author: HOOD, Judge.

text:
    G & S IMPLEMENT COMPANY, INC., Plaintiff-Appellee, v. Oscar SYLVESTER, Jr., Defendant-Appellant.
    No. 5201.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.

      Preston N. Aucoin, Ville Platte, for defendant-appellant.
    Sandoz, Sandoz & Schiff, by Gerald H. Schiff, Opelousas, for plaintiff-appellee.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HOOD, Judge.

G & S Implement Company, Inc., seeks to recover from defendant, Oscar Sylvester, Jr., amounts alleged to be due for merchandise sold to and services performed for defendant. Sylvester denies any indebtedness to plaintiff, and he has reconvened to recover damages from plaintiff for the latter’s alleged breach of a contract entered into by the parties for the repair of a tractor owned by defendant. The trial judge rendered judgment for plaintiff, awarding it $1,687.86 and rejecting Sylvester’s reconventional demand. Defendant appealed.

The issues presented are (1) whether plaintiff established its claim by competent evidence, and (2) whether plaintiff failed to discharge its obligations under the above contract, with the result that defendant is entitled to recover the amount paid to plaintiff for making those repairs and damages for breach of contract.

Defendant Sylvester owned several farm tractors during the latter part of 1972, one of which was a 1030 Case tractor which needed motor repairs. He talked to Luke Soileau, manager of G & S Implement Company, about the expense which would be incurred in making those repairs, and in the course of that conversation the parties agreed that plaintiff would make some repairs to the tractor for the sum of $600.00.

Plaintiff thereupon, on December 8, 1972, proceeded to change three cylinder heads on the engine of the tractor, all of which were cracked and had to be replaced, and to change the piston rings. G & S submitted a bill to defendant in the amount of $758.16 for that work, explaining that $600.00 of that charge was for changing the cylinder heads and $158.16 was for changing the piston rings. Defendant paid plaintiff that full amount by check dated January 22, 1973.

After the above repairs had been completed, Sylvester took the tractor to his farm in Evangeline Parish and used it for about two days. It operated properly the first day, but it began to overheat and lose power on the second day, so the tractor was returned to plaintiff’s shop on or shortly before February 9, 1973, where it was determined that water was getting into the crankcase and was mixing with the oil in the engine. Plaintiff removed the oil pan and the cylinder heads on February 9, 1973, so he could determine what was wrong with the engine, and ordered some “piston sleeves” for it. These sleeves arrived a few weeks later, and plaintiff installed them in the tractor engine on March 8, 1973. The installation of new sleeves and the use of a “block' sealer” failed to make the tractor operate properly, so plaintiff informed Sylvester that the block of the engine was cracked, and that the tractor could not be fixed unless and until a new block was obtained for it. Sylvester removed the tractor from plaintiff’s shop, took it to his home and had his own mechanic change the block at a cost of approximately $2,300.00. The tractor has operated properly since that time.

Plaintiff then submitted a bill to Sylvester, consisting of 28 separate charges, and amounting to the aggregate sum of $1,692.-29. Five of those charges were for repair work performed by plaintiff, and the remaining 23 charges were for “over-the-counter” purchases of parts or merchandise allegedly made by defendant or for his account. The statement did not include the bill for $758.16 which was paid by defendant on January 22, 1973, and it did not include one other bill which was paid by defendant at about the same time. It did include, however, all other charges made to Sylvester’s account from September 7, 1972, until April 10, 1973.

Each of the five charges for repair work allegedly performed by plaintiff for defendant was evidenced by a repair order, and included on that order was an invoice for the parts used. Three of those repair orders were issued from September 20, 1972, to January 3, 1973, and it is apparent that the repair work which was done pursuant to those orders did not relate in any way to the tractor which is involved in this suit. The remaining two repair orders do relate to that tractor, and they indicate that • plaintiff performed the following work on it:

2/9/73 — Remove & Replace Pan & oil pump — cylinder Heads— 117.78
3/8/73 — Change Piston Sleeves— 199.57 Total 317.35

The above charges, amounting to a total of $317.35, are the only items claimed by plaintiff in this suit which relate to repair work on the above tractor. Mr. Soileau, manager of G & S, testified as to the correctness of those charges, and defendant concedes that those invoices have been properly identified, although he argues that plaintiff nevertheless is not entitled to recover from defendant for other reasons.

Plaintiff’s primary argument is that 26 of the 28 invoices which plaintiff introduced in evidence, that is all of the invoices except the two repair orders above described, were not properly identified, and that they thus do not constitute proof of the indebtedness alleged by plaintiff.

At the trial plaintiff introduced invoices and repair orders which itemized and explained each of the 28 charges which were included on the statement it submitted to defendant. The charges amount to a total of $1,692.29, but plaintiff concedes that it demanded judgment-for only $1,687.86 and that the trial judge correctly rendered judgment for the lessor amount.

The invoices and repair orders introduced in evidence were identified by Mrs. Gwen Guillory, bookkeeper for plaintiff, who testified that those documents were filled out by parts salesmen and other employees of that business establishment, in the regular course of business, that all of such invoices and repair orders were given to her, as bookkeeper, and that she entered the charges reflected by those documents on the books of the company. She had no personal knowledge of the sales which were made, but she kept all of the invoices and entered them on the books as a part of the regular bookkeeping system of plaintiff company.

Defendant objected to the admission of the invoices and repair orders in evidence on the ground that they constituted hearsay evidence, since Mrs. Guillory did not have personal knowledge of the sales or purchases made or the repair work performed as shown on those documents. The objection was overruled by the trial court, and the objection and ruling were made general as to all evidence relating to those documents.

Although defendant contends that the invoices and repair orders were improperly admitted in evidence, he refers us to no authorities which support his position.

We are aware of LSA-C.C.' art. 2248, and have considered that article, despite the fact that defendant does not rely on it. The jurisprudence of this state is settled, however, that business records consisting particularly of invoices or charge slips, may be accepted as competent evidence as to the amount owed on an account, when the bookkeeper or custodian of those records testifies as to the correctness of them. Crosby v. Little River Sand & Gravel Development, 212 La. 1, 31 So.2d 226 (1947); City Stores Company v. Jordan, 211 So.2d 709 (La.App. 4 Cir. 1968); Talley v. Duplantis, 213 So.2d 82 (La.App. 1 Cir. 1968); Dealer’s Finance Co., Inc. v. Featherstone, 15 La.App. 180, 131 So. 486 (La.App. 2 Cir. 1930).

In the instant suit we find that at least eight of the invoices filed by plaintiff were signed by persons who apparently acknowledged receipt of the items sold. Two of them were signed by “Oscar Jr.,” whom we assume was defendant in the suit although it is immaterial whether it was Sylvester or someone else. Six were signed by other persons, and the record is not clear as to what authority they had to bind defendant. No signatures appear on the other invoices. The two repair orders relating to the tractor involved in this suit were not signed by anyone, but they were identified by Soi-leau.

Defendant neither admits nor denies that the items described in the invoices were actually received by him or that the work described in the repair orders was performed, and he does not allege or accuse plaintiff of fraud or bad faith. Defendant testified that he previously notified plaintiff that when purchases were made and charged to his account, the person receiving the merchandise should be required to sign the invoice. The record shows, however, that prior to the date this suit was filed defendant made several payments to plaintiff to be applied to his charge account there, although many of the invoices which evidenced the charges had not been signed by anyone.

We conclude that the invoices and repair orders filed in evidence in this case were properly admitted and considered by the trial court. We believe that they make out at least a prima facie case that Sylvester owed the amount claimed by plaintiff, and that defendant has failed to meet or offset that proof.

Defendant contends, alternatively, that plaintiff, through its manager, agreed to restore the tractor “to first class running shape” for the sum of $600.00, and that plaintiff has failed to perform that part of the agreement. On the basis of that alleged breach of contract, he has reconvened for judgment against plaintiff for (1) $758.16, that being the amount he previously paid to plaintiff for repairs to the tractor, (2) $750.00 for loss of use of the tractor for 30 days, and (3) $1,000.00 for mental anguish. He also contends that he should be relieved of paying plaintiff $317.35, this being the amount charged for repair work performed on February 9 and March 8, 1973.

There is an irreconcilable conflict in the testimony of Sylvester and Soileau as to the terms of the agreement which they entered into on or immediately prior to December 8, 1972, when the tractor was first taken to plaintiff for repair.

Sylvester testified, in substance, that Soi-leau agreed to restore the tractor to first class condition, regardless of the nature of the repairs which would be required, for the sum of $600.00. He maintains that he did not know what was wrong with the tractor at that time, and that he did not specify any particular repairs which were to be made. He stated that when the tractor was returned to plaintiff in February, 1973, it was his understanding that plaintiff would perform any other repairs needed to restore the tractor to good running condition, without any additional expense to defendant.

Soileau denies that he agreed to restore the tractor to running condition. He testified that when the tractor was first brought to plaintiff’s place of business, Sylvester instructed him to change the three cracked cylinder heads and that Soi-leau agreed to perform that work for $600.00. The only guarantee he made, according to his testimony, was that the cylinder heads would be free from defects and that they would be properly installed. He knew that if they were found to be defective, they would be replaced free of charge by the factory. Soileau also testified that after the engine had been partially dismantled and the condition of the piston rings pointed out to defendant, Sylvester then instructed him to change the piston rings in addition to changing the cylinder heads. He stated that that work was performed on the tractor, and that Sylvester paid plaintiff’s charges of $758.16 for that work, without complaint.

