text:
    LENT, INCORPORATED v. LEMEL STEEL FABRICATORS, INC.
    No. 11071.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Donald L. Beckner, Baton Rouge, for plaintiff & Merikyan, appellees.
    Donald R. Weber, Baton Rouge, for defendant appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Lent, Inc. invoked a concursus proceeding in the Nineteenth Judicial District Court, and sought to enjoin Lemel Steel Fabricators, Inc., Air Industrie of France, Inc., and 3P Construction Company, Inc. from prosecuting any of their claims against Lent outside these proceedings. Air Industrie filed dilatory exceptions of improper cumulation of actions and improper joinder of persons and a declinatory exception of improper venue. The trial court overruled the exceptions, approved the concursus proceedings and issued the preliminary injunction. Air Industrie has appealed.

The questions on appeal are the overruling of the declinatory exception of improper venue, the propriety of the concursus and the propriety of the preliminary injunction. We reverse.

Lake Charles Harbor & Terminal District leased some land to the Police Jury for the Parish of Calcasieu, which in turn leased the land to the predecessor of Conalco, Inc. This company later contracted with Air In-dustrie of France, Inc., for the erection of a fluoride emission control system. Air France contracted with Lent, Inc. for the structural steel needed. Lent contracted with Lemel Steel Fabricators, Inc., for this same structural steel.

After Air Industrie cancelled its contract with Lent, because of excessive delays, Lent filed suit in the Nineteenth Judicial District Court against Lemel for failure to deliver structural steel in accordance with their contract. Lemel reconvened against Lent for the unpaid balance allegedly due on the structural steel already delivered to Lent and for damages for misrepresentation that Lent owned a controlling interest in Lemel. Lemel also filed a third party action against Arman Melikyan, the President of Lent, seeking damages for this misrepresentation.

Lent also filed suit in the Fourteenth Judicial District Court against Lake Charles Harbor & Terminal District, Police Jury of the Parish of Calcasieu, Conalco, Inc., Insurance Company of North America and Air Industrie to enforce a lien which it had filed. Air Industrie reconvened against Lent, claiming damages for failure to deliver structural steel on time and for misrepresentation that Lent owned a controlling interest in Lemel. Air Industrie also filed a third party action against Melikyan, Lent’s president, seeking damages for the misrepresentation. Air Industrie of France, Inc. filed a suit against Lemel Steel Fabricators, Inc., in the Fourteenth Judicial District Court for damages resulting from Lemel’s filing of a materialman’s lien on the plant. The fourth action was filed by 3P Construction Company against Lent in the Nineteenth Judicial District Court, claiming that steel sold to them by Lent had been incorrectly fabricated.

In a pleading entitled “Amended and Supplemental Answer and Reconventional Demand,” filed in the first suit filed in the Nineteenth Judicial District Court, Lent, alleging tha.t the claims of Lemel, Air In-dustrie and 3P were competing and conflicting and were subjecting them to multiple litigation, prayed that a eoncursus proceeding be invoked. The court overruled the exceptions filed and ordered that the concur sus proceeding be invoked and enjoined the prosecution of all pending suits by the claimants against Lent outside these proceedings.

We prefer to decide this case on the availability of eoncursus, even though we have serious doubts as to the venue, since if the eoncursus proceeding be improperly invoked, there is no need to consider the proper venue of the eoncursus proceeding.

Article 4651 of the Code of Civil Procedure states:

“A eoncursus proceeding is one in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding.”

The essence of this article is that the parties impleaded must have competing or conflicting claims. We believe the competition or conflict has to be more than a vying for payment by a single defendant. The con-cursus procedure should not be tortured into a forced consolidation of all claims, even for multiple jurisdictions, against a single defendant.

The claims against Lent filed by Air Industrie, Lemel and 3P are neither competing nor conflicting; they are all merely adverse to Lent.

Other than the fact that they all arose out of the supplying of structural steel for construction of the Conalco building in Lake Charles, the claims are essentially independent and unrelated. Lent has become involved in multiple litigation across the state, and is evidently trying to find a procedural method to consolidate these cases for trial.

In Landry & Passman Realty, Inc. v. Beadle, Swartwood, Wall & Associates, Inc., 303 So.2d 761 (La.App. 1st Cir. 1974), writ refused 307 So.2d 631 (1975), this Court said:

“In a eoncursus proceeding, the jurisdiction of the court is limited to disposing of the fund on deposit and relieving the stakeholder of further liability to the im-pleaded claimants, arising out of or as a result of the stakeholder’s ownership or possession of the fund.”

There is no fund, property or privilege on property in this case from which the various claimants are seeking to be paid. Each has independently filed a suit or counterclaim against Lent for the damages allegedly caused by the fault of Lent. The only thing these claims have in common is that they are adverse to Lent. We conclude, therefore, that this is not a proper case for imposition of a concursus proceeding.

As a result of this conclusion, there is no need for considering the correctness of the overruling of the exception of venue or the propriety of the injunction.

The judgment of the trial court is therefore reversed, the concursus proceeding is dissolved and the injunction prohibiting Air Industrie, Lemel and 3P from prosecuting their actions against Lent is recalled. Lent is to pay all costs of these proceedings.

REVERSED.

      . The resolution of the question of venue would involve the application of La.R.S. 38:2243, if the contract be considered a public one, or of La.R.S. 9:4802 if the contract be private.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Herbert J. McGRATH et al. v. INDUSTRIAL PIPING COMPANY et al.
    No. 11077.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Robert L. Kleinpeter, Baton Rouge, of counsel for plaintiffs Herbert J. McGrath, et al., appellees.
    Kenneth E. Barnette, Seale, Smith & Phelps, Baton Rouge, of counsel for defendants Industrial Piping Co., et al., appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a suit for personal injuries and property damage arising out of an automobile accident. Plaintiffs are Herbert J. McGrath, Jr. and Rosalie Agnes McGrath, his wife. Defendants are Industrial Piping Company, a division of Synalloy Corporation, and General Accident & Fire Assurance Corporation, Ltd., its insurer. The case was tried on its merits before a jury, and pursuant to its verdict, judgment was rendered in favor of Mr. McGrath for $7,500.00 and in favor of Mrs. McGrath for $25,000.00. From that judgment, defendants have appealed.

The accident happened on December 29, 1974, on Siegen Lane in East Baton Rouge Parish. Siegen Lane is a two lane, black top road, running north and south. Mr. McGrath’s car had a dead battery, and he needed a push to get it started. Mrs. McGrath, driving her car, was pushing him north on Siegen Lane. After one unsuccessful attempt, both cars were stopped in the northbound lane for about a minute, while Mr. and Mrs. McGrath conferred. She was preparing to push him off once again when her car was struck from the rear by a truck owned by Industrial and operated by its employee, Bobby Weaver. Both Mr. and Mrs. McGrath testified that, while stopped, the flashers on Mrs. McGrath’s car were operating.

Mr. Weaver testified that he was driving north on Siegen Lane at 40 or 45 miles per hour. He first saw the McGraths when they were one-half to three-quarters of a mile ahead of him. As he approached to within 10 car lengths he realized they were going slowly and slowed his truck to about 30 miles per hour. Then, when 35 or 40 feet from Mrs. McGrath, he saw that she was stopped, and applied his brakes. His truck skidded into the rear of Mrs. McGrath’s car. He testified that he saw no lights on the rear of her car.. He also stated that the surface of the road was wet because of a rain that had fallen between one to two and one-half hours before. Mr. McGrath had testified that there had been a light rain three hours before the accident, but that the road was completely dry.

Defendants’ first specification of error is that the jury erred in not finding the plaintiffs contributorily negligent in two respects. First, it is claimed that they should not have attempted the dangerous maneuver of pushing one vehicle with another at a slow speed on a heavily travelled, high speed road. There is nothing negligent per se in pushing one vehicle with another on a highway. The only testimony in the case as to traffic conditions is that of Mr. McGrath, who stated that at the time of the accident traffic on Siegen Lane was very sparse. We find no merit in this argument.

Second, it is claimed that plaintiffs violated R.S. 32:141, which provides:

“A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park, or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
“B. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.”

We think that Mr. and Mrs. McGrath fall within the provisions of Subsection B. supra. Mr. McGrath’s car was temporarily disabled. They were stopped in the highway for a minute or less, and Mrs. McGrath was preparing to move on when the accident happened. We assume that the jury believed that Mrs. McGrath’s flashers were in operation, since such a finding of fact is necessary to the conclusion that Mrs. McGrath protected traffic within the meaning of R.S. 32:141(B).

We are of the opinion that there is no manifest error in the jury’s finding of liability, and that the sole cause of the accident was Mr. Weaver’s very evident negligence in failing to see what he should have seen.

The next specification of error is that the jury abused its discretion in awarding Mrs. McGrath $25,000.00 for her injuries. The record shows that in the accident Mrs. McGrath was knocked unconscious for a short time. She was taken to Doctors Memorial Hospital, where she was seen by Dr. Thomas Campanella, an orthopedist. She was complaining of pain in the neck, radiating down into the shoulders and lower back, particularly on the left side. He found muscle spasm in her neck and low back.

X-rays of her skull and neck proved negative, and Dr. Campanella permitted her to return home. He gave her pain medicine and muscle relaxants. The next day, he saw her again and prescribed a cervical collar.

On January 6, 1975, Mrs. McGrath was complaining of pain down her back, between her shoulder blades, particularly on the left side. She was suffering also from nausea and headaches, particularly at the base of her skull.

Apparently Mrs. McGrath improved somewhat, since she attempted to return to work as a private duty licensed practical nurse in April, 1975. She found that she was unable to do the lifting and other heavy work required thereby. Her symptoms became more severe.

