author: BOLIN, Judge. MARVIN, Judge

text:
    A. S. HOLLIDAY et al., Plaintiffs-Appellees, v. CONTINENTAL CAN COMPANY, INC., Defendant-Appellant.
    No. 13328.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    En Banc Rehearing Denied Oct. 31, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendant-appellant.
    Whitten & Blake by John C. Blake, Jonesboro, for plaintiffs-appellees.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This petitory action arose after defendant allowed certain land claimed by plaintiffs to be clear cut of timber. Plaintiffs asked to be declared owners of the disputed tract and to be awarded damages for the alleged trespass. The trial court upheld plaintiffs’ demands and defendant appealed. We affirm the judgment insofar as it declares plaintiffs to be owners, but reverse the award of damages.

There are two basic issues presented. We must first decide whether plaintiffs acquired ownership of the woodland tract by the prescription of thirty years. Secondly, if we determine plaintiffs are the rightful owners, has their action for damages resulting from defendant’s trespass nevertheless prescribed?

In 1937 plaintiffs’ predecessor in title purchased three parcels of timberland totaling eighty acres, a portion of which was under fence at the time. The property was immediately surveyed. The boundaries were painted with yellow lines and the corners marked with iron pipe in conformity with this survey. Plaintiffs had timber selectively cut from the land on three occasions. They also repainted the yellow boundary lines as needed.

Defendant owned or leased timberland south of and adjacent to plaintiffs’ tracts. In 1963 defendant conducted a survey of its holdings and marked the boundary lines with white paint and concrete corner markers. Plaintiffs disputed defendant’s northern boundary, complaining it encroached on plaintiffs’ previously surveyed southern boundary. Plaintiffs protested to defendant by letter, met with defendant’s representatives without successfully resolving the dispute, and engaged in an ongoing confrontation with defendant which involved removing and replacing painted lines and corner monuments.

Pursuant to a sale of timber by defendant, the land in contest was clear cut in May of 1971. Plaintiffs filed this suit in April of 1973. They sought to be recognized as owners of a strip of land, approximately seven-tenths of an acre (48' by 660'), and requested $30,275.30 as damages for defendant’s trespass and removal of timber from the tract.

The trial court, recognizing defendant would otherwise be the record owner of the disputed strip on the basis of the accuracy of its 1963 survey, nevertheless found that plaintiffs acquired ownership of the 48' by 660' area by adverse possession for a period in excess of 30 years.

Defendant contends the ongoing boundary dispute, which commenced with defendant’s survey in late 1963, interrupted plaintiffs’ peaceable possession. The disturbance of possession beginning in 1963 did not constitute an interruption of possession to defeat plaintiffs’ claim to a prescriptive title. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975).

The court in Liner dealt with the possession required to bring a possessory action, but held it identical to that required for acquisitive prescription. One remains in possession until he abandons it, or another expels him, or he permits his estate to be usurped. Liner v. Louisiana Land and Exploration Company, supra; Louisiana Civil Code, Articles 3501, 3516, 3517. In this case plaintiffs’ possession of the disputed tract was not interrupted until the 1971 clear cut.

Considering the nature of the land in question, there is sufficient evidence in the record to support the conclusion of open, notorious possession leading to a prescriptive title. Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952); Harris v. Galloway, 348 So.2d 1263 (La.App. 2d Cir., 1977).

Suit was filed more than one year after the timber was cut from plaintiffs’ property. The record indicates that plaintiffs should have known of this trespass. Defendant’s exception of prescription should have been sustained to bar the action for damages for the 1971 timber cut. Louisiana Civil Code Articles 3536, 3537; National Park Bank v. Concordia Land & Timber Co., 159 La. 86, 105 So. 234 (1925); Hayward v. Noel, 225 So.2d 638 (La.App. 1st Cir., 1969).

The trial court fixed the expert witness fee of plaintiffs’ consulting forester at $200 and taxed defendant with this cost. Since this witness testified solely to establish plaintiffs’ damages from the timber cut, and since we disallow these damages, plaintiffs, as “the party cast in judgment” on this issue, are required to pay the forester’s fee. La.R.S. 13:3666.

That portion of the trial court’s judgment which awards $490.77 damages to plaintiffs and condemns defendant to pay the expert witness fee of $200 is reversed, and there is judgment rejecting plaintiffs’ demands for these items.

In all other respects the judgment is affirmed at appellant’s costs.

MARVIN, Judge

(dissents from refusal to grant rehearing).

Where each litigant engages with the other in an ongoing confrontation and physical eradication and moving of each other’s claimed visible boundary before the 30-year acquisitive prescription has accrued, it could be found that the claimed adverse possession was not continuous, uninterrupted and unequivocal under C.C. Art. 3500.

Liner, cited supra, expressly recognized, “. . .in speaking of interruption of prescription (rather than of possession) Art. 3517 of the Louisiana Civil Code declares that ‘a natural interruption is said to take place when the possessor is deprived of the [enjoyment] of the thing during more than a year . . .319 So.2d 778. Emphasis supplied.

Mr. Justice Tate’s concurring opinion in Liner explains the concept “deprived of the enjoyment of the thing” to mean not a mere disturbance, but a loss of possession. A possessor loses possession when he allows the estate to be usurped and held for a year without, during that time, having done any act of possession or having interfered with the usurper’s possession. See C.C. Art. 3449 and concurring opinion, supra, p. 780. The ultimate question then under Justice Tate’s analysis, which I believe is correct, is did the adverse possessor (plaintiff in this instance) lose his right to possess under C.C. Arts. 3449(2), 3454(2) and 3487 when the record owner (defendant here) eradicates the painted tree line of the possessor and paints another tree line? Under this analysis, possession once begun, is not lost under these circumstances unless it is by an interruption of more than one year. See 319 So.2d 782-3, citing Aubrey et Rau.

Defendant, even though the record owner, could be considered broadly as a usurper of plaintiff’s possessory rights under C.C. Art. 3449(2). The plaintiff here also may have done acts of possession (3449(2)) by repeatedly removing the tree line painted by defendant and restoring his own so as to prevent the loss of plaintiff’s right of possession for the year. This question was not answered below and has not been answered here. I would grant a rehearing so that the case could be analyzed and argued in this fashion.

Disturbances in fact, such as the ongoing confrontation mentioned, do deprive a possessor of the enjoyment of the thing and may interrupt acquisitive prescription (C.C. Art. 3517, Liner, p. 778) if the ongoing confrontations (physical acts) endure more than a year (C.C. Art. 3449, 319 So.2d 778). Liner is not as broad in its holding as this court has interpreted.

I respectfully dissent from the denial of a rehearing.

PRICE, J., dissents for reasons assigned by MARVIN, J.


source: Caselaw Access Project

author: BEER, Judge. REDMANN, Judge,

license: Public Domain

text:
    N. A. JOHANSEN v. PORT JEWELL INCORPORATED and Edward J. Jewell. Alfred C. NOYES v. PORT JEWELL INCORPORATED and Edward J. Jewell.
    No. 8182 Consolidated With No. 8183.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Writ Not Considered Dec. 2, 1977.

      Jackson & Stovall, James E. Stovall, New Orleans, for plaintiffs-appellants.
    A. J. Capritto, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN, GULOT-TA, BOUTALL and BEER, JJ.
   BEER, Judge.

This appeal involves consolidated actions, individually commenced. Appellants, Alfred C. Noyes and N. A. Johansen, seek recovery in this court against defendants not cast below.

Although they had entered into written employment contracts with the corporate entity Port Jewell, Inc., they sued the following additional defendants: Edward J. Jewell, individually as stockholder, director and president of Port Jewell, Inc.; Edward Jewell and Associates, Inc. (hereafter, “Associates”); and Dr. Bonnie A. Jewell (Davis), who was alleged to be an officer and director of Port Jewell, Inc., acting in concert with Edward Jewell.

Edward Jewell had an option to purchase 255 acres of land situated on the north shore of Lake Pontchartrain in St. Tammany Parish. He incorporated Associates, and the option to purchase was, subsequently, exercised by Associates. Thereafter, Port Jewell, Inc. was incorporated. Bonnie and Edward Jewell advanced funds to both corporations to cover preparatory work on a proposed marina. Associates leased 80 acres of the 255 acre tract to Port Jewell, Inc. with an option to purchase.

