author: MARVIN, Judge.

text:
    John Henry CAIN et al. v. HOUSTON GENERAL INSURANCE CO. et al.
    Nos. 12806 to 12809.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Rehearing Denied March 16, 1976.
    Writs Refused April 27, 1976.

      Whitmeyer & Rubenstein by Claudius E. Whitmeyer, Shreveport, for John Henry Cain.
    Dodd, Barker, Avant, Wall & Thomas by James D. Thomas, II, Baton Rouge, for Jennie V. Cain.
    Dixon, Thomas & Fleming by Edmund M. Thomas, Shreveport, for Edwina Lynne Cain, Individually and as Provisional Tu-trix of the Minor, Marcellus DeWayne Cain.
    William D. Hall, Shreveport, for Mary Jean Dotie, Provisional Tutrix of the Minors, Roy Lea Dotie and Patricia Ann Do-tie.
    Ronald R. Thompson, Robert J. Jones, Norman L. Sisson, D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Baton Rouge, for State of La., Dept, of Highways.
    Before HALL, MARVIN and SMITH, JJ.
   MARVIN, Judge.

A one-vehicle accident resulted in fatal injuries to three guest passengers and non-fatal injuries to the driver and his wife. Four separate lawsuits, each naming the State Department of Highways among the defendants, were filed and eventually consolidated for trial below. From a judgment rejecting their demands against the State, all plaintiffs appeal. We reverse the lower court.

The accident occurred shortly after midnight on October 17, 1973, at a slight curve on Louisiana Highway 175, a two-lane blacktopped highway about four miles south of the municipality of Pelican. This road, running generally north and south, is classed as a secondary road by the State.

John Henry Cain was proceeding southerly on the highway in his 1965 Chevrolet. Roy Lee Cain, his brother, was riding in the right front seat. In the back seat of the car were Jennie V. Cain, wife of John Henry Cain, and their two children, Roderick, almost three years of age, and John-ette, almost two. Jennie V. Cain was pregnant at the time of the accident and gave birth to Tamisha Cain some seven months later. Roy Lee Cain and the two children were fatally injured in the accident.

John Henry Cain (No. 12,806) and Jennie V. Cain (No. 12,807) brought separate actions for their respective injuries and for the wrongful death of the two children. Roy Lee Cain was a married man with a wife (Edwina) and child (Marcellus). Before his marriage to Edwina, and at a time when no marital impediments existed as to either, Roy Lee became enamored of one Mary Jean Dotie, and by her fathered two children, Roy Lea, age 7, and Patricia Ann, age 6, whom he consistently acknowledged as his illegitimate children.

Edwina Cain, individually and as tutrix of Marcellus, brought suit for the wrongful death of Roy Lee Cain (No. 12,808). Mary Jean Dotie, as provisional tutrix of the acknowledged illegitimate children of Roy'Lee Cain, Roy Lea and Patricia Ann Dotie, brought suit for the wrongful death of Roy Lee Cain (No. 12,809). All plaintiffs sued the State Department of Highways. In the suits by Edwina Cain (No. 12.808) and by Mary Jean Dotie (No. 12.809) John Henry Cain was also made defendant on alternative allegations of negligence.

All plaintiffs are from Shreveport. John Henry Cain had never driven this highway before the accident and had no knowledge from any source as to its condition other than his experience in traversing the highway that night. On the night in question, after having worked during the day, John Henry Cain and his passengers proceeded on a nighttime drive towards Pleasant Hill at Roy Lee Cain’s request. He wanted to visit someone there. The parties stopped south of Shreveport and Roy Lee Cain purchased a six-pack of 16 ounce beer. He and John Henry Cain each drank one can and were drinking a second can of beer when the accident occurred. The investigating officer observed beer cans, several empty and one full and unopened can in the wrecked vehicle and noted the spillage or smell of beer inside the car. John Henry Cain said the can from which he was occasionally sipping had been placed in a holder on the floor of the car sometime before the accident and that he was not driving while holding the beer.

John Henry Cain had traversed several miles of Highway 175 before reaching the accident site. The roadway he had covered was described as typical of most north Louisiana secondary roads. It was what is referred to as a 20 foot blacktopped road with shoulders of 3-5 feet, with an occasional pothole, some edge rutting and erosion and some shoulder erosion.

About 3.7 miles south of Pelican along the westernmost edge of the highway edge, erosion had narrowed the paved surface to about 18 feet and there was an approximate 4 inch drop-off and rut extending for a several foot distance along this edge of the highway. To compound the situation, the State had painted the center line elsewhere than the exact center of the highway. The striping error resulted in the southbound lane being only 6.5 feet wide as compared to approximately 12 feet wide northbound. The center line or striping on the part of the road already traversed by John Henry Cain up to the site of the accident was painted generally in the center of the paved highway surface.

About 150 feet northerly of the narrowed southbound lane and the site of this edge erosion and rut there is the crest of a slight hill or incline. John Henry Cain’s testimony of his speed (40-45, not over 50 mph) was not contradicted, but was corroborated by an accident reconstruction expert and engineering professor from factors present after the accident. John Henry Cain and his wife testified that his lights were on the high beam. When the vehicle topped the hill and proceeded in the southbound lane the right wheel or wheels of the car dropped off the narrowed southbound lane into the rut. When John Henry Cain attempted to return his car entirely to the paved portion he lost control, veered across the highway some 213 feet and collided with a pine tree of approximately one foot diameter. There was no other traffic in the area of the accident,

The district superintendent of the Highway Department testified he traveled the road on inspection trips at least weekly and that for several months he had been aware of the “low” spot as he called it, but that he did not consider it to be particularly hazardous or dangerous. Persons who lived in the area and often traversed the road testified otherwise as to whether the low spot was hazardous.

The trial court found John Henry Cain to have been negligent in driving while his ability to do so was impaired by the consumption of alcohol and for his failure to maintain control. The trial court held that Jennie V. Cain and Roy Lee Cain, the adult guest passengers, were barred from recovering as against John Henry Cain because of their assumption of risk and contributory negligence in riding with John Henry Cain with knowledge of his driving ability being impaired. The lower court found no negligence on the part of the State with respect to maintenance of the highway or creation of a hazardous condition. We disagree with the conclusions of the trial court to be drawn from the facts as found below.

NEGLIGENCE OF THE STATE

According to the accident reconstruction expert, the headlights of an approaching car at 40-50 mph at the crest of the incline some 150 feet north of the eroded highway, rut and drop-off, would not have disclosed the hazard until it was too late for the driver to see and to react to the hazard. Likewise, the painted center line would be leading the driver towards the drop-off. The State argues that if the car headlights would not have revealed the eroded edge, rut and drop-off, they also would not have revealed the off-center striping which would lead a driver towards the drop-off. This is specious because the center line on this highway only is painted (not edge lines as on other highways) and the paint has reflective qualities which are not present on ordinary blacktop surfaces.

In Laborde v. Louisiana Dept. of Highways, 300 So.2d 579 (La.App.3d Cir. 1974), writ refused, 303 So.2d 182 (La.1974), Mrs. Laborde was driving in daylight hours pulling a trailer at 25-30 mph when she rounded a curve and observed a hole or depression on the edge of the blacktop. She was unable to avoid the drop-off, which resulted in her losing control and wrecking the car and trailer. The Third Circuit reversed the trial court’s finding that the Department of Highways was negligent by failing its obligation to properly maintain the highway.

In Mann v. State Farm, 323 So.2d 509 (La.App.3d Cir. 1975), there was a rut 2" to 6" deep on the highway edge below the paved surface at a curve. As here, the evidence there was not clear as to the length of the rut. Its width was about that of an automobile tire. The automobile entered the curve, ran off the paved surface onto the shoulder, and the driver lost control when he attempted to pull back onto the paved surface.

Principles expressed in those cases, in Pickens v. Police Jury, 323 So.2d 430 (La.1975) and in Petree v. Crowe, 272 So. 2d 399 (La.App.3d Cir. 1973), writ denied, 274 So.2d 709 (La.1973) are appropriate here. Factually, however, they are distinguishable. In Laborde the accident occurred during daylight hours and there was more than ample room in the plaintiff’s lane of traffic for her to avoid striking the drop-off. In Mann it is clear that the automobile left the,paved surface before it reached the drop-off.

In Pickens, the Supreme Court said:

“. . . [The state], however, is not an insurer of travelers upon its highways, roads and streets. The duty owed is to exercise reasonable care to keep these public ways in such condition that travelers who are prudent and ordinarily careful will not be exposed to injury, day or night. Louisiana’s jurisprudence on the subject is built upon the theory that fault is a prerequisite to responsibility in these cases. [Citations omitted],
“Although [the state] is not an insurer of the safety of travelers on its highways, roads and streets and it must keep these ways reasonably safe, they need not be maintained in perfect condition to render the [state] free from liability in damages. Defects which are not in the nature of traps, or from which danger cannot reasonably be anticipated, provide no actionable negligence. Liability will only be imposed when the defect is dangerous or calculated to cause injury. [Citations omitted].
“There is no fixed rule for determining what is a dangerous defect in a public way; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question: Was the public way maintained in a reasonably safe condition for persons exercising ordinary care and prudence?” [Citations omitted], 323 So.2d 432-433. (Material in brackets supplied).