She saw Dr. Campanella on May 8, 1975, when she was still having the same trouble. She was wearing the collar to the extent that it was rubbing soreness under her chin. Dr. Campanella suggested that she start taking off the collar occasionally, and continued her medication.

On July 10, 1975, she was having pain on top of her head, felt that her left ear was stopped up, and was complaining of headaches. Dr. Campanella prescribed cervical traction three or four times per day and continued her on medication.

On September 30, 1975, he prescribed physical therapy. He continued to see her periodically until April 13, 1976, shortly before the trial which took place on May 17, 1976. At that time, she still had soreness on the left side of her neck, tenderness over the left scapular nerve, and suffered from headaches.

Dr. Campanella found no evidence of nerve root irritation or disc involvement. He felt that her complaints were related to soft tissue injury, and was of the opinion that such injuries usually are resolved within two years.

Mrs. McGrath testified that she had been in severe pain since the accident, and that she was unable to work as a practical nurse, that she was unable to do all of her house work without help. She was unable to pick up her two year old son, and, according to Mr. McGrath, was subject to spells of depression because of her physical condition.

For two years’ pain and disability the jury awarded $25,000.00 which, although high, we believe to be within the bounds of the discretion accorded them by law.

Defendant also complains that the special damages of $7,500.00 awarded to Mr. McGrath is too high. Medical expenses of $728.63 were proved and the damages to Mrs. McGrath’s car were stipulated to be $522.60. Dr. Campanella testified that he would probably have charges of about $60.00 for future visits with Mrs. McGrath, and that she might need more therapy. These amounts total $1,311.23.

Although Mrs. McGrath was not working at the time of the accident, she and Mr. McGrath testified that she had intended to begin working as a licensed practical nurse in February, 1975, when their baby became two years old. She attempted to go back to work in April, 1975, and continued to work at a decreasing pace until September, 1975, when she was forced to stop. At that time, she was earning $3.00 per hour, and she and Mr. McGrath testified that there was enough work available to her to be employed full time. As of the time of trial, Mr. McGrath testified that she had lost $4,114.00. He did not compute wages which might be lost in the future during the remainder of her two year disability.

Defendants contend that this evidence is not legally sufficient to sustain an award for lost wages, that there should have been some further corroboration. Since the testimony is informed and not unreasonable and since Mrs. McGrath obviously made a good faith effort to work and was unable to do so because of the injuries suffered in the accident, we think there is no manifest error committed in making some award for this item. Excluding the specifically proved special damages, an award of over $6,000.00 was made. Since the lost wages from September, 1975, until May 17, 1976, were testified to be $4,114.00, and since another $4,000.00 would have been earned by a full time practical nurse by the end of December, 1976, we do not find that the jury exceeded its discretion in making the award.

The judgment appealed from is therefore affirmed, at defendants’ cost.

AFFIRMED.


author: CHIASSON, Judge.

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. Ruth Oppenheimer FINKELSTEIN et al.
    No. 11081.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      Johnie E. Branch, Jr., and Jennings Bryan Miller, Assts. Gen. Counsel, Dept, of Highways, Baton Rouge, for appellant.
    Nathan A. Levy, Jr., Levy, Burleigh & Bourg, Morgan City, for appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in an expropriation suit filed by the Department of Highways, plaintiff-appellant, under R.S. 48:441 et seq. The suit was filed to acquire in full ownership certain property owned by the defendants-appellees in Morgan City, Louisiana.

The appellant deposited into the registry of the Court $809,885.00 as just and adequate compensation for the property expropriated and $9,033.00 as severance damages. After a trial on the merits, the District Court awarded the appellants an additional $21,393.00 as just compensation and an additional $390,982.00 as severance damages.

The facts as stated by the District Judge in his Reasons for Judgment are:

“Before the taking, the defendants’ property consisted of one large tract of land, containing 18.9 acres, located in the approximate center of an area comprising the principal business, banking and professional establishments in the City of Morgan City, Louisiana. It was generally rectangular in shape, less and except its north, east and west corners, which had previously been sold. It was bounded as follows: North by Victor II Blvd., a two-lane, main traffic street; East by the Colonial Plaza Shopping Center, a large retail merchandising center; South by U.S. Hwy. 90: and West by Greenwood Street, a four (4) lane main traffic artery. . The property was described as high, well-drained, level and suited for the highest and best use as High Grade, Multi-purpose Commercial. The property was zoned by the City Council of Morgan City, Louisiana, as “P” Planned Commercial.
“After the taking, the defendants’ property was divided into essentially three remainders, designated as Remainders 1, 2, and 3. . The part taken consisted of a tract of land containing 7.016 acres. Remainder No. 1 sometimes referred to as the Northern Remainder consisted of .1565 acres, triangular in shape, and has a front of approximately 114 feet on the south side of Victor II Blvd. Remainder No. 2, sometimes referred to as the Greenwood Remainder, contains 1.322 acres, is more or less triangular in shape, and has a front of 394.08 feet on Greenwood Street. Its depth varies from 241.-16 feet along its northern boundary to almost nothing at its southern tip. It enjoys rto access after the taking except its front on Greenwood Street.
“Remainder No. 3, after the taking, consists of a tract of land roughly triangular in shape, consisting of 10.4 acres. It is bounded North by 56.01 feet of access to Victor II Blvd.; East by Colonial Plaza Shopping Center, South by U.S. 90 for a distance of 314.24 feet and the control of access to the ramp for a distance of 350 feet, and West by the part taken from which there is no access, along a distance of 674.03 feet. The North-East corner of Remainder No. 1 . has previously been sold.
“In essence then, it is shown that the plaintiff has taken an area of land of 7.016 acres extending from Southeast to Northwest across defendants’ property. “At the start of the trial, the parties entered into a written stipulation (Joint Stipulation-J.S. # 1) as follows:
(1) The value of the tract of land which is the subject of this litigation was $2.72 per square foot prior to the taking.
(2) The proposed highway as it traverses the subject property will contain ramps that will ascend and descend, respectively, from ground level to the level of the elevated highway.
(3) There will be no direct access from the remainders of the subject property to the highway or the ramps. No passage will be permitted beneath the highway or the ramps. There is ingress and egress from the remainder to public streets leading to and from the ramps.
(4) Present construction extends to Federal Avenue in the City of Morgan City west of the property and in the vicinity of Raceland, Louisiana, east of the property. It will be several years before construction will be completed on any portion of the highway through and east of the subject property.
(5) Control of access is as indicated on P-3 attached to Plaintiff’s petition. The showing of a 60' service road along the eastern boundary of the subject property on P-3 is in error and is not a part of the subject property.
(6) The after value of the small triangular remainder on Victor II Boulevard is $4900.00.
(7) The total area of the property before taking is 18.9 acres. The part taken is 7.016 acres. One remainder is .1565 acres. Another is 1.322 acres. And the final remainder is 10.4 acres.
(8) Both parties reserve the right to cross examine appraisers called by the opposite party as to all matters upon which they have based their appraisals and as to their conclusions.
“Additionally, during the trial, the parties further stipulated as follows:
(1) With respect to the part taken (7.016 acres), the value thereof was stipulated to be $831.278.00. (7.016 acres or 305,617 sq. ft. X $2.72 per sq. ft. = $831,278.00). The State had deposited the sum of $809,885, (sic) leaving a difference of $21.393.00 owed to defendants. (See Stipulation of Counsel TR. 90, Vol. I).
(2) With respect to the severance damages sustained by Tract No. 1 on Exhibit D-2, the parties stipulated that the tract contained 6817 sq. ft.; that before the taking its value was $2.72 sq. ft. or a before taking value of $18,-542. After the taking, the tract had a value of $4,900.00, leaving a total severance damage to Tract No. 1 of $13,-642.00. (See Stipulation of Counsel, TR. 88-89, Vol. I).”

Because of the above stipulations the only issues to be decided by the District Court were the severance damages to Tracts II and III, the fixing of expert witness fees, and the award of attorney’s fees to the landowners.

The errors assigned by the appellant are that:

“1. The District Court was in error in not allowing appellant to call Messrs. Cobb and Gehr on cross-examination, as employees who were hired and paid $2,000.00 each by appellees to make an appraisal for them particularly in view of lack of assurance by appellees that these two experts would be called by them with an opportunity for appellant to cross-examine said appraisers at that time.
“2. The District Court committed manifest error in giving any weight whatsoever to the testimony of Messrs. Williams and Book as to the amount of severance damages to remainders No. 2 and No. 3 and, also, in according no weight to the market data evidence to which the other appraisers testified with respect to remainder No. 2.
“3. The District Court committed manifest error in its determination of whether the Morgan City Zoning Ordinance of 1959 applied as amended in 1970 or as amended in 1975, in finding that said ordinance was largely ignored by those appraisers who had thoroughly investigated it and was given proper consideration by those appraisers least familiar with it, in finding that said ordinance was being enforced without any evidence thereof, in its failure to make any analysis of the effect of the penalty clause or the general variance clause or the special flexible procedure for dealing with proposed developments in the “P-Planned Commercial” zone in either version of said ordinance, in failing to consider the reasonable possibility of amendment of the zoning ordinance in the future in light of the ease of its amendment in the past, and in failing to analyze the fact that zone of undeveloped land for which the classification of “P-Planned Commercial” had been created no longer existed as the single large tract of undeveloped land under control of one ownership in indivisión and that the entire basis of said classification no longer existed — making amendment of the zoning ordinance not only a reasonable possibility but a necessity to make any such classification of any effect whatsoever.
“4. The District Court committed manifest error in finding and granting severance damages of 25% of the before taking value of remainder No. 3.
“5. The District Court committed manifest error in finding and granting severance damages of 50% of the before taking value of remainder No. 2.
“6. The District Court apparently committed an inadvertent error in leaving out of its reasons for judgment and its judgment any mention of awards of expert witness fees to the six appraisers who testified in the case in view of its assurance to Mr. Cobb (R. 721, 1. 10) and its announcement of the amounts it would award to the appraisers (R. 821, 1. 9-R. 823, 1. 17).”