N. A. Johansen, Sr., met Edward Jewell in 1966 through the common acquaintance of Alfred C. Noyes. Johansen had experience in civil engineering and business management. Noyes was experienced in business matters, particularly including some which could benefit the proposed marina. Oral one-year employment agreements were formulated between Jewell and the plaintiffs, specifying a salary for Johansen at $12,000 per year and for Noyes at $15,000 per year, plus car and house rental allowances and certain other expenses. Both plaintiffs testified that they were also to receive amounts of preferred stock in Associates, Inc. as a further inducement for employment:

Edward Jewell had received 80,000 shares of preferred stock in Associates, Inc. in return for the option to purchase the land. From this, Jewell transferred 10,000 shares to Johansen and 20,000 to Noyes. He and Bonnie A. Davis (the former Bonnie A. Jewell) denied that the shares were transferred as inducement to come work at the marina, contending that the shares were “sold” to the plaintiffs (although apparently no funds ever changed hands). No corporate records were introduced to clear this up in any way.

Plaintiffs were not paid their salaries on the basis orally agreed upon and, therefore, sought written employment contracts. These were prepared and signed on September 23, 1966. Port Jewell, Inc. was the named employer. The contracts provided for an annual salary to Mr. Johansen at $12,000 per year and for Mr. Noyes at $15,-000 per year, with provisions in both contracts for car and house rental allowances, and, moreover, all legitimate business expenses incurred in behalf of Port Jewell, Inc. were to be reimbursed.

Plaintiffs worked from September of 1966 to March of 1967. Total payments made to Johansen and Noyes were $3,000 and $2,400, respectively. By March of 1967, the disillusioned Noyes and Johansen discontinued their efforts in behalf of the project and, thereafter, filed these suits. The marina was never completed.

Appellants here contend that the trial court erred in the following respects:

Failing to pierce the corporate veil of Port Jewell, Inc., and hold the defendants, Edward Jewell and Associates, Inc., Edward J. Jewell, and Bonnie A. Jewell (Davis) liable for Port Jewell, Inc.’s obligations to plaintiffs.
Failing to hold that the defendants, Edward Jewell and Associates, Inc., Edward J. Jewell, and Bonnie A. Jewell (Davis) breached their fiduciary obligations to the corporation, Port Jewell, Inc., and its creditors, the plaintiffs.
Failing to apply the general principles of equity provided by the Louisiana Civil Code which would have prevented an injustice to the plaintiffs.
Nullifying the plaintiffs’ stock certificates in Edward Jewell and Associates, Inc.

Generally, a shareholder of a corporation is not liable personally for an indebtedness of the corporation. LSA-C.C. Art. 437; LSA — R.S. 12:93(B). This rule, and its statutory exception under LSA-R.S. 12:95, were discussed in Hughes Realty Co. v. Pfister, 245 So.2d 757, 759 (La.App. 4th Cir., 1971), as follows:

“The general rule in Louisiana, as in other states, is that an individual may incorporate his business for the sole purpose of escaping individual liability for corporate debts. This is often a primary or solitary reason for incorporation, but as long as the corporate existence is maintained intact, immunity from liability of a majority shareholder or even a sole shareholder is the same as if there were a multiplicity of shareholders.
Exceptions to this general rule exist where a shareholder has practiced fraud upon a person through a corporation and where a shareholder disregards the corporate entity to such an extent that the separate individualities of the corporation and its shareholders have ceased to exist, so that the corporation is merely the alter ego of the shareholder or shareholders.” Citing L. L. Ridgway Company v. Marks, 146 So.2d 61 (La.App. 4th Cir., 1962), and Texas Industries, Inc. v. Dupuy & Dupuy Develop., Inc., 227 So.2d 265 (La.App. 2nd Cir., 1969); also see Camp v. Gibbs, 331 So.2d 517 (La.App. 2nd Cir., 1976); Keller v. Haas, 202 La. 486, 12 So.2d 238, 240 (1943); Evergreen Plantation, Inc. v. Zunamon, 319 So.2d 543, 546 (La.App. 2nd Cir., 1975).

In Altex Ready-Mixed Corp. v. Employers Com’l U. I. Co., 308 So.2d 889 (La.App. 1st Cir., 1975) writs denied, La., 312 So.2d 872, “fraud” was characterized as follows:

“Fraud exists if it can be shown that material misrepresentations have been made by one party designed to deceive another, and to obtain some unjust advantage or to cause loss or inconvenience to the other. Article 1847, Civil Code. Article 1848 of the Civil Code provides: ‘Fraud, like every other allegation, must be proved by him who alleges it, but it may be proved by simple presumptions or by legal presumptions, as well as by other evidence. The maxim that fraud is not to be presumed, means no more than that it is not to be imputed without legal evidence.’ ”

Port Jewell, Inc. may have been under capitalized, but there can be no presumption of fraud, deceit, or ill practices on the part of a shareholder because of inadequate capitalization, de Montfort v. Sanctuary Private Schools, 232 So.2d 924 (La.App. 4th Cir., 1970). The Jewells simply attempted to develop the marina through the corporate entities of Port Jewell, Inc. and Associates. They did not defraud the plaintiffs and there is no basis upon which they should be personally cast in judgment. Likewise, the Jewells owed no special fiduciary duty to the plaintiffs under LSA-R.S. 12:91, et seq. inasmuch as those statutory duties are extended only “to the corporation and its shareholders.” Furthermore, the stock transactions complained of by appellants appear to be nothing more than efforts by the Jewells to protect their cash investment in the two corporations. We are in accord with the trial court’s finding that the claims against Edward J. Jewell and Bonnie A. Davis should be dismissed.

The preferred stock that plaintiffs have been ordered to return was first mentioned during cross-examination of Mrs. Bonnie A. Davis. Later, plaintiffs’ counsel raised the issue of how Johansen and Noyes had acquired their stock, whereupon defense counsel objected. During the direct examination of Noyes, the stock ownership issue was again raised, and, again, defense counsel objected. The trial court allowed the testimony but only as it bore on the employment agreements. In the judgment, the trial court annulled the stock certificates in plaintiffs’ possession and ordered the return of the certificates to Edward Jewell.

We believe that the stock ownership issue is beyond the pleadings. Admittance of the certificates into evidence does not subject their ownership to adjudication and judicial decree. LSA-C.C.P. Art. 862 provides:

“. . . (A) final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.”

The record here fails to show any demand for relief even remotely related to a call for the return of any stock certificates. Nor is there any indication that the pleadings were amended (orally or otherwise) to include this issue. We must, therefore, conclude that the trial court erred in ordering plaintiffs to surrender their own certificates and, accordingly, reverse that portion of the judgment which orders the return of those certain preferred stock certificates issued to Noyes and Johansen.

The two corporations were closely inter-related. For the most part, the directors, officers, shareholders and personnel overlapped. They shared, for all intents and purposes, the same physical facilities and services; and, the project, which included both corporations, was publicly represented as “Port Jewell Resort Marina.” There is support for the contention that the employment agreement, actually executed as being between the plaintiffs and Port Jewell, Inc., was, nevertheless, with Associates as well.

Furthermore, the record supports the conclusion that Johansen and Noyes worked — at least indirectly — for Associates in their sales efforts since the value of the land owned by Associates would be markedly affected by the success of the marina venture.

Plaintiffs actually worked on the project for about six months. Their ex contractu damages vis-a-vis Port Jewell, Inc. are properly calculated as follows:

Johansen
Contract salary $12,000.00
Car allowance for one year 1,500.00
Housing allowance for one year 2,100.00
Less: salary payments (3,000.001
Total $12,600.00
Noyes
Contract salary $15,000.00
Housing allowance 3,000.00
Car allowance 1,800.00
Itemized expenses (Pl. Exh.-14) 1,533.35
Less: salary payments (2,400.001
Total $18,933.35.

However, plaintiffs’ efforts, for all intents and purposes, inured to the benefit of Associates as well as Port Jewell, Inc. even though they had no express employment agreement with Associates. In Subdivision Plan. Eng., Inc. v. Manor Develop. Corp., 290 So.2d 375 (La.App. 4th Cir., 1974), plaintiff agreed to perform certain engineering and surveying work of a subdivision which the defendant planned to develop. From the outset, the developer encountered financial difficulties which ultimately culminated in foreclosure proceedings. We determined that a contract did exist which reciprocally obligated both parties to perform thereunder. Having so concluded, we went on to say:

“Because of the financial failure of Man- or, the plaintiff did not fully perform the services for which defendant contracted. Under the circumstances we think plaintiff is entitled to a judgment in quantum meruit for services rendered.”

Port Jewell, Inc. does not seriously contest its contractual obligation to Johansen and Noyes. Accordingly, we are of the view that that judgment, amended only as previously noted, should be affirmed. Further, we are of the view that there should be a quantum meruit judgment in favor of plaintiffs and against Associates.

