were substantially different, and we cannot say that the trial judge erred in finding that the Fowler bid was not properly rejected by plaintiff. However, while the bid of $122,290.00 formed the proper basis for the award the circumstances and the law require that this amount be reduced and that some credit be given to defendant against the cost of this new structure.

Established maritime jurisprudence is to the effect that in a case of a total loss, as distinguished from a repairable loss, the measure of damage is the market value of the property, but in a case where the market value cannot be determined resort must be had to other factors such as the original cost interpolated upwards so as to reflect present day costs, less depreciation. Manhattan, 85 F.2d 427 (3rd Cir. 1936), cert. den. 300 U.S. 654, 57 S.Ct. 432, 81 L.Ed. 864.

In Standard Oil Co. of New Jersey v. Southern Pac. Co., et al, 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890, where a vessel originally built in 1900 for $557,600.00 was repaired and improved in 1909 for $90,000.00, and sank in 1918, and whose cost of reproduction new was not less than $1,750,000.00, the court awarded $1,225,000.00, arriving at a total depreciation of 30% over an eighteen year period. A reading of that case shows the many facts and circumstances the court considered pertinent in arriving at this depreciation factor.

In Cascadia Lumber Co., Inc. v. Double T Industrial, Inc., 162 F.Supp. 478 (Or.D.D.C.1958), the issue was the value of a barge lost while being repaired by defendant. Evidence showed that the barge was unique and that it was “a hybrid or an unorthodox vessel” for which there was no evidence of a reasonable ready cash value. The court applied a measure of damage, taking into consideration the fair reasonable cost of any ordinary barge of reasonable comparable carrying capacity, plus a cost of reasonably necessary repairs and maintenance ovér the period of service but less a reasonable depreciation factor.

The rule that depreciation is allowed in cases where the object has been destroyed has been consistent in maritime jurisprudence with the rule that where the object can be repaired defendant is likewise entitled to a credit for depreciation. For instance, in the case of Louisville & Nashville Railroad Co. v. M/V Ciudad De Turbo, 330 F.Supp. 769 (S.D.Ala.S.D.1971) plaintiff sought damages to the fender system of its railroad bridge which had been struck by defendant vessel. The court quoted with approval from Elgin, Joliet & Eastern Railway Co. v. American Commercial Line, Inc., 317 F.Supp. 175 (N.D.Ill.1970) as follows:

“The traditional rule with respect to damage done to land-based objects by vessels on navigable water, and the rule which applies to this case, is that an allowance is made for the depreciation of the damaged object at the time of the collision.”

To the same effect are Elgin, supra (damage to a protective fence around plaintiff’s bridge), Seaboard Airline Railroad Co. v. Marine Industries, Inc., 237 F.Supp. 10 (E.D.S.C., C.D.1964) (damage to dolphin and timbers protecting plaintiff’s railroad bridge), Patterson Terminals, Inc. v. S. S. Johannes Frans, 209 F.Supp. 705 (E.D.Pa.1962) (damage to dolphin connected to plaintiff’s pier). In the Seaboard Airline Railroad Co. case there appears the following:

“[unquestionably [the] libelant is entitled to have its bridge restored to the same condition prior to the subject collision insofar as reasonably possible. To do more or less would be inequitable and unjust to either libelant or respondent. Since the bridge was not a total loss and has no readily determined fair market value, the usual measure of damages, being the difference of fair market value immediately prior to collision and its value immediately after, cannot be applied in practicality by the court. Thus, the ends of justice demand that the measure of damages must necessarily be predicated upon reasonable cost of repairs with proper consideration being given the actual depreciation of the facility at the time of its damage”

Based upon the foregoing, we have concluded that the trial judge erred in failing to reduce plaintiff’s claim by some amount equivalent to the depreciation of plaintiff’s water intake structure.

The water intake structure with pumps and pipes was built in 1950 at a cost of $35,972.06. Over the years pumps were replaced and a catwalk was added in 1959. It sustained damage from collisions in December, 1956, February, 1958, and especially in September, 1965, during Hurricane Betsy. After each occasion the structure was repaired with over $29,000.00 of repairs made after Hurricane Betsy.

From the very nature of the object in question, it is apparent that it had no market value at the time of the collision so that the optimum method of arriving at damages is not available. What we have, however, is the actual cost of constructing and installing a new thing to serve the same purpose and to function as well as the thing which was damaged.