The appellees answered the appeal asking that the judgment of the District Court be amended to increase the award made to $551,914.05 and that the appraisers’ fees be increased to $2,500.00 apiece.

ASSIGNMENT OF ERRORS 1.

Article 1634 of the Louisiana Code of Civil Procedure provides:

“Any party or his representative may be called as a witness and cross-examined by the adverse party without the latter vouching for his credibility, or being precluded from impeaching his testimony, and immediately thereafter the witness thus called may be examined or cross-examined to the extent otherwise permitted by law upon the subject matter of his examination in chief by such adverse party. The court may permit the recall and further cross-examination of the party or of his representative as often as it deems such action to be in the interest of justice. “ ‘Representative’ as used in the paragraph above and in Article 1428(2) means an officer, agent or employee having supervision or knowledge of the matter in controversy, in whole or in part, whether or not he is in the employ of or connected with the party at the time his testimony is taken.”

In State v. Cook, 124 So.2d 221 (La.App. 2nd Cir. 1960) it was held that an appraiser whose appraisal was the one accepted by the Highway Department in a “quick taking” proceeding could be called by the defendant in their case in chief under cross examination. The Court in considering this point said:

“We regard the point raised as being not only supertechnical but purely academic, for two reasons: First, upon presentation of oral argument in answer to questions from the Bench, counsel for plaintiff conceded that application had been made for writs to the Supreme Court with reference to this issue and that the same had been denied; and, second, because, in the course of arguing his objection to this procedure before the trial court, counsel made the statement reflected by the record as follows:
“This witness will ultimately be placed on the stand for the Department of Highways."
“In view of the above admission of intention by which counsel was bound, we cannot conceive how any prejudice could possibly have resulted from admitting cross-examination on behalf of defendants. At most, this constituted simply an informality in procedure. In our opinion the allowance of cross-examination by the district judge on the ground that the same constituted no prejudice was eminently correct.” (Emphasis added).

This ruling was extended in State v. Kurtz, 143 So.2d 761 (La.App. 1st Cir. 1962) to include an appraiser whose appraisal was not accepted by the Highway Department in a “quick taking” proceeding. This extension was specifically overruled in Humble Pipe Line Company v. Roy Aucoin, Inc., La.App., 230 So.2d 365 (1st Cir. 1969).

A “representative” of a party under Article 1634 is an officer, agent, or employee having knowledge of the matter in controversy. While an appraiser may be “employed” by a party and have knowledge of the matter in controversy he is not an “employee”, but rather an independent expert engaged in a profession whose professional opinion may not be controlled by the party employing him. The District Court was not in error in refusing to allow the appellant to call on cross examination appraisers hired by the appellee whose appraisals were not accepted by the appellee.

ASSIGNMENT OF ERRORS 2, 4 AND 5.

All but one of the appraisers who testified determined that Tracts II and III had sustained severance damages. The District Court was most impressed by the testimony of the appellees’ appraisers and used their testimony as the basis for determining the amount due as severance damages. The appellant criticizes the use of the appel-lees’ appraisers because of their failure to utilize comparable sales occurring after the taking as the basis for determining the property’s diminution in value. There is testimony that because of the unique nature of the property in question that there exist no true comparables. While comparable sales would be the most convincing foundation for expert opinion, they are not essential where sound reasoning is demonstrated in the formulation of expert opinion. In these cases, a percentage approach can be valid. State, Department of Highways v. Sotile, La.App., 309 So.2d 873 (1st Cir. 1974); State, Department of Highways v. Stein, La.App., 301 So.2d 384 (4th Cir. 1974).

Severance damages as found by the various appraisers were:

TRACT 2 TRACT 3

Kermit Williams $78,317.00 $416,782.00

C. C. Book $93,865.00 $430,373.00

Byron Core $41,462.00 $190,270.00

LeRoy Cobb $24,186.00 $190,270.00

Sam Kennedy $47,497.00

M. C. Gehr $10,941.00 $190,269.00

The District Court, after considering the evidence presented, concluded that Tract II had sustained severance damages of $78,-317.00, 50% of its stipulated value before the taking, and Tract III had sustained severance damages of $308,056.00, 25% of its stipulated value before the taking.

The District Court reached these conclusions after an analysis of the evidence presented. The consideration due these conclusions was stated by the Louisiana Supreme Court in State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972), to be:

“ . . . [T]he effect to be given to opinion testimony is governed by the weight the trier of fact accords to that testimony. The weight testimony is entitled to receive is determined by the professional qualifications and experience of the expert, the facts and studies upon which his opinion is based and, in case of land appraisals, his familiarity with the locality. La. Power and Light Co. v. Dixon, 201 So.2d 346 (La.App.1967). In all cases the possible bias of the witness in favor of the side for whom he testifies and the witness’ character and credibility bear upon the weight of the testimony. “These are all matters for the trier of fact. And when, as in this case, testimony of the witnesses is contradictory, the finding of the trier of fact will not be overturned unless manifest error appears in the record.”

There is evidence contained in the record upon which the District Court as trier of fact can base its conclusions. After a review of the evidence presented, we find no manifest error.

ASSIGNMENT OF ERRORS 3.

Because this suit was filed before January 1, 1975, the provisions of Act No. 107 of 1954 apply. Therefore, severance damages are to be determined as of the date of trial. This provision was statutorily intended to specify that damages suffered by the remainder should be reduced by special benefits which result from the completion of the project, it was not intended to deprive the owner of compensation for damages sustained by his property because of a general increase in the value of the land between the taking and the trial. State, Dept. of Hwys. v. Society for Propagation, etc., La.App., 321 So.2d 393 (1st Cir. 1975); State, Dept. of Hys. v. William T. Burton Indus., Inc., 219 So.2d 837 (La.App. 3rd Cir. 1969). Severance damages are the difference between the before and after values of the remainder less any special benefits to the remainder as a result of the project. Just as general appreciation in land values is not allowed in diminution of severance damages, so too, zoning changes, resulting from causes other than a completed highway project, may not be employed to offset severance damages. State, Department of Highways v. Mayer, La.App., 257 So.2d 723 (1st Cir. 1971).

ASSIGNMENT OF ERRORS 6.

The record indicates that the District Court intended to award expert witness fees for each appraiser of $500.00 for the time spent in preparation and $200.00 for each day actually spent in court or giving a deposition in Lafayette. Two appraisers were called by the appellee to testify. Kermit Williams prepared a report, spent one day in court testifying and one day in Lafayette giving a deposition. C. C. Book prepared a report, spent two days in court and one day in Lafayette giving a deposition. Therefore, the fee of Kermit Williams is hereby fixed at the sum of $900.00, and the expert fee of C. C. Book is hereby fixed at the sum of $1,100.00, and both sums are taxed as cost herein.

For the above reasons, the judgment of the District Court is affirmed as to the award for just compensation and severance damages and amended to assess as cost, expert witness fees in the amount of $2,000.00. The appellant to pay those costs for which it may be cast.

AMENDED AND AFFIRMED AS AMENDED.


author: LANDRY, Judge.

text:
    Thomas M. STEWART et al. v. LIVINGSTON PARISH POLICE JURY et al. (two cases).
    Nos. 10595 and 10596.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      Karl W. Cavanaugh, Denham Springs, for plaintiffs.
    Calvin C. Payard, Jr., Denham Springs, for defendant-jury.
    Charles W. Borde, Jr., Denham Springs, Bert K. Robinson, Baton Rouge, for defendant-city.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

Plaintiffs (Appellants) in these consolidated cases, appeal judgments rejecting their suits to enjoin promulgation of the returns of a local option election and to declare null and void the election held in Ward 2, Livingston Parish, pertaining to the sale of alcoholic beverages in excess of 3.2% alcoholic content. Appellants also seek to enjoin enforcement of ordinances adopted by the Livingston Parish Police Jury and the City of Denham Springs predicated upon the outcome of the election. We affirm in part and reverse in part.

The following pertinent facts are undisputed: On March 22, 1975, the Police Jury called a special election of the qualified voters of Ward 2, Livingston Parish, including the City of Denham-Springs (Denham Springs) and the Town of Port Vincent (Port Vincent), pursuant to petition of more than 25% of the registered voters in the ward. The special election was called for May 3, 1975, on which date a general bond election was to be held in Livingston Parish. Police Jury intended to effect a saving by calling both elections on the same date. The special election presented to the voters of Ward 2, the following propositions: (1) Whether to permit sale of beverages of low alcoholic content (beverages containing more than 3.2% alcohol by weight but not more than 6% by volume); (2) Whether to permit sale of beverages of high alcoholic content (more than 6% alcohol by volume), for on the premises consumption; and, (3) Whether to permit package sale only of beverages of high alcoholic content, meaning sale for off premises consumption only. Notice of adoption of the election ordinance was published in the Denham Springs News, the official Journal of the Police Jury, four times between March 22 and May 1, 1975. Shortly before the election date, the Police Jury became aware that the May 3, 1975, election date did not comply with the provisions of LSA-R.S. 26:586, et seq. (Local Option Law), which requires that an election be held not less than 45 nor more than 60 days from the date of the resolution calling same. On May 1, 1975, Police Jury adopted a resolution amending its resolution of March 22, 1975, to cancel the May 3, 1975, election date and rescheduling the election for May 13, 1975. The Police Jury considered but rejected May 17, 1975, as the new election date, when it became aware that yet another election was scheduled for the latter date. When the error was discovered, however, it was learned the special election ballots could not be removed from the voting machines prepared for the May 3,1975, election and that the machines could not be adjusted to prevent voting on the local option ballots appearing thereon. It is conceded that on or about April 28,1975, all local news media in Livingston Parish, including radio and television, carried the announcement that the May 3, 1975, local option election had been postponed. It is stipulated that the Police Jury did all it could to prevent the local option ballots from appearing on the voting, machines. On April 29, 1975, the Police Jury supplied each election commissioner and each precinct clerk with a notice of postponement of the local option election and directed each commissioner and clerk to ignore any local option ballots cast. A copy of the notice was placed in each voting machine and similar notices were posted at each precinct on May 3, 1975. The notice called attention to the postponement, requested voters to refrain from voting on local option issues and advised that any votes cast on the local option issues would not be counted.