Paraphrasing Pickens, the principle may also be stated: Highway defects which are in the nature of traps or from which danger can reasonably be anticipated, and which are known or should be known to the agency charged with maintenance, do constitute actionable negligence. See also Petree, supra, at page 405.

“The Department of Highways has a duty of maintaining the highways in a safe condition. This includes the duty of providing proper safeguards or adequate warnings of dangerous conditions in the highway. What constitutes proper safeguards and adequate warnings to motorists varies with the dangers presented and should be of such a nature that it is. commensurate with the danger. The negligence of the Department of Highways may be predicated on its knowledge or information of the existence of a dangerous or defective condition of the highway and subsequent failure to safeguard such condition.” 272 So.2d 399, 405. (Citations omitted).

In this instance, the Department of Highways created the off-center striping which narrowed the southbound lane from a 9-10 foot width to a 6.5 foot width, where the drop-off existed in a slight curve, and at a place only 150 feet south of the crest of a small hill. Especially to a nighttime driver who had never been on the road before and who was driving within the posted speed limit, these total circumstances constitute actionable negligence on the part of the Department.

The question of Pickens as to whether the highway was maintained in a reasonably safe condition for persons exercising ordinary care and prudence, under these circumstances, is answered negatively and against the State.

THE DRIVER’S CONTRIBUTORY NEGLIGENCE?

When John Henry Cain topped the hill and entered the slight curve at a speed of about 45 mph he was proceeding in a reasonable and prudent manner, keeping his automobile in the proper (southbound) lane. We have no evidence that he was not keeping a proper lookout.

In Paxton v. Ballard, 289 So.2d 85 (La.1974) factual allegations of “sole negligence,” as here, were held sufficient compliance with La.C.C.P. Art. 1005 to plead the affirmative defense of contributory negligence. The court there held, and we hold here, that the factual allegations of the pleadings gave “fair notice” to the plaintiff that plaintiff’s negligence would be at issue. See also Townsend v. Cleve Heyl Chevrolet-Buick, Inc., 318 So.2d 618 (La.App.2d Cir. 1975). Notwithstanding our holding that plaintiff’s driving was properly at issue, we find the trial court was in error in holding plaintiff contribu-torily negligent under the circumstances.

There is evidence, even the admission by John Henry Cain, that he had consumed one 16-ounce can of beer and that he was drinking a second can when the accident occurred some two hours after the beer was purchased. The second and open can of beer was in a plastic holder on the floor of the car when the accident occurred. We have no evidence that John Henry Cain’s driving ability was impaired by the beer. There were no tests requested of, or given to, John Henry Cain to determine the percentage of alcohol in his blood. There was no testimony that John Henry Cain displayed any symptoms of being under the effect of alcohol to any extent. The trial court was in error in inferring otherwise. Likewise, and in the absence of John Henry Cain’s ability to drive being impaired by alcohol, the adult passengers were exposed to no risk which they should have known and they assumed no risk in this respect.

QUANTUM

John Henry Cain’s right femur was broken in the accident. He was hospitalized for 14 days and the fracture was reduced by the insertion of a pin into the femur. Except for a one week attempt— aborted because of his inability to stand on the leg for any prolonged period of time— John Henry Cain did not work for approximately 21 weeks. We have no medical testimony, however, that the fracture resulted in any permanent disability. In addition to damages for the injury, temporary disability and the pain and suffering, John Henry Cain is entitled to recover for the respective medical or funeral expenses of himself, his wife and his children, as well as for the wrongful death of the two children.

There was no award below for John Henry Cain or his wife and it is our responsibility to assess damages. It is our determination that a just and fair award under the circumstances would be $15,000.-00 per parent per child.

The medical and related expenses of John Henry Cain totaled $1,172.00. His wife’s medical bills totaled $89.50, including a $34.50 doctor bill. The expenses relating . to the funeral of the children were $454.00, or $227.00 for each child. John Henry Cain’s employment produced him $99.00 per week gross, plus some amount from time to time in overtime. We award damages to John Henry Cain as follows:

Accordingly, we grant judgment to plaintiff as follows:

TOTAL MEDICAL AND FUNERAL_$ 1,715.50
LOSS OF WAGES_ 2,100.00
HIS PERSONAL INJURIES, PAIN AND SUFFERING ---- 5,000.00
WRONGFUL DEATH, TWO CHILDREN_ 30,000.00
TOTAL _ $38,815.50

NO. 12,806:

It is ordered, adjudged and decreed that there be judgment in favor of John Henry Cain and against defendant, Dept, of Highways, State of Louisiana, for $38,815.50 with legal interest from judicial demand and all costs, including appellate cost.

Reversed and rendered.

NO. 12,807:

Jennie V. Cain was pregnant at the time of the accident and some seven months later gave uneventful birth to a daughter. She sustained lacerations to her head and foot, requiring sutures, medication and emergency room treatment. She was not hospitalized and suffered no permanent disability. For her injuries, shock, pain and suffering, and anxiety regarding her pregnant condition, in addition to the amount awarded for wrongful death in No. 12,806, we award $1,500.00.

Accordingly, and for reasons assigned, in No. 12,807

It is ordered, adjudged and decreed that there be judgment in favor of Jennie V. Cain and against defendant Dept, of Highways, State of Louisiana, for $31,500.00 with legal interest .from judicial demand and all costs, including appellate cost.

Reversed and rendered.

NO. 12,808:

Edwina Lynne Cain brought suit as provisional tutrix of the minor, Marcellus DeWayne Cain. The trial court awarded damages below, stating:

“Roy Lee Cain . . . left a widow . and a legitimate child, Marcel-lus DeWayne Cain . . . Apparently Roy Lee Cain was close to this child. The court accepts the suggested figure of $30,000.00 as a reasonable, but adequate award for the child . . . for loss of support, loss of education and moral training, and loss of love and affection, . . .”

The amount awarded was within the trial court’s discretion.

As to Edwina Cain, individually, the trial court awarded damages for the death of her husband, Roy Lee Cain, from whom she was living separate and apart, stating:

“Edwina Lynne Cain and Roy Lee Cain had been separated for months prior to his death . . . [they] were in fact still married, and maintained a harmonious relationship, and Edwina had a certain feeling for Roy Lee. The court feels that an award of $10,000.00 for loss of affection would be adequate for Edwina Lynne Cain . . .”

While we find this award to be somewhat low, we find it within the broad discretion of the trial judge.

Additionally, the trial judge denied Edwina’s recovery of Roy’s burial expenses. We note that a bill was submitted and stipulated by the parties to be $892.00. The trial judge erred in denying Edwina Lynne Cain this amount.

Accordingly, and for reasons assigned, in No. 12,808

It is ordered, adjudged and decreed that there be judgment in favor of Edwina Lynne Cain, as provisional tutrix of the minor, Marcellus DeWayne Cain and against the defendant, Dept, of Highways, State of Louisiana, for $30,000.00 with legal interest from judicial demand and all costs, including appellate cost.

It is ordered, adjudged and decreed that there be judgment in favor of Edwina Lynne Cain and against defendant, Dept, of Highways, State of Louisiana, for $10,892.00 with legal interest from judicial demand and all costs, including appellate cost.

It is further ordered, adjudged and decreed that plaintiff’s demands against John Henry Cain áre rejected.

Reversed and rendered.

NO. 12,809:

Mary Jean Dotie as provisional tutrix of the acknowledged illegitimates, Roy Lea Dotie and Patricia Ann Dotie, instituted an action for the wrongful death of the children’s father, Roy Lee Cain. The trial court awarded damages, stating:

“The evidence is conclusive that Roy Lee Cain not only acknowledged these children as his, but that he visited them regularly and took them with him on occasion. These children knew Roy Lee Cain as their father, and loved him, and he loved his children . . .
“Thus the court feels that an award of $10,000.00 to each of these children for loss of love and affection would be appropriate and adequate, . . .”

Accordingly, and for reasons assigned, in No. 12,809

It is ordered, adjudged and decreed that there be judgment in favor of Mary Jean Dotie, as provisional tutrix of Roy Lea Dotie for $10,000.00 and as provisional tu-trix of Patricia Ann Dotie for $10,000.00, and against the defendants, Dept, of Highways, State of Louisiana, with legal interest from judicial demand and all costs, including appellate cost.

It is further ordered, adjudged and decreed that plaintiff’s demands against John Henry Cain are rejected.

Reversed and rendered.


source: Caselaw Access Project

author: SMITH, Judge. MARVIN, Judge

license: Public Domain

text:
    Ira L. CAMPBELL, Sr., Plaintiff-Appellee, v. Michel P. LELONG TRUST et al., Defendants-Appellants.
    No. 12781.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Rehearing Denied March 15, 1976.
    Writs Refused April 30, 1976.

      Cook, Clark, Egan, Yancey & King by Herschel E. Richard, Jr., Shreveport, Gerard F. Thomas, Jr., Natchitoches, for defendants-appellants.
    Bodenheimer, Jones, Klotz & Simmons by J. W. Jones, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and SMITH, JJ-
   SMITH, Judge.

Defendants, the beneficiaries of a trust dissolved during the course of this litigation, appeal from a judgment in favor of plaintiff, Campbell, and against them for $7,415.93 awarded as damages for failure of the trust to comply with its obligations under a sale of land and a cotton allotment to plaintiff.