There is much detailed testimony by Fromherz to support his opinion that the value of the entire water intake structure on the day of the collision was $148,921.00. He arrived at this value by accepting the contract price for replacement of the main structure and adding to this contract price the cost of the catwalk built in 1959, the screens built in 1951 and the cost of the three pumps installed in 1959, 1965 and 1969, arriving at an “undepreciated value” of $177,287.86, from which he subtracted depreciation based on a 75-year life expectancy with an assignment of 12 years of age. This method is not reasonable under the circumstances of this case and does not meet the test of the jurisprudence which has been cited. The only object which was damaged and replaced was the platform itself with the surrounding fender system. The contract price did not include an item of $5,549.67 to repair the pumps for which plaintiff is clearly entitled to recovery. The catwalk was not involved in the restoration work because it was not damaged in the collision and no part of the contract involved restoration of this item.

The testimony was that before this collision the platform and screens were functioning perfectly and were serving the purpose for which they were intended. After the replacement was made the new platform and fender system likewise functioned perfectly and served their purpose. Therefore, plaintiff is entitled to recover only the contract price for repairing the structure itself less a reasonable depreciation.

We will accept the testimony of Mr. Fromherz to the effect that the structure had a life expectancy of 75 years, and his twelve years of depreciation to the structure. While it is true that even after the repairs were made following Hurricane Betsy the pump platform was still twisted twelve to fifteen degrees and the new structure build in 1971 was an improvement over the old structure, especially with the addition of a piling at the point of the V in the fender system which surely made it more durable and provided greater protection to the platform, these factors were apparently considered by Fromherz along with the fact that while the structure was twenty years old substantial repairs were made over these years, expecially in 1965.

Returning to the contract price of $122,290.00, we have concluded that the price itself is not recoverable in full because plaintiff failed to mitigate its damage in this regard. Luling-P&L performed extensive work in connection with supplying water for which they were paid. But in connection with the construction and installation of the platform and fender system they acted only as an intermediary between plaintiff and Lane & Company, an experienced marine contractor, who did all of the work on this phase of the contract. Plaintiff could have contracted directly with Lane & Company for the price Lul-ing-P&L paid to Lane, namely $110,860.00. We have concluded that plaintiff is entitled to recover this amount less twelve years of depreciation or a net amount of $93,122.40 for replacing the structure.

The final item of damage to be considered is the sum of $49,590.00 which was included in the contract with Luling-P&L for furnishing water during the time of construction of the replacement structure. While an emergency clearly existed immediately after the collision of March 7 which justified the payment to Luling-P&L of $32,330.37 for supplying water between March 8 and March 28 the conditions were not so acute when the contract was awarded for the construction period. The minutes of the meeting of plaintiff’s Board show that there were some serious questions and considerable hesitation on the part of the members regarding the cost of this temporary water supply. When the contract was negotiated it was anticipated that the replacement structure would be completed and installed in ten weeks, so that the price of supplying water was computed at $5,000.00 per week. Board members questioned particularly the price for the rental of the two pumps which, for the-week of March 22 through March 28, had cost $1,800.00, and which the Board knew could have been rented for considerably le^s. Before the contract was signed with Luling-P&L, Point Landing made available to the Board a bid for furnishing the pumps and three hoses for each at a cost of $620.00 per week. While there is no breakdown to show what part of the $49,590.00 figure paid to Luling-P&L for furnishing water consisted of pump rental it is probable that the figure was based on the rental for the week of March 22 through March 28. When the contract was signed it was contemplated that the job would take ten weeks whereas it took fourteen weeks. Thus, the $18,000.00 total for pump rental amounted to $1,286.00 per week as opposed to $620.00 per week for which they were available. We have thus concluded that Point Landing is entitled to a credit of $666.00 for fourteen weeks, or $9,324.00 against the $49,590.00 Luling-P&L was paid.

Summing up, we have concluded that plaintiff is entitled to a judgment for the following amounts:

Temporary water supply between March 8 and March 28 $32,330.37
Water supply for the duration of construction and Installation of the new intake structure 40,266.00
Cost of repairing pumps 5,549.67
Restoration and installation of new intake structure 93,122.40
Cost of surety bond 1,461.50
Frank Fromherz Engineering Services 1,943.54
Total 174,673.48

The judgment will be amended accordingly.

INDEMNITY

The trial judge awarded full indemnity to Port City and Wisconsin, the owners of the two barges involved in this incident, and in favor of Sioux City against Point Landing. Sioux City has, in this Court, waived indemnity, so that the judgment will be amended accordingly.