On May 2, 1975, certified copies of the May 1 resolution were manually delivered to the Secretary of State; the Custodian of Voting Machines; the Clerk of Court, Livingston Parish; the Ex-Officio Custodian of Voting Machines, Livingston Parish; the Registrar of Voters, Livingston Parish; and each Board of Election Supervisor, Livingston Parish. Despite the foregoing, some votes were cast on May 3,1975, on the local option issues, the number of said votes not being shown. These votes were neither counted nor tabulated.

After May 1, 1975, notice of the new election date was published three times in the Denham Springs News, the only issues of the paper published between May 1, and May 13, 1975. A day or two prior to May 13, 1975, the Police Jury purchased numerous spot radio announcements informing the electorate of the new election date. In the ward wide election, Proposition One failed by a vote of 1,874 to 1,580; Proposition Two lost by a vote of 2,000 to 1,442; and Proposition Three failed by a vote of 1,884 to 1,548. In Denham Springs, Proposition One failed by a vote of 910 to 882; Proposition Two lost by a vote of 984 to 796; and Proposition Three lost by a vote of 907 to 866. In Port Vincent, Proposition One carried by a vote of 92 to 20; Proposition Two carried by a vote of 94 to 21; and Proposition Three received a favorable vote of 82 to 32. On May 22, 1975, the Police Jury adopted an ordinance prohibiting the sale of alcoholic beverages containing more than 3.2% alcohol by weight, in all of Ward 2, Livingston Parish, except within the Town of Port Vincent. On May 27, 1975, the City of Denham Springs adopted Ordinance Number 588 prohibiting the sale of alcoholic beverages containing more than 3.2% alcohol by weight, within the city limits. The trial court’s reasons for judgment impliedly upheld the validity of the Den-ham Springs ordinance.

It is conceded the Police Jury acted in good faith in conducting the election in the manner indicated. Nevertheless, Appellants contend the election ordinances predicated on the results, are null and void for the following reasons: (1) The change in election date does not comply substantially with LSA-R.S. 26:586, which requires calling an election within not less than 45 nor more than 60 days prior to adoption of the election ordinances; (2) The rescheduled election date did not allow time for absentee balloting as required by LSA-R.S. 18:1071, et seq.; (3) Failure of the Police Jury to furnish commissioners of Precinct 7-2 separate lists of voters in or outside Port Vincent as required by the resolution calling the election; (4) The City of Den-ham Springs did not call a local option election; (5) The Police Jury is without authority within incorporated municipal limits; and (6) Alternatively, the election is an unconstitutional exercise of initiative and referendum in contravention of La. Const.1974, Article 3, Section 1.

THE ALLEGED NULLITY OF THE ELECTION AS AN UNCONSTITUTIONAL EXERCISE OF INITIATIVE AND REFERENDUM CONTRARY TO LA.CONST.1974, Article 3, Section 1.

We determine this issue first, considering its resolution in favor of Appellants would eliminate the necessity of deciding all other questions presented. Appellants concede that under La.Const.1921, local option elections were not deemed an unconstitutional delegation of legislative power. Appellants urge, however, that La. Const.1974, Article 3, Section 1, vests all legislative power in the State Legislature and no provision of the present constitution expressly permits initiative or referendum. Therefore, Appellants suggest, initiative and referendum are no longer permissible and consequently, LSA-R.S. 26:581, et seq. is unconstitutional.

La.Const.1921, Article 3, Section 1, provides:

“The legislative power of the State shall be vested in a Legislature, which shall consist of a Senate and a House of Representatives.”

La.Const.1974, Article 3, Section 1(A) states:

“The legislative power of the state is vested in a legislature, consisting of a Senate and a House of Representatives. The Senate shall be composed of one senator elected from each senatorial district. The House of Representatives shall be composed of one representative elected from each representative district.”

The grant of legislative power is identical under both cited constitutional provisions. In State v. Watkins, 176 La. 837, 147 So. 8 (1933), the Court considered the validity of a state wide referendum called to repeal the prohibition law known as the Hood Act. The Court held that a statewide referendum was void as an unlawful delegation of legislative power. However, the court noted the following:

“That principle does not forbid the Legislature to enact local laws dependent for their effect upon a vote of the electors of the locality to be affected, or to enact a general law or municipal charter to govern only such municipalities as may see fit to adopt it by a majority vote of the electors in the municipality.”

Our jurisprudence as above pronounced in Watkins, accords with the majority of jurisdictions regarding laws effective upon contingencies. In this respect we note the following appearing in 16 Am.Jur.2d, Constitutional Law, Section 258, page 507:

“The rule is well settled that while the legislature may not delegate its power to make a law, it may make a law to become operative on the happening of a certain contingency or future event. The legislature may enact a general law, complete in its terms, to become operative only upon the happening of a subsequent event, and this event may be the subject of control by human agencies. Moreover, in general it makes no essential difference what is the nature of the contingency if it is essentially just and legal. The reason for this rule is that it is not always essential that a legislative act must in any event take effect as law after it leaves the hands of the legislature. If the law is in its provisions a complete statute in other respects, its taking effect may be made conditional upon some subsequent event. When that event happens, the statute takes effect and becomes the law by force of legislative action as fully as if the time when it should take effect had been unconditionally fixed.
Following the same general rule, a law may also be made to take effect conditionally, depending upon the action of a municipal council, or even the action of the legislature of another state.
A statute is not invalid merely because it provides for the consent of interested persons to the contemplated regulation. Hence, a valid contingency upon which a law may take effect may be the vote of the electors of a given territory or part of the state within which the law is to operate. But the legislature cannot constitutionally provide that the qualified voters in one governmental unit shall decide whether a statute shall be in force and effect elsewhere than in the territory comprising that governmental unit.”

We likewise note the pronouncement of our own Supreme Court in Hainkel v. Henry, 313 So.2d 577 (La.1975), as follows: '

“A general principle of judicial interpretation of a state constitution is that, unlike the federal constitution, a state charter’s provisions are not grants of power but instead are limitations on the otherwise plenary power of the people of a state exercised through its legislature. Thus, in the absence of a particular constitutional provision that limits the power of the legislature to act in the respects assailed, a legislative action cannot be [assailed] as contrary to the state’s constitution.”

See also 16 C.J.S. Constitutional Law, Section 142, p. 680; W. Lee Hargrave, Louisiana Constitutional Law, 36 La.L.Rev. 533.

We find nothing in our Constitution of 1974, which restricts or prohibits the power of the legislature to enact a local option law. We conclude, therefore, that LSA-R.S. 26:586, et seq., is not violative of La. Const.1974, Article 3, Section 1.

THE VALIDITY OF THE MAY 1, 1975 AMENDMENT TO THE POLICE JURY RESOLUTION OF MARCH 22, 1975.

It is well settled that in the absence of fraud or gross irregularities, courts will not set aside the results of an election. Felder v. Police Jury of Livingston Parish, 207 La. 550, 21 So.2d 724 (1945); Duncan v. Vernon Parish School Board, 226 La. 379, 76 So.2d 403 (1954); Dupre v. City of Houma, 216 So.2d 576 (La.App. 1st Cir. 1968).

Even where proven irregularities exceed the difference in the votes between candidates, an election will not be set aside unless the defeated candidate establishes that but for the irregularities he would have been elected. Moreau v. Tonry, La.Sup.Ct., 339 So.2d 14, October 21, 1976.

It is stipulated that the Police Jury resolution of March 22, 1975, was adopted in good faith and with the view of economizing on election costs by holding the local option election conjointly with a previously scheduled parish wide bond election. It is also conceded the Police Jury was unaware that May 3,1975, fell four days short of the statutory 45 day minimum. Appellants urge, however, that the minimum period is intended to allow time for preparation of ballots and voting machines, to close voter registration books, to acquaint the public with the election date, and to allow the performance of other routine matters which must precede an election. In this case, the record shows reasonable notice of the change was given and that, while some confusion resulted, a total of 3,454 electors voted in the election held. It is also shown that ample voting machines were available and the ballots appearing thereon properly submitted and adequately explained the nature of the issues submitted to the electorate.

LSA-R.S. 26:589, provides that such elections shall be conducted as nearly as possible in accordance with the state’s election laws. It further provides that, where not otherwise regulated by LSA-R.S. Title 26, Chapter 3, or by any other statute, the authority calling a local option election shall provide in the call for the manner in which the election shall be conducted and the results promulgated.