Soileau also testified that when the tractor was returned in early February, 1973, he informed Sylvester that either the block or the sleeves were cracked, and that the block should be replaced, and that Sylvester thereupon specifically told him to replace only the sleeves. He then ordered the sleeves from the factory and he installed them in the tractor when they arrived. He categorically denies that he ever agreed to restore the tractor to running condition or to do anything other than that which he was specifically instructed to do by Sylvester.

The trial judge rejected Sylvester’s testimony and accepted that of Soileau. He stated:

“I cannot conclude that plaintiff guaranteed anything other than its own repair work, that is, that the heads etc. would be without defect and would be properly installed. Even if the testimony of Luke Soileau and defendant presented a standoff on credibility, there are other considerations which show that no general warranty was given with regard to the tractor’s performance.
“The fact that defendant paid the bill of $758.16 belies his contention that the price was set at $600. Payments by him of many other bills discredit his claim that no debt could be incurred except by signature of one of his representatives.
“In view of the above holdings, the re-conventional demand fails and will be dismissed.”

We find no error or abuse of discretion on the part of the trial court in his decision to accept the testimony of Soileau and to reject that of Sylvester. We conclude, therefore, that plaintiff did not agree to restore the tractor to running condition, but that instead it merely did the repair work which was authorized by defendant. The trial court correctly rejected defendant’s reconventional demands.

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

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    George F. BARBIER, Jr., Plaintiff-Appellant, v. LOUISIANA STATE DEPARTMENT OF PUBLIC SAFETY & LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION, Defendant-Appellee.
    No. 5199.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.

      James C. Mclinnis, Lake Charles, for plainti f f-appellant.
    Foye L. Lowe, Jr., Dept, of Public Safety, Baton Rouge, for defendant-appellee.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HOOD, Judge.

George F. Barbier instituted this action against Louisiana Department of Public Safety, License Control and Driver Improvement Division, for the judicial review of an order of that department suspending his driving privileges. He appeals from a judgment of the trial court dismissing his suit.

The issue presented is whether the Department of Public Safety complied with 'the provisions of LSA-R.S. 32:661 — 669 in suspending plaintiff’s driver’s license.

Trooper Darrell F. Fontenot, of the Louisiana State Police, observed plaintiff’s automobile weaving on the highway at 11:56 P.M. on March 14, 1974. He called the “P.E.I.” van, and then he stopped plaintiff and asked him to get out of the car. Fontenot noted that Barbier was unsteady on his feet, and that he had a strong odor of alcohol about him. The P. E.I. van arrived shortly thereafter.

Fontenot testified that when the van arrived, he informed Barbier of his constitutional rights and he asked him to take a chemical test designed to determine whether he was intoxicated. He stated that Bar-bier refused to take the test, explaining that he had just catered a party in a nearby motel, that he had been drinking at the party, and that taking such a test would incriminate him. Fontenot said that he advised Barbier that his refusal to submit to such a test would result in the revocation of his driving privileges, but that Barbier again refused to . submit to the chemical test. Fontenot then presented Barbier with documents which recited that he had been informed of the consequences of his refusal to take the chemical test, and that he nevertheless was unwilling to submit to such a test, but plaintiff refused to sign those documents. Fontenot then arrested Barbier and took him to the parish jail.

Barbier testified that Fontenot did not inform him that his refusal to take the test would result in a revocation of his driver’s license until after he had been arrested and was being transported to the sheriff’s office. Fie stated that when Fontenot advised him of that fact, he asked Fontenot to turn around and take him back to the van in order that he could take the test. Fontenot denies that Barbier made any such request.

Following plaintiff’s arrest, Fontenot submitted a sworn report to the Department of Public Safety of the facts, and the department thereupon suspended plaintiff’s driving privilege. Plaintiff requested a hearing pursuant to LSA-R.S. 32:667 for the purpose of reviewing the determination that he had refused to submit to a breath-lyzer test. A hearing was held and on March 27, 197S, the Department of Public Safety rendered a decision affirming the suspension of his driving privilege. Plaintiff thereupon instituted this action.

The sole ground alleged by plaintiff for his demand that the decision of the department be reversed is that “the hearing officer erred in concluding that petitioner knowingly and intelligently refused to submit to chemical analysis to determine the presence and amount of alcohol he had consumed.”

The only witnesses who testified at the trial were Trooper Fontenot and Barbier. Their respective statements are in hopeless conflict. The trial judge accepted the testimony of Fontenot and concluded that Barbier had been asked to submit to the chemical test, that he had been properly informed of the consequences of his refusal to take it, and that he had refused to sign a form advising him of the consequences of his refusal. Judgment thus was rendered by the trial court dismissing plaintiff’s suit.

We cannot say that the trial judge erred in accepting Fontenot’s statements. The evidence supports the conclusion reached by the trial court that plaintiff was fully informed of the consequences of his refusal to take the chemical test, and that he also refused to sign a form which was presented to him advising him of the consequences of his refusal. The provisions of LSA-R.S. 32:661 thus were complied with insofar as those requirements are concerned.

Plaintiff argues on this appeal, however, that Fontenot also failed to comply with LSA-R.S. 32:661(C) in that he did not submit to plaintiff a standard form advising him of his constitutional rights, and he did not properly “certify” that plaintiff had been informed of his constitutional rights.

Plaintiff did not allege, and he does not contend now, that the Trooper failed to advise him of his constitutional rights. On the contrary, he testified at the trial that to the best of his recollection, Trooper Fontenot did “read me some rights” immediately after his car had been stopped and while the P.E.I. van was there. Fontenot testified that he advised plaintiff of his constitutional rights. Fie stated in his “report of arrest” that Barbier was “advised of rights,” and several months later, on January 14, 1975, Fontenot signed an affidavit to the effect that plaintiff was given his rights under provisions of the constitution of the United States and of the State of Louisiana, and that he had refused to sign a statement acknowledging that he had been advised of those rights. Considering these facts, together with the fact that plaintiff did not allege that he had not been informed of his rights, convinces us that there is no merit to that argument.

Plaintiff contends, finally, that Trooper Fontenot did not “swear” to the report which he submitted to the Department of Public Safety as required by LSA-R.S. 32 :<567.

The evidence shows that Trooper Fon-tenot submitted an affidavit which he signed before Charles W. Richard, a notary public, setting out the above facts. We find no merit to the argument that he was not properly sworn.

Our conclusion is that there is no error in the judgment rendered by the trial court.

The judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

Affirmed.


author: PETERS, Judge ad hoc.

text:
    Louise DOWDEN, Plaintiff-Appellant, v. TRINITY UNIVERSAL INSURANCE CO. et al., Defendants-Appellees.
    No. 5202.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.

      Kelly, Seaman & Ware by Richard Ware and Donald G. Kelly, Natchitoches, for plaintiff-appellant.
    Brittain & Williams by Jack O. Brittain, Natchitoches, for defendants-appellees.
    Before HOOD and HUMPHRIES, JJ., and PETERS, Judge ad hoc.
   PETERS, Judge ad hoc.

Plaintiff appeals the judgment dismissing her claim against Betty Howell and her insurer, Trinity Universal Insurance Co., for damages resulting from an automobile accident.

The accident occurred shortly after seven o’clock on the cold, foggy morning of December 12, 1973. Plaintiff was backing her car down the driveway toward the road which passed in front of her trailer home. Just before plaintiff started to back up, defendant, Betty Howell, turned into the driveway from the road and proceeded to drive up the driveway, pulling her car as far to the right as possible in order to allow plaintiff to pass on the left. Plaintiff admitted she never looked through the back windshield of her car as she was backing down the driveway and consequently never saw the defendant’s car, and further testified that she was looking out of the left side of her car to be sure that she cleared her mother’s house and car, which were located to plaintiff’s left. She intended to turn her car to the left and back it into her mother’s front yard so that she could turn the car around and enter the road in a forward direction. When she cut her front wheels to the right to make this left-hand turn, the right front of her car hit the left front of defendant’s car. Plaintiff suffered personal injuries and filed this suit. The trial judge dismissed the action at plaintiff’s costs and she appealed. We affirm.

The trial judge did not favor us with written reasons for his judgment. However, this court concludes there is ample evidence to support a finding of no negligence on the part of the defendant.

Even had he found defendant negligent, he could not have escaped the conclusion that plaintiff was guilty of contributory negligence. Backing a car down a driveway without watching to see that there is nothing in the path of the car is obviously negligent conduct.

Plaintiff argues that even if she were guilty of contributory negligence, this does not bar the action because defendant had the last clear chance to avoid the accident. Obviously, the trial judge rejected this argument as do we. The doctrine of last clear chance absolves a plaintiff of contributory negligence when (1) the plaintiff was in a position of peril of which he was unaware or from which he could not extricate himself (2) the defendant discovered, or could reasonably have observed, the plaintiff’s danger, and (3)the defendant could have reasonably avoided the accident. Thomas v. Arceneaux, 307 So.2d 754 (La.App. 3rd Cir., 1975); Price v. Watts, 215 So.2d 187 (La.App. 3rd Cir., 1968). The defendant in the present case testified at the trial that she did not know plaintiff had not seen her enter the driveway and that she had no way of knowing plaintiff would cut her front wheels to the right rather than continuing to back straight down the driveway. There is certainly sufficient evidence to lead the trial judge to conclude that last clear chance did not apply because the defendant did not discover, and could not have reasonably discovered, that the plaintiff was in a position of peril.

For the reasons assigned, the judgment of the trial court is affirmed. The appellant will pay the costs of this appeal.