Although no fixed scale is available, some reasonable and equitable value for the services rendered to Associates is due from that entity. We believe that a fair value for the services rendered to Associates for the six-month duration of plaintiffs’ labors may be determined by looking to the basic, year long employment contracts with Port Je-well, Inc. divided by two, as follows:

Johansen
Employment contract (divided by two) $ 6,000.00
Less: Salary payments (3,000.00)
Total $ 3,000.00
Noyes
Employment contract (divided by two) $ 7,500.00
Less: Salary payments (2.400.00)
Total $ 5,100.00.

In order to obviate any sort of double exposure, we point out that any recovery from Associates must, of course, reduce, dollar for dollar, the larger judgment against Port Jewell, Inc.; and, conversely, any amounts which may be recovered by reason of enforcement of the judgment against Port Jewell, Inc. must reduce, dollar for dollar, our smaller judgment against Associates.

Conditioned upon this, we are of the view that Associates should be cast in solido with Port Jewell, Inc., but only to the extent that the in solido judgment be in favor of Johansen in the amount of $3,000.00 and in favor of Noyes in the amount of $5,100.00. Furthermore, we are of the view that the stock certificates issued to Johansen and Noyes were an inducement for (and conditioned upon) their employment by (and efforts in behalf of) Associates. Thus, the trial court erred in gratuitously and summarily ordering the return of the Associates stock held by Johansen and Noyes, particularly in view of the fact that the issue of ownership of those stock certificates was not properly before the court for adjudication.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is amended and recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in Case No. 463-309 in favor of plaintiff, N. A. Johansen, and against Port Jewell, Inc. in the full sum of $9,600.00 plus legal interest thereon from judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in Case No. 463-309 in favor of plaintiff, N. A. Johansen, and against defendants, Port Jewell, Inc. and Edward Jewell and Associates, Inc., in soli-do, in the full sum of $3,000.00 plus legal interest thereon from judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in Case No. 463-310, there be judgment in favor of plaintiff, Alfred C. Noyes, and against defendant, Port Jewell, Inc., in the full sum of $13,833.35, with legal interest thereon from judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in Case No. 463-310, there be judgment in favor of plaintiff, Alfred C. Noyes, and against defendants, Port Jewell, Inc. and Edward Jewell and Associates, Inc., in solido, in the full sum of $5,100.00 with legal interest thereon from judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any payment by judgment debtor Edward Jewell and Associates, Inc. will reduce, dollar for dollar, the judgment indebtedness of Port Jewell, Inc., and, conversely, any payment by judgment debtor Port Jewell, Inc. will reduce, dollar for dollar, the judgment indebtedness of Edward Jewell and Associates, Inc.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all claims or demands against defendants, Edward J. Jewell and Dr. Bonnie A. Jewell (Davis), individually, are dismissed.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all business records of Port Jewell, Inc. and Edward Jewell and Associates, Inc. in the possession of N. A. Johansen and/or Alfred C. Noyes be turned over to Edward Jewell and Associates, Inc. through its duly authorized representative.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs of these proceedings are taxed against Port Jewell, Inc. and Edward Jewell and Associates, Inc., jointly and in solido.

As amended and recast, the judgment is affirmed. All costs of this appeal are taxed against Port Jewell, Inc. and Edward Jewell and Associates, Inc.

AMENDED AND RECAST AND, AS AMENDED AND RECAST, AFFIRMED.

REDMANN, Judge,

dissenting in part.

I would hold Edward J. Jewell liable for the debt of Port Jewell, Inc. to plaintiff.

Jewell is liable toward creditors for his breach, arising out of a conflict of interest, of fiduciary duty in failing to exercise Port Jewell’s option, under the lease, to acquire from Jewell Associates ownership of the extremely valuable 80-acre marina tract for 80,000 shares of preferred stock.

I see, however, no liability on Jewell Associates and therefore dissent from the judgment against that corporation.

      . During the course of the trial, a photostatic copy (Exh. P-19) of a stock certificate for 55,-000 shares dated August 15, 1966, designating Edward J. Jewell as owner and signed by Edward Jewell and A. C. Noyes, was entered into evidence in lieu of the original. The Certified Public Accountant for the corporation could not explain how Mr. Jewell started with a 80,-000 share certificate, and later transferring 20,-000 shares to Mr. Noyes and 10,000 shares to Mr. Johansen, but ended up with a 55,000 share certificate.

      . Although Mr. Johansen’s employment contract provided for reimbursement of expenses incurred in behalf of Port Jewell, Inc., the record is bare of any evidence whatsoever corroborative of any itemized expenses sustained by him.

      . The written contract allows to Mr. Noyes a car allowance of $150.00 per month, or $1,800.00 for the one year term of employment. The trial court erroneously computed the car allowance to be $3,000.00.

      . The written employment contract provided for reimbursement for any expenses incurred by Mr. Noyes in behalf of the business of Port Jewell, Inc.
      The trial judge apparently added all of the “Total Expense” figures on the “Traveling Expense Statements” (Exh. P-14) to arrive at the itemized expense total of $6,333.35. However, this was apparently in error, since the “Total Expense” for each month included a car allowance ($150.00 per month) and a housing allowance ($250.00 per month).
      The other ingredients of each statement seem to be in order. Accordingly, in order to avoid duplication, we deduct the cumulative car allowances ($1,800.00) and housing allowances ($3,000.00) from the total expenses itemized ($6,333.35) to arrive at an itemized expense total of $1,533.35.


author: GULOTTA, Judge. BEER, Judge,

text:
    Mrs. Ellove Johnson, wife of/and Monroe JOHNSON v. The INSURANCE COMPANY OF NORTH AMERICA and Schwegmann Bros., Inc.
    No. 8238.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Writ Granted Jan. 11, 1978.
    Arnold & Giepert, Melvin J. Giepert, New Orleans, for plaintiffs-appellees.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, C. T. Williams, Jr., New Orleans, for defendant-appellant, Bros., Inc. Schwegmann
    Before REDMANN, GULOTTA, BOU-TALL, SCHOTT and BEER, JJ.
   GULOTTA, Judge.

Defendant supermarket appeals from a judgment in favor of plaintiff shopper for damages sustained when cans of merchandise fell from the display shelf and struck plaintiff’s left leg and foot. Seeking an increase in the $2,480.00 award, plaintiff has answered the appeal.

According to plaintiff’s version of the accident, the cans fell from the lower shelf as she reached for a package of cans on one of the upper shelves. Plaintiff testified that she had not touched any of the cans on the shelf prior to their falling and had noticed (after the accident) that the cans were “disarranged”. She acknowledged that she did not know how the cans had become disarranged — whether by store employees or by customers.

Defendant relies on the testimony of a store security guard who testified that plaintiff had told him that her leg had touched a can on the lower shelf as she reached up for merchandise on the upper tier. Reliance is also placed on the testimony of the store manager who, though not present at the time of the accident, stated that it was the supermarket’s policy to stack cans neatly and well within the shelf to prevent them from falling down or protruding. The manager added that porters and stock clerks are instructed on methods of properly stacking the merchandise in order to minimize hazards to shoppers and that customers sometimes remove cans from the shelves and replace them improperly.

It is defendant’s argument that the factual circumstances of the instant case fall within the ambit of Taylor v. CNA Insurance Group, 300 So.2d 479 (La.1974) and Pilie v. National Food Stores of Louisiana, Inc., 245 La. 276, 158 So.2d 162 (1963), where the doctrine of res ipsa loquitur was held to be inapplicable. In these cases, defendant claims plaintiff bears the burden of showing the storekeeper’s negligence. Furthermore, according to defendant, in the instant case, a reasonable inference is created that the accident was caused by plaintiff’s touching the cans with her leg or by other customers’ removing cans from the shelves and replacing them improperly. Defendant maintains that injury-from-failing-merchandise cases are not controlled by the slip-and-fall cases of Kavlieh v. Kramer, 315 So.2d 282 (La.1975) and Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976).

We do not agree. Applying the rationale and result reached by the Supreme Court in Kavlich v. Kramer, supra, and Gonzales v. Winn-Dixie Louisiana, Inc., supra, and this court in Green v. Schwegmann Brothers Giant Supermarkets, Inc., 325 So.2d 621 (La.App. 4th Cir. 1976) (which we believe control the factual circumstances of our case), we conclude a rebuttable inference that the cans were not properly stacked is created when a plaintiff is hurt by falling cans. Defendant bears the burden of exculpating itself from liability. See Morais v. Schwegmann Brothers Giant Supermarket, 290 So.2d 357 (La.App. 4th Cir. 1974).