By cash deed executed by the vendors on December 15 and December 18, 1970, and January 2, 1971, the Michel P. Lelong Trust and its beneficiaries, sold to Ira L. Campbell, Sr., a tract of land in Red River Parish containing approximately 365 acres, together with a cotton allotment as follows:

“Vendor, for the stated consideration does hereby sell, convey, deliver and assign unto Vendee 150 acres of cotton allotment as per ASC Program or other governmental agricultural programs, and further agrees to execute any and all other necessary documents, papers, assignments, etc. in order to effect said transfer as may be required by any appropriate governmental agencies.”

The deed further provided that it was in full compliance and pursuant to an agreement to purchase and sell entered into between the trust and Campbell dated November 28, 1970.

Thereafter, on February 16, 1971, the vendor trust filed an owner designation of transfer with the ASCS office as follows:

“We agree to transfer of 150.0 acres of 1970 cotton allotment to the tract purchased by Ira L. Campbell. This will amount to 99.5 acres of 1971 cotton allotment being transferred to the tract purchased by Ira L. Campbell.”

The ASCS committee allocated to plaintiff 99.5 acres. Plaintiff pursued appropriate administrative remedies to obtain the 150 acres but was unsuccessful.

Plaintiff filed suit against the trust and the County Executive Director of the parish ASCS office praying to be recognized as owner of the 150 acre cotton allotment and for damages against the trust. The suit was removed to Federal Court by the federal agency. The Federal District Court held that the governmental agency had done all it was required to do under the law ■ and dismissed it from the suit. The suit as between plaintiff and the trust was remanded to state court.

The case was tried. During the course of litigation the trust was dissolved and the beneficiaries were substituted as parties defendant. For oral reasons contained in the record the district court held that the vendor acted arbitrarily in failing to transfer the 150 acres of cotton allotment to plaintiff as called for by the deed. Damages were awarded to plaintiff based on the difference in the government payment actually made on the 99.5 acres and the payment that would have been made on 150 acres for the years 1971, 1972 and 1973. The district court did not render any judgment pertaining to ownership or requiring transfer of the additional acreage. The defendant beneficiaries of the trust appealed.

The record shows that before the transfer at issue here, defendants owned 2,600 acres of land and had approximately 400 acres of cotton allotment. The cotton allotment made by the Federal government amounted to the right to receive a subsidy based on cotton production from the designated lands.

In 1970, negotiations began between the representatives of the Lelong trust and plaintiff for the transfer of the 365 acre tract of which 275 acres were in cultivation. The first proposal by the trust was for the transfer of the land along with 75 acres of cotton allotment. Campbell rejected this offer after learning from the Trust’s tenant that the tract history of cotton production, the basis of allotments made by the committee, qualified it for an allotment of 120 acres. Another offer, this time including the full 120 acre allotment, was made by the Trust. This offer was also rejected by plaintiff.

At some time after the second offer, either through application to the Committee or by purchase from another landowner, the Trust obtained the right to an additional few acres of cotton allotment attributable to its total acreage. A third offer, including 150 acres of cotton allotment along with the 365 acre tract, was then made by the Trust. Campbell accepted this offer.

On November 2, 1970, the Trustee petitioned the district court for authority to sell the property with the 150 acres of cotton allotment. The proposed buy-sell agreement was attached to the petition for authority. A showing was made by the trustee that the transfer would financially benefit the Trust. An order authorizing the transfer was signed by the court on that day.

The record reveals that the buy-sell agreement was signed by two of the beneficiaries in France on November 13 and 20, 1970. That agreement was signed on behalf of the trust and by Campbell on December 7, 1970. The cash sale deed pursuant to this agreement was subsequently completed as noted above.

The seller was unable to deliver possession of the land until January 1, 1971, because the property was leased through December 31, 1970, hence the buy-sell agreement.

On November 30, 1970, Congress passed Public Law 91-524 which had the effect of reducing cotton acreage allotments by approximately one-third. That law was to be effective beginning with the 1971 crop year. Notices of the changes in allotments were mailed around January 7, 1971. Based on the reduction in base acreage allotments, a 150 acre allotment pursuant to the 1970 program would be equivalent to a 99.5 acre allotment under the 1971 program. Defendant’s total allotment of 400 acres plus the extra acres obtained in 1970, was reduced to 312 acres on January 1, 1971, as a result of the one-third reduction by the Federal Government.

It is the plaintiff’s position that he is entitled to 150 acres of cotton allotment under the 1971 program, not the 1970 program, and that as a result of defendant’s breach of the contract he was denied production of 50.5 acres of cotton. On the other hand, the defendants-vendors contend that the sale by them was of 150 acres of allotment under the 1970 program and that they were required to transfer only 99.5 acres pursuant to the agreement as modified by the 1971 law. The defendants contend in the alternative that, even if they were required by the contract to transfer the additional 50.5 acres, plaintiff suffered no damages as a result of their failure.

The . -al court held that the deed should be given effect as written and according to the circumstances existing at the time of the transfer. He granted judgment in favor of plaintiff for damages. We agree with the trial court’s assessment of the obligations imposed on the vendor by the express, unambiguous terms of the contract. We must reverse the judgment, however, because of our finding that the trial court improperly assessed the damages suffered by plaintiff as a result of the breach of contract.

A court is not justified in fixing damages in the absence of definite proof. The plaintiff has the burden of proving the damage suffered by him as a result of the breach of contract. In a breach of contract action, the plaintiff is entitled to recover the amount of loss he has sustained and the profit of which he has been deprived. LSA-C.C. art. 1934. While the absence of independent, corroborating evidence may not be fatal to the plaintiff’s burden of proof, the lack of 'even a minimal degree of detail or specificity as to the extent of loss precludes an award. Casadaban v. Bel Chemical & Supply Company, Inc., 322 So.2d 854 (La.App., lst Cir. 1975). Speculation and conjecture cannot be ac cepted as a basis for fixing loss of earnings or profits. Jones v. Rodgers, 179 So.2d 674 (La.App., 2d Cir. 1965).

In his petition plaintiff alleged that he had been deprived of cotton production on the 50.5 acres of cotton allotment that the defendants 'failed to transfer to him. Plaintiff itemized his damages as the profit he lost by reason of not being able to produce cotton on the 50.5 acres. No proof was offered at the trial in support of such a measure of damages.

The evidence adduced at trial indicates that the government allotments were not related to permissible production which was unlimited, but, rather, only dealt with the maximum acreage on which cotton production was subject to the government subsidy allowed the cotton producer. There was no damage to plaintiff because he, in fact, planted no cotton. Further, there was no limit on the acreage he could have planted.

The trial court allowed plaintiff an amount purportedly equivalent to the subsidy that would have been paid by the government on 50.5 acres of cotton production. The cotton subsidy could only be paid to one producing cotton on the allotted acreage. Campbell testified that he himself did not produce cotton; therefore, he did not receive any subsidy. Rather, he leased the property for a fixed sum to another individual. .Campbell’s lessee received the subsidy based on his cotton farming operations.

The evidence indicates that the rental charged by Campbell was not related to the subsidy paid by the government. Campbell’s lessee paid a rental of $6,000.00 in 1971, $6,500.00 in 1972, and $3,000.00 in 1973. While there is some testimony by Mr. Campbell that the rent would have been higher if the additional 50.5 acres had been subject to the subsidy program, there is no proof of the amount of increase in rent, if any, that would have resulted from the additional acreage being included. There was testimony by Mr. Campbell that he had never discussed with his lessee the effect that the additional subsidized acreage would have had on the lessee’s willingness to pay more rent.

Campbell’s lessee testified that in light of the condition of the farm and the surrounding circumstances, he would not have paid a greater rental even if there had been an additional 50.5 acres of production subject to the subsidy. The rent actually paid by the lessee indicates little or no relationship between the rental and the amount of subsidy paid by the government. Even though the 1973 subsidy was only reduced by approximately 13% in relation to 1972, the rent paid for 1973 was less than one-half that paid for 1972. Obviously, there were other factors considered by the parties in arriving at a fair rental value. We have no way of determining how the subsidy payments affected the overall rent charges.

There is no evidence ion the record to support a monetary evaluation of a “cotton acre” of allotment if it were to be sold or assigned to another landowner on the open market.

It was, therefore, impossible for the trial court to conclude from the evidence the extent plaintiff suffered damage because of the failure of defendants to transfer the 50.5 acres of allotment to him. The trial court erred in awarding plaintiff damages.

For the foregoing reasons, the judgment of the trial court is reversed and it is rendered in favor of defendants rejecting the demands of plaintiff.

All costs are assessed against plaintiff-appellee.

Reversed and rendered.

MARVIN, J., concurs with written reasons.

MARVIN, Judge

(concurring).

I concur that the Trust’s obligation was to assign through ASCS, 150 cotton allotment acres to plaintiff.

Plaintiff, however, alleged his damages on the basis that he was deprived of production on the 50.5 acres allotted but which the Trust failed to deliver. The Trust timely objected to any proof regarding the rental value of the property being affected and as affording a basis for damages on the grounds that this would be an enlargement of the pleadings. The lower court allowed the testimony, but subject to the objection, and the objection was made general so as to affect all subsequent testimony on the subject of the rental paid by plaintiff’s tenant. The objection should have been sustained in my opinion and this court should hold that plaintiff did not prove the damages he alleged.