Point Landing disputes Port City’s right to indemnity on the theory that it proved no contract with Point Landing in the first instance. The evidence shows that Point Landing was a contractual bailee which routinely accepted barges .such as the PCBD-105 into its fleet for a regular posted charge, and under the cases cited earlier in this opinion it was a contractual bailee under maritime law.

In the case of Dow Chemical Company v. Barge UM-23B, supra which involved a factual situation identical to the instant case, the court held that the owner of the barge was entitled to costs and attorney’s fees in successfully defending the claims asserted against it. Point Landing disputes the rationale of this decision, but under the circumstances we are bound to follow same, and any change in that maritime jurisprudence would have to come about in the federal court which spawned it.

The same disposition would follow with respect to Wisconsin except that Point Landing raises the additional objection that it was denied due process in defending against that claim because of the untimely filing of the indemnity claim by Wisconsin. The record shows that the Wisconsin petition was filed long after the trial of the case commenced, and Point Landing filed an exception of no cause of action on the basis of the untimeliness of the petition. Nevertheless Point Landing also filed an answer so that the issue was joined on the action for indemnity.

If we could conceive of any evidence which Point Landing might have offered bearing on the question of Wisconsin’s right to contractual indemnity and which they were deprived of entering because of the late filing of the claim for indemnity by Wisconsin we would not hesitate to dismiss the claim, but the question of the right to indemnity is a pure legal question based upon the facts of the case, which were completely developed by Point Landing, along with the other principal parties to this litigation. The ends of justice would not be served by dismissing the Wisconsin claim only to require that a new suit be filed for the purpose of advancing legal arguments where all of the facts have already been established in the lengthy trial of this case. We have concluded that this matter is ripe for a judgment at this time in view of the stipulation by all parties that the amount of costs and attorney’s fees will be established by way of arbitration after this litigation is completed.

Accordingly, the judgment appealed from is amended in these respects: First, the amount of the judgment in favor of plaintiff and against defendant, Point Landing, Inc., is reduced to $174,673.48; second, there is no indemnity in favor of Sioux City and New Orleans Terminal Corp., against Point Landing, Inc.; and third, the expert witness fee for Frank Fromherz is reduced to $700.00. In all other respects the judgment is affirmed. Costs of this appeal are to be divided equally between plaintiff and Point Landing, Inc.

AMENDED AND AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Sammy ABRAHAM, Plaintiff-Appellee, v. FOREST VILLAGE PARTNERSHIP et al., and Cosmopolitan Credit & Investment Corp., Defendants-Intervenors-Appellants.
    No. 5443.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Donald R. Miller, Shreveport, for plaintiff-appellant.
    J. Winston Fontenot, Lafayette, for plaintiff-appellee.
    Jefferson J. Moss, Jr., Joseph A. Koury, Lafayette, for defendant-intervenor-appel-lant.
    Baggett, McClain & Morgan by R. Scott McClain, Cox, Cox & Knapp by James J. Cox, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   DOMENGEAUX, Judge.

Appellants have neither appeared nor filed a brief in this case prior to the time the case was called for oral argument. Pursuant to Rule VII, Section 5(b), Uniform Rules, Courts of Appeal, this appeal is considered abandoned, and is hereby dismissed at appellants’ costs.

APPEAL DISMISSED.


author: WATSON, Judge.

text:
    Rev. Nathan LEE, Plaintiff-Appellant, v. APPLEWHITE, INC., et al., Defendants-Appellees.
    No. 5479.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Gravel, Roy & Burnes by Chris J. Roy, Alexandria, for plaintiff-appellant.
    Stafford, Randow, O’Neal & Scott by Grove Stafford, Jr., Gold, Hall, Hammill & Little by John F. Simon, Kelly Hamm, Alexandria, for defendants-appellees.
    Before MILLER, WATSON and BERTRAND, JJ.
   WATSON, Judge.

Plaintiff, the Rev. Nathan Lee, filed this tort suit to recover damages for the partial amputation of his foot in an accident alleged to be in the course and scope of his employment. Among those named as defendants were Applewhite, Inc., plaintiff’s employer, and Roy O. Martin Lumber Company, Inc., alleged to be the predecessor of Applewhite, Inc.

Applewhite and Martin filed an exception of no cause of action on the ground that their only liability as' Lee’s employer/former employer would be for workmen’s compensation benefits. This exception was sustained by the trial court, and the suit was dismissed with prejudice as to these defendants.