Affirmed.


author: CUTRER, Judge.

text:
    Jacob E. FAKOURI, Plaintiff-Appellee, v. Patricia PERKINS, Defendant-Appellant.
    No. 5183.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    J. Minos Simon, Lafayette, for defendant-appellant.
    Sandoz, Sandoz & Schiff, by Lawrence B. Sandoz, Jr., Opelousas, for plaintiff-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

Patricia Perkins, plaintiff in rule, filed the present Rule ordering her former husband Jacob E. Fakouri, defendant in rule, to appear and show cause why he should not be ordered to pay her alimony under LSA-C.C. article 160 and increased child support, and, further, why he should not be held in contempt of court for failure to pay child support as previously ordered by judgment of the court. Following a hearing on the matter, judgment was rendered by the district court recalling and annulling the Rule. Mrs. Perkins’ requests for alimony and increased child support were denied. We affirm the judgment.

The parties were married September 3, 1960. They were judicially separated by judgment signed December 10, 1971. Subsequently, the defendant in rule filed suit for a divorce, the basis for which was their continued separation for more than two years following the judicial separation. Plaintiff in rule answered the petition and filed a reconventional demand for alimony in the amount of $400.00 per month and child support in the amount of $250.00 per month for each of the three children born of the marriage. During the trial on the merits, at which time it was stipulated that plaintiff in rule was not at fault, a list of expenses was filed into the record by the plaintiff in rule which reflected total monthly expenses for her in the amount of $865.10. The testimony of the defendant in rule indicated a yearly net income of $4800.00 from his business and a yearly gross income of $2000.00 from rents. Other testimony of the defendant in rule, however, reflected a schedule of debt liquidation which indicated a much higher income than he admitted. Using these factors as a guide, the trial judge, in granting the divorce, granted the plaintiff in rule child support in the total amount of '$400.00 per month and denied her permanent alimony under LSA-C.C. article 160. That judgment was not appealed.

The present Rule was filed May 20, 1974, and the hearing took place June 7, less than one year after the original judgment of divorce and child support was rendered. After a hearing was held, the requests of the plaintiff in rule were denied on the finding of the trial judge that there had been no change of circumstances since the rendition of the previous judgment which would justify a change in the award.

On appeal plaintiff in rule contends only that the trial judge erred in failing to award alimony under the circumstances of this case. We find that under the jurisprudence of this state the trial judge did not commit error in denying alimony and an increase in child support to the plaintiff in rule.

It is important to note that we are here concerned, not with an appeal of an initial determination of alimony and child support, but with a subsequent Rule to show cause why a previous award should not be changed. The jurisprudential rule governing such requests is that a change of circumstances must be proved to warrant a change in the prior award. Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4th Cir. 1975); Vestal v. Vestal, 216 So.2d 386 (La.App. 3rd Cir. 1968). In his reasons for judgment on the Rule, the trial judge stated that he found no change in the circumstances that would warrant a change in the original award. It is well established in our law that the trial court’s judgment fixing alimony and/or child support will not be disturbed unless there is a clear showing of abuse of discretion. Johnson v. Johnson, 293 So.2d 213 (La.App. 3rd Cir. 1975). We conclude after reading the record that there was no error in his determination that there has been no change of circumstances since the original award was made that would justify modification of the previous award. The contention that the cost of living is much higher than it was when the original award was made is not a basis for change. An increase in the “costs of living” affects equally both parties. Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4th Cir. 1975).

For the reasons assigned, the judgment of the district court is affirmed at plaintiff in rule-appellant’s costs.

Affirmed.

      . The contempt issue was abandoned at the trial court level after the delinquent payment was made by the defendant in rule.


text:
    Arthur L. ROZAS et al., Plaintiffs-Appellants, v. EVANGELINE PARISH POLICE JURY, Defendant-Appellee.
    No. 5192.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Gilbert Wayne Aucoin, Ville Platte, for plaintiffs-appellants.
    A. Bruce Rozas, Mamou, for defendant-appellee.
    .Before HOOD and HUMPHRIES, JJ., and PETERS, Judge ad hoc.
   PETERS, Judge ad hoc.

Plaintiffs, Arthur L. Rozas and Anna A. Rozas, appeal the judgment dismissing their claims against the Evangeline Parish Police Jury for damages resulting from a breached contract for dredging a drainage canal through plaintiffs’ property. We affirm.

On October 16, 1969, plaintiffs signed a right-of-way grant giving the Parish of Evangeline the necessary right of way to dredge or clear Bayou Doza, which ran approximately 14 arpents through their property. Before signing the agreement, plaintiff Arthur L. Rozas had expressed concern that the contractor who was to do the dredging might leave the spoils from the canal in large mounds on his land. Mr. Rozas therefore asked for a provision in the right-of-way grant concerning these spoils. The Police Jury inserted a provision saying “That all spoil area will be spread.” Mr. Rozas and his sister, co-owners of the property, signed the right-of-way grant after this provision was added. After the dredging had been completed, the contractor did spread the spoil area to some extent but he left the entire spoil area about two feet higher than the surrounding terrain. Plaintiffs contend the spoils were not spread in the manner promised by the Police Jury. The trial court held that the Police Jury had lived up to its obligations under the contract.

Arthur L. Rozas testified at the trial that before signing the agreement he brought Nat Fontenot, the Police Jury’s right-of-way agent, to the canal and showed him how he wanted the spoils spread. He testified he explained to Nat Fontenot that he wanted his land to be put back into the same condition as it was prior to the dredging. However, Nat Fon-tenot testified he was never brought to view the area along the canal and he further stated that Arthur L. Rozas had given him the impression that the spoils were to be spread so that no hills were left on the land. It is evident the trial court could reasonably conclude that Arthur L. Rozas did not make his specific wishes known to the Police Jury and that the Police Jury did not agree to spread the spoils in the manner in which plaintiffs desired.

In his. well written “Reasons for Judgment” the trial judge stated, “However the court has no guide from the terminology of the contract as to what was intended by the term ‘that all spoils area will be spread.’ The court cannot say from the evidence to what extent that the plaintiff is inconvenienced, and in what way that the Police Jury has failed to live up to its obligation.”

Counsel for appellants argues that the ambiguous provision in the contract concerning the spreading of spoils should be construed against the Police Jury by authority of LSA-C.C. Art. 1957. This court is of the opinion that LSA-C.C. 1958 is actually the controlling article in the present situation. LSA-C.C. 1958 provides as follows:

“But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted.”

Arthur L. Rozas was the contracting party who desired the spoils spread in a certain way. The burden was therefore upon him to explain clearly what he wanted. The evidence indicates the obscurity in the contract arose because he failed to convey his wishes to the Police Jury; hence, the construction most favorable to the Police Jury must be adopted.

In its amended and supplemental answer defendant claimed a set-off of $3,175.00 for a bridge it built for plaintiffs which was not provided for in the contract. When the trial judge dismissed the suit, he stated “The foregoing also resolves the Police Jury’s claim for a set-off for the bridge which the Police Jury built on plaintiff’s property.” The defendant neither appealed nor answered the appeal so this claim has been abandoned.

We do not find any manifest error in the trial court decision and the trial court decision is affirmed. Costs are assessed to appellants.

Affirmed.


author: PAVY, Judge.

text:
    J. D. SOILEAU et al., Plaintiffs and Appellants, v. VILLE PLATTE RICE DRIER, INC., Defendant and Appellee.
    No. 5191.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.

      Preston N. Aucoin, Ville Platte, for plaintiffs-appellants.
    Fontenot & Mitchell, by Clyde Fontenot, Ville Platte, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

Joseph D. Soileau and Leroy Soileau, partners in farming, sue for damages (reduced sale price) to soybeans stored with defendant during the 1973 harvest season. There were originally 3,600 bushels of soybeans stored and some were sold before spoilage. The remainder could not be moved in the ordinary commercial market and had to be disposed of at a reduced price for stock feed. Both parties had sought damages for mental suffering, loss of reputation, etc., but these additional claims have been abandoned.

The trial judge dismissed plaintiffs’ suit and they have appealed, contending that defendant was a compensated depositary, obligated to a high degree of care in preserving the beans and failed to prove the discharge of said duty. Additionally, plaintiffs plead res ipsa loquitur and general negligence. Defendant contends that it was not a depositary but an agent, that, even if a depositary, it was not bound to the full obligation of a depositary because of the understandings and peculiar circumstances of the situation, that, regardless of the extent of its obligation, it did everything reasonably possible to prevent spoilage and that the deterioration was not due to its neglect but to the fact that the beans were abnormally prone to spoilage because of damage, high moisture content and excessive foreign material. Defendant further pleads contributory negligence and assumption of risk in that plaintiffs persisted in keeping their beans in storage after being informed of the likelihood of spoilage.

In his opinion, the trial judge stated:

“The Court can find no negligence on the part of the defendant’s agents and employees in this case. It is apparent to the Court that the beans were in a poor condition when they were stored, and that defendant’s employees did all within their power to preserve the beans, albeit unsuccessfully.
The question of whether the defendant is a depositary or not seems to the Court to be of no significance for the reason that there is no negligence on the part of defendant’s agents or employees. Even if defendants were held to be a depositary, which the Court is not doing specifically, even if it were assumed arguendo that the deposit was made sólely for the advantage of the depositary, which again the Court is not holding, the depositary is only bound to use the same diligence in preserving the deposit that it would use in preserving its own property. Again, in this case, the Court is of the opinion that the defendant did all within its power to preserve the plaintiffs’ beans, and no actionable negligence occurred.”

Appellant complains vigorously of the lower court’s failure to expressly rule on whether defendant was a depositary and burdened with an especially high degree of care.

Civil Code Article 2926 provides:

“A deposit, in general, is an act by which a person receives a property of another, binding himself to preserve it and return it in kind.”