Simply because the plaintiff did not prove his alleged damages should not mean the case ends there. Plaintiff bargained for 150 allotment acres. The ASCS representative testified that the Committee would have given plaintiff 150 allotment acres if the Trust had directed in its letter to the Committee. This was what the Trust obligated itself to do by the terms of the agreement, by the holding of the lower court and by the holding of this court. The subsidy program after the year 1973, as I understand it from this record, is a guarantee by the government that if the price of cotton falls below 38 cents per pound, the government will pay the difference up to 38 cents on allotted acres to the landowner or his assignee. The allotment certainly has some value. Plaintiff prayed that the ASCS defendant (dismissed from the case by the federal court) be ordered to transfer to plaintiff the 50.5 acres in dispute. Under the approach of a liberal construction of the pleadings, I would hold this prayer — in effect, for specific performance — to also be against the Trust and the substituted parties defendant. I would hold further that plaintiff was entitled to an order compelling defendants to direct the proper government authority to convey to plaintiff the additional 50.5 allotment acres.

The assessment by the majority of the testimony as to the rental not being based on the govenment allotment is correct in my opinion, and the result as to no proven damages is correct. I would assign different reasons for reaching that result however. But to say on the one hand, the obligation that was imposed on the Trust was to deliver 150 allotment acres to the plaintiff, while on the other hand, denying both specific performance and damages, is a hollow recognition of plaintiff’s right and defendant’s duty which produces a somewhat absurd result.

Plaintiff-appellee, however, did not answer the appeal and we are powerless to modify the judgment by granting specific performance against the Trust. See LSA-C.C.P. Art. 2133 and cases cited under this article, note 11, Vol. 5, LSA-C.C.P.

I concur in the result,


author: PRICE, Judge.

text:
    Joseph ROMBY et ux., Plaintiffs-Appellees, v. ZION HILL BAPTIST CHURCH, Defendant-Appellant.
    No. 12816.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Rehearing Denied March 15, 1976.
    Mecom, Scott & Woods, by Leroy H. Scott, Jr., Shreveport, for defendant-appellant.
    Charles E. Welsh, Bossier City, for plaintiffs-appellees.
    Before PRICE, BOLIN and SMITH, JJ.
   PRICE, Judge.

Plaintiffs, Joseph and. Stella Romby, brought this petitory action seeking to be recognized as owners of a 91/2 acre tract of land in Bossier Parish and asking that the defendant be ordered to remove its structure from the property and surrender possession thereof. The defendant, Zion Hill Baptist Church, answered plaintiffs’ petition claiming to be in possession of only a 1/2 acre plot in the northwest corner of the 91/2 acre tract claimed by plaintiffs. The defendant further contends it has had peaceful possession of this plot on which its church building is located since 1942, a period in excess of thirty years, and that defendant is therefore entitled to be recognized as owner of this part of the property.

At the outset it should be noted defendant lays no claim to any portion of the tract described in plaintiffs’ petition other than the church plot which all parties agree is properly reflected on a map of survey dated April 17, 1973, by Paul Barber, registered civil engineer. It is apparent from the record that the defendant acquired a 1/2 acre plot in the northeast corner of the subject 9i/> acre tract by deed dated November 24, 1947, but thereafter by mistake took possession of the northwest corner to which they had no title.

The testimony was not transcribed and we must review the case on appeal solely on the exhibits and factual recitations of evidence contained in the trial judge’s reasons for judgment.

On the trial of the merits, plaintiffs introduced into evidence the above referred to survey, their deed to the property dated April 19, 1960, and the deed whereby their vendor acquired title on June 12, 1959. No further evidence was presented by plaintiffs.

The only evidence contained in the record relating to the time defendant has possessed the property are several church programs of anniversary services tending to commemorate beginning dates of the church more than thirty years prior to the initiation of this action. The trial judge acknowledged there was strong circumstantial evidence presented by defendant on this issue, but in view of the conflicting testimony regarding the length of time the church had possessed the disputed property, he did not find defendant had carried its burden of proof to show it had possessed the property for thirty years.

The trial court further found the evidence presented by plaintiff was sufficient to show an apparent good title as against the defendant who had shown no title but who relied solely on possession. Judgment was accordingly rendered in favor of plaintiffs as prayed for.

From this adverse judgment, defendant has appealed contending the trial court erred in not finding it had possessed the disputed 1/2 acre plot for more than thirty years and finding that plaintiffs had borne the burden required of them in a petitory action of making out their title to the disputed property.

As the record does not contain any testimony for us to review, we must necessarily accept the trial judge’s conclusion in regard to the rejection of defendant’s assertion that it had acquired ownership by possession of more than thirty years of the church plot.

The most serious question raised by defendant on this appeal is whether plaintiffs offered sufficient evidence to make out their title as a plaintiff in a petitory action in light of the recent Supreme Court decision in Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974).

Prior to the Skinner decision of the Supreme Court, this circuit had followed the rule that a plaintiff in a petitory action was only required to show an “apparent good title” as against a party in possession without any claim to record title. See the opinion of this court in Pure Oil Company v. Skinner, 284 So.2d 608 (La.App. 2nd Cir. 1973), which was reversed by the Supreme Court under its supervisory power in the above referred to citation.

L.S.A.-C.C.P., Article 3653 allocates the burden of proof in a petitory action as follows:

To obtain a judgment recognizing his ownership of the immovable property or real right, the plaintiff in a petitory action shall:
(1) Make out his title thereto, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.

In its opinion in Skinner the Supreme Court has interpreted the requirement of subsection (1) of the foregoing article tó cast the burden on a plaintiff of making out his title by evidence of an unbroken chain of transfers emanating from a patent which in effect is to prove title that is good against the world even against a party in possession without a deed translative of title.

Although we might not agree with this rule of law, it is the latest expression of the Supreme Court and we feel constrained to follow it. •

Plaintiffs have suggested that a recent decision of the First Circuit, Succession of Kemp v. Robertson, 316 So.2d 919 (La. App. 1st Cir. 1975), is contrary to Skinner and indicates Skinner is not being followed. We find the Kemp case distinguishable from Skinner and do not draw the same conclusion as plaintiffs in this regard.

Plaintiffs, having failed to present evidence of any chain of title to the subject property prior to the year 1959, have therefore failed to carry the burden of proof required of them under Article 3653 as interpreted by the Supreme Court.

Alternatively plaintiffs ask that we remand the case to allow them to submit further evidence in the event we follow the Skinner decision.

This request is based on the inference they were not aware of the Supreme Court decision in Skinner at the time of the trial of this case in the district court. We find the Skinner decision was handed down and published prior to the trial of this case and that it would be improper to grant plaintiffs’ request for remand.

In accord with the foregoing reasons the judgment appealed is recast and it is now ordered that plaintiffs, Joseph and Stella Romby, be recognized as the owners of the following described property:

Begin at the Southwest corner of the Northeast Quarter of the Southeast Quarter, of Section 2, Township 18 North, Range 12 West, run thence North 495.0 feet to the point of beginning of the tract herein described, run East 1320 feet, run thence North 330.0 feet, run thence West 1320 feet, run thence South 330.0 feet to the point of beginning, less the following: a one-half acre in the Northeast corner as described in Book 191, page 126, of the Conveyance Records of Bossier Parish; also less and except a 105-foot square plot occupied by Mt. Zion Baptist Church described as follows: begin at the Southwest corner of the Northeast Quarter of the Southeast Quarter of Section 2, Township 18, Range 12 West, Bossier Parish; run thence North 495 feet; thence South 89 degrees, 30 minutes East a distance of 52 feet; thence North 330 feet to point of beginning; run thence South 89 degrees, 30 minutes East a distance of 105 feet; thence South 105 feet; thence North 89 degrees, 30 minutes West a distance of 105 feet; thence North a distance of 105 feet to point of beginning.

It is further ordered that the claim of ownerhip by prescription of defendant, Zion Hill Baptist Church, to the 105-foot square plot above described be rejected; it is also ordered that defendant’s right to

possession of this plot be recognized and maintained.

All costs of this proceeding including this appeal are assessed against plaintiffs.

Affirmed in part and reversed in part.


author: HALL, Judge.

text:
    Robert WILLIAMS, Plaintiff-Relator, v. Marie WHITMEYER, Defendant-Respondent.
    No. 12846.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 1976.
    Rehearing Denied March 15, 1976.
    Writ Refused April 23, 1976.
    Frank Bright, Shreveport, for plaintiff-relator.
    Claudius E. Whitmeyer, Shreveport, for defendant-respondent.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

Alternative writs of certiorari, prohibition and mandamus were granted to review an order of the City Court of Shreveport transferring this, action to the First Judicial District Court for Caddo Parish.

, Plaintiff, Robert Williams, sued defendant, Marie Whitmeyer, in Shreveport City Court for $650, the balance allegedly due on a contract pursuant to which plaintiff installed a driveway at defendant’s residence for a total price of $1,250. Defendant answered denying she' owed anything on the contract because the driveway was inadequate and reconvened seeking return of her $600 deposit and $1,250 as damages, being the amount she allegedly would have to pay for a new driveway. Attached to defendant’s answer and reconventional demand was an order transferring the proceedings to the First Judicial District Court, which order was signed ex parte by the city judge.

Plaintiff filed a rule to show cause in city court why he should not be allowed to proceed with his original action and why the defendant’s reconventional demand should not be dismissed for lack of jurisdiction. Plaintiff also filed an exception to the court’s jurisdiction over the recon-ventional demand as beyond the court’s jurisdictional limit of $1,000.