In the instant case, an implication exists in the trial court’s award that (on the disputed factual question) plaintiff’s leg did not touch the cans prior to the accident. Though no written reasons were assigned by the trial judge, implicit in his judgment is the acceptance of plaintiff’s testimony that she did not touch the cans on the lower shelf with her leg as she reached for cans on the upper shelf and the rejection of the security guard’s testimony that plaintiff told him she had touched the cans on the lower shelf. This factual finding based on credibility will not be disturbed absent manifest error. We find no such error in this case.

Furthermore, defendant offered no evidence to exculpate itself from an inference of negligence other than through testimony of the store manager and security guard that shoppers, on occasion, replace cans improperly, together with the generalized testimony that in order to minimize hazards an effort is made to neatly and properly stack the cans. This evidence is not sufficient to exonerate the store owner from liability.

On a quantum question raised by plaintiff, we find no merit to the claim that the trial judge erred in failing to award plaintiff reimbursement for the weekly costs (over a period of a year and a half) of a substitute employee necessitated by plaintiff’s injury.

The medical testimony of plaintiff’s treating physician was that the initial disability extended for a period not in excess of 8-months postaccident. Additional testimony of this expert that a flare-up of pain in the same area of the leg was accident-connected is unpersuasive. We have no difficulty in finding the award made by the trial judge to be within the limits of his discretion. The judgment is affirmed.

AFFIRMED.

BEER, J., dissents.

BEER, Judge,

dissenting.

The display shelves in question consist of one bottom shelf, 24" deep, with several shelves above, each 21" deep. The bottom shelf is approximately one foot from the floor and is designed so that merchandise can be stacked vertically. Mrs. Johnson testified that as she reached for a package of small juice cans, at least three of the larger juice cans, which were stacked on the bottom shelf, fell. Two struck Mrs. Johnson’s left leg. She denies touching the cans prior to the accident.

Mrs. Johnson did not notice the manner in which the cans were stacked on the shelf. She notified a security guard that the accident had occurred and, at that time, “. . . the cans were still on the floor and the other ones was disarranged on the shelf.” The security guard, Paul Oubre, testified that he did not witness the accident which Mrs. Johnson reported to him. However, his testimony includes the following exchanges:

“. . . she was reaching up to reach for the six pack of orange juice, the bottom portion of her leg apparently just touched something.
THE COURT:
Did she tell you that?
THE WITNESS:
Yes, sir, when she was reaching up for the orange juice she said she touched the shelf itself and the can of Hawaiian Punch fell down, this caused the injury. BY MR. MARSHALL:
Q. Is it your testimony that she said she touched the can that fell and struck her?
A. Yes, sir, right.”

Mr. Jack Pereira, the store manager, testified that the store’s policy is to neatly stack the merchandise and to maintain it in that condition, although he acknowledges that customers do pick out cans and sometimes replace them improperly. Twenty porters and thirty stock clerks participate in the supervision and inspection of the merchandise display and selection area to eliminate potentially harmful irregularities.

Appellee suggests that we affirm by simply applying the doctrine of res ipsa loqui-tur. Yet, we may not apply the doctrine where there is a reasonable inference that the accident may have been caused by acts of commission or omission other than the defendant’s negligence; moreover, only in the event that all the attendant circumstances demonstrably warrant a reasonable inference of defendant’s negligence, may the doctrine be utilized. Taylor v. CNA Insurance Group, 300 So.2d 479 (La.1974); Pille v. National Food Stores of La., Inc., 245 La. 276, 158 So.2d 162 (La.1963); Green v. Schwegmann Bros. Giant Supermarkets, Inc., 325 So.2d 621 (La.App. 4th Cir. 1976). In Taylor v. CNA Insurance Group, supra, the Louisiana Supreme Court observed:

“We are satisfied that the doctrine of res ipsa loquitur does not apply where the facts are such that the accident was due to a cause other than the defendant’s negligence. It is our opinion that the accident, together with all the attending circumstances, must warrant an inference, not of negligence only, but of defendant’s negligence. We might add that the fact that the accident gives rise to several inferences, each one of which suggests a different cause of the accident, does not concern us as long as they all point to the negligence of defendant. In the present case, there is a reasonable inference that the accident might have been caused by the negligence of the plaintiff in the manner in which she took the carton of Cokes from the shelf. The plaintiff’s testimony, taken as a whole, indicates that she might not have been paying proper attention under the circumstances. Furthermore, this is borne out by the findings of the trial judge. Also, it would seem that the facts of this case are stronger for not applying the doctrine of res ipsa loquitur than those in the Pilie case. In that case, it was conceded that the accident was not caused by reason of fault or negligence of Mrs. Pi-lie, as she was in no way involved in taking the soft drinks from the soft drink display. However, here, plaintiff was removing a carton of Cokes from the soft drink display when the accident occurred. We are unable to say under the attending circumstances of the accident in this case that there is only an inference of defendant’s negligence. We feel that it is just as reasonable to conclude that there is an inference of plaintiff’s negligence.”,

Here, there is a reasonable inference that Mrs. Johnson caused the accident by the manner in which she reached for the small juice cans which is just as strong as any other possible inference.

Kavlich v. Kramer, 315 So.2d 282 (La.1975), and Gonzales v. Winn-Dixie La., Inc., 326 So.2d 486 (La.1976), are similar but very distinguishable in that they involve slip and fall occurrences. Furthermore, those decisions emphasize that a self-service grocery system encourages customers to focus their attention on the shelves where the merchandise is located. In those cases where it is shown that some foreign substance has triggered the slip-fall-injury sequence, the burden shifts to the defendant to exculpate itself from a presumption of negligence. But, such presumption should not apply where cans are on their proper shelves and, thereafter, are caused to fall without some proof that they were improperly placed or stacked.

This case is not comparable to the various “exploding bottle” cases where the record supports a conclusion that the plaintiff was injured by the unexplained breaking apart of a soda pop bottle. Here, the only evidence of causation produced by plaintiff was her own testimony that some large juice cans fell just as she reached for a package of small juice cans. The testimony that defendant employs numerous persons to properly supervise, inspect and maintain the display shelves is uncontested. With no indication or justifiable presumption as to how the incident was triggered, the determination of negligence on the part of this defendant constitutes a refutation of the basic concept that the plaintiff has the burden of proof.

Accordingly, I respectfully dissent.


author: BEER, Judge. LEMMON, Judge,

text:
    Edward J. FOSS, Individually and as Administrator of the Estate of his minor son, Martin Foss v. NEW ORLEANS TERMINAL COMPANY et al.
    No. 8320.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.

      Christovich & Kearney, J. Walter Ward, Jr., New Orleans, for plaintiff-appellant.
    Hammett, Leake, Hammett, Hulse & Nelson, Michael E. Wanek, New Orleans, and Richard L. Greenland, Metairie, for defendants-appellees-appellants.
    Monroe & Lemann, Walter J. Suthon, III, W. Malcolm Stevenson, Benjamin R. Slater, III, New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and BEER, JJ.
   BEER, Judge.

On May 26, 1973, as darkness fell, fourteen-year-old Martin Foss and his friend, Mark Page, were riding bareback on separate mounts from a stable located near the intersection of the levee of the Seventeenth Street Canal and the railroad tracks of the New Orleans Terminal Company. They had crossed the tracks and ridden along the canal levee in a northward direction to join Angelle Trotter and Heidi Tull near An-gelle’s home located on Bellaire Drive in close proximity to the levee here described. Shortly thereafter, the boys rode past the home of James J. Budendorff (also located on Bellaire Drive) and stopped to pass some time with Kenny Budendorff and several other acquaintances and friends gathered there.

Using Kenny’s unloaded B-B gun, Keith Long, minor son of defendant Robert A. Long, fired the air rifle in the direction of the riders, allegedly startling the horse “Topper,” on which Martin was mounted. The record is not absolutely clear as to whether a previously fired shot from the unloaded air rifle had just previously startled Topper, but there is evidence to this effect.

From this point, the testimony varies as to what sequence of events took place after the gun was shot. According to Mark Page, Topper began acting up. Even with the reins pulled tight, the horse exhibited some tendency to break into a run as Martin rode him across a nearby vacant lot and up to the levee of the Seventeenth Street Canal. Thereafter, Martin apparently permitted Topper to run along the levee in a southward direction toward the railroad tracks. Mark followed, more slowly, in that same direction. By then, it was dark, and . Mark was apprehensive about riding fast on the levee.

Contradicting this sequential description to some extent, Kenny Budendorff (owner of the gun), testified that after the shot “They just walked by like they were doing before. Nothing different.” (Vol. VI, p. 187.) Another companion, Donald Thomas, confirms the opinion that there was no immediate reaction to the shot. (Vol. VI, p. 209.)