It is provided, inter alia, by LSA-R.S. 18:545, that each parish board of election supervisors shall give 15 days notice of an election by advertisement in the official parish journal, or by posting at four public places in the parish if there is no official parish journal, but that no default by the parish board of supervisors in issuing the proclamation shall deprive the people of the right to hold an election as fixed by law or vitiate an election held. In Ginn v. Village of Bonita, 62 So.2d 159 (La.App. 2nd Cir. 1952), which involved a local option election contest, it was held that publication of the election notice by posting in public places instead of publication in the official journal, did not vitiate the election. In so holding, Ginn, above, noted the provisions of LSA-R.S. 18:545.

We find also that the May 1,1975, amendment of the March 22, 1975, Police Jury resolution fulfills the time requirement of LSA-R.S. 26:586. The amendment of a statute or ordinance substitutes the amending provision in lieu of the language it replaces, in its relation to the other sections of the same subject. This rule was established in Police Jury of Caddo Parish v. Mayor and City Council of Shreveport, 137 La. 1032, 69 So. 828 (1915), which states:

“An amendment of a statute by the subsequent act operates precisely as if the subject-matter of the amendment had been incorporated in the prior act at the time of its adoption, so far as it regards any action after the amendment is made, for it must be remembered that an amendment becomes a part of the original act, whether it be a change of a word, figure, line, or entire section, or a recasting of the whole language.” (Emphasis added).

Assuming an irregularity exists as regards the time element under consideration, we note first that good faith is conceded in this instance. Secondly we point out that Appellants have failed to establish that but for the irregularity, either the result would have been different or the electorate was deprived of the opportunity to freely express their will. Moreau v. Tonry, above.

WAS THE TIME PERIOD ALLOWED FOR ABSENTEE VOTING SUFFICIENT TO VITIATE THE ELECTION.

Local option elections must be conducted as nearly as possible in accord with the election laws of the state. LSA-R.S. 26:590. The law contemplates that all persons are to be allowed an opportunity to vote. Hollan v. Police Jury of Webster Parish, 134 So.2d 132 (La.App. 2nd Cir. 1961). In effect LSA-R.S. 18:1072 provides that absentee voting may be had by mail beginning sixty days and ending seven days before an election and, in person, absentee voting may be made not more than nineteen nor less than six days prior to an election.

In this case, absentee voting was permitted in the May 3, 1975, election during two five day week periods in which eight absentee ballots were cast, none of which were counted. Absentee balloting was discontinued 7 days prior to this election. For the May 13,1975 election, two days, May 5 and May 6, were allowed for absentee voting and the absentee voting books were closed on the latter night. Nineteen absentee votes were cast in the May 13, 1975, election. In effect, Appellants produced four witnesses who testified that they did not vote on May 13, 1975, because they were unaware the election had been postponed. In essence each testified that they did not know about the election because they had not read the local newspaper. These witnesses did not testify as to how they would have voted had they participated in the election. We find, however, that the fact that nineteen persons voted absentee ballots in the two day period allowed for absentee voting, attests the extent of publication and notice given in this instance. Assuming an irregularity exists with regard to absentee voting, Appellants have failed to show that but for such irregularity, the outcome of the election would have been different. Moreau v. Tonry, above.

FAILURE TO FURNISH SEPARATE COMMISSIONER LIST FOR THE TOWN . OF PORT VINCENT.

The Police Jury resolution calling subject election recites that in precincts having residents living in both municipal and unincorporated areas of the ward, separate voting lists were to be furnished the commissioners designating the names of electors in each such areas. It is conceded that the Voter Registration List furnished for Precinct 7-2 did not designate which electors resided in Port Vincent and which of the electors resided outside the limits of that municipality. At trial it was stipulated that it was physically impossible to designate which electors resided within and which resided without Port Vincent.

Eight commissioners were appointed to conduct the election in Precinct 7-2 four were selected from within Port Vincent and four from outside the municipal limits. Two voting machines were used for the election; one was designated for use by voters living in and the other for use by voters living outside Port Vincent. Each elector voting at this precinct was asked, and the commissioners, to the best of their knowledge, verified whether each voter lived inside or outside of Port Vincent. Each elector was required to sign the single registration book provided for the precinct. A separate list was kept, however, showing those voters who lived outside the municipality. After determining whether a voter lived in or out of Port Vincent, the Commissioners directed him to cast his ballot on the appropriate machine. After closing of the polls, the votes were, tabulated separately on each machine and were separately counted and recorded. Appellants concede the Commissioners acted in good faith and to the best of their ability in separating the votes of the electors residing within and without the municipality. Nevertheless, Appellants contend that it is not certain that no elector residing outside Port Vincent voted on the machine designating the vote in Port Vincent.

LSA-R.S. 26:582 provides that elections of this nature shall be separately called and the result shall be separately binding upon each incorporated municipality and the rest of the ward involved.

LSA-R.S. 26:587 recites that a majority vote cast on each proposition shall separately determine the issue for the ward or for the municipality. It also provides that when a ward contains an incorporated municipality, the issue shall be separately determined for the municipality and the unincorporated remainder of the ward.

Substantial compliance with the Local Option Law is achieved where, even though separate voter lists are not maintained, ballots are separately counted from different machines utilized to separate the votes of electors residing within a municipality from those of electors residing without a municipality. McFerrin v. Police Jury of Sabine Parish, 220 So.2d 203 (La.App. 3rd Cir. 1969), and authorities therein cited.

We likewise find that Appellants have failed to discharge the burden of establishing that the- method of absentee voting allowed in this instance changed the outcome of the election.

APPLICABILITY OF THE POLICE JURY ORDINANCE WITHIN THE MUNICIPAL LIMITS OF DENHAM SPRINGS.

Appellants urge that the Police Jury lacks authority to adopt an ordinance effective within the limits of the City of Denham Springs, and that the ordinance adopted by the City of Denham Springs is null and void because that municipality did not hold a local option election. This position is based in part upon the following provisions in LSA-R.S. 26:595:

“When the majority of qualified electors voting in an election held under the provisions of this Chapter determine that any or all of the businesses described shall not be licensed, the governing authority calling the election may provide for the prohibition by ordinance, and may provide penalties for the violation of the ordinances. The penalties shall not, however, exceed a fine of one hundred dollars or imprisonment for not more than thirty days, or both.”

Appellants also rely upon City of Pineville v. Tarver, 231 La. 446, 91 So.2d 597 (1956), and City of Shreveport v. Draiss & Co., Ill La. 511, 35 So. 727 (1904), in which cases local option ordinances were invalidated without a valid local option election having been held. We find these authorities inapposite herein.

It appears that this question has been determined adversely to Appellants’ contentions by our Supreme Court in McGee v. Police Jury of Caddo Parish, 225 La. 471, 73 So.2d 424 (1954). McGee, above, held invalid an ordinance predicated upon a local option election called by the Police Jury of Caddo Parish for the unincorporated areas of Ward 4 of said Parish in which only one municipality, namely the City of Shreveport, was situated. The court noted that the local option law is a delegation of legislative power which can be exercised only pursuant to the authority therein conferred. The court found that the statute does not authorize the holding of a local option election in only the unincorporated areas of a ward. The court also observed that when an election is called on a ward wide basis, all residents of the ward are entitled to vote therein, even those residing in incorporated municipalities. Concerning the effect of such an election the court stated:

“The purpose of Paragraph 2 of Section 582 is made clearer by an examination of Section 587 of the statute which deals with the election itself. The last paragraph of this section provides that a majority vote east for each proposition shall separately determine the issue for the ward or for the incorporated municipality, and that, when a ward contains an incorporated municipality, the issue shall be separately determined for the municipality and for the unincorporated balance of the ward. When these two provisions are considered together, they clearly indicate that the statute contemplates that, when an election is called on a ward-wide basis and the ward contains an incorporated municipality, the issue presented shall be separately determined by the electorate for the municipality and for the unincorporated balance of the ward. It certainly does not contemplate that two elections shall be held, one for the unincorporated portion of the ward and one for the municipality or incorporated portion of the ward, because this section plainly provides that the issue in a ward-wide election shall separately be determined for the municipality and for the unincorporated balance of the ward. In such a ward-wide election called by the police jury the sale of intoxicating beverages could be prohibited in the municipality if the majority of the voters so voted, and the unincorporated portion of the ward could by a majority vote permit such sale, or “vote wet”, or vice versa. The purpose of this provision relied upon by relators was simply to enable the issue in a ward-wide election to be separately determined for the incorporated and the unincorporated portions of such ward.”

We view the cited language as holding that a Police Jury is the only body politic which can call a ward wide local option election which must encompass an entire ward, including any incorporated municipalities located therein. We also understand McGee, above, to hold that the results of a ward wide election are binding upon the incorporated municipalities of the ward in a ward wide election called by a police jury.

In Police Jury of Avoyelles Parish v. Corporation of Mansura, 107 La. 201, 31 So. 650 (1902), the Supreme Court found that a validly held parish wide election in favor of prohibition, nullified a previous election which voted the Corporation of Mansura wet. In commenting upon the effect of a parish or ward wide election the court, in Mansura, noted the following:

“If a parish, as a whole, does not take action to establish prohibition, and a ward of the parish wishes to do so, the police jury may authorize such ward to hold an election, and if the vote be in favor of prohibition it binds the cities and towns within the limits of the ward, with the limitation that 12 months after the ward shall thus have established prohibition, a town or city within its limits may vote to authorize liquor selling in the municipality. If neither the parish as a whole, nor a ward as a whole, within which is an incorporated town, takes action to establish prohibition, such town, acting through its own officials, may hold an election, and if the vote be in favor of prohibition it holds good, in so far as the town authority extends, until the people of the town vote differently at an election, which is not to be held before 12 months, from the first election, expire.”