After a hearing, the city judge ruled in favor of defendant and plaintiff-in-recon-vention and again ordered the proceedings transferred to the district court. Plaintiff applied to this court for writs, which were granted.

Plaintiff argues that the transfer of his action is without authority. He contends that his $650 claim is clearly within the $1,000 jurisdictional limit of the city court as established by LSA-C.C.P. Art. 4834 and his choice of forum cannot be defeated because of a reconventional demand exceeding the jurisdiction of the city court.

Defendant argues that the entire amount actually in dispute as disclosed by the original petition and the petition in reconvention should be considered in determining jurisdiction and that transfer of the entire case to the district court is authorized under these circumstances by LSA-C.C.P. Art. 932.

LSA-C.C.P. Art. 4 provides:

“When the jurisdiction of a court over the subject matter of an action depends upon the amount in dispute, or value of the right asserted, it shall be determined by the amount demanded or value asserted in good faith by the plaintiff.
“Except as otherwise provided by law, the amount in dispute consists of the principal sum, and the attorney’s fees and penalties provided by agreement or by law, demanded by the plaintiff. Interest and court costs are not a part of the amount in dispute.”

The city court has jurisdiction over plaintiff’s original demand. The amount demanded in good faith by the plaintiff is the amount in dispute for purposes of determining jurisdictional amount. The amount demanded by the plaintiff is $650, the balance allegedly due on the contract. Thus, $650 is the determinative amount when considering jurisdiction of plaintiff’s original suit, not the original contract price of $1,250 or the amount of the reconven-tional demand.

Support for this holding is found in Teneha Oil Company v. Caraway, 171 So.2d 683 (La.App. 2d Cir. 1965) and Clark Equipment Company v. Southern Mechanical Contractors, Inc., 203 So.2d 387 (La. App. 2d Cir. 1967). In Teneha, the court held the amount. of the judgment which plaintiff sought to collect from the defendant by garnishment proceedings was the amount in dispute, not the amount owed by the garnishee to the defendant.

In Clark, the plaintiff sued in city court for $795.60 as the balance due on a contract. By reconventional demand the defendant admitted owing plaintiff the $795.-60 but claimed damages of $1,566 and sought judgment for the adjusted value of $770.40. In determining jurisdiction of the city court over the reconventional demand, this court held that the determinative amount under LSA-C.C.P. Art. 4 was the amount demanded by the plaintiff-in-recon-vention, $770.40 and not the total claimed as damages, and the city court had jurisdiction.

Defendant’s reconventional demand wherein she seeks judgment for $1,850 is beyond the jurisdiction of the city court. LSA-C.C.P. Art. 1036 provides that a court has jurisdiction of an incidental demand “ . . . only if it would have had jurisdiction over the demand had it been instituted in a separate suit.” Under LSA-C.C.P. Art. 4 the amount demanded by the plaintiff-in-reconvention determines jurisdiction. Had plaintiff-in-reconvention brought a separate suit for $1,850, the city court would not have jurisdiction, and it consequently does not have jurisdiction of the incidental demand in this case. Defendant-in-reconvention’s declinatory exception of lack of jurisdiction over the re-conventional demand should have been sustained.

LSA-C.C.P. Art. 932 provides that when a declinatory exception: is sustained in an action brought in a court of improper jurisdiction the action shall be dismissed or the court may transfer the action to a proper court in the interest of justice. The city court had discretion to transfer the reconventional demand to the district court. Article 932 does not, however, authorize transfer of plaintiff’s action, of which the city court has jurisdiction, to the district court. There is no authority for a trial court transferring a case within its jurisdiction in situations such as this. A plaintiff’s choice of forum is not to be undermined by the defendant reconvening with a claim outside the jurisdiction of the court in which plaintiff has chosen to pursue his claim.

A case close in point is Jewella Garage, Paint & Top Company v. Gilmer, 161 So. 2d 122 (La.App. 2d Cir. 1964). In that case we held the transfer of a case within the jurisdiction of the city court improper where it was done to facilitate consolidation of related cases, one of which had been brought in city court and one in district court.

Defendant argues it would best serve judicial economy and efficiency to transfer the case to one court with jurisdiction over the entire controversy between the parties. This may well be true, but our procedural law does not so provide. The transfer authorized by LSA-C.C.P. Art. 932 is the transfer of the reconventional demand of which the court has no jurisdiction. Plaintiff’s original action, within the jurisdictional limits of the city court, cannot be transferred.

That part of the trial court’s order transferring defendant’s reconventional demand is affirmed. That part of its order transferring plaintiff’s original action to the First Judicial District Court is set aside. The case is remanded to the city court for further proceedings consistent with the views expressed herein. The respondent shall pay all costs of this court, all other costs to await final determination of the cause.

Annulled in part, affirmed in part, and remanded.


text:
    In the Matter of Charles E. LOFTIN, Jr., Plaintiff-Appellee.
    No. 12834.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Rehearing Denied March 15, 1976.
    Writ Refused May 26, 1976.

      John Gallagher, Charles C. Grubb, Shreveport, for defendants-appellants, The City of Shreveport, Dept, of Public Safety.
    Kelly, Seaman & Ware by Richard N. Ware, Natchitoches, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

In this proceeding plaintiff Charles E. Loftin, Jr. seeks reinstatement, with back pay and benefits, to his former position as a fireman with the Shreveport Fire Department. Plaintiff’s employment was terminated because he filed a petition for voluntary bankruptcy in violation of a rule and regulation of the Fire Department.

As a classified employee under the protection of the Municipal Fire and Police Civil Service Law, plaintiff appealed his dismissal to the Shreveport Municipal Fire and Police Civil Service Board. He attacked the rule and its enforcement (1) as not authorized by the Municipal Fire and Police Civil Service Law as a reason for dismissal of a classified employee; (2) as arbitrary, capricious and unreasonable and in violation of the due process and equal protection clauses of the Constitution; and (3) as being in conflict with the purposes and objectives of the federal Bankruptcy Act, Title 11, U.S.C.A., and thus invalid under the Supremacy Clause of the United States Constitution, Article VI, Clause 2. After a hearing, the Board held that “a policy of terminating employees who file voluntary petitions in bankruptcy, which is consistently and uniformly applied, is reasonable and the application of that policy in the present case is also reasonable.” The action of the appointing authority was affirmed.

Plaintiff appealed to the district court which, without assignment of reasons, rendered judgment decreeing the termination of plaintiff from his job as fireman was erroneous and illegal, and ordering the City to reinstate plaintiff to his position with the Fire Department with payment of all back wages and benefits.

The City perfected an appeal to this court specifying that the district court erred: (1) in determining that plaintiff’s termination was erroneous and illegal, and (2) in ordering the City to reinstate plaintiff to his former position with payment of all back wages and benefits.

The evidence taken at the Civil Service Board hearing discloses that plaintiff was initially employed by the City as a fireman in April of 1972. In June, 1974, being pressed by creditors and believing he could not meet the demands of his creditors, together with an alimony and child support judgment against him, plaintiff filed a voluntary petition in bankruptcy. When the Fire Chief learned in July, 1974 of plaintiff’s action, plaintiff was discharged.

Comprehensive rules and regulations governing the Fire Department were adopted in 1968. Article XIV of the rules and regulations provides in part, as follows :

“Article XIV. OFFENSES
1. OFFENSES
A. No member shall engage in or be involved in any of the following acts or conduct.
í|í sjc 5¡< * % ‡
(13) Declaring bankruptcy.
2. PENALTY
A. Offenses are punishable by reprimand, reduction in rank, suspension, or dismissal.
* * * »

Fire Chief Dallas W. Greene testified it was the policy of the Department of Public Safety, pursuant to the foregoing rule and pursuant to a similar rule relating to the Police Department, to automatically terminate a fireman or policeman declaring bankruptcy. Plaintiff was aware of the rule and the policy of dismissal at the time he filed his petition in bankruptcy.

Chief Greene testified that when he first became Fire Chief in 1965, the Department was receiving numerous telephone calls daily from creditors concerning nonpayment of debts by firemen. The Chief instituted a policy of calling in a fireman when a complaint was made by a creditor and ordering the fireman to get his business straight or face suspension or possibly dismissal. The Chief testified that after institution of this policy and adoption of the comprehensive rules and regulations the Department seldom receives complaints from creditors and the credit rating of firemen, generally, is high. Chief Greene noted that firemen often have occasion to go into people’s homes with the opportunity to steal and that it is important that firemen be honest and trustworthy and have the trust of the public. It is important for the general public to have a high degree of confidence in the Department and the individual members thereof in order for the Department to do an effective job.

The issues presented on appeal are :

(1) Is the enforcement of the Fire Department rule authorized by the Municipal Fire and Police Civil Service Law?
(2) Does the enforcement of the rule violate plaintiff’s due process and equal protection rights under the United States Constitution; and
(3) Does the enforcement of the rule conflict with the Bankruptcy Act and violate the Supremacy Clause of the United States Constitution ?

Being of the opinion that the Supremacy Clause issue is dispositive of the case in plaintiff’s favor, we pretermit discussion of the other issues.