Defendant claims the relationship between the parties was that of mandate because it acted as agent in selling the beans and could not return them in kind. There is no doubt that a sale was originally contemplated, ultimately authorized and consummated but that does not preclude the relationship of depositor and depositary. Both mandate and deposit could exist concurrently or consecutively. Prior to the actual sale, plaintiffs had the right to a return in kind and the deposit existed until the sale. It was in fact a compensated deposit, for defendant received some $1,190.-00 for storage charges and incidental expenses.

Section 3 of Title XIII of the Louisiana Civil Code deals with the obligations of the depositary as follows:

Article 2937 — “The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.”
Article 2938 — '“The provision in the preceding article is to be rigorously enforced :
2. If it has been agreed that he shall receive a reward for preserving the deposit.”
Article 2945 — “The depositary is only bound to restore the thing in the state in which it is at the moment of restitution. Deteriorations, not effected by any act of his, are to the loss of the depositor.”

Once the existence of a deposit is established, as well as the loss or damage to the property deposited, a presumption arises that the same resulted from the depositary’s lack of due care, negligence or fault, and the burden is then on the depositary to exonerate himself from such negligence or fault. Coe Oil Service, Inc. v. Hair, 283 So.2d 734 (La., Sup.Ct.1973); Insured Loyds v. Liberty Mutual Insurance Company, 295 So.2d 206 (La.App., 3rd Cir. 1974); Miller Car Washes, Inc. v. Crowe, 245 So.2d 485 (La.App., 2d Cir. 1971). The depositary, however, is not an insurer of the deposit. Travelers Insurance Com pany v. Coleman E. Adler, Inc., 285 So.2d 381 (La.App., 4th Cir. 1973) and in the present case, the defendant has met its burden.

Defendant is a corporation, presumably nonprofit, in which farmers in the area own stock. Plaintiffs purchased some stock so that, as member, they would have storage rights at defendant’s facility. Each harvest season the farmers must harvest their beans before the heavy winter rains set in or they will be lost. The 1973 harvest season was late and unduly wet. The officials of defendant corporation generally declared a policy of not being responsible for spoilage of beans while in storage. Contracts of deposit may be enlarged or changed by special agreement. Norwegian Government Seamen’s Service v. Himbert, 228 So.2d 757 (La.App., 4th Cir. 1969). There were witnesses who testified that they were expressly told that defendant would not be responsible for spoilage. Plaintiffs deny that they were told any such thing. One of defendant’s employees contradicted this. The manager of defendant who had dealt directly with plaintiffs died before trial. His testimony was not available. Plaintiffs did not testify that defendant expressly agreed to be liable for any and all spoilage or that by accepting the beans it was warranting their suitability for storage. It must be remembered that plaintiffs, as members, had a right to storage. We think a realistic result of the law and the peculiar circumstances of the case is that defendant was obligated to use all reasonable means to prevent spoilage, gave no absolute guarantee against spoilage and did not guarantee that any beans accepted were necessarily suitable for storing.

Plaintiffs claim defendant should have dried the beans out and reduced the moisture content to the minimum. Defendant never had facilities to dry beans (as distinguished from rice) by fire. The only service it ever offered its members with regard to beans was to provide proper storage facilities and to preserve them by' aeration and rotation between bins. The evidence is overwhelming to this effect. Plaintiffs’ contention that defendants were obligated to dry the beans by direct heat must fail.

There was much evidence concerning the condition of plaintiffs’ beans when brought to the facility. The stronger trend of the evidence is that the beans were of an unduly high moisture content, were abnormally damaged and contained excessive foreign matter. The trial judge so found. The testimony in the record indicates without question that beans are prone to spoilage to the degree that they have a high moisture content, are damaged or affected with foreign matter.

Other than by the direct heat process, beans are preserved in storage by aeration and rotating them from bin to bin. The evidence shows that plaintiffs’ beans were rotated seven times within the approximate 60-day period involved. Most other beans had to be rotated only two or three times to prevent spoilage. The number of rotations is determined by how often the beans “rise” — apparently from internal heat. Plaintiffs argue that the beans should have been rotated daily or constantly because defendant accepted a fee. We do not think any such extreme duty devolved upon defendant.

Plaintiff claims defendant was negligent in mixing some of plaintiffs’ good loads with his bad loads thus contributing to deterioration of the good beans. There is evidence to the effect that such mixture did take place and that such effect on the good beans would occur. But defendant counters (and there was supporting testimony to such effect) that each member was entitled to only one bin. Plaintiffs did not contradict this testimony. We do not think the trial judge erred in not casting defendant because the beans were mixed.

One of defendant’s representatives testified that plaintiff was informed of the likelihood of spoilage and urged an early sale. Plaintiffs chose to risk spoilage for a higher price later in the season. They must live with their choice.

For the reasons assigned, the decision of the district court is affirmed. All costs of these proceedings are to be paid by plaintiffs-appellants.

Affirmed.


author: MILLER, Judge.

text:
    Dewitt W. GALLINEAU et ux., Plaintiffs-Appellants, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellee.
    No. 5179.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Neblett, Führer & Broussard, Daniel E. Broussard, Jr., Alexandria, for plaintiffs-appellants.
    Stafford, Pitts & Stafford (John L. Pitts, Alexandria, of counsel), for defendant-appellee.

      Before MILLER, WATSON, and CU-TRER, JJ.
   MILLER, Judge.

Plaintiffs Mr. and Mrs. Dewitt W. Galli-neau appeal the dismissal of their claim for the death of their teenage son, Gerald. He was walking home when struck on the highway by a hit and run driver who was never identified. Defendant Travelers Indemnity Company carried uninsured motorist coverage on plaintiffs’ automobile. Although there was no eye witness, the trial court denied recovery on finding Gerald contributorily negligent. We reverse.

The accident occurred about 8:45 p. m. on February 26, 1973. It was dark but the weather was clear and the roadway dry. Gerald had worked that day and was walking home from the Air Base. He was wearing blue jeans and a light colored shirt. His body was found about two feet from the travelled portion of Louisiana 1.

The highway was being converted to a four lane divided highway, and construction in that area was almost completed, but only the original (easternmost) two-way highway was being used. It had hardsur-faced shoulders. Assuming Louisiana 1 runs north and south at that point, the accident occurred at the first intersection south of the point where Air Base traffic enters Highway 1, and Gerald’s body came to rest at the second intersection some 130' to the south. There is no manifest error in the trial court’s finding Gerald usually walked across the highway near the first intersection south of the Air Base intersection.

Gerald’s body was found on the west portion of the paved shoulder. His feet we're two feet west of the west edge of the travelled portion of the southbound lane and his body was to the west of his feet. The investigating officer’s report stated “Pedestrian was walking on roadway and was apparently struck by a southbound truck. The body was carried approximately 134 feet.” The officer found skid marks from one set of dual wheels and surmised these were laid down by the left rear dual wheels of a truck. The skid-marks were 221 feet long and commenced (near the centerline) nine, feet east of the west edge of the southbound lane, 134 feet north of the point where the body was found. The marks veered from the starting point gradually to the west (the driver’s right) where the mangled body was found. The skid marks left the travelled portion of the highway some 3(7 north of the point where the body was found. The skidmarks continued 87 feet from the point where the body was found and from that point veered slightly to the driver’s left.

Although the investigating officer did not find marks on the highway (blood, torn clothes, debris, etc.) to support his theory impact occurred on the travelled portion of the highway, the condition of Gerald’s body supports the trial court’s holding he was struck some distance from the point where his body was found. Since skidmarks started in the travelled portion of the highway the trial court held Gerald was on the highway when struck.

The trial court concluded the single set of dual wheel skidmarks were laid down by the left rear dual wheels of a truck; that the driver braked and veered to the right when he saw Gerald in his traffic lane; and that Gerald was in the truck’s lane of traffic when he was struck and carried and/or run over by the truck. The trial court stated: “It appears . . . more likely than not that what the truck driver saw was the deceased on the highway.” Tr. 9.

Travelers stipulated the truck driver was negligent because the unidentified driver was guilty of hit and run driving.

Plaintiffs argue the trial court failed to apply the established presumption the deceased acted with due care for his own safety. The nature of a presumption is an inference based on facts. 31A C.J.S. “Evidence” § 114. In this case the presumption is based on a knowledge of human nature absent specific facts to the contrary. It would appropriately be presumed decedent did not enter the highway in the face of the oncoming vehicle.

The trial judge’s conclusion decedent was in the highway when struck is based solely on the physical findings at the accident scene. No blood was found on the highway. Decedent’s wallet was lying beside the body. There was no physical evidence to indicate the point of impact.

The skid marks can be explained by other hypotheses. An oncoming vehicle may have entered the truck driver’s lane. The driver would have braked and veered to the right to avoid the collision. The truck driver could have hallucinated and reacted to a nonexistent situation. The truck driver could have been drunk and reacted to a nonexistent situation. The driver’s act in leaving the scene suggests this possibility. The driver may have attempted to avoid another pedestrian, dog, or foreign object in his lane, and failed to see Gallineaux in time to stop his evasive maneuver. The single set of dual skid marks could have been laid down by the truck’s right rear wheels.

Decedent’s presence in the highway was one plausible explanation. However, since defendant stipulated negligence on the part of the unknown truckdriver, defendant has the burden of proving decedent’s contributory negligence. Defendant relies on circumstantial evidence and that circumstantial evidence must exclude all other reasonable hypotheses “with a fair amount of certainty.” Gassiot v. Gordey, 182 So.2d 170, 175 (La.App. 3 Cir. 1966).

Since decedent’s presence in the road is not the only reasonable hypothesis to explain the physical findings at the scene, defendant failed to carry the burden of proving contributory negligence.

Negligence on the part of the driver was stipulated as was damages in the amount of $10,000.