We conclude the ordinance adopted by the Police Jury on May 22, 1975, prohibiting the sale of alcoholic beverages containing more than 3.2% alcohol by weight, in all of Ward 2, Livingston Parish, except the Town of Port Vincent, is legal and binding within the municipal limits of the City of Denham Springs. We also conclude that Ordinance 588, adopted by the City of Denham Springs, on May 27, 1975, purporting to prohibit the sale of alcoholic beverages containing more than 3.2% alcohol by weight, within the city limits, is null and void because no local option election was called by the City of Denham Springs as required by law.

It is ordered, adjudged and decreed that the ordinance adopted by the Police Jury of Livingston Parish, on May 22, 1975, prohibiting the sale of alcoholic beverages containing more than 3.2% alcohol by weight, in all of Ward 2, Livingston Parish, except the Town of Port Vincent, is legally enforceable and binding within the limits of the City of Denham Springs.

It is further ordered, adjudged and decreed that Ordinance 588, adopted by the City of Denham Springs on May 27, 1975, prohibiting the sale of alcoholic beverages containing more than 3.2% alcohol by weight, within the municipality of Denham Springs, is null and void and that the judgment of the trial court is reversed and set aside insofar as it purports to hold to the contrary; all costs of these proceedings to be paid by Appellants.

Affirmed in part, reversed in part and rendered.


author: COLE, Judge.

text:
    W. N. BERGERON & SONS v. CALDWELL SUGAR CO-OP, INC.
    No. 11003.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      Daniel J. Nail, Triche & Sternfels, Napo-leonville, for plaintiffs and appellees.
    John F. Pugh, Pugh, Lanier & Pugh, Thi-bodaux, for defendant and appellant.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   COLE, Judge.

W. N. Bergeron & Sons, a partnership owning “Hard Times Plantation” and appearing through its managing partner, S. W. Bergeron, brought suit against Caldwell Sugar Co-op, Inc., for the alleged breach of a written contract entitled “Marketing Agreement” entered into between the parties. Caldwell appeals the judgment rendered in favor of Bergeron. We affirm.

As stipulated between the parties, Ber-geron and Caldwell entered into a written contract entitled “Marketing Agreement,” dated August 8, 1969. Under the agreement, Bergeron was obligated to deliver to Caldwell, all of the cane grown on “Hard Times Plantation” for a period of five years, beginning with the 1969 crop, excluding one-fifth of the total grown by Berger-on. In return, Caldwell was to pay “patronage dividends” to Bergeron consisting of a pro rata share of the profits from the mill operation based upon the amount of cane delivered by the member.

According to the written stipulation of the parties:

“5) W. N. Bergeron and Sons complied with all the provisions of the marketing agreement during the years 1969, 1970, 1971, 1972, and 1973.
“6) For the sugar cane delivered to the sugar mill of Caldwell Sugars Co-op, Inc. from W. N. Bergeron and Sons ‘Hard Times Plantation’ covered by the Marketing Agreement for the crop years 1969 through 1972 defendant paid to plaintiff the total amount due under Article 6 of the Marketing Agreement.
“7) For the crop year 1973 defendant paid to plaintiff patronage dividends on only one-fifth (Vs) of the sugar cane delivered under the Marketing Agreement.
“8) The patronage dividend rate of payment for crop year 1973 was $3.7404 per standard ton of sugar cane delivered under Marketing Agreement.
“9) The total of sugar cane delivered to Caldwell Sugars Co-op, Inc. sugar mill from W. N. Bergeron and Sons ‘Hard Times Plantation’ from the crop year 1973 was 4733.50 standard tons of sugar cane.
“10) Caldwell Sugars Co-Op, Inc. paid patronage dividend to W. N. Bergeron and Sons from the crop year 1973 based on 945.22 standard tons amounting to $3535.50.
“11) The amount in dispute is $14,-169.68 obtained by applying the balance of the crop delivered of 3788.28 standard tons of sugar cane against the patronage dividend rate of $3.7404 per standard ton of sugar cane all for the crop year 1973.
“12) The four-fifths (Vs) of the crop in question was considered ‘member cane’ in each year of operation under the Marketing Agreement as interpreted mutually by the parties up until crop year 1973.” (Record, pp. 73, 74)

After paying Bergeron patronage dividends for all of the cane delivered for four of the five contract years, Caldwell refused payment in the fifth year. Instead, Caldwell paid dividends based on one-fifth of the cane delivered from “Hard Times,” which is customarily the landlord’s share of the crop. This action by Caldwell was initiated in response to the decision- in Iberia Sugar Cooperative, Inc. v. United States, 5 Cir., 480 F.2d 548 (1973).

Under the Internal Revenue Code, 26 U.S.C.A., § 1382(b), a farmer’s cooperative association like Caldwell, may exclude from its taxable income amounts paid to its members, such as Bergeron, as patronage dividends. However, under the Iberia Sugar Cooperative case, the cooperative may not exclude from its taxable income those amounts paid to members based on the nonmember tenant’s share of the cane delivered. When faced with this decision affecting its tax liability for amounts paid to members with respect to the non-member tenant’s share of the cane delivered, in the final year of the contract, Caldwell, acting on the advice of its accountants, refused to pay Bergeron the dividends based on the total cane delivered so as to avoid tax exposure with respect to that portion attributable to the non-member tenant’s share of the cane.

Caldwell argues that to pay Bergeron a dividend based on the entire amount of cane delivered from “Hard Times” would be a violation of federal tax law. This approach is not accurate because such a payment to Bergeron would not be illegal. Caldwell would merely be subject to tax liability for that portion of the dividend paid which was based on the non-member’s share of the cane.

To justify its failure to pay Bergeron patronage dividends for the entire amount of cane delivered in 1973, defendant-appellant Caldwell underscores the following portion of the marketing agreement:

“2. The Association buys and the Grower sells and agrees to deliver to the Association all sugar cane grown by him in the State of Louisiana, for a period of 5 years from the date of this agreement, beginning with the 1969 crop, including that produced or acquired by or for him as landlord or tenant, lessor or lessee. * * * This contract is intended by the parties to pass absolute title as far as possible to. all sugar cane as soon as the same shall have a potential existence, but they shall be at the risk of the Grower until delivery. Grower warrants that he has not sold or contracted to sell to any other party any of the cane covered by this contract.” (Record, p. 4)

As the trial court correctly pointed out, apparently there is some doubt as to the meaning of the above-quoted contract language. The debate centers upon the question of whether the marketing agreement covers all cane grown by the member on his land or only the one-fifth of the crop, customarily the landowner’s share.

Defendant contends that because four-fifths of the cane delivered belonged to Bergeron’s tenant, it was not covered by the contract since Bergeron could not pass title to the cane to Caldwell. There is nothing in the record to indicate that Ber-geron was not, in fact, the owner of the cane. The parties merely stipulated that the cane delivered to Caldwell came from “W. N. Bergeron & Sons ‘Hard Times Plantation.’ ” (Stipulation 9, p. 74, Record) We will assume for argument, as Caldwell alleges, that Bergeron as landlord owned one-fifth of the cane delivered, and Berger-on’s non-member tenant had title to four-fifths of the cane delivered.

When confronted with disputes as to the interpretation to be given language in a contract, the court is guided by various codal axioms. See e. g., La.C.C. arts. 1901, 1945, et seq. A contract is the law between the parties, and except as authorized by law, may not be revoked unless by mutual consent of the parties. La.C.C. arts. 1901, 1945. In situations, as in the instant case, when the meaning of the contract or agreement is doubtful, the court must seek- to determine the mutual intention of the parties. La.C.C. art. 1950.

However, the determination of what the common intention of the parties was in reaching an agreement is often questionable. In such situations C.C. art. 1956 is relevant:

“When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.”

See, Jacka v. Ouachita Parish School Board, 249 La. 223, 186 So.2d 571, 574 (1966).

In the instant case, it is clear from the stipulation mutually entered into by the parties that until 1973 all the cane delivered to Caldwell by Bergeron from “Hard Times” was “considered ‘member cane’ as interpreted mutually by the parties.” Both parties performed consistently with this interpretation of the agreement for four years under the contract. Therefore, as stated by the trial court:

“ * * * It was obviously the intent of the parties to the Marketing Agreement that the plaintiff would receive a patronage dividend based on the entire crop grown on his land delivered to the mill. * * * ” (Reasons for Judgment, Record, p. 80)

Further, in cases of dispute concerning the interpretation of language in written contracts, generally any ambiguity in meaning is interpreted against the party who has prepared the contract. C.C. art. 1957. The “Marketing Agreement” was a standard form contract used by Caldwell in contracting with its member growers.

Therefore, for the foregoing reasons, the judgment of the trial court is affirmed. The costs are to be assessed to the appellant.

AFFIRMED.


text:
    Coleman GIVENS v. T & M FERTILIZER CO. et al.
    No. 11008.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Dan Cornett, Baton Rouge, for plaintiff-appellee.
    Taylor, Porter, Brooks & Phillips, William A. Norfolk, Baton Rouge, for defendants-appellants.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

This appeal by defendants T & M Fertilizer Co. (T & M); John R. Thibodeaux, employee of T & M; and, The Travelers Insurance Company, T & M’s insurer, seeks reduction of damages awarded plaintiff Coleman Givens for personal injuries sustained in an automobile accident. The trial court awarded plaintiff general damages in the sum of $10,000.00 for injuries consisting principally of lumbosacral and cervical strain which activated and aggravated a pre-existing osteoarthritic condition. We affirm.

Appellants do not complain of the finding of liability. They allege merely that the award for personal injuries was excessive and should be reduced to $2,000.00.

The accident in question occurred at approximately 7:50 A.M., November 5, 1978, on two lane Louisiana Highway 1, in Assumption Parish. It suffices to state that plaintiff’s southbound vehicle was stopped in its proper lane of travel in deference to a northbound school bus stopped in its proper lane of travel while boarding schoolchildren. While thus stopped, plaintiff’s vehicle was struck from the rear by a southbound truck belonging to T & M and being driven by Thibodeaux.