The precise issue involved in the instant case was recently presented to and decided by the United States District Court for the Western District of Louisiana in Rutledge v. City of Shreveport, 387 F.Supp. 1277 (W.D.La.1975), appeal pending. In the Rutledge case, Judge Stagg held that an almost identical rule and regulation of the Shreveport Police Department, as enforced against a city policeman who had filed a petition in bankruptcy, was unconstitutional in that it conflicted with the federal bankruptcy law and under the Supremacy Clause of the United States Constitution must yield to the federal enactment. This court agrees with the analysis and conclusions of Judge Stagg and in this opinion draws heavily from the learned opinion of the federal district judge. Article VI, Clause 2 of the United States Constitution provides:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The function of the court in a supremacy clause case is “to determine whether a challenged state statute ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’.” Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971), quoting from Justice Black’s opinion in Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941).

In Perez, the United States Supreme Court held that a section of Arizona’s Vehicle Safety Responsibility Statute, providing that an unsatisfied judgment against a motorist was a ground for suspension of the motorist’s license and registration even though the judgment was discharged in bankruptcy, was in conflict with the Bankruptcy Act and was, thus, violative of the Supremacy Clause of the United States Constitution. The court held that deciding whether a state statute is in conflict with a federal statute and, hence, invalid under the Supremacy Clause is essentially a two-step process of first ascertaining the construction of the two statutes and then determining the constitutional question of whether they are in conflict. The court also held that it is not only the purpose of the state law but also the effect of the state law as it relates to the objectives and purposes of the federal law that must be considered in determining a Supremacy Clause issue. Prior cases, Kesler v. Department of Public Safety, 369 U.S. 153, 7 L.Ed.2d 641, 82 S.Ct. 807 (1962) and Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L. Ed. 21 (1941), to the extent that they held state law may frustrate the operation of federal law as long as the state had a legitimate purpose in mind other than frustration of the federal law, were overruled. The Supreme Court held that the controlling principle is that any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause.

We accept the City’s argument that the purpose of the Fire Department rule was not to circumvent or frustrate the objectives of the Bankruptcy Act but was to discourage the incurring of excessive debts by firemen, thereby .discouraging a temptation of dishonesty and assuring an honest and trustworthy fire department in which the public will have confidence. We accept the City’s argument that this laudable purpose has been effectively accomplished by the Department’s policy discouraging excessive indebtedness by its employees. It is hardly arguable, however, that the effect of the rule is also to discourage and to penalize the exercise by an employee of a right created by federal statute, which also has a laudable purpose.

Considering the construction of the Bankruptcy Act, it has often been held that one of its primary purposes is to give debtors a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt. Perez, supra; Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230, 93 A.L.R. 195 (1934).

The effect of the rule of the Fire Department prohibiting a fireman from declaring bankruptcy under penalty of dismissal, however laudable the purpose of the rule, conflicts with, frustrates, and clashes with the purposes and objectives of the federal bankruptcy law in that if effectively hampers a fireman from obtaining a new opportunity in life and a clear field for future effort. This seems particularly true where the penalty is loss of employment, the basic source for financial recovery.

The holding of this court is that the rule and policy of the Shreveport Fire Department prohibiting a fireman from declaring bankruptcy under penalty of automatic dismissal conflicts with the federal Bankruptcy Act and is, therefore, unconstitutional and invalid under the Supremacy Clause of the United States Constitution. The plaintiff-fireman, discharged for the sole reason of having declared bankruptcy, is entitled to be reinstated to his position as fireman.

The district court ordered reinstatement with full back pay and benefits. The City argues that payment of back wages should be limited to the extent that plaintiff mitigated his damages by gainful employment between the date of his dismissal and the date of his reinstatement, as was done in the Rutledge case. The City cites no authority, other than the Rutledge case, for offsetting back pay to which plaintiff is entitled by amounts earned from other employment. Back pay due to a wrongfully discharged employee can hardly be classified as “damages.” The Municipal Fire and Police Civil Service Law, Article XIV, Section 15.1, paragraph 31, Louisiana Constitution 1921, authorizes an award of back pay in the event of reinstatement. The evidence in this case shows that although plaintiff has worked since his dismissal at Coushatta Small Engine Service, he also worked there part-time while he was employed by the Fire Department. The record does not show the extent, if any, of earnings by plaintiff in excess of what he was earning by part-time employment prior to his dismissal. We find no basis for granting an offset against or mitigation of the award for back pay.

For the reasons assigned, the judgment of the district court ordering plaintiff reinstated to his position as fireman with the Shreveport Fire Department with full back pay and benefits is affirmed.

Affirmed.

      . At the times the events giving rise to this suit occurred, the Municipal Fire and Police Civil Service Law was contained in Article XIV, Section 15.1, Louisiana Constitution 1921 and LSA-R.S. 38:2471, et seq. Article X, Part II, Sections 16-20, Louisiana Constitution 1974 deal with fire and police civil service and provide that the provisions of Article XIV, Section 15.1 of the Constitution of 1921 are retained and continued in force and effect as statutes, except as they conflict with Part II.

      . It is to be noted that Article XII, 1., B. (8) requires all Fire Department personnel to “pay their just debts.” Article XIV, 1., A. (9) lists as an offense “refusal or neglect to pay just debts.”

      . See also In re Hicks, 133 F. 739 (N.D. N.Y.1905), quoted at length in Rutledge, in which the City of Syracuse was enjoined from suspending or dismissing a fireman under an ordinance and rule requiring the payment of debts where the fireman had filed a petition in bankruptcy. The court held the city ordinance and rule must yield to the federal bankruptcy law.

      . One cannot help but wonder, however, whether the rule prohibiting the declaring of bankruptcy, as distinguished from the rule or policy against incurring and failure to pay debts, locks in the potential evil of burdensome debts rather than preventing or at least alleviating the problem once it exists.


author: BOLIN, Judge.

text:
    John L. HOPPE et al., Plaintiffs-Appellants, v. CITY OF SHREVEPORT et al., Defendants-Appellees.
    Nos. 12830 and 12831.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Rehearing Denied March 15, 1976.
    Writ Granted April 30, 1976.

      Peters, Ward & Miller by Hugh T. Ward, Shreveport, for plaintiffs-appellants.
    Neil Dixon, Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

The Municipal Fire and Police Civil Service Board of the City of Shreveport created within the classified service two new classes of positions, one class of Assistant Chief and one class of Assistant Chief for Administration. At the request of the Commissioner of Public Safety, the Civil Service Board “blanketed in” three majors in the police department to three positions within the two new classes, i. e., two as assistant chiefs and one as assistant chief for administration. The Commissioner of Public Safety had temporarily appointed these three majors to the three positions within the two new classes without regard to testing or seniority. In these consolidated cases Major John Hoppe (the second senior major in the Shreveport Police Department), Lieutenant John Tem-plin, and the Shreveport Police Local Union No. 646 SEIU-NUPO, AFL-CIO seek to invalidate these appointments and enjoin their implementation. Defendants are the City of Shreveport, the Commissioner of Public Safety (hereinafter referred to as the Commissioner), and the Municipal Fire and Police Civil Service Board of Shreveport (hereinafter referred to as the Board).

Plaintiffs have appealed from the judgments of the district court approving the action taken by the Board and rejecting plaintiffs’ demands. We affirm.

At the time these cases arose, the City of Shreveport operated its police department pursuant to a system of classified civil service as provided for by Article 14, § 15.1 of the 1921 Constitution. This system has a basic premise that positions within the classified service should be filled on the basis of testing and seniority, i. e., when a group of candidates have demonstrated their qualification for a particular position by passing a test, the position should be offered first to the eligible candidate with the greatest seniority.

On April 17, 1972, the Commissioner wrote a letter requesting the Board to create a new classification of Assistant Chief and to “blanket in” three police majors whom he had temporarily appointed to positions within the new class pending the adoption of the proposed class by the Board. The majors appointed ranked first, third, and fourth in seniority among the officers in the Shreveport Police Department. Major Hoppe, one of the plaintiffs, was not one of the majors appointed by the Commissioner even though he was the second senior major in the Shreveport Police Department. The three majors immediately assumed their new titles of Assistant Chief and received an increase in salary from $940 per month to $1015 per month.

The Commissioner stated in his letter that the majors whom he had temporarily appointed were already performing the duties of the proposed classification and therefore were “in the position” and could be blanketed without regard to testing or seniority.

A public hearing on the proposed classification was held on October 18, 1972. Plaintiff Templin was present at this hearing and spoke against the proposed classification. On November 3, 1972, the Board met and adopted the classification of Assistant Chief and an additional classification of Assistant Chief for Administration. The creation of the additional class of Assistant Chief of Administration was based on suggestions made at the public hearing. Following the adoption of the two new classes, plaintiff Hoppe, the second senior major, spoke against blanketing in the three police majors whom the Commissioner had temporarily appointed. He argued that the usual procedure of filling positions on the basis of testing and seniority should be followed. By a three to two vote, the Board proceeded to blanket in to the new positions the three police majors whom the Commissioner had temporarily appointed.

Plaintiffs then exercised their right under Article 14, § 15.1(30), to appeal the decision of the Board to the district court. In addition, the same plaintiffs filed a petition asking the district court to enjoin the defendants from implementing the decision of the Board. The two suits were consolidated for trial in the district court.

Evidence at trial consisted of the transcript of the proceedings before the Board and the testimony of the Commissioner and the Chairman of the Board. The trial court in a well reasoned opinion found for the defendants and rejected the plaintiffs’ demands.

Before this court plaintiffs specify the lower court erred in four particulars.