Lee has appealed from the judgment dismissing his suit against Roy O. Martin Lumber Company, Inc. Counsel for Lee contends that the trial court erred in sustaining the exception as to Martin, because Martin was not the predecessor company of Applewhite, Inc., as alleged in plaintiff’s petition, and thus has never been an employer of Lee. Counsel for Lee asks either reversal or remand to allow amendment of the petition. Counsel for Applewhite and Martin points out that plaintiff’s petition does not in fact state a cause of action in tort against Roy O. Martin Lumber Company, Inc., because it alleges that this corporation was an employer. However, counsel for defendants agrees that plaintiff is entitled under the provisions of LSA-C. C.P. art. 934 to amend to try to state a cause of action against Roy O. Martin Lumber Company, Inc.

In a case with very similar facts, Menard v. Associated Royal Crown Bottling Co., 249 So.2d 363 (La.App. 4 Cir. 1971) amendment was allowed even though, as here, such amendment would contradict the original pleadings.

Under these circumstances, plaintiff should be allowed an opportunity to amend his petition. The judgment on the exception is reversed as to the dismissal of suit against Roy O. Martin Lumber Company, Inc., and the matter is remanded to permit plaintiff Lee the opportunity to amend in order to state a cause of action. Plaintiff Lee is granted fifteen days from the effective date of our decree within which to amend in order to state a cause of action. The trial court is expressly authorized to extend or reduce this delay in accordance with his own judgment, provided such extension or reduction shall be made within five days of the effective date of our decree. The judgment is affirmed as to the dismissal of suit against Applewhite, Inc. Costs of this appeal are assessed to defendant-appellee, Roy O. Martin Lumber Company, Inc.

AMENDED AND REMANDED.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Willis SHUFF, Defendant-Appellee.
    No. 5421.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.

      D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Bernard L. Malone, Jr., by Bernard L. Malone, Jr., Baton Rouge, for plaintiff-appellant.
    Tate & Tate by Donald J. Tate, Mamou, Joseph E. Coreil, Ville Platte, for defendant-appellee.
    Before HOOD, GUIDRY and PETERS, JJ-
   PETERS, Judge ad hoc.

This is an expropriation suit involving a partial taking for highway purposes. The issue presented on appeal is whether the lower court correctly used the capitalization of income approach to determine market value.

Before the taking, defendant’s property was rectangular with 107 feet of frontage on Highway 104 and a depth of 260 feet. The property is about one mile east of the Town of Mamou. Defendant owned and operated a country store on the tract. He also had two self-service gasoline pumps in front of the store. These pumps were owned by a gasoline distributor who supplied the gasoline for the pumps and paid defendant 1 €>2/s% of the retail price of all gasoline sold as “rental” of space for the pumps. Defendant worked inside the country store and collected the purchase price of the gasoline after the gasoline customers had filled their tanks.

The land taken is a strip fronting Highway 104, 107 feet long and 27 feet deep along most of its length. It includes the area where the gasoline pumps were located. Prior to the taking the gasoline pumps were 14.6 feet away from the existing right of way for Highway 104. The pumps were 2 feet wide and were 14 feet away from the steps to a porch which was attached to the front of the store. After the taking the front porch was only about 8 feet away from the new Highway 104 right of way.

Plaintiff offered the testimony of two appraisers who had used as comparables the sales of similar land situated in the vicinity of defendant’s tract. The lower court found that these appraisers had not based their estimates on true comparables because none of the sales upon which they relied had involved land being used for the operation of a self-service gasoline station or a country store. Having rejected the use of comparable sales, the lower court used the capitalization of income approach to determine compensation for the part taken. It was determined that defendant’s gross income from gasoline sales was $911 per year. An allowance of $20 per month was made for taxes, insurance, electricity and labor. This yielded a net rental of $671 per year. This figure was capitalized at the rate of 8%. This gave a value of $8390. This was reduced by 20% to allow for such future contingencies as gasoline shortages and the value of the part taken was thus found to be 80% of $8390, or $6712. The lower court awarded $6712 as compensation for the part taken. In addition, the trial court awarded severance damages of $4839.

Plaintiff appealed from the judgment. Plaintiff concedes the correctness of the lower court’s award of severance damages but argues that the award for the part taken is grossly excessive.