We reverse the judgment dismissing plaintiffs’ claim and render judgment awarding plaintiffs damages in the amount of $10,000 and casting defendant to pay that amount together with legal interest from date of demand. Costs at trial and on appeal are assessed to defendant appel-lee.

Reversed and rendered.


text:
    John A. SIM, Plaintiff-Appellant, v. BEAUREGARD ELECTRIC COOPERATIVE, INC., Defendant-Appellee.
    No. 5079.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.

      Russell T. Tritico, Lake Charles, for plaintiff-appellant.
    Jones, Kimball, Patin, Harper, Tete & Wetherill, by J. Norwell Harper, Lake Charles, for defendant-appellee.
    Before HOOD, CULPEPPER, and MILLER, JJ.
   HOOD, Judge.

This is an action to recover damages for the alleged breach of a contract of employment entered into by the parties. It was instituted by John A. Sim against Beauregard Electric Cooperative, Inc. Sim died while the suit was pending, and the administrator of his succession was substituted as plaintiff. Judgment on the merits was rendered by the trial court in favor of defendant, rejecting plaintiff’s demands, and plaintiff has appealed.

The issues presented are (1) whether plaintiff has waived his right to arbitration under the provisions of the above contract of employment; and (2) whether defendant was justified in terminating plaintiff’s employment prior to the expiration of the term provided in that contract.

Sim and Beauregard Electric entered into a written contract of employment on March 6, 1965, under the terms of which Beauregard agreed to employ Sim, and the latter agreed to work for defendant, as Manager of Beauregard Electric Cooperative, Inc., for a period beginning as of February 1, 1965, and extending through October 16, 1970. Beauregard was designated as “Employer” in that agreement, and Sim was designated as “Manager.” The contract contained the following provision :

“In the event any dispute arises under the terms of this agreement, the same shall be settled by arbitration, and pursuant thereto Employer shall name one (1) person of good reputation in the community, and Manager shall likewise name one (1) person of the same reputation, and these two (2) arbitrators shall select a third, and the three (3) so named shall constitute a Board of Arbitration, and the decision of any two (2) arbitrators shall be binding to the parties of this agreement.”

Sim actually began working for Beauregard Electric in 1950, and he became Manager in 1956. He continued to work as Manager of that establishment after the above contract was entered into, but his employment was governed by that contract from the effective date of that agreement, February 1, 1965, until April 13, 1966.

On the last mentioned date, April 13, 1966, the Board of Directors of Beauregard Electric adopted a resolution terminating the employment of Sim as manager of that cooperative. The resolution recites that his employment was being terminated and cancelled “because of the manager’s excessive unauthorized absences from his employment for extended periods of time and his failure to perform the duties required of him thereby.” Sim did not work for defendant at any time after that resolution was adopted.

This suit was filed by Sim on October 28, 1966, about six months after his employment was terminated. He alleges in his original and supplemental petitions that defendant’s action in terminating his employment constituted a breach of the above contract, that defendant was in bad faith, and that plaintiff sustained damages as the result of that breach consisting of loss of salary, bonuses and out-of-pocket expenses, and of humiliation, loss of reputation and attorney’s fees. He demands judgment against defendant for $212,998.00 as con-pensation for those alleged damages.

Several motions and exceptions, a request for admission of'facts and a number of procedural issues were presented to and resolved by the trial court. The many pleadings submitted by both parties included a motion for summary judgment filed by defendant on December 2, 1966. That motion was resisted by plaintiff, and after a hearing it was denied by the trial court. Another motion for summary judgment based on different grounds was filed by defendant on February 24, 1968, and it also was resisted by plaintiff. A hearing was held on that motion on March 25, 1968, and a summary judgment eventually was rendered on September 11, 1969, dismissing plaintiff’s suit at his costs. On appeal, we reversed that judgment and remanded the case to the trial court. See Sim v. Beauregard Electric Cooperative, Inc., 241 So.2d 26 (La.App. 3 Cir. 1970).

On July 28, 1969, which was after a hearing had been held on defendant’s second motion for a summary judgment but before such a judgment was rendered, plaintiff filed a supplemental petition demanding for the first time that defendant be ordered to arbitrate the differences which existed between them, and specifically to arbitrate the issue of whether defendant had the right to discharge plaintiff ■from his employment. Plaintiff’s first demand for arbitration thus was made 33 months after he instituted this suit for damages. Since the demand for arbitration was not made until after a hearing had been held on the last motion for summary judgment, no issue was raised at that hearing as to plaintiff’s right to arbitrate, and no such issue was presented when the case was before us the first time on appeal.

After the case was remanded to the trial court, defendant filed an answer asserting that any right which plaintiff may have had to arbitration under the contract was waived and abandoned by plaintiff upon his filing this suit for damages for an alleged breach of contract. In answer to plaintiff’s demand for judgment for damages, defendant alleged at least 14 incidents which it contends constituted breach of contract by plaintiff justifying the termination of plaintiff’s employment. Defendant also filed a reconventional demand, seeking judgment against plaintiff for amounts alleged to have been received by him on unauthorized and unnecessary travel and related expenses.

Several interlocutory matters were resolved by the trial judge, and eventually the case came up for trial on its merits on February 16, 1972. The trial was concluded on March 16, 1972.

At the first day of the trial plaintiff filed a motion to stay proceedings, alleging that the matter before the court involved issues referable to arbitration under an agreement in writing for arbitration and that no useful purpose would be served by hearing testimony. The trial judge denied that motion, and the trial of the case proceeded without interruption.

Plaintiff maintained at the trial that the only question presented was whether the contract required arbitration of the dispute, and he objected generally to all evidence offered by defendant which was not relevant to that issue. The trial judge overruled plaintiff’s objection, and admitted the evidence subject to that objection.

Following the trial of the case, the trial judge concluded that plaintiff had waived his right to demand arbitration by instituting this suit for damages, and that plaintiff himself had breached the contract of employment in several respects barring him from recovery in this case. Judgment accordingly was rendered in favor of defendant, rejecting plaintiff’s demands. The present appeal was taken from that judgment.

The trial court did not specifically render judgment on defendant’s reconventional demand, but that demand is not before us, since defendant did not appeal or answer the appeal taken by plaintiff.

On this appeal, plaintiff contends primarily that the judgment of the trial court should be reversed, and that the case should be remanded to the trial court with instructions that defendant be ordered to arbitrate the dispute under LSA-R.S. 9:4201 — 4217. Alternatively, it argues that he is entitled to recover damages for defendant’s alleged breach of contract. Defendant argues that plaintiff has waived his right to demand arbitration, and that defendant was wraranted in terminating plaintiff’s employment because of the latter’s breach of contract.

As already noted, the contract of employment entered into between the parties provides that disputes arising under the terms of the contract shall be settled by arbitration. Section 4201 of the Louisiana Arbitration Law (LSA-R.S. 9:4201-4217) stipulates that a provision in a written contract to settle by arbitration a controversy arising out of that contract is irrevocable and is enforceable, save on such grounds as exist at law or in equity for the revocation of any contract. LSA-R.S. 9:4202 provides:

“If any suit or proceedings be brought under any issue referable to arbitration under an agreement in writing for arbitration, the court in which the suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the_ agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.”

In view of the stipulations in the contract entered into by the parties to the instant suit and the provisions of LSA-R.S. 9:4201 and 4202, we think plaintiff would be entitled to judgment ordering arbitration and to have the proceedings stayed until an arbitration is had, unless the evidence shows that he has waived his right to arbitration.

Our review of the record and of the facts convinces us that plaintiff has waived his right to arbitration of the issues which are presented in this suit.

In Lawton v. Cain, 172 So.2d 734 (La.App. 2 Cir. 1964), a building contractor, who claimed a balance was due on a contract providing for arbitration of disputes as a condition precedent to filing suit, was held to have waived arbitration by instituting suit for the balance alleged to be due on the contract. The court said:

“In view of the above chronological events, it is evident plaintiff filed suit against defendant for the alleged balance due on a building contract when he had been repeatedly put on notice that defendant was emphatically contending the workmanship was faulty. Therefore, under the provisions of the contract agreement and specifications it was the duty of plaintiff to submit such disputes and claims to arbitration prior to instituting legal proceedings. However, he did not choose to so do, but rather elected to litigate his claim in the forum of our courts, thereby waiving and abandoning the right to demand arbitration.”

A rehearing was granted in Lawton to reconsider the court’s holding that plaintiff had waived its right to arbitration. The court, however, reinstated its original judgment, using the following more explicit language:

“The position of the parties and their contentions must be borne in mind. The contract between plaintiff contractor and defendant owner provided for arbitration of specified differences and disputes with respect to the performance and execution of the contract. In this action plaintiff seeks recovery of the unpaid balance of the contract price. It is the viewpoint of this court that by this resort to litigation the plaintiff himself, ‘waived,’ that is, abandoned, disregarded, relinquished, surrendered, renounced, dispensed with, and superseded the procedure by arbitration as provided by the contract.” (172 So.2d 734, 738).

The facts and issues in Lee v. Blackwell, 286 So.2d 185 (La.App. 4 Cir. 1973), are similar to those which are presented here. In that case plaintiff sued his employer to recover loss of wages and damages resulting from an alleged breach of a contract of employment which contained an arbitration clause. The defendant did not object to submitting the case to the court without resort to arbitration, and the court held that both parties had waived their right to arbitration. The court said:

“As a preliminary matter, our attention is directed to Article 8 of the contract, which provides that the parties will submit to arbitration every claim or dispute arising out of the contract. Plaintiff did not seek arbitration in this matter, nor has defendant interposed any exception or objection to the submission of this case to the court without prior resort to arbitration. Under these circumstances, it is clear that both parties have waived their contractual right to arbitration, and that this matter is properly before the court. Quinn Construction Co. v. Savoie, 207 So.2d 229 (La.App. 4th Cir. 1968); Lawton v. Cain, 172 So.2d 734 (La.App. 2nd Cir. 1964).”