Mark Page was of the opinion that Martin’s control of Topper was never as complete after the incident of the gun being shot as before. He felt that the horse had been “spooked” and that this nervous state continued to some extent for some period of time. Yet, this view does not completely square with Martin’s own testimony which indicates that he ran the horse along the levee to the tracks, but then stopped, turned, walked the horse to the crest of the levee, looked for Mark, descended the levee down to a point near the tracks and was, thereafter, injured.

Although Martin’s testimony indicates that he spoke to Mark indicating that he would let Topper run along the levee and was answered with a refusal to join in such a venture because of the danger of the darkness, Mark testified that there was no conversation but only that Topper ran ahead of his horse and kept on going. Mark says that he called out instructions on how to stop Topper as he proceeded behind them in the same direction but at a slower pace.

From this chronological reference point, there is a void. Martin has no recollection of what took place from this point onward and only is able to pick up the thread of events quite some time after he was injured. Nor is the void filled by the testimony of Mark, who reached the tracks previously described, saw no sign of Martin or Topper, but noted a moving train which, after it had passed the point where the levee more or less intersects with the tracks, disclosed Martin painfully injured and in obvious distress on the strip of ground between the two sets of tracks, one set of which having just been used by the passing train. Mark went to Martin’s aid, moved him away from the tracks, summoned help and deserves much credit for his clear headed, straight forward efforts in Martin’s behalf, as does Dr. George N. By-ram, Jr., whose actions, likewise, both personal and professional, were exemplary and fruitful.

Appellee, Foss, filed suit and these appeals are from a judgment rendered in favor of plaintiff individually, in the amount of $10,000, and as administrator of his minor son, Martin Foss, in the amount of $25,000. Also appealed is the judgment in favor of defendants New Orleans Terminal Company and Alabama Great Southern Railroad Company dismissing plaintiff’s suit against them.

We assume, for the purposes of our consideration of the case, that the jury, in its deliberations, selected and found credible, all of the admissable evidence most favorable to the plaintiff’s case. We are of the view that the interrogatories which the jury answered preempt our further inquiry concerning the actions which took place near the Budendorff and Trotter homes. The jury has, we believe, properly fulfilled its function by reaching the factual conclusion, for which there is support in the record, that the “pop” of the air rifle had an effect on Topper’s subsequent behavior.

Yet, the gap that exists between this well protected Canter v. Koehring conclusion and the ultimate conclusion with respect to the liability of Long and his insurer remains unspanned by any evidentiary bridge. Martin, on direct testimony, at the hands of his own able counsel, relates how he arrived at the intersection of the track crossing and the levee still mounted on Topper; observed trains approaching from opposite directions on the two sets of parallel tracks, returned, still mounted, to the top of the levee to look for Mark, returned again to the spot near the tracks and, at that moment: “I just looked down, trying to figure — at the train, trying to figure whether Mark would be able to make it before the trains and whether I should cross or stay on that side. That is the last thing I remember.” He “woke up” in the hospital.

Although able counsel for plaintiff contends in the “Statement of the Case” section of his brief that “Martin Foss was thrown between the parallel rails of the railway trackage . . . ” (emphasis ours), there is absolutely no evidentiary basis for this. It is a surmise founded upon a possible fact of which there is absolutely no positive or circumstantial evidence. It is, at best, a guess, not deducible as an inference but merely a notion founded on a probability-

A substantial number of completely varied possibilities and probabilities exist as to what may have transpired. We know from generally uncontested evidence that Topper returned to the barn and that Topper was not seen by Mark either before or during the actual process of his aiding his injured companion.

Did Martin, still mounted upon Topper, cross the tracks, dismount and head back on foot to look for Mark? Did he dismount before crossing the tracks? Did he wait for one train to pass before starting across, only to be confronted by the other coming from the opposite direction, and did this cause him to dismount?

The word “thrown” never appears in the testimony of any witness nor does any word or series of words indicative of his being thrown. That Martin was thrown is not a factual issue, for there is no evidence, either way, that such an event ever took place. Had ten qualified eyewitnesses testified that Martin was not thrown and one qualified eyewitness had testified that he was thrown, and the jury rendered a verdict for plaintiff, we would affirm, for that factual issue would have been resolved by them with support for same in the record. We are of the view that the record can support (though we would not have so found) a jury determination that Keith Long’s actions “spooked” Topper and caused him to act in a way not, otherwise, likely. Thus, if there was any evidentiary basis whatsoever that Topper had, at any reasonable time thereafter, “thrown” Martin, we would affirm. But there is no showing, none at all, that such was the case, and meeting the burden of proof is just as vital in this respect as with respect to chain of causation. There is no evidence — circumstantial or otherwise— to support this.

This is not a situation where the credible evidence preponderates in favor of a finding that Martin was “thrown” by Topper or even where the jury has, using its great discretion, discounted or disbelieved certain evidence, so that what remains preponderates in favor of the conclusion that Martin was thrown. This is a situation where there simply is no evidence that he was thrown and, thus, is a situation where no evidentiary basis exists for such a conclusion.

Since Martin experienced retrograde amnesia as a result of injuries, he has no recollection and, therefore, no store of knowledge upon which he can base any testimony about what happened from the time that he stopped his horse and was “trying to figure whether Mark would be able to make it before the trains and whether I should cross or stay on that side.” How, then, can liability be assessed?

Adopting the far-ranging definition of causation in fact as discussed in Laird v. Travelers Ins. Co., 263 La. 199, 267 So.2d 714 (La., 1972), and assuming the correctness of the jury’s finding that Keith Long negligently “shot” the air rifle and breached a duty which could result in risk or harm to Martin within the scope of protection afforded by the duty breached, there can be recovery if Keith’s conduct is shown, by some admissable evidence, to be the cause in fact of the injury. What we perceive to be missing here is a vital link in the proof of a chain of causation such as described in Hill v. Lundin, 260 La. 542, 256 So.2d 620 (La., 1972). The natural chain of events arising from the “pop” of the air rifle may or may not have terminated before or after Martin’s injury. The critical issue here is that there is absolutely no proof either way. This results in a failure — as a matter of law — on the part of the plaintiff to carry the burden of proof.

Also apparent from the record is the fact that Martin, according to his own testimony, apparently had the horse under control on two separate occasions after the B-B gun incident: first, when he went back up on the levee to wait for Mark Page, and, again, when he returned to the spot near the railroad tracks. Thus, the causative chain of events arising from Long’s firing of the B-B gun was broken by Martin’s independent failure to remove himself from the potentially dangerous situation since the opportunity so to do twice presented itself and was twice ignored.

We turn to consideration of plaintiff’s jury charge no. 18, the giving of which appellant has challenged in this appeal. We do not find the charge to be clearly prejudicial. Nor, for that matter, do we find error on the part of the able trial judge in connection with the method by which the trial court chose to handle the matter involving the third party demand against Bu-dendorff; the disallowance of the testimony of the clinical psychologist and actuary regarding an alleged differential in the earning capacity of Martin Foss; the rejection of particularized instructions regarding disfigurement; or the rejection of plaintiff’s requested jury charge regarding the railroad’s alleged duty to sound its signal before a street crossing. We believe that the protracted trial of this matter was fairly and efficiently conducted by the able trial judge and handled vigorously and well by able counsel for all litigants. We do take note of the inadvertent failure to cast Robert A. Long individually, although he is cast as administrator of the estate of his minor son, Keith Long, and also note the general agreement of all counsel at the time of the argument of this matter that the judgment should be amended accordingly if we should otherwise affirm.

However, for the reasons previously discussed, we must reverse.

Accordingly, it is ordered that the judgment of the Civil District Court for the Parish of Orleans, dated October 17, 1975, be reversed and set aside, and it is now ordered, adjudged and decreed that there be judgment herein in favor of Robert A. Long, individually and as administrator of the estate of his minor son, Keith Long, and Lumbermen’s Mutual Casualty Company and New Orleans Terminal Company and Alabama Great Southern Railroad Company (Southern Railway Company), and against Edward J. Foss, individually, and Martin Foss (now a major), dismissing their suit at their cost. All parties shall bear their own costs of. this appeal.

REVERSED AND RENDERED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurs and assigns reasons.

Martin Foss’ version of the events just before the accident and Mark Page’s version can only be reconciled to indicate that Martin secured relative control of a nervous horse, and instead of dismounting, as prudence would dictate, he waited for Mark while on the horse alongside the track with a train approaching. Under these facts I deem reasonable the inference that the nervous horse did throw Martin after being further frightened by the train. Therefore, I conclude that the shooting incident did cause the horse to be nervous, and since the horse’s nervousness causally contributed to the accident, the shooting was a “but for” cause-in-fact of the accident.