First, plaintiffs contend the court erred in holding Article 14, § 15.1(16) and the case of In Re Kelly, 224 La. 574, 70 So.2d 130 (1954), sanctioned the Board’s action. The constitutional provision provides:

******
When any position is first allocated hereunder, or is reallocated to a different class to correct an error in its previous allocation, or because of a change in the duties of a position which has the effect of abolishing the position and creating a new position of another class, the employee and [sic] the position may continue to serve the'rein, with the status and all the rights and privileges he would have had under this Section if he had been originally appointed by examination and certification hereunder to a position of the class to which the position has been allocated or reallocated. Such employee however may be transferred without further tests of fitness or certification to any position of the class to which the position was previously allocated while held by the employee.
******
(Emphasis supplied)

The Kelly case involved a factual situation very similar to the one now before us. In interpreting statutory language identical to the constitutional provisions relied on by the defendants in this case, the Supreme Court stated:

A careful consideration of the entire statute and the constitutional provisions respecting civil service satisfies us that the proposition advanced by relators is not well founded and that the Civil Service Board and the trial judge were correct in ruling that the respondents were entitled to hold the positions allocated to them in the classified service, despite the fact that they had not been originally appointed thereto by examination and certification.
To begin with, it is to be observed that the contention of respondents is strictly within the letter of the law because the portion of LSA-R.S. 33:2486, which we have above italicized, declares in explicit terms that, when any position is initially allocated under the act, the employee holding it may continue to serve with the same status as he would have had if he had been originally appointed by examination and certification. This, in itself, would furnish a valid ground for the maintenance of respondents’ stand — for Article 13 of the LSA-Civil Code states that the letter of the law is to be applied when it is free from ambiguity and exhorts us not to disregard it under the pretext of pursuing its spirit.
But, in addition, we think that the provision is within the spirit of the law because a reading of the entire Act justifies the view that the Legislature did not intend that initial allocation of positions under a police and fireman civil service system should be filled on a competitive basis when the duties of the position were already being performed by a member of the force. This will be gleaned from LSA-R.S. 33:2484 providing for the allocation of new positions created after the adoption of the original classification plan and LSA-R.S. 33:2487, 2488, 2489, 2490 and 2491 clearly indicates that the only instances in which promotional or competitive tests are requisite are in the filling of vacancies occásioned by resignation, death, transfer and the like.

The district court found as a fact that the three majors appointed to the new positions of Assistant Chief had been performing substantially the same duties prior to the allocation of the positions to the new class. Relying on the constitutional provisions and Kelly, the district court held the majors could be blanketed in to the new positions without regard to testing or seniority. We find no error in the district court’s finding of fact or in the application of the law to those facts.

The appellants’ second argument is the temporary appointments to assistant chief had expired and the three majors were therefore not “in the position” and could not be blanketed in. Assuming, ar-guendo, the temporary appointments had expired, that fact does not prevent the majors from being “in the position” as that term is used in Article 14, § 15.1(16). Being “in the position” means the employee was already performing the duties of the position although the position had not yet been allocated by the Board. The term does not refer to any status of the employee under a temporary appointment. Since the three majors were performing substantially the same duties required by the new classifications, they were “in the position” and could be blanketed in.

Appellants’ third argument is that the posting and notice requirements were not complied with. Appellants contend the Board could not create the class of Assistant Chief for Administration without a second posting and a second public hearing. The district court held the creation of the class of Assistant Chief for Administration was merely a refinement of the original class of Assistant Chief and therefore did not require new posting and public hearing. We agree with the district court.

Finally, appellants argue Lt. Tem-plin was not given a hearing by the Board to air his grievances concerning the temporary appointments made by the Commissioner. We agree with the district court that Templin’s appearance at the public hearing complied with the hearing authorized by Article 14, § 15.1(16).

The judgments of the district court rejecting plaintiffs’ demands and affirming the action of the Board are affirmed at appellants’ cost.


author: MORIAL, Judge.

text:
    CITY OF NEW ORLEANS v. Mrs. Violet M. Derbofen, wife of/and Gail T. KREHER.
    No. 7109.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied March 16, 1976.

      Blake G. Arata, City Atty., Lee R. Miller, Jr., Asst. City Atty., for plaintiff-recon-vention defendant-appellee.
    W. C. Douglas Friederichsen, Gretna, for defendants-reconvention plaintiffs-appellants.
    Before STOULIG, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

This is an appeal from a judgment awarding $13,665.00 as just and reasonable compensation for property expropriated by the City of New Orleans.

On June 19, 1973, plaintiff, the City of New Orleans, filed an action to expropriate a portion of land owned by defendants, Mrs. Violet M. Derbofen, wife of/and Gail T. Kreher. This land is situated in the third district, City of New Orleans, La-Kratt tract, being a portion of Grove 57 fronting east of Wright Road 168.20' with a width across the rear of 173.81' by a depth of 51.01'/94.69', containing .2767 acres or 12,053 sq. ft. The petition alleged that this property was to be acquired for public use by the City of New Orleans as part of a project for the Wright Road extension and further prayed for relief in accordance with LSA-R.S. 19:1-14. It alleged the property’s value to be $4,290.00.

The defendants’ answer denied the necessity and public purpose of the expropriation and alleged that the taking was improper in that it was excessive and that the site selection was arbitrary and capricious. Defendants also filed a reconventional demand asserting that in the event the expropriation was valid the value of their land was $30,000.00 and that severance and other damages would be suffered in the amount of $24,000.00.

The trial court after hearing testimony from appraisers for both plaintiff and defendants accepted the base valuation of $20,250.00 placed upon the land by defendants’ appraisers. The court awarded no severance or other damages (due to a total absence of proof), but adjusted the $20,250.00 base valuation by the sum of $6,585.00 which the court said represented “the prorata cost of the construction of a project referred to as the Wright Road extension fronting the Kreher’s property.” Defendants appeal. We affirm.

On appeal, defendants allege the invalidity of the expropriation and alternatively that the pro rata cost of construction was improperly deducted.

Defendants contention that the taking by the city was improper is totally without foundation. LSA-R.S. 19:2 authorizes the City of New Orleans to expropriate property. In Jefferson Parish School Board v. Marrero Land & I, Ass’n, Ltd., 258 So.2d 585, 587 (La.App. 4 Cir. 1972) we stated:

“ * * * It is well settled in our jurisprudence that the extent of the property to be expropriated and the location are within the sound discretion of the body possessing the power of eminent domain and this determination will not be interfered with if made in good faith. * * * ” (citations omitted)

Uncontradicted testimony at the trial established that the subject property was necessary in order to complete a street which was to be used for the benefit of the public. Defendants made no allegation that the city acted in bad faith and, accordingly, the determination that this land is a proper object for expropriation may not be upset.

The remaining issue to be considered involves the valuation of the expropriated property. Generally, the compensation awarded to an owner for expropriated property is the market value at the time of the taking. This value would be the price agreed upon in a voluntary sale between an informed owner willing to sell and an informed purchaser willing to buy. City of New Orleans v. Cloutet, 296 So.2d 357 (La.App. 4 Cir. 1974). In the present case, defendants’ expert appraiser, William Tessier, testified that the Kreher property, although unimproved, was quite valuable because of its location and the absence of any subdivision restrictions upon it. The property is surrounded by the Lake Forest Subdivision and based on comparable sales of vacant land in that community, he valued it at $1.68/sq. ft. (or $20,250 for the total 12,053 sq. ft.). It is to be noted that in all the Lake Forest sales the developer was obligated to install water and sewer lines, drainage and street improvements and the selling prices necessarily reflected the value of these facilities. The undeveloped subject property, however, by agreement between the City of New Orleans and Lake Forest, Inc., would receive these improvements gratuitously with the City and Lake Forest splitting costs. Since the comparable price of $20,250.00 reflected development costs, it became incumbent upon the trial judge to adjust defendants’ appraisement in order to arrive at an accurate fair market value.

Unrefuted evidence established that the total cost of paving and drainage on the property would amount to $13,070.14, one-half of which would normally be borne by the landowner. The trial judge, therefore, deducted development costs of $6,585.00 (\/2 of $13,070.00) from defendants’ appraisal to arrive at the sum of $13,665.06 as just and adequate compensation for the property. We see no error in his method of computation.

The judgment of the trial court is affirmed. Defendants are to pay all costs.

Affirmed.


author: SCHOTT, Judge. REDMANN, Judge, GULOTTA, Judge,

text:
    Mrs. Willie Lee MILLSAPS v. AETNA CASUALTY & SURETY COMPANY.
    No. 7046.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused May 11, 1976.
    Meyer Sabludowsky, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans (Paul B. Deal), New Orleans, for defendant-appellee.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of her suit for damages for injuries she sustained in a fall at an A&P Food Store in New Orleans at about one o’clock in the afternoon on October 18, 1973. Defendant is the liability insurer of the store. The trial judge gave the following reasons for judgment:

“The law is clear that a storekeeper is not an insurer of his invitees, and negligence on the part of the storekeeper must be shown in order for plaintiff to recover. The Court is of the opinion that plaintiff in the instant case has failed to prove, by the preponderance of the evidence necessary for her to have done in order to recover, that there was any negligence on the part of the defendant’s insured.”

Plaintiff testified that she was pushing a shopping cart along an aisle when she slipped in a clear liquid substance which a store employee later found to be water. She said it was a puddle about 12 by 8 inches in size.