We find that the lower court fell into error in applying the capitalization of income approach to determine value. Just compensation for property taken is the market value of the property immediately prior to the taking. State, Department of Highways v. Tyler, 326 So.2d 349 (La.1976); State, Department of Highways v. Trippeer Realty Corp., 276 So.2d 315 (La.1973); State, Department of Highways v.Hayward, 243 La. 1036, 150 So.2d 6 (1963). Although comparable sales are usually used to determine market value, the income producing quantities of the property may he considered when they aid in determining value. State, Department of Highways v. Crow, 286 So.2d 353 (La.1973). However, this income approach may only be used to determine the market value of the property taken. Only income attributable to the land and improvements may be capitalized to determine value; income derived from the owner’s operation of a business on the premises is not related to market value of the land and improvements and is not to be considered. Dakin and Klein, Eminent Domain in Louisiana, pp. 227-228; Housing Authority of New Orleans v. Boudwine, 224 La. 988, 71 So.2d 541 (1954); Rapides Parish School Board v. Nassif, 232 La. 218, 94 So.2d 40 (1957).

The lower court’s method of determining value had no correlation to market value of the land and improvements. The lower court valued the strip taken separately from the remainder of the tract, reasoning that the strip taken had a different highest and best use than the remainder, i. e. as gasoline pump property. This was clearly incorrect. The strip taken was useful for gasoline sales only so long as it was used in conjunction with the operation of the country store on the remainder of the property. The entire tract had the same highest and best use. State, Department of Highways v. Gordy (La.App. 3rd Cir. 1975), 322 So.2d 418. To correctly apply the capitalization of income approach, it would have been necessary to consider the net income attributable to the entire tract and to then find a value per square foot based upon this income in order to find the value of the part taken. There is simply no basis for finding that the front 27 feet was more valuable than the remainder of the tract.

We are unable to determine from the record any value for the part taken based on the capitalization of income approach. There is no evidence to indicate the net income attributable to the entire tract with improvements. Defendant’s evidence indicates nothing more than the amount of profit his business will lose as a result of the taking. As previously stated, such a loss is not compensable.

We also find the trial court was incorrect in its holding that there were no truly comparable sales. While it is true plaintiff’s appraisers found no sales of property being used for the operation of a country store with gasoline pumps, the sales they relied upon did involve land with the same highest, and best use—a combination of commercial and residential use. Although defendant’s property had an actual use that differed from the actual use to which the comparable property had been put, its highest and best use was the same. The sales are therefore acceptable as com-parables.

One of plaintiff’s appraisers valued the land taken with improvements (the improvements consisting of gravel laid on the surface of the land) at $714; plaintiff’s other appraiser valued the land taken with improvements at $560. We think the $714 figure the more reasonable one.

For the reasons assigned, we hereby amend the judgment of the lower court to reduce the award for land and improvements taken from $6712 to $714. The lower court’s award of severance damages in the amount of $4839 is left undisturbed.

The lower court judgment is likewise left undisturbed insofar as it taxed as costs against plaintiff the fees of the expert witnesses.

Amended and affirmed.


text:
    Valina ROBERTSON, Individually, and on behalf of her minor son, Wilton Robertson, et al. v. Stanley PARQUET.
    No. 7457.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Warren, Gomez & Guidry, Freddie B. Warren, Jr., New Orleans, for plaintiffs-appellants.
    Gross & Abramson, Alfred Abramson, LaPlace, for defendant-appellee.
    Before SAMUEL, LEMMON and BEER, JJ.
   BEER, Judge.

This case results from an automobile-bicycle collision at the controlled intersection of Apple and First Streets in Norco, Louisiana. Plaintiff-appellant, Valina Robertson, individually and in behalf of her minor son, Wilton, age 16, appeals from the dismissal of her action against defendant-appellee, Stanley Parquet, seeking damages for the alleged negligent operation of his automobile. The trial court also dismissed Parquet’s reconventional demand for damages to his windshield. He did not appeal.

Parquet testified that he was driving on Apple Street toward the river in the right-hand lane, at 20 MPH at 7:00 a.m. on May 16, 1970. The posted speed limit on that street was 35 MPH. As he approached, on the favored street, the controlled intersection of Apple and First Streets, his view of traffic on First Street was blocked by a building on the corner. He testified that it was necessary to reach a point adjacent to the building before traffic on First Street was visible. With his car in this position, still moving but at a reasonable rate of speed, it was struck on the right front portion by young Wilton’s bike. The impact threw Wilton off the bike and against the windshield of the automobile. Mr. Parquet did not see Wilton until the impact occurred.