Nevertheless, I would not hold Keith Long liable for the resulting injury.

Liability is not always imposed when a breach of duty is followed by an injury in a “but for” sequence. The cause-in-fact determination is only the first step in the liability determination. Since tort law imposes a duty for the purpose of preventing the risk of injury, another basic inquiry is whether the particular risk of injury is within the scope of protection of the rule of law which prohibits the conduct under consideration. The inquiry involves an analysis of the relationship between the duty imposed, the risk created, and the injury “caused”.

There is no ease of association between the duty to refrain from willfully frightening a horse carrying a rider and the resulting injury in this case, which spanned 1,300 feet of distance and a considerable amount of time, during which Martin had numerous opportunities to dismount and terminate the risk of harm, or to wait for Mark at some place other than alongside the track.

A question of law is involved in determining whether to excuse an actor from liability for certain consequences following an act of negligence. Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970). Regardless of the terminology used — foreseeability, ease of association, contributory intervening independent act — I would as a matter of law decline to hold Keith Long responsible for these particular consequences of the shooting incident.

      . The “shot,” as such, was nothing more or less than the “pop” of the air rifle. There is no evidence that the air rifle was loaded with a pellet or B-B; much less that the horse was struck by a sort of pellet or B-B.

      . Canter v. Koehring Company, 283 So.2d 716 (La., 1973).

      . Likewise, with respect to circumstantial evidence and/or expert opinions based upon credible evidence.

      . As previously noted in this opinion, the record fails to deal with this order of proof in any way. There simply is no evidence on the vital issue of how Martin got from where he remembers being to where he was discovered.

      . Testimony by an expert horseman established that a horse, near a railroad track and confronted by an approaching train, would probably turn toward the sound and then spin around quickly and try to get away from the track.

      . Indeed, he did go back up the levee and wait about 15 seconds before returning to the place alongside the track.

      . The jury found Martin to be contributorily negligent, but determined that this was not the proximate cause of the accident.


author: STOULIG, Judge. SCHOTT, Judge,

text:
    SAYRE & TOSO, INC., OF LOUISIANA v. MANSER AGENCY, INC.
    No. 8355.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      Usry, Leefe, Hartley & Stahl, Richard K. Leefe, New Orleans, for third party plaintiff-appellee.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, James Ryan, III, New Orleans, for third party defendant-appellant.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   STOULIG, Judge.

This is an appeal from a judgment condemning third party defendant, B.P.B. Contractors, Inc. (B.P.B.), to indemnify third party plaintiff Manser Agency, Inc. (Man-ser), for $7,298.09, representing an unpaid premium for an insurance policy Sayre & Toso, Inc., placed at Manser’s request for B.P.B. This litigation was initiated by Sayre & Toso’s claim against Manser, who in turn third-partied B.P.B. Prior to trial Manser stipulated the debt claimed by plaintiff was due, judgment was rendered on the original demand and only the third party claim was tried.

The facts are not disputed. On March 5, 1975, Pansy Solberg, vice president of Man-ser, wrote a letter to B.P.B.’s president, Phil Landweir, in New York, soliciting its insurance business on real property in Harahan, Louisiana, with a cost-reduction incentive approach. She promised:

“We understand your insurance coverage on the two buildings located at 6040 and 6050 Beven Street, Harahan, Louisiana is coming up for renewal in the near future. We would appreciate the opportunity to submit competitive quotations on these two buildings. We are in a position to offer an All Risk policy which can be tailored to your special insurance needs and affords a sizable premium savings over the standard bureau rates and premiums. We are referring to premium savings in the range of $10,000-$20,000, depending on the insured values used.”

Mrs. Solberg testified that on Friday, March 7, 1975, at approximately 5:30 p. m., Landweir contacted her by telephone and requested she bind coverage on B.P.B.’s uninsured buildings. Mrs. Solberg advised Landweir that she did not have authority to bind coverage and because of the lateness of the hour she could not effect this protection until Monday morning. During the course of their conversation, she discussed with him the surplus line coverage and reiterated the substantial savings which would be realized.

In the letter of transmittal to Landweir dated March 12,1975, Mrs. Solberg enclosed a 30-day binder dated March 10, 1975, affording all risk coverage for $4,000,000 on the assured’s three buildings. She informed him that based on a three-year policy period the annual premium was $39,680 with a $1,000 deductible or $35,160 based on a $25,000 deductible.

Apparently being unsuccessful in reaching Landweir by telephone, Mrs. Solberg on March 31, 1975 wrote him mentioning this fact. She again set forth a sliding schedule of annual premiums for $4,000,000 based on varying amounts of deductibles. Notice was also given that the underwriters were pressing to issue the policy and one would be issued in accordance with the March 10 binder unless B.P.B. advised otherwise by April 9. His attention was also directed to the fact that the premiums on the binder coverage was being earned on a daily basis.

In the meantime, being unaware of the binder Landweir bought through Manser, on March 20, 1975 G. B. Ficken, acting for B.P.B., procured $4,400,000 coverage with a $5,000 deductible at an annual provisional premium of $24,720 with Protection Mutual Insurance Company.

The next letter in Mrs. Solberg’s chain of correspondence is dated April 8 and addressed to Ficken, confirming his telephone notice that insurance had been placed with another agent and requesting cancellation of the March 10 binder. The letter also contained a resume of prior negotiations between her and Landweir leading up to the issuance of the binder and specifically mentioning that on March 14 she had advised Landweir by telephone that daily premiums were being earned. Enclosed in the letter was an invoice for $8,109, the premium for the period March 10,1975 to April 8, 1975 for the cancelled binder.

In response to this letter, Ficken on April 15, 1975 wrote Mrs. Solberg expressing the opinion that the 19% short rate factor seemed high and would she send a copy of the table used to develop this rate. Mrs. Solberg on April 23 forwarded to Ficken a Photostatic copy of the “Short Rate Table of Louisiana Rule Book”, which indicates the factor of 19% for a period of 30 days.

The litigants agree Manser is entitled to a premium for the binder effective from March 10, 1975 through April 9, 1975. The issue is how much. Manser demands 19% of the annual premium of the Holland America Insurance Company quoted in the March 12 letter of Mrs. Solberg. Appellant suggests the premium should be computed on a pro rata basis of the annual amount charged by Protection Mutual Insurance Company.

Appellant maintains the trial court erred in applying the short rate formula in computing the sums due upon cancellation of the insurance binder by the insured in that: (1) the third party recovery is based on the short rate calculation as set out in paragraph 26 of the Holland America Insurance Company policy which was not issued until eight days after the cancellation request of B.P.B. and in so doing the court failed to consider the fiduciary obligation owed by Manser to procure the insurance as requested; (2) Manser and Sayre & Toso, Inc., failed to comply with the requirements of R.S. 22:1257 before placing coverage with an insurer not authorized to do business in the State of Louisiana; and (3) R.S. 22:637, which authorizes the short rate premium cancellation, governs the relationship between the insurer and the insured and not between the agent and the insured.

At the outset certain undisputed or unre-futed facts must be noted. The Holland America Insurance Company is a foreign corporation not authorized to do business in the State of Louisiana. Mrs. Solberg did not attempt to place this insurance with any other company nor did she compare various rates at which she could procure the insurance requested by B.P.B. Mrs. Sol-berg had obtained Holland America Insurance Company rates for the contemplated coverage prior to her solicitation letter dated March 5, indicative of her intention to place the insurance with this company. The only evidence that $58,000 was the “Standard Bureau Rates and Premiums” for the desired coverage was the testimony of Mrs. Solberg, which was neither objected to nor refuted. Mrs. Solberg’s request to Sayre & Toso, Inc., to place the insurance coverage for B.P.B. with the unauthorized insurer Holland America Insurance Company, because of her inability to procure such coverage in the State of Louisiana, was dated April 16,1975 and the binder of Holland America Insurance Company was issued on March 10,1975. B.P.B. did have an all risk policy with Allstate Insurance Company from February 10,1974 to February 9, 1975 with an annual premium of $43,825. Phil Landweir did not testify nor was any reason advanced for his failure to do so.

It is beyond dispute that Manser through Mrs. Solberg was acting as the agent of B.P.B. in the procurement of insurance on its buildings. Acting in its capacity as an insurance broker, Manser was obligated to use reasonable diligence in obtaining said insurance at a savings of $10,-000 to $20,000 below the standard rates and in the event of its inability to do so to immediately communicate this fact to her client or suffer the liability imposed by C.C. art. 3003. Implied in the mandate from B.P.B. to Manser is the obligation or duty to procure the desired coverage at the lowest possible premium with the $10,000 to $20,000 limit being the lowest acceptable saving.