We agree with the conclusions reached by the courts in the above cases. The right to arbitrate given by a contract may be waived, we think, even though LSA-R.S. 9:4201 provides than an arbitration clause is irrevocable. The waiver may be either by express words or by necessary implication. The institution of a suit by one party seeking damages for the alleged breach of such a contract is incompatible with a later demand by the same party that the dispute be settled by arbitration. We believe that the filing of such a suit by a party to the contract, without relying on the arbitration provision in that agreement, constitutes a waiver of that party’s right to demand arbitration of the dispute. Lawton v. Cain, supra; 17A C.J.S. Contracts § 515(11), page 889; 5 Am.Jur.2d, Arbitration and Award, § 51, page 556; Quinn Construction Co. v. Savoie, 207 So.2d 229 (La.App. 4 Cir. 1968); Francis I. duPont and Company v. McMikle, 230 So.2d 677 (La.App. 2 Cir. 1970).

The institution of the instant suit by Sim seeking damages for an alleged breach of contract is incompatible with his subsequent demand, asserted for the first time 33 months later, that his claim for damages now be settled by arbitration. It is inconsistent with his “Motion to Stay Proceedings,” filed under LSA-R.S, 9:4202 more than five years after the suit was instituted originally. Plaintiff cannot consistently seek judicial relief and at the same time demand that the matter be taken out of the hands of the court and settled by arbitration. He must elect which remedy he will pursue. We find no error in the trial judge’s holding that the institution of this suit by plaintiff constituted a waiver by him of his right to demand arbitration of the dispute which is the subject of this suit.

Plaintiff contends, however, that under the provisions of LSA-C.C.P. art. 1153 the filing of his amended petition on July 28, 1969, demanding arbitration for the first time, “relates back” to the date of. the filing of his original petition on October 28, 1966. He argues that the case must be viewed, therefore, “as though arbitration was the initial demand along with the alternative demand for damages.” To support that position, he cites several cases in which the filing of an amended petition or another suit after the prescriptive period had run was allowed to “relate back” to the time the suit was originally filed, with the result that the running of prescription was prevented. See Kreher v. T. L. James & Company, Inc., 274 So.2d 734 (La.App. 4 Cir. 1973); Mid-States Ins. Co. v. Fireman’s Fund Ins. Co., 240 So.2d 908 (La.App. 4 Cir. 1970); and Vastola v. Insurance Company of North America, 204 So.2d 605 (La.App. 4 Cir. 1967).

We have not considered the question of whether LSA-C.C.P. art. 1153 should be applied in a case such as this, which does not involve the running of prescription and where plaintiff waived the relief sought in the amended pleading before that pleading was ever filed, because we have concluded that the result would be the same in the instant suit whether that article is or is not applied.

Assuming for the purposes of this suit that the filing of plaintiff’s amended petition in 1969 “relates back” to the date on which the suit was originally instituted, it does not logically follow, as argued by plaintiff, that the demand for arbitration must be regarded as the “initial demand,” and the prayer for damages as an “alternative demand.” Our view, instead, is that under such an assumption the petition would merely contain two incompatible demands, one for judicial relief and the other for arbitration.

During the period of more than five years which elapsed from the time the suit was filed initially in 1966, until the Motion to Stay Proceedings under LSA-R.S. 9:4202 was filed in 1972, plaintiff sought only to obtain a judgment awarding him damages for breach of contract. He made no effort during all of that time to refer the matter to arbitration or to have the proceedings stayed so that the dispute could be arbitrated. If we view the case, therefore, as one in which two inconsistent demands were made initially, the fact that plaintiff vigorously pursued only one of those remedies for more than five years warrants the conclusion that he has waived his right to pursue the other remedy.

We agree with the trial judge that plaintiff has waived his right to demand arbitration under the contract and under LSA-R.S. 9:4201-4217.

We turn now to the question of whether Sim violated provisions of the above contract prior to the time he was discharged, and thus whether defendant was warranted in términating his employment before the expiration of the term provided in that agreement.

Defendant alleges that Sim violated the provisions of the contract of employment in several respects. It alleges, as one breach of contract, that Sim misappropriated $4,850.00 from a savings fund which was being maintained by defendant, and that he used the amount misappropriated to pay his personal gambling losses.

The evidence shows that in March and the early part of April, 1966, Sim engaged in poker games with Jeff Ware, and that he became indebted to Ware for $4,850.00 as gambling losses. To pay that indebtedness Sim made out a check for $4,850.00, payable to the order of Ware, drawn on the account of “Thrifty Savings of Beauregard Electric Cooperative, Inc.,” and Sim signed that check as “Manager” of that savings fund. The check was delivered to Ware, and he presented it for payment to the drawee bank, in DeRidder, but the bank refused to pay it because it was made payable to someone other than an employee of the cooperative. Ware returned the check to Sim, and the latter thereupon issued another check for $4,850.00, dated April 11, 1966, drawn on the same savings account, and signed by Sim as “Manager” of that fund. This last mentioned check was made payable to the order of “John A. Sim,” and it was endorsed in blank by the payee. It was delivered to Ware, who cashed the check and kept the proceeds as payment of the gambling debt which Sim owed to him.

The fund known as “The Thrifty Savings, Beauregard Electric Cooperative, Inc.,” was inaugurated by defendant in 1955. Defendant’s employees had the right to have parts of their salaries withheld and paid into the fund, and the amount so withheld was matched by the employer. Employees were permitted to borrow 75% of the amount which they' had deposited into the fund, subject to the approval of the Manager of the cooperative, who administered and controlled that account. An employee was required to sign a promissory note made from that fund.

When Sim’s employment was terminated, the Board of Directors of Beauregard Electric directed that the above savings account be audited immediately, and it engaged John T. Wooten, a CPA, to perform that service. The audit made by Wooten revealed that the check for $4,850.00 issued on April 11, 1966, and some other checks issued by Sim and drawn on that account, were not numbered, that they were not entered on the books of the Thrifty Savings fund, and that no promissory note was executed by Sim or anyone else evidencing an indebtedness to repay -the amounts so withdrawn.

The audit also showed that Sim had withdrawn $24,042.58 from the Thrifty Savings fund for his own personal use, that .being $7,992.24 more than the total amount which he had deposited into that account and substantially more than he was authorized to borrow from it. Of the total amount withdrawn from the fund and paid to plaintiff, $5,250.00 was paid to him on checks signed by plaintiff, made payable to “Cash” or to the order of Sim, and they were not entered on the books of the fund and were not represented by promissory notes. The last mentioned figure includes the withdrawal of $4,850.00 to pay a gambling debt of plaintiff.

After the above audit was completed, defendant made demand on Sim for repayment of the $7,992.24 which had been withdrawn from the Thrifty Savings fund, and in response to that demand Sim repaid $7,992.24 to the savings fund on May 5, 1966.

Defendant also alleges, as another violation of the contract of employment, that Sim withdrew $750.00 from defendant’s general fund on the representation that that amount was to be used to finance a business trip to Washington, D. C, for the cooperative, but that no such trip was ever made.

The evidence shows that Sim withdrew $750.00 from the general fund of the cooperative on October 7, 1966, “for expenses to be incurred attending Coop business in Washington, D. C.” He concedes that he deposited that amount to his personal account, that he did not make a trip to Washington, and that instead he went to Biloxi, Mississippi, where the cooperative had no business to conduct. While in Biloxi, he stayed at the Edgewater Beach Hotel from October 7 to October 10, and he incurred bills amounting to $609.25 at that hotel. He admits that he was accompanied on that trip by a female companion, not his wife, and the record shows that the hotel bill included substantial charges for men’s and women’s clothing and beverages. The hotel bill was charged to Beauregard Electric on an American Express credit card, and on November 29, 1965, Sim signed a check drawn on the general account of defendant and made payable to American Express in payment of that bill.

We find that Sim misappropriated at least $1,359.25 from funds belonging to defendant on the representation that those funds were needed for a business trip to Washington, whereas no such trip was made and the funds were either retained by plaintiff or were used by him for a pleasure trip.

Defendant alleges that Sim violated the contract further by misappropriating $794.-88 from defendant’s Employees’ Welfare Fund.

The “Beauregard Electric Cooperative Employees’ Welfare Fund” was established by defendant to provide entertainment, recreation, flowers at funerals, and other similar benefits for its employees. Payments into that account were made from the general funds of the cooperative, and the Welfare Fund was administered solely by Sim, as Manager of the cooperative. The money belonging to that fund was kept by plaintiff in a drawer of his desk. After Sim was discharged, the bookkeeper and the assistant manager of the cooperative determined that there was a shortage of $794.88 in that fund. Sim paid the amount of that shortage to Beauregard Electric on July 15, 1966, about three months after his employment was terminated.

Each of the above incidents constituted a breach of the fiduciary relationship which existed between Sim and the defendant, and each such incident thus constituted a breach of the contract of employment which had been entered into between the parties. We believe that because of these prior breaches of contract by Sim, Beauregard Electric was warranted in terminating his employment on April 13, 1966. In view of that conclusion, it is unnecessary for us to consider the other grounds alleged by defendant as justification for its action in discharging plaintiff.

We find no error in the judgment of the trial court rejecting plaintiff’s demands.

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

Affirmed.


author: HOOD, Judge. DOMENGEAUX, Judge WATSON, Judge MILLER, Judge

text:
    The STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. J. W. GORDY et ux., Defendants-Appellees.
    No. 5062.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Writ Refused Feb. 6, 1976.