Plaintiff, who was approximately 65 years of age at the time of the accident, was rendered unconscious as a result of the collision. He was taken from the accident scene to a local hospital where he was seen and attended by Dr. Jon Anthony Savoie. Initial examination by Dr. Savoie disclosed plaintiff was in considerable pain. Plaintiff complained primarily of pain in the lumbo-sacral and cervical areas. Plaintiff was also found to have a slightly elevated blood pressure which condition was attributed to excitement resulting from the accident and which condition was considered expectable under the circumstances, particularly because plaintiff was greatly agitated over the possibility he had sustained a broken back. Dr. Savoie prescribed bed rest on a hard mattress and ordered muscle relaxants and pain relievers. X-rays taken proved negative as to fracture in either the lumbo-sacral or cervical areas affected. Because of the fear of injuring plaintiff due to undetected fractures or other internal injuries, Dr. Savioe waited 48 hours before giving plaintiff a thorough neurological examination. The examination disclosed tenderness in the cervical area and soreness accompanied by muscle spasm in the low back region. Some limitation of range of motion in plaintiff’s back and neck was also observed.

Dr. Savoie discharged plaintiff from the hospital on November 9, 1973, to return home for bed rest and “easy ambulation”. On November 13,1973, plaintiff reported to Dr. Savoie’s office for examination which disclosed continued soreness of the back accompanied by a fair range of motion. Dr. Savoie prescribed continued dosages of muscle relaxants and advised plaintiff to return in about two weeks. Plaintiff returned November 23, 1973, at which time plaintiff was somewhat improved but still complained of back pain. On December 7, 1973, Dr. Savoie discharged plaintiff after examination which revealed that plaintiff was feeling well. In summary, Dr. Savoie diagnosed plaintiff’s injuries as lumbosacral strain signifying a pulling or overextension of muscles as distinguished from a sprain which is usually understood to mean a tearing of muscles. Dr. Savoie also found that plaintiff’s back and neck strain activated a dormant osteoarthritic condition in both said areas.

Plaintiff’s testimony is to the effect that prior to the accident he was healthy and active. Upon returning home from the hospital he remained in bed at home for most of the ensuing six weeks. He acknowledged he was in and out of bed during this period in which interval he took medication and indulged in heat therapy, including hot baths four or five times weekly. He stated that prior to the accident he had no neck or back pains and was not troubled by arthritis in either area. Following the accident he suffered continuously with pain in the back and hip as well as neck pain. At the time of trial he was still suffering from frequent pain in his back and hip, and occasional pain in his neck.

As regards assessments of damages, LSA-C.C. Article 1934(3) pertinently provides:

“In the assessment of damages in cases of offenses, quasi offenses and quasi contracts, much discretion must be left to the judge or jury . . .

Appellants, citing Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), and Sticker v. General Foods Corp. et al., 324 So.2d 568 (La.App. 1st Cir. 1975), contend some degree of uniformity is to be maintained in the awards of damages for similar injuries. Thus arguing, Appellants cite numerous cases in which awards for injuries similar to those sustained by plaintiff herein, have ranged from $1,600.00 to $4,750.00. See Ritter v. Thornton, 309 So.2d 750 (La.App. 4th Cir. 1975); Levron v. Dupre, 307 So.2d 107 (La.App. 1st Cir. 1975); Jennings v. Allstate Insurance Company, 241 So.2d 778 (La.App. 3rd Cir. 1970); Curry v. Vallot, 271 So.2d 711 (La.App. 1st Cir. 1972). Predicated on these authorities, and others involving similar injuries, Appellants maintain that plaintiffs award should not exceed $2,000.00.

In the recent case of Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974), our Supreme Court reiterated the rule that appellate review of awards for general damages is limited to determining whether the trial court has abused its great discretion in such instances. The court also noted that the adequacy or inadequacy of an award is to be determined on the basis of the facts and circumstances peculiar to the case under review, considering that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, including that relative to residual pain. Considering the uniformity of awards, the Supreme Court, in Anderson, above, noted:

“The awards made in other cases provide no scale of uniformity; their use is limited to serving as an aid to determine, if the present award is greatly disproportionate to similar awards (if truly similar), whether an issue of abuse of discretion may exist in the present case.”

In this instance we note the observation of the trial court to the effect that at the time of trial plaintiff was suffering from an arthritic condition apparent to the court “who observed the plaintiff’s posture and demeanor during the trial of the case”. It is clear from the record that the arthritic condition noted by the court was activated by the injuries plaintiff sustained in the accident. It is also clear this condition existed at the time of trial more than one year after the accident. We likewise note Dr. Savoie’s testimony that this condition is likely to continue indefinitely.

Under the circumstances peculiar to this case we find no abuse of the much discretion vested in the trial court in the assessment of damages.

The judgment of the trial court is affirmed, at Appellants’ cost.

Affirmed.


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    DAWSON ENGINEERS, INC. v. REICHHOLD CHEMICAL, INC.
    No. 11013.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      J. Peyton Parker, Jr., Baton Rouge, of counsel, for plaintiff-appellant.
    Robert J. Vandaworker, Baton Rouge, of counsel, for defendant-appellee.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

Plaintiff, Dawson Engineers, Inc. (Appellant), appeals from judgment dismissing its claim against defendant, Reichhold Chemical, Inc. (Reichhold), for engineering fees allegedly due for professional services rendered pursuant to an oral contract to prepare plans for an addition to Reichhold’s chemical plant located at Gulfport, Mississippi, and alternatively for judgment on quantum meruit. We affirm.

The decisive issue is the disputed nature of the agreement between the parties. Appellant relies upon an avowed oral agreement to provide engineering services in the form of complete construction plans for a plant expansion proposed by Reichhold. Conversely, Reichhold maintains that Appellant voluntarily offered to provide plans for a turn key plant addition including fabrication and installation at a price within Reichhold’s pre-set budgetary limitation, engineering fees included. Reichhold contends it was understood that if the proposed addition could not be built for the total allocation authorized by Reichhold’s budget committee, Appellant was to receive no engineering fees for preparation of plans.

The following relevant background facts are either undisputed or established in the record: Reichhold, whose domicile is White Plains, New York, operates an industrial chemical plant in Gulfport, Mississippi. Since May, 1968, O. U. Thomas (Thomas), has been Manager of Reichhold’s plant. Appellant, a corporation wholly owned by William J. Dawson (Dawson), is a consulting engineering firm. In addition to Dawson Engineers, Inc., Dawson also owned or controlled a fabricating business which complemented his engineering enterprise. In 1969, Dawson became president of a fabricating concern known as Mechanical Maintenance (MM), which concern he continued to operate. Prior to Dawson’s acquisition of MM, Thomas had placed numerous orders with MM for plant components which MM constructed and installed at Reichhold’s Gulfport plant. In each instance Thomas issued a purchase order to MM for a package or turn key price which included engineering fees, fabrication, and installation of the component purchased. In each instance MM billed Reichhold on the basis of Thomas’s purchase order.

Thomas continued doing business with MM after Dawson’s acquisition of that concern. From 1969 to about mid 1970, Thomas placed purchase orders with MM aggregating approximately $135,000.00. The procedure remained the same as before. In each instance Thomas issued a written purchase order pursuant to a verbal agreement whereby MM undertook to provide the order complete, engineering fees, fabrication and installation included. Upon completion of the order MM billed Thomas for the work.

Prior to March, 1970, Thomas, as Reich-hold’s agent, began negotiations with a firm known as Ford, Bacon and Davis, (FB&D), for preparation of complete plans for the addition of a catalytic hydrocarbon resin plant to Reichhold’s Gulfport facility. On March 3,1970, pursuant to authorization by Reichhold’s Budget Committee, Thomas entered into a contract with FB&D whereby Reichhold agreed to pay an engineering fee of $20,000.00 for a complete set of plans for a catalytic hydrocarbon resin plant with a capacity of 25 million pounds per year. The plans for the project, introduced in evidence, are complete in minute detail including engineering, electrical, instrumentation and sizing of all components. FB&D estimated the cost of construction at between $5 and $7 million dollars. The plan was disapproved by Reichhold because the Budget Committee had allocated only $1,500,000.00 for the proposed project. Reichhold paid FB&D the agreed engineering fee of $20,000.00, despite its disapproval of the project as too costly.

Appellant was aware of the agreement between Reichhold and FB&D because FB&D had priced certain components through Dawson’s fabricating facilities. When Reichhold dropped the proposed project, negotiations commenced between Appellant and Reichhold, through Thomas, concerning the possibility of Appellant preparing plans for the addition desired by Reichhold and which addition could be constructed within Reichhold’s budget limitation. The parties’ versions of how these negotiations began and what was agreed upon is conflicting, to say the least.

Dawson’s testimony is that Thomas contacted him after Reichhold’s disapproval of the FB&D plans. At Thomas’s request, Dawson went to Gulfport sometime after July 3, 1970, to discuss the matter with Thomas who orally agreed that Reichhold would pay Appellant an engineering fee of 4% of estimated construction costs for the plans. If the plant were built, Thomas agreed to a fee of 15% of all direct labor costs for supervision and construction, Reichhold to furnish all materials. Pursuant to the agreement, Dawson assigned virtually all his staff to the project for several months. The work required hundreds of man hours beginning in late July, 1970. Plans were prepared for two different facilities and submitted to Thomas in late 1970 and early 1971. The work entailed numerous conferences with Thomas who requested numerous changes as the plans progressed. No purchase order for this work was requested of Thomas because Dawson felt Thomas’s verbal authorization was good enough. Numerous requests were made of Thomas to pay the fee of $109,000.00 due because estimated construction costs ran between $2 and $3 million dollars for the first plans submitted, which were for a resin ester facility, the second set being for a hydrocarbon resin plant. Both plans were sufficiently complete that they could be used for construction. Dawson did not bill Thomas for the engineering services involved until August 12, 1974, despite completion of the plans in early 1971, because Dawson relied upon Thomas’s repeated verbal assurances the fee would be paid when money became available. He conceded that some of the work shown on one of the plans was the subject of a purchase order issued by Thomas and which Reichhold paid in full.