From her testimony it is evident that Mrs. Solberg did not attempt to place this insurance with any other company nor did she compare various rates at which the desired coverage could be procured. Apparently she was content to rely upon her belief that the coverage was not obtainable in Louisiana and to place the insurance with the unauthorized surplus carrier, Holland America Insurance Company, at the predetermined rates that would effect a savings of $10,000 to $20,000 below what she testified was the standard bureau rates and premiums. In so doing she may have met the commitment in the letter of solicitation to B.P.B., but she did not fulfill the implied obligation as a mandatary to obtain such insurance at the lowest possible rate. It may also be argued with some degree of merit that not being familiar with the insurance industry, the Allstate premium of $43,825 was the only frame of reference Landweir had when he was quoted the significant reduction.

However, the failure of fulfillment or mistaken belief as to the standard bureau rates and premiums falls by the wayside in the light of subsequent developments. In Mrs. Solberg’s letter of March 12 to Landweir enclosing the 30-day binder effective from March 10, she set forth the annual premiums for the coverage based on a three-year policy with $1,000 or $25,000 deductibles. Upon receipt of this letter, which was never denied, the duty immediately devolved upon Landweir, or more specifically B.P.B., to reject the proposal. Their failure to do so was never explained and their silence continued until two days before the expiration of the 30-day binder period, despite several attempts by Mrs. Solberg, both by mail and telephone, to elicit from them the particular coverage desired. This silence constituted a tacit acceptance of the coverage afforded by the binder for the premium set forth in the letter of transmittal. It produced the legal consequence of a waiver by B.P.B. of the obligations owed to it by Manser under its original instructions to the extent that the binder does not conform with said obligations.

Appellant’s next complaint is that Manser violated the provisions of R.S. 22:1256 in that it obtained a binder from an unauthorized surplus line carrier, Holland America Insurance Company, on March 10, 1975 and did not execute until April 16, 1975 the required written certification that it was unable to procure such insurance coverage from an authorized insurer in the State of Louisiana. It also questions the validity of the certification of unavailability in view of the fact that Allstate had previously issued an all risk policy to B.P.B.

Again because of B.P.B.’s failure to act immediately by rejecting the binder upon its receipt, it accepted the benefits of the coverage against all risks of loss afforded by the binder from the date of its issuance to the date of cancellation. It is well established in the jurisprudence of this State that a party cannot voluntarily accept the benefits flowing from a contract of insurance and when the opposite party attempts to enforce provisions of the contract which was the consideration for such benefits to set up as a defense the illegality of the contract because of some informality in its confection. This contention is without merit.

Appellant’s third assignment of error is that the trial court improperly used the provisions of the Holland America Insurance Company policy issued subsequent to the cancellation date of the binder and further that the provisions of R.S. 22:637 (which authorize a short rate cancellation of premiums) do not apply to a binder and only govern the relationship between an insured-insurer and not that of insured-broker.

A reading of R.S. 22:637 clearly reflects that its provisions are applicable to the cancellation of a binder. Plaintiff’s contention that the trial judge utilized the provisions of the insurance policy rather than the statute is not supported by the record.

In its third party pleadings, Manser sought indemnification from B.P.B. in the event it was cast in judgment in the original action. The trial court rendered judgment in favor of the third party plaintiff against B.P.B. for the identical sum for which the third party plaintiff was cast as the original party defendant in the action brought by Sayre & Toso, Inc., being the premium earned for the period the binder was in effect computed on the short rate basis.

No written reasons for judgment were rendered by the trial judge. Obviously he concluded that Manser, acting as the agent on behalf of B.P.B., was cast in judgment for an indebtedness that was the monetary obligation of its principal. The indebtedness resulting from the failure to immediately reject the binder is the legal obligation of B.P.B., and Manser, acting in a fiduciary capacity pursuant to a mandate, should be made whole and should not suffer the financial loss. The agent is entitled to indemnification from its principal when the latter attempts to evade a just obligation arising out of a mandate.

For the reasons assigned, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

SCHOTT, Judge,

dissenting in part.

I agree with my colleagues that Manser is entitled to indemnification by its principal, B.P.B., for the amount which Manser owed to Sayre & Toso but not for the full amount computed on the short rate cancellation basis.

The evidence shows that B.P.B. was induced to purchase this insurance from Man-ser because of Mrs. Solberg’s representation that the premium would be $10,000 to $20,-000 less than the standard rates. When she advised Landweir that the premium was $39,680 for the insurance she procured he was still laboring under the impression created by her that this compared to some $55,000 for the same insurance at the standard rate. I differ with my colleagues when they state that upon receipt by Land-weir of Mrs. Solberg’s letter of March 12 with the 30-day binder, effective from March 10, “the duty immediately devolved upon Landweir, or more specifically B.P.B., to reject the proposal.” Landweir was still relying on her representation and had no reason at that point in time to dispute it. While it was true that the previous insurance policy with Allstate was for $43,825, this must be considered in the light of the fact that insurance premiums have been rising the past several years.

The first clear signal to Landweir that Mrs. Solberg’s rate was out of line was when his employee, Ficken, advised him on March 20 that he was able to procure the same insurance from an authorized company for a provisional annual premium of $24,720. It seems to me that when he got this information Landweir was under a duty to cancel Mrs. Solberg’s policy, and failing in that duty, B.P.B. should indemnify Manser at the short rate basis from March 20 until April 8. However, in view of the fact that for the first eleven days of coverage Landweir was relying on Mrs. Sol-berg, whose representation proved inaccurate, I would allow Manser indemnification for an amount computed on a pro rata rather than a short rate basis.

      . Buildings valued at $4,000,000.

      . Referred to in Mrs. Solberg’s solicitation letter of March 10.

      . Karam v. St. Paul Fire & Marine insurance Company, 281 So.2d 728 (La.1973); Kieran v. Commercial Union Insurance Co. of N. Y., 271 So.2d 889 (La.App. 4th Cir. 1973); C.C. arts. 3003, 3016 and 3017.

      . Central Surety & Ins. Corp. v. Canulette Shipbuilding Co., 195 So. 114 (La.App. 1st Cir. 1940). See also Fowler v. Gulf Insurance Company, 306 So.2d 406 (La.App. 3d Cir. 1975).


author: STOULIG, Judge.

text:
    Charles A. MARTINO v. AETNA CASUALTY AND SURETY COMPANY.
    No. 8361 Consolidated with No. 8362.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.
    Orlando G. Bendana, New Orleans, for plaintiff-appellee.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendant-appellant.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   STOULIG, Judge.

This is an appeal from a judgment awarding Charles A. Martino $1,500 against Aetna Casualty and Surety Company, and its insured, Mrs. Lena Bevan, surviving widow of William R. Bevan.

On June 8, 1974, Martino was injured when the late William Bevan lost control of his moving vehicle and struck the parked car belonging to Joseph T. Carriles. At the moment of impact Martino was leaning into the passenger window of the parked Car-riles car conversing with its driver-owner. Bevan at the time was having what ultimately proved to be a fatal heart attack.

We reverse. Liability for damage under C.C. art. 2315 is based on an act of negligent omission or commission. When a driver suddenly loses consciousness while operating a motor vehicle, he is not negligent unless the loss of consciousness was foreseeable. Deason v. State Farm Mutual Automobile Ins. Co., 209 So.2d 576 (La.App.3d Cir. 1967); Dull v. Employers Liability Assurance Corp., 233 So.2d 43 (La.App.2d Cir. 1970). As Deason points out, this is an affirmative defense that requires the one urging it to prove it. C.C.P. art. 1005. Where it has been demonstrated that drivers have had prior blackout experience from epileptic convulsion, alcoholism or diabetes, for example, the courts have found negligence based on foreseeability.

In this case defendants have sustained the defense of loss of consciousness. On the morning of the accident, Mr. and Mrs. Bevan had breakfast at a pancake house and were en route home when Mrs. Bevan noticed their car moving toward a parked car less than one-fourth block away. By the time she shouted a warning to her husband, the impact occurred and she then looked to the driver’s side and noticed her husband unconscious with his head against the driver window. Her attempt to revive him at the scene with mouth-to-mouth resuscitation failed.

An autopsy was performed and the coro- . ner concluded his death was attributed to • “arteriosclerotic heart disease, severe” with pulmonary congestion and edema.

His widow’s information as to the state of his heart condition has little probative value because she said her husband shielded her from information about his health. However, the unrebutted testimony of Dr. Robert R. Burch, his treating physician from March 1966 to the date of death, clearly establishes Bevan could not reasonably foresee he would black out while driving because of his heart condition and that his loss of consciousness followed the onset of his attack almost simultaneously.