      D. Ross Banister, Wm. W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Alva Jones and John H. Helm, by Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
    Jackson & Smith, by Chris Smith, III, Leesville, for defendants-appellees.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and WATSON, JJ.
   HOOD, Judge.

This is an expropriation suit instituted by the State of Louisiana, through the Department of Highways, under LSA-R.S. 48:441 et seq. The defendants are J. W. Gordy and his wife, Merle Clack Blackman Gordy. Plaintiff deposited $1,682.00 as its estimated value of the property taken and damages. Defendants answered demanding an award of more than the amount deposited. Judgment was rendered by the trial court awarding defendants $29,695.87, less the amount of the deposit, and fixing the fees of the two expert appraisers called by defendants at $3,355.75 and $3,173.30, respectively. Plaintiff appealed.

The issues presented are: (1) Whether the award made for the property taken is excessive; (2) whether defendants sustained severance damages, and if so, whether the amount awarded as such should be reduced; and (3) whether the fees allowed defendants’ expert appraisers are excessive.

The order of expropriation was signed on October 23, 1970. Defendants at that time owned a tract of land, consisting of about 1.593 acres, located on the east side of and adjacent to U. S. Highway 171, in the City of Leesville. The property was irregular in shape, having a frontage of 248.85 feet on the above highway, and an average depth of about 278.85 feet.

Defendants own and operate a 49-unit brick veneer motel and a restaurant on the above property, the motel being known as the “Redwood Motel.” The front, or west side, of the motel faces the highway. Before the taking the front of the motel was 15.3 feet from the east edge of the highway right-of-way. A neon sign containing the name of the motel and the word “cafe” was located on defendants’ property between the motel and the highway.

By this proceeding the Department of Highways has taken the front five feet of the parent tract for the purpose of widening and improving Highway 171. The part taken is five feet wide and, 248.85 feet long, comprising a total of 1244.25 square feet. After the taking there was a space of only 10.3 feet between the front of the motel and the east edge of the new highway right-of-way. Also, after the taking, the neon sign in front of the motel extended a few feet over the new highway right-of-way, making it necessary to remove or relocate that sign.

The trial court awarded defendants the aggregate sum of $29,695.87, itemizing that award as follows:

Land taken $ 2,488.50
Improvements 707.37
Severance damages 26,500.00
Total $29,695.87

On this appeal, plaintiff contends, first, that the award of $2,488.50, or $2.00 per square foot, for the property taken is excessive and should be reduced.

Four expert appraisers testified at the trial. Will Holmes of Lufkin, Texas, and J. D. Jimerson, of Carthage, Texas, were called by defendants. Norman Terry, of DeRidder, and Darrel V. Willet, of Pine-ville, Louisiana, testified for plaintiff.

Holmes felt that the land owned by defendants at the time of the taking had a value of $1.00 per square foot, but that the front five feet had a value of $2.00 per square foot. Jimerson valued the parent tract at $.98 per square foot, but testified that the part taken had a market value of $2.50 per square foot. Terry concluded that the parent tract was worth $1.00 per square foot, and Willet estimated its value at $.72 per square foot. Both of the last two named appraisers felt that the five foot strip of land taken had the same value per square foot as did the rest of the parent tract.

The trial judge found that the land owned by defendants, exclusive of the improvements, had a value of $1.00 per square foot, but that the part expropriated was worth $2.00 per square foot. He thus awarded defendants $2,488.50 as the value of the 1244.25 square feet of property taken. No reason was assigned by the trial judge for placing a higher value on the front five feet, except that “a rectangular tract fronting a major highway only five foot in depth and 248.85 feet long is extremely rare.”

We think the trial judge erred in concluding that the land taken had a higher value per square foot than did the rest of the parent tract. The so-called “front land — rear land” rule is not applicable here, because the entire parent tract is being used for its highest and best use, that is, for commercial purposes. The evidence convinces us that the depth of the parent tract from the highway is ideal for that purpose, and that no part of that tract, including the front five feet, has a greater value per square foot than does any other part.

We conclude that the land taken had a market value of $1.00 per square foot at the time of the taking, and that the amount awarded to defendants as the value of the land expropriated must be reduced to $1,244.25.

No issue is raised as to the award of $707.37 made for the improvements taken, so that part of the judgment appealed from will not be disturbed.

Plaintiff contends, however, that the trial judge erred in awarding defendants $26,500.00 as severance damages. It takes the position that defendants’ remaining property was not damaged at all as a result of the taking.

The trial judge found that the taking of a five foot strip off the front of the parent tract caused defendants to lose some parking spaces which theretofore were available for use by guests of the motel. He accepted the opinion expressed by Mr. Jimer-son, one of the expert appraisers called by defendants, that the lack of these parking spaces would result in a loss of income from the operation of the motel, and that in turn would cause a reduction in the value of defendants’ remaining property.

According to Jimerson’s testimony, the 49-unit motel had a total of 55 parking spaces prior to the taking. He felt that four parking spaces would be lost as a result of the expropriation of the front five feet of the property, and he reasoned that since 7.27 percent of the parking spaces would be lost the income of the motel would be reduced by 7.27 percent after the taking. He determined that the net income of the motel for the year preceding the taking was about $49,700.00, and he concluded that the average annual income of that establishment after the taking would be about $46,000.00. By using a capitalization rate of 14 percent, he computed the value of the motel before and after the taking, based on its actual and projected income, and he concluded that the value of defendants’ remaining property would be $26,500.00 less after the taking than it was before. He expressed the opinion, therefore, that defendants suffered severance damages in that amount as a result of the taking.

Defendants’ other appraiser, Holmes, found that there were 50 parking spaces available before the taking, and that four of them, or 8 percent of those spaces, would be lost as a result of the expropriation. He used the same procedure as did Jimerson in determining the before and after value of the motel, and concluded that defendants had sustained severance damages of $28,743.00 as a result of the taking.

Both of the appraisers called by the Highway Department found that no severance damages were sustained as a result of the taking.

Prior to the taking, vehicles frequently were parked in front of and perpendicular to the motel. Defendants contend that after the taking cars will no longer be able to park “head-on” or perpendicular to the motel, but instead they will have to be parked parallel to it. They argue that before the taking 12 cars could be parked perpendicular to the motel, whereas after that time only eight could be parked parallel to it, and that the taking thus resulted in a loss of four parking spaces. We agree that a loss of parking spaces would result if the change in parking practices suggested by defendants becomes necessary.

The evidence shows, however, that since there was a space of only 15.3 feet between the motel and the highway right-of-way, and most automobiles are longer than that, the rear of the vehicles parked in that manner extended two or three feet over or onto the right-of-way. There is nothing in the record to indicate that vehicles could not continue to park perpendicular to the motel after the taking, with more of each car extending over the right-of-way. Plaintiff argues, persuasively, that if defendants use a part of the right-of-way in determining how many cars could have been parked in front of the motel before the taking, then they also should use a part of the right-of-way in determining how many vehicles could be parked there later. If viewed in that light, of course, there would be no loss of parking spaces.

The experts differ in their opinion as to whether there would be a loss of spaces if vehicles were required to be parked completely on the motel property, both before and after the taking. Defendants’ appraisers feel that a loss of parking spaces would result, even with such a requirement. The testimony of plaintiff’s expert, Willet, however, is convincing that there would be no loss of parking spaces as a result of the taking if parked vehicles were required to remain on motel property before and after the expropriation. He testified and demonstrated by plats drawn to scale that a maximum of seven vehicles could be parked at sharp angles in front of the motel so that they would barely remain within the original 15.3 foot parking space. He also showed that exactly the same number of vehicles could be parked parallel to the motel, within the 10.3 foot wide parking area which remained after the taking. We are not convinced that the taking of the front five feet of defendants’ property will reduce the number of parking spaces.

Assuming, however, that the taking will cause the loss of four parking spaces, we think the evidence nevertheless fails to show that defendants have sustained or will sustain any severance damages as a result of the taking.

The records of the Redwood Motel show that it had an average occupancy rate of only 53.4 percent from August, 1969, through October, 1971. The average monthly rate of occupancy ranged from a low of 43.12 percent to a high of 59.52 percent. Even on weekends, when the occupancy rate was the highest, an average of only 67.81 percent of the available units were occupied. The evidence indicates that, assuming the greatest loss of parking spaces anticipated by any expert, the motel would have to reach an occupancy rate of 96 percent before parking would become a problem. The motel has never approached that rate. There are no banquet or meeting rooms in the motel, and there is no showing that additional parking spaces are needed for the restaurant or for any purpose other than for use by occupants of rooms or units of the motel. The evidence thus fails to show that the loss of four parking spaces, assuming that such a loss has occurred, will reduce the income from or the value of defendants’ remaining property.

The issues presented in the' instant suit are similar to those which we considered in State of Louisiana, through the Department of Highways v. Ross Continental Motor Lodge, Inc., 315 So.2d 151 (La.App. 3 Cir. 1975). The motel involved in that suit is near the one which is involved here, and the same appraisers who testified for defendants in this case testified for the defendant in the Ross Continental case. In that case we rejected the opinions expressed by Holmes and Jimerson that the defendant motel would sustain a loss of income proportionate to the loss of parking spaces, on the ground that those opinions were based on speculation or conjecture, and that they were not grounded on facts or logic.