Hilton and Gladys Joseph, passengers in Parquet’s vehicle, corroborate his testimony. Hilton, 15 at the time of the accident, was seated in the back right side of the car and saw the accident. He indicated that he did not look at the speedometer, but estimated the automobile’s speed at 20 MPH and further stated that Parquet “was not going fast.” He states that Wilton’s bike struck the car on its right front side, throwing Wilton off of his bike and causing him to strike the windshield of the car and then fall to the ground. Gladys Joseph’s testimony is the same as that of her son’s with respect to the incident. She further confirms the fact that a stop sign controlled traffic approaching the intersection from First Street.

Wilton Robertson acknowledges the location of the stop sign but contends that he obeyed its signal. He testified that he did stop and that several cars did pass before he started to cross the street. Then, as he was crossing, he looked right and saw no cars. When he looked to his left, defendant’s car was in his path. He claims to have almost completed the crossing when defendant’s car, traveling in the wrong (left) lane, struck him.

The trial court who heard and observed the witnesses determined that “. Plaintiff has failed to sufficiently carry the burden of proof necessary in the action alleged” and dismissed the principal demand. In the same judgment, the court dismissed Parquet’s reconventional demand for the damage to his automobile windshield based upon the determination that he “was guilty of contributory negligence which bars his recovery for damages claimed in his reconventional demand.”

The verbiage of that judgment has caused us some concern since Parquet’s actions seem difficult to describe as contribu-torily negligent in view of the primary finding that plaintiff had failed to sufficiently carry the burden of proof needed to support his claim. Because of this, we have carefully reviewed the record from the standpoint of giving consideration not only to the possibility of manifest error but also with respect to the issue of the negligence vel non of Parquet and of young Wilton Robertson.

A motorist traveling on the right-of-way street and approaching an intersection at which traffic on the inferior street is required to stop, and is thus warned by a stop sign, is entitled to assume that a driver (or a bike rider) on the less favored street will observe the law. Ordinarily, he is not negligent in proceeding past such a corner into the intersection — at a reasonable speed — even if he fails to actually observe the approach of a vehicle on the less favored street because the view is blocked. Gauthreaux v. Hogan, 185 So.2d 44 (La.App. 4th Cir., 1966); Clark v. Allstate Insurance Company, 279 So.2d 237 (La.App. 2nd Cir., 1973). In Mid States Insurance Company v. Parker, 232.So.2d 799 (La.App. 4th Cir., 1970) we held that a motorist, traveling on a right-of-way street, who did not observe defendant’s approaching vehicle because his vision was impaired by a parked truck, was, nevertheless, entitled to recover. As in the case at bar, a stop sign controlled traffic on the less favored street. Conversely, it is encumbent upon the less favored motorist (or bike rider) to see that the way is clear before proceeding across the .favored street. He must not simply stop in obedience to the stop sign; he is required, thereafter, to see — and yield to — vehicles with the right-of-way.

In Arnold v. Byrne, 251 So.2d 55 (La.App. 4th Cir., 1971), we affirmed dismissal of a bicyclist’s claim for damages allegedly caused by the negligence of defendant automobile driver which resulted in an in-tersectional collision. There was the usual conflicting testimony as to whether the bicycle struck the side of the car or whether the car collided with the bicycle. The trial court made a factual determination and dismissed the suit. We found no manifest error. Here, plaintiff acknowledges that: “as I was crossing, I was looking both ways . . . ” This signals a failure to properly heed the stop sign since he should have withheld forward movement until he had observed that passage across the favored street was safe.

Regardless of the manner in which the trial court’s judgment is confected, we are forced to the conclusion that young Wilton Robertson’s actions must, at any event, be categorized as negligent and proximately causative of the accident in which he was injured.

This conclusion reached, and no other issue now being before us, we affirm the judgment of the 29th Judicial District Court in dismissing plaintiff’s suit. Each party shall bear its own costs of appeal.

AFFIRMED.

      . Parenthetically, we note that the case was tried on December 12, 1974, and taken under advisement by the trial court who, thereafter, on May 9, 1975, rendered judgment. The petition for devolutive appeal was timely filed on August 6, 1975, and the order granting the devolutive appeal and setting the bond was signed on the same day. However, the bond was not filed until September 17, 1975. Since the record is barren of any showing that judgment was mailed to counsel of record in accordance with LSA-C.C.P. Article 1913, we conclude, at least insofar as this case is concerned, that the bond was timely filed and, thus, the appeal properly perfected.