Fred Lieux, an engineering technician in Appellant’s employ, in essence corroborated Dawson’s testimony to the effect that the agreement with Thomas called for an engineering fee to be paid for the plans regardless of whether the plant was constructed.

Thomas’s testimony is that after Reich-hold’s Budget Committee rejected the FB&D plans because of the cost factor, Reichhold scrapped its proposal to add a resin ester facility to the Gulfport plant. In late July, 1970, Lieux contacted Thomas regarding the status of project proposed by FB&D and was advised the project had been abandoned as too costly. Lieux inquired whether Thomas was interested in reviving the project if the cost could be trimmed to a practicable figure. Thomas replied he did not know but that Thomas considered the project dead for the moment because no funds were available. Lieux proposed that he speak with Dawson and determine whether Dawson was interested in the project. In July, 1970, Thomas met with Dawson and informed Dawson that all funds allocated for engineering services for the proposed project had been spent and no more money was available for that purpose at the time. Dawson asked if Thomas would be interested if costs could be reduced. Thomas responded in the affirmative and indicated that he felt the FB&D plans contained a lot of “fat” which could be eliminated. Thomas indicated interest in a plan that could be implemented within an allocated construction budget of $1,500,-000.00 set by Reichhold’s Budget Committee. Thomas inquired how Dawson expected to get anticipated engineering fees for purely engineering services since Thomas had no money available for that purpose. Dawson responded that if he could get the fabrication and installation work he could recoup engineering expenditures. Dawson also stated that he was then in between big jobs and had people on his payroll with no work to do and whom he had to pay whether or not they worked, therefore Dawson could do the plans at virtually no additional cost. After this initial conference with Dawson, Dawson came to Gulfport accompanied by his aides Lieux, Bobby Joe Kiper and Betty Spell, to further consider the matter. Thomas gave Dawson a complete set of the FB&D plans and took Dawson and his employees on a tour of the Gulfport plant. After explaining in detail the nature of the plant desired, Thomas made it clear to Dawson that Thomas had no funds available for engineering services on the project and that Dawson would be paid only if Dawson designed a plant which fulfilled Reichhold’s requirement and which could be built within the construction budget allocated therefor. With this understanding, Thomas consulted frequently with Dawson and Dawson’s staff. He concluded at the outset that Dawson did not grasp the chemical aspects of the project. He noted that Dawson did not have a chemical engineer working on the plans although the project involved an intricate knowledge of chemical engineering. Thomas commented upon Dawson’s not having a chemical engineer involved in the planning and was advised that Dawson would engage a chemical engineer for the fabrication and installation stages of the work. In consulting with Dawson, Thomas made numerous trips to Baton Rouge, sometimes staying over the week end at Dawson’s expense. Thomas conceded that numerous changes were made as work on the plans progressed, some to correct Appellant’s mistakes and some resulting from Thomas’s attempts to bring the cost factor in line with the budget allocation for the project. Thomas stated the first plan was disapproved by the Budget Committee because estimated construction cost was $1,900,000.00. The second set of plans was also disapproved because estimated construction cost was excessive. Thomas also testified both sets of plans were incomplete and useable only for submission to his Budget Committee to determine cost feasibility. He contended that neither set was sufficiently detailed to be put out for construction contract bids because of deficiency in electrical and instrumentation detail.

Thomas noted it was customary that he issue a purchase order to Dawson for all work Reichhold desired. On every occasion that work was ordered, Thomas issued a purchase order, the last having been issued on February 25, 1972, for $30,000.00, which was paid in May, 1972. Thomas identified several purchase orders and noted that in each case engineering fees were included in the total price which also included fabrication and installation at Reichhold’s plant. He emphatically denied having ever contracted with Appellant for engineering fees per se. He also stated that after he notified Appellant of the disapproval of the second set of plans in about February, 1971, Thomas heard nothing further from Appellant concerning engineering fees until August, 1974, when Appellant called and requested payment of an engineering fee of from $3,000.00 to $5,000.00 for work on the plans in question. He again told Appellant no money was available for such purpose. Shortly thereafter, Thomas received a bill from Appellant for $109,000.00. Thomas denied he had authority to enter an engineering contract with any firm whatsoever. He explained that all such agreements were made pursuant to direction of the Budget Committee after authorization by Reich-hold’s Board of Directors as had been done in the case of the agreement with FB&D.

The trial court concluded Thomas’s version of the arrangement between these parties was the more plausible and reasonable. We agree. It seems eminently more reasonable that if Thomas issued a purchase order for the numerous small jobs performed by Appellant and MM over the years, as the record shows, it is most unlikely he would not have issued a purchase order for work of the magnitude and scope undertaken by Appellant. Significantly, Thomas issued a purchase order to FB&D for a $20,000.00 commitment for engineering fees per se, a sum approximately one-sixth of that claimed by Dawson for such fees. We also note the time lag between the completion of plans by Appellant and the billing date. We find it most unusual that Appellant would wait such an inordinately long period before presenting a bill for his services if the agreement were that the engineering fees were for plans only as Appellant contends.

Reichhold invokes the rule announced in Canter v. Koehring Company, 283 So.2d 716 (La.1973), to the effect that when there is evidence before the trier of fact, which upon its reasonable evaluation as to credibility constitutes a reasonable basis for the trial court’s finding, on review the appellate court should not disturb such findings except when manifest error is shown.

We are mindful of the rule in Canter, above, but do not rely thereon in our affirmation of the judgment rendered by the trial court. Our independent analysis of the record before us leads to the conclusion that the overwhelming preponderance of evidence supports Thomas’s version of the agreement between these parties. We find that under the agreement reached herein, Appellant was not entitled to engineering fees simply for preparing the plans submitted.

The judgment of the trial court is affirmed at Appellant’s cost.

Affirmed.


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    Peter G. BOURGEOIS v. James J. DAIGLE.
    No. 11015.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Eddie N. Pullaro, Houma, for plaintiff and appellee.
    E. Ross Buckley, Jr., New Orleans, for defendant and appellant.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   COLE, Judge.

Peter G. Bourgeois, plaintiff-appellee, filed suit against James J. Daigle, defendant-appellant, for damages to his automobile allegedly resulting from defendant’s negligence in causing a collision on December 22, 1975. The defendant failed to answer and a default judgment was entered on May 6, 1976. This default was confirmed on May 12, 1976, and judgment was rendered in favor of the plaintiff. The defendant appeals this judgment. We affirm.

The appellant contends that the trial court erred in its failure to find plaintiff contributorily negligent. However, this contention is without merit. Contributory negligence is an affirmative defense which must be specifically pled in answer and cannot be raised for the first time on appeal. La. C.C.P. art. 1005.

The appellant further contends that the trial court erred in allowing an unauthenticated repair estimate to be presented into evidence, in allowing damages for repairs which were unrelated to the accident, and in awarding excessive damages. These various allegations of error by the trial court involve basically the issue of the sufficiency of proof required of plaintiffs who seek to confirm default judgments and are factual determinations. See C.C.P. art. 1702.

The minute entry of the court on May 12, 1976, indicates that the trial court rendered judgment in favor of the plaintiff after hearing the evidence, including the testimony of five witnesses. The judgment states that the pleadings, law and evidence were in favor of the plaintiff. However, the testimony adduced at trial was not transcribed.

When there is no transcript in the record, Louisiana Code of Civil Procedure Articles 2130 and 2131 provide that the appellant must request that the parties agree to a written narrative of facts or that the judge make a written narrative. This record does not contain a narrative of facts, either made by the trial judge or stipulated between the parties. Therefore, this Court has before it no evidence to review to determine the factual issues concerning whether the judgment was rendered upon sufficient proof as required by La. C.C.P. art. 1702. For example, since five witnesses testified at the hearing, perhaps the repair estimate was entered pursuant to the testimony of the individual who prepared it. Furthermore, perhaps the witnesses’ testimony thoroughly established that the award was not excessive and that the damages were related to the accident.

The problem of a lack of transcript on appeal was addressed by the Supreme Court in Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875, 877 (1972), wherein the Court said:

“There is no requirement that a party confirming a default must have the testimony reduced to writing or that a note be made of the evidence introduced, and when a judgment has been rendered and no note of evidence has been made, it is incumbent on the party desiring to appeal to secure a narrative in accordance with Articles 2130 and 2131 of the Code of Civil Procedure. [Citations omitted]”

See, also, Marie v. Doucette, 328 So.2d 805 (La.App. 1st Cir. 1976).

In Hutcherson v. Welch, 316 So.2d 144 (La.App. 2nd Cir. 1975), it was stated:

“Where there are factual issues involved and the record contains neither a transcript of the testimony nor a narrative of facts, there is nothing for appellate review. There being no evidence to review, the presumption is that the judgment of the trial court is supported by sufficient competent evidence.” (316 So.2d at 144)

See also Miller v. Miller, 283 So.2d 277 (La.App. 3rd Cir. 1973) and Gilman v. Babin, 195 So.2d 737 (La.App. 1st Cir. 1967).

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the appellant.

AFFIRMED.