Her fourteen year old daughter, Myra, who was with plaintiff corroborated this testimony. The girl said that she had not seen this puddle before her mother fell.

Jesse Aucoin, the manager of the store, was not in the store at the time but he described the cleanup procedures as follows: A safety captain or an assistant inspects the store three or four times daily; another employee sweeps the floor three or four times daily; these employees enter the time of their inspections and sweepings on a log; each employee is instructed to clean up anything he sees on the floor. Aucoin identified the log for the week ending October 20, showing inspections on the day in question at 10:15 AM and 12:45 PM, and sweepings at 8:45 and 11:30 AM. Ac- . cording to Aucoin, the employees who signed the log as inspector and sweeper on the day of the accident are no longer connected with the store and their whereabouts are unknown.

Gene Mayeaux, a stock clerk in the store on the day of the accident, testified as follows: He did not see plaintiff fall but shortly thereafter he found plaintiff sitting on the floor in an aisle between shelves of canned goods; he helped her up and found a spot of water about four inches in diameter; he also noticed that the back of her dress was wet; the floor was otherwise clean and he found nothing in the way of broken bottles in the area; after the accident he had an employee mop and clean up the spot. Mayeaux testified that plaintiff told him she fell after she caught her foot in the shopping cart. According to May-eaux, the store was swept every two hours.

Juanita Cipriano, the bookkeeper at the store, testified that when she got the report of plaintiff’s fall, which she did not see, she went to plaintiff and found her already standing; she saw water about the size of a grapefruit on the floor and a spot on the back of her dress; plaintiff told her she had caught her foot in the cart. On cleanup procedures, Miss Cipriano said' that the store is swept several times a day and the place where plaintiff fell had been swept 45 minutes .to an hour before she fell. She personally verified that the inspections and sweepings entered on the log were made and she signed the log as safety captain of the store.

In Kavlich v. Kramer, 315 So.2d 282 (La.1975) the Court reviewed the principles that the storekeeper owes an affirmative duty in the use of his premises to exercise reasonable care to keep the aisles, passageways and floors in a safe condition, and that this duty includes a reasonable effort to keep objects off of the floor which might give rise to a slip and fall. The Court found that Mrs. Kavlich slipped on a small piece of banana just inside the store’s entrance. Noting that she was in no position to know the circumstances under which the substance got there or to prove that it was there because defendant’s employees were negligent, the Court said:

“She has established clearly that the piece of banana was there when she entered the store; that she stepped upon the piece of banana; and that it caused her to slip, fall, and be injured. The burden then shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent.”

Similarly in Gonzales v. Winn-Dixie, 326 So.2d 486 (La. 1976), the Court said:

“. . . plaintiffs established that there was a spill of olive oil about two feet in diameter in the aisle where Mrs. Gonzales was shopping; that the oil came from a broken bottle near the olive oil shelf; that she did not see the oil spill; that she stepped into the olive oil; and that it caused her to slip, fall, and be injured.
“Upon proof of such facts, we recently held in Kavlich v. Kramer, supra, that the duty of going forward with the evidence to exculpate the store employees from negligence shifts to the store owner. When it appears that a third person dropped the foreign substance, the store owner must establish that periodic inspections made and other protective measures taken were reasonable. Implicit in the decision is a recognition that, in the self-service system, customers are prone to drop objects on the floor and that a customer who slips and falls on such an object is usually in no position to establish how long it has been on the floor.”

In the instant case the first question is whether plaintiff “has established clearly” those facts which she must before the burden shifts to defendant to exculpate its insured from the presumption of negligence. Plaintiff established that she fell but there is a conflict as to why she fell, she and her daughter testifying that she slipped on a puddle of water, and two store employees saying that plaintiff told them that her foot got caught in the shopping cart. But even if this conflict is resolved in her favor and one accepts the premise that she stepped in a puddle of water before she fell, has she “established clearly” that this caused her to slip, fall, and be injured? A wet spot on an asphalt floor is not necessarily slippery as is a piece of banana or a spill of olive oil. There is no evidence that this floor became unusually slippery when wet. When the trial judge found that plaintiff failed to prove her case by a preponderance of the evidence perhaps he had some of these questions on his mind. Moreover, on initial cross examination of plaintiff she was asked whether she ever “had any other problems with falling” to which she replied: “In ’60 — about twelve or thirteen years ago I had a fall,” and when recalled for cross examination at the end of the trial she admitted that she fell down in a Winn Dixie Store in 1969 and made a settlement with them of her claim. One can only speculate on the effect this testimony had on the trial judge’s evaluation of plaintiff’s case. Perhaps he was convinced that plaintiff was unusually clumsy and prone to fall even where no hazardous condition existed.

Nevertheless, if these questions are ignored and one assumes that plaintiff sufficiently carried her burden of proof with the result that the burden shifted to defendant to exculpate its assured from the presumption of negligence I believe that defendant met this burden.

On this point, the Supreme Court said in Kavlich:

“Although there is testimony as to clean-up procedures this does not sufficiently discharge defendant’s burden in the instant case. The last scheduled clean-up procedure was two hours before plaintiff’s injury. We are concerned with what happened in that two-hour period and with what degree of reasonableness the employees of the store acted in that period of time. The two employees in the store at the time of the accident testified they could have seen the banana because they were in a position behind the cash registers and front counter to observe clearly the area where it was located. Obviously, the banana was observable. The employees testified that they were not extremely busy and that few customers had been in and out of the store during the two-hour period. Both employees testified they had traversed the area where the banana was located immediately before Mrs. Kavlich slipped and fell. One of them testified further that she was watching the floor that day, even at the time the plaintiff fell.
******
“We conclude that the defendants have not borne the burden of proving that they were reasonably prudent in their exercise of duty and care owed to a customer in a self-service grocery store. They should have seen that which was obvious to a careful observer. They should have observed that which they testified they were trained to discover. The defendant’s employees were negligent in failing to remove the piece of banana upon which Mrs. Kavlich fell.” (Our emphasis)

Thus, a defendant’s evidence on cleanup procedures must be weighed or evaluated in the light of the circumstances of each particular case. In Kavlich, evidence of a cleanup or inspection made two hours prior to plaintiff’s fall was insufficient considering the type of substance on which plaintiff slipped and its location, i. e., within plain view of and readily discernable by at least two of defendant’s employees. In Gonzales, the Court noted the weakness of the evidence offered to show the reasonableness or sufficiency of defendant’s inspection procedures.

However, in the instant case defendant’s evidence of a sweeping of the spot where plaintiff fell no more than an hour before and of a systematic cleanup and inspection procedure is sufficient considering a puddle of water, which can accumulate from many sources in a supermarket, e. g., condensation of the atmosphere or dripping from frozen or other cold packages, which might not be preventable without constant mopping and sweeping and which, of itself, would not ordinarily create a highly slippery condition like the piece of banana in Kavlich or the olive oil in Gonzales. Finally, unlike Kavlich, this water was not in plain sight of employees but was away from the entrance or any such employee station between shelves of canned goods, and unlike Gonzales the puddle was not such an obvious hazard as olive oil next to a broken bottle. Considering all of these circumstances, and assuming that the burden did shift to defendant after plaintiff rested, I believe that defendant under all of the evidence exculpated itself from negligence.

I am mindful of the fact that the trial judge decided this case at a time when the last expression of the law was contained in Gonzales v. Winn Dixie, 309 So.2d 697 (La.App. 4th Cir.) which was reversed by the Supreme Court. He did not have the benefit of the law as most recently enunciated by the Supreme Court in Kavlich and Gonzales. Thus, he may have resolved the conflict between plaintiff and her daughter on one hand, and the store employees on the other, in favor of plaintiff, but decided the case in defendant’s favor based on the law then prevailing. He might reach a different conclusion today. Therefore, it is arguable that the case shoüld be remanded to the trial court for a decision." But the posture of the case at this point is much like we found it to be in Couto v. Oms, 319 So.2d 518 (La.App. 4th Cir. 1975), where we found that a jury was prevented from making a fair assessment of credibility of witnesses and finding of facts because of errors of law committed during trial. The Supreme Court reversed our decision to remand in Couto v. Oms, 323 So.2d 128 (La. 1975) and remanded the case to us for decision. In effect, we became the trier of fact. Under this scheme in the instant case, I am unable to say that either set of witnesses, plaintiff’s or defendant’s, lied; the case was a draw and plaintiff loses since she had the burden of proof.

Accordingly, the judgment appealed from is affirmed.

Affirmed

REDMANN, J., concurs with written reasons.

GÚLOTTA, J., concurs with written reasons.

REDMANN, Judge,

(concurring):

Plaintiff failed to prove that her fall was caused by water on the floor of the insured store.

GULOTTA, Judge,

(concurring).

I concur with the result. I find it unnecessary to consider the testimony relating to the cleanup procedure for the reason that plaintiff, in my opinion, failed to establish by a preponderance of the evidence that the fall was caused by water on the floor of the A & P Food Store. Plaintiff’s lack of credibility, both on how the accident occurred and her earnings, is a sufficient basis upon which to dismiss her claim. I am of the opinion that because of plaintiff’s lack of credibility, the burden of proof required was not discharged by her. In such instance, the burden does not shift to defendant to exculpate itself from liability. Under the circumstances, consideration of the adequacy or inadequacy of the cleanup procedure is not relevant.