The burden of proof rests on the landowner to establish the amount of severance damages he has sustained as a result of the expropriation. Severance damages are never presumed, and they will not be allowed if based on speculation or conjecture. They must be established by competent evidence showing that the land remaining has been diminished in value as a result of the taking. Where the evidence shows that an appraiser assumed incorrect facts in determining that severance damages were sustained as a result of the taking, the opinion of that expert as to sever-anee damages is not entitled to credit or weight, since it is not well grounded on facts or logic. See State of Louisiana, through the Department of Highways v. Ross Continental Motor Lodge, Inc., supra, and cases cited therein.

In our view, the expert opinion relied on by the trial judge in the instant suit to support the award of severance damages made to defendants is based on speculation and conjecture and on an incorrect assumption of facts. We conclude that defendants have failed to sustain the burden of proof which rests on them to show that they sustained severance damages as a result of the taking. The judgment appealed from will be amended, therefore, to delete the award of severance damages made to defendants.

Plaintiff contends, finally, that the fees allowed the two experts who were called by defendants are excessive and should be reduced. We note that the fees allowed those two experts by the trial judge amount to the aggregate sum of $6,529.05. That is more than three times as much as the total award of $1,951.62 which we find should be made to defendants. Plaintiff deposited $1,682.00 in the registry of the court at the time of the taking, so defendants actually have recovered the net sum of $269.62 as the result of this litigation. The fees allowed defendants’ two experts amount to more than 24 times as much as the net sum recovered.

Both of defendants’ appraisers used the “front land — rear land” rule in appraising the property taken. We have found that that rule is not applicable here, so the opinions of these two experts as to the value of the property taken served no useful purpose in this case. There was no dispute as to the value of the improvements which were taken. A substantial part of the work done by defendants’ appraisers was devoted to an attempt to show that defendants sustained severance damages as a result of the taking. We have found that their opinions as to severance damages were based on speculation and conjecture and on an incorrect assumption of facts, For that reason their conclusions as to severance damages also were of no use to us in determining the award which should be made in this case.

The parties to an expropriation suit may engage appraisers of their choice, and they may agree to pay those experts specified fees for their services. The experts may also testify as to the time they spent in preparatory work and in testifying. However, an agreement entered into by a party as to the fee which an expert appraiser is to receive, or the statement of the expert as to his charges or even the actual payment of such a fee to the expert, are not binding on the court and are not criteria to be used by the court in fixing the expert fees which are to be assessed as costs in the suit. LSA-R.S. 13:3666; State v. Donner Corporation, 236 So.2d 841 (La.App. 3 Cir. 1970); Recreation and Park Commission v. Perkins, 231 La. 869, 93 So.2d 198 (1957); State Department of Highways v. Black, 207 So.2d 583 (La.App. 3 Cir. 1968).

An expert appraiser who testifies in an expropriation suit is entitled to reasonable compensation for his appearance in court and for preparatory work done by him, but the fees allowed him and taxed as costs must be reasonable and they must be somewhat in line with the fees heretofore allowed by the courts of this state in other similar cases. State, Department of Highways v. Black, supra. The fees allowed expert witnesses also should be “based on the relative usefulness of their respective testimony.” Melancon v. Oilfield Lubricant Services, Inc., 292 So.2d 908 (La.App. 1 Cir. 1974).

In determining whether the fee allowed an appraiser and taxed as costs in an expropriation suit is reasonable, we think consideration must be given to the question of whether the preparatory work done by the appraiser was reasonably necessary, whether it actually tended to show the value of the property taken or severance damages, and whether the conclusions he reached based on that preparatory work were of some usefulness in determining the award which should be made. We also believe , that consideration must be given to the value of the property being taken and the amount of severance damages sustained by the landowner. An appraisal fee greatly in excess of all of the awards made is not reasonable and should be reduced.

In State of Louisiana, through the Department of Highways v. Ross Continental Motor Lodge, Inc., supra, substantially the same amounts were allowed to the same two appraisers by the trial court. We reduced the fees to one-half the amount awarded by that court. In the Ross Continental case, however, the award made to the defendant landowner was substantially higher than the award which is being made to defendants in this suit, and we think that circumstance justified the allowance of higher expert fees in that case than can be justified in the instant suit.

We believe that a fee of $750.00 for each of those experts is adequate and is as high as can be justified in this case.

For the reasons herein set out, the judgment appealed from is amended in the following respects: (1) The judgment in favor of defendant and against plaintiff is reduced from $29,695.87 to the sum of $1,951.62, less the amount deposited by plaintiff in the registry of the court, with legal interest on the balance due from October 23, 1970, until paid, and all costs of these proceedings; and (2) the fees allowed defendants’ expert witnesses, Will S. Holmes and J. D. Jimerson, are reduced, from $3,355.75 and $3,173.30, respectively, to the sum of $750.00 each, and they are hereby fixed at that amount and are assessed as costs in these proceedings. Except as herein amended, the judgment appealed from is affirmed. All costs of these proceedings, in the trial court and on appeal, are assessed to plaintiff-appellant.

Amended and affirmed.

DOMENGEAUX, J., concurs' in part and dissents in part and assigns reasons.

WATSON, J., concurs in part and dissents in part and assigns reasons.

MILLER, J., concurs in part and dissents in part assigning written reasons.

DOMENGEAUX, Judge

(concurring in part and dissenting in part).

The front-land rear-land concept of awarding compensation is well entrenched in both the statutory and jurisprudential law of Louisiana and may be used in cases where it becomes the appropriate tool. See State, Department of Highways v. Smith, 272 So.2d 746 (La.App. 3rd Cir. 1972), cert. denied 272 So.2d 696 (La.1973) (“No error of law.”) ; State, Through the Department of Highways v. Hoyt, 284 So.2d 763 (La.1973), and other cases cited therein. However, I agree that this appraisal concept is not applicable to the facts of this case and therefore concur in the reduction of the amount awarded to defendants as the value of the land taken to the sum of $1,244.25.

I also agree that the expert fees of the two landowners’ appraisers should be fixed in the amount of $750.00 each.

I disagree, and therefore dissent from the portion of the majority opinion which disallows severance damages, and am of the opinion, for the reasons assigned by Judge Watson, that this case should be remanded for a new trial limited to the question of the amount of severance damages.

WATSON, Judge

(dissenting in part and concurring in part):

I do not agree with the majority that the trial court erred in awarding $2,488.50 for the land taken or in finding severance damages. However, as to the severance damages, the theory of the plaintiff’s experts and the damages calculated by these experts are not convincing. I would remand for the taking of additional evidence on the amount to be awarded for severance damages. As to the award of expert witness fees, I agree that there is error but I differ with the extent of the reduction by the majority.

I. Value of the Land

As to the land itself, the trial court concluded that defendants’ entire tract is correctly valued at $1.00 per square foot on the basis of a comparable sale of adjoining pfoperty to the south. However, since the property taken consisted of frontage on a major highway five feet in depth and 248.-85 feet long, the trial court gave it a higher value of $2.00 per square foot. The trial court multiplied the total area taken, 1244.25 square feet, by $2.00 to arrive at a value of $2,488.50 for the land. I find no error in the trial court’s award of a higher value for the front portion of defendants’ property, since it in fact had a higher market value. State, Through Department of Highways v. Hoyt, 284 So.2d 763 (La. 1973); State, Dept. of Highways v. Guaranty Realty Corp., 295 So.2d 490 (La.App. 3 Cir. 1974).

II. Severance Damages

The trial court held that the motel had lost parking space and had been damaged by loss thereof. The estimate of appraiser Jimerson was relied on to award $26,500.00 for severance damages.

The Redwood now has less legal parking than it had prior to the taking. The sole testimony to the contrary is that of appraiser Willet, yet his appraisal includes a report by Lloyd J. Rockhold, a Baton Rouge construction consultant, who found a loss of legal parking. The evidence establishes, in my opinion, that defendants’ property suffered a loss of parking. The majority reverses this factual finding by the trial court when there is ample evidence (a preponderance, I believe) to support it.

Having found a loss of parking I would adopt the incisive reasoning of the Second Circuit, which said:

“It seems clear to us that there was some decrease in the value of the remaining property after the taking. Surely, the reduction in already limited parking spaces would adversely affect the value. The opinion of defendant’s expert that the value of the property, one economic unit, was decreased by more than the value of the property taken is reasonable and convincing.” State, Dept. of Highways v. Nisbet Properties, Inc., 309 So.2d 398 at 401 (La.App. 2 Cir. 1975).

Therefore, the conclusion is obvious, to me, that defendants’ property sustained severance damages. State, Dept. of Highways v. Denham Springs-Dev. Co., Inc., 307 So.2d 304 (La., 1975).

However, I find the theory of calculating damages used by plaintiffs’ experts to be unconvincing. I would remand for a new trial on that issue.

III.Expert Witness Fees

Concerning the expert witness fees, I find it necessary to refer to State, Dept. of Hwys. v. Ross Continental M. L., Inc., 315 So.2d 151 (La.App. 3 Cir. 1975). There, the fees of the same experts, Jimerson and Holmes, were fixed at $3,107.03 and $3,365.61. Here, they are fixed at $3,355.-75 for Jimerson and $3,173.30 for Holmes. The comparable sales utilized are identical in both instances. In Ross, supra, this Court found the fees allowed excessive and unreasonable and reduced them by 50%. In view of the fact that a great deal pf the work here repeats that previously done in Ross, I would cut these fees by 50%, but I see no justification for reducing them to $750.00 each, as does the majority.

I respectfully dissent, and concur, as indicated.

MILLER, Judge

(concurring and dissenting).

I concur, except insofar as we find manifest error in the trial court’s award for landowner’s expert’s fees.

I respectfully dissent from the reduction in expert fees for the reasons assigned in my dissent in State v. Ross Continental M. L., Inc., 315 So.2d 151 at 161 (La.App. 3 Cir. 1975).