Dr. Burch, an internist with a subspecialty in cardiovascular disease, testified Bevan suffered with arteriosclerotic disease for which he had been treating him since 1966. None of the medications prescribed for this condition would have caused the blackout. Although Dr. Burch gave Bevan certain instructions because of his heart condition, he permitted the decedent to continue his employment as a general yard master for the Illinois Central Railroad. He testified he did not advise Bevan to stop driving because his condition did not warrant it. Dr. Burch gave Bevan a routine checkup two days before his death, found him progressing well and noted there was no lung congestion. Even though the autopsy protocol indicated pulmonary edema, the absence of fluid two days before was one factor that led Dr. Burch to state the attack and loss of consciousness was sudden and almost simultaneous in all probability.

Mrs. Bevan testified her husband did not complain, utter any sound, or give any indication of having a heart attack. Apparently he just slumped against the door. Dr. Burch stated if the deceased was having congestive heart failure prior to the accident he would have experienced shortness of breath, a cough and perhaps pain. Further he testified that an acute infarction would be accompanied by pain. In his opinion, being upset because of an accident could cause angina pains but not a myocardial infarction and a trauma to any other part of the body except the heart muscle would likewise not precipitate a myocardial infarction. Based on the coroner’s examination and report it was his expert opinion that the attack was sudden and apparently was an acute congestive heart failure.

While it is unfortunate that the non-negligent plaintiff sustains a loss, absent a finding of negligence it cannot be assessed against defendants.

For the reasons assigned, the judgment appealed from is reversed. All costs are to be borne by appellee.

REVERSED.

      . Erroneously designated as Aetna Life and Casualty Company by the pleadings.

      . Reliance Insurance Company v. Dickens, 279 So.2d 234 (La.App.2d Cir. 1973).

        .Livaudais v. Black, 13 La.App. 345, 127 So. 129 (2d Cir. 1930).

      . Gambino v. Lubel, 190 So.2d 152 (La.App. 4th Cir. 1966).

      . The checkup was on June 6, 1974 and the accident occurred on June 8, 1974.


text:
    Joseph T. CARRILES v. Succession of William R. BEVAN, Lena Bevan and Aetna Casualty and Surety Company.
    No. 8362 Consolidated with No. 8361.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.
    Gertler & Gertler, M. H. Gertler, New Orleans, for plaintiff-appellee.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for Aetna Casualty and Surety Company and Mrs. Lena Bevan, defendants-appellants.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   STOULIG, Judge.

We reverse the judgment awarding plaintiff, Joseph T. Carriles, the sum of $7,995 against Aetna Casualty and Surety Company and Mrs. Lena Bevan for the reasons assigned in Proceeding No. 8361 of this court, entitled “Charles A. Martino versus Aetna Life and Casualty Company.” La. App., 351 So.2d 204. Because we conclude William R. Bevan was not negligent, we need not discuss procedural deficiencies in this matter.

The judgment appealed from is reversed. All costs are to be borne by appellee.

REVERSED.


author: GULOTTA, Judge. REDMANN, Judge,

text:
    Harold FALGOUT v. ST. CHARLES SEWERAGE DISTRICT # 3 et al.
    No. 8370.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.

      Gordon Hackman, Boutte, for plaintiff-appellee.
    Norman J. Pitre, Luling, for defendant-appellant, St. Charles Sewerage District No. 3.
    Before REDMANN, GULOTTA and BOUTALL, JJ.
   GULOTTA, Judge.

Defendant appeals from a $7,500.00 award for damages resulting from the back-up of sewage into plaintiff’s home and onto plaintiff’s lawn from a sewage disposal system constructed and maintained by the St. Charles Parish Sewerage District. We affirm.

The primary thrust of defendant’s appeal is that plaintiff failed to carry his burden of proving negligence on the parts of the Board of Supervisors of the District or any of its employees. According to defendant, the sewerage system was properly constructed in accordance with recognized standards and properly maintained. Defendant claims that the sewerage connections coming into plaintiff’s home are below grade, and during excessive rains an inordinate accumulation of water in the sewerage system results, thereby causing the sewage to back up and overflow into the home.

Defendant additionally claims that the trial judge erroneously awarded damages for mental pain and suffering, inconvenience and discomfort. Because plaintiff made no showing of actual damages such as stained carpeting, damaged furnishings or business losses, defendant claims the trial judge erred in granting the $7,500.00 award.

The facts are that prior to the construction of the sewerage system, plaintiff’s home, like others in his area, was serviced by a septic tank. In 1969, plaintiff connected into the system. This connection was approved by an inspector of the Sewerage District in August, 1969. Apparently, the inspection procedure did not include a determination whether the connection into the property owner’s home was above or below grade. The inspection of the installation involved examination of the pipe size, the joints, the bedding, the cleanouts and the conduction of a rolling ball test to ascertain whether or not the grade of the slope was adequate and to ascertain whether the gravity flow system was free from obstruction.

According to plaintiff, problems with the sewerage system commenced as early as May, 1970. Some corrections were effected after complaints were made by the property owner. A maintenance man for the Sewerage District testified that constant complaints had been received from plaintiff as early as 1973. (His testimony was that plaintiff had complained constantly for three years prior to the February, 1976 trial date.) The August 14, 1975 minutes of the Board show that plaintiff presented his complaints to it at that time.

The record is clear that plaintiff’s problem is caused by the fact that the elevation of the sewage pipe which enters plaintiffs home is below the elevation of the manhole cover at the surface of the street through which the main line runs. When excessive water accumulates in the system, resulting from an inordinate amount of rainfall, the water backs up into plaintiff’s home.

The civil engineer who designed this system testified that the problem may be eliminated by a pump which could be used to pump waste from the house into the system when an excessive accumulation of water occurs. Another suggested method of elimination was to raise the elevation of the pipe which enters into plaintiff’s home above the elevation of the manhole (at the street surface).

According to plaintiff, he had never been advised, before trial, by the employees of the Sewerage District that the problem emanated from the below-grade construction of his home. Plaintiff testified that the house was constructed on 16-inch pillars. The secretary-treasurer of the Board stated that to his knowledge no one had ever told Falgout his house was “too low”. A maintenance man employed by the District indicated that he thought he had mentioned the below-grade condition of the house to plaintiff sometime in 1975. In addition to the elevation problem, testimony from the secretary-treasurer of the District, an inspector and the engineer indicated that another reason for plaintiff’s problem may have been surface water infiltration into the system at various places along the system and pumps incapable of handling the excessive water during heavy rains.

SEWERAGE DISTRICT’S LIABILITY LSA-R.S. 33:4004 provides:
§ 4004. Compelling connection with sewerage system
“Any municipal corporation which has or which may hereafter construct, acquire, extend, or improve a sewerage system as a revenue producing public utility, shall compel the connection therewith by all owners of premises within three hundred feet of the sewerage system, and the governing authority of the municipal corporation may adopt the necessary ordinance or resolution enforcing the connections and exacting penalties for non-compliance therewith.” (emphasis ours)
LSA-R.S. 33:4041 further provides:
§ 4041. Compelling connection with sewerage system
“Municipalities and sewerage districts having a public system of sewerage may compel the connection therewith by owners of premises within three hundred feet of the public sewer and may compel owners to connect with water mains or provide other means for flushing purposes.”

Although the record fails to contain the ordinance providing for the construction of the sewage disposal system adopted prior to plaintiff’s connection into the system, it does contain an ordinance no. 14r-l adopted by the governing authority of St. Charles Parish and by the Board of Supervisors of the Sewerage District in January, 1974, requiring property owners, at their expense, to connect into the system.

When any municipality or governing body becomes empowered by ordinance or statute to construct a sewage disposal system, residents to be serviced by the system are compelled to connect into that system. In Chandler v. City of Shreveport, 169 La. 52, 124 So. 143 (1929), the Louisiana Supreme Court stated that when a municipality or governing body exercises the responsibility to construct drains and sewers, “It is the duty of the municipality to take care of the water so accumulated if reasonably practicable.” In a 1935 sewage back-up case, Urban Land Co. v. City of Shreveport, 182 La. 978, 162 So. 747 (1935), the Louisiana Supreme Court, through Chief Justice O’Niell, stated that the liability of municipal corporations, in cases of this kind, is based upon a finding of “negligence in the maintenance or operation of a sewerage or drainage system”. However, the Second Circuit in Hamilton v. City of Shreveport, 180 So.2d 30 (La.App. 2d Cir. 1965), writ denied, 248 La. 700, 181 So.2d 399 (1966), in a case where part of plaintiffs property became inundated and was washed away by the City’s manipulation of flood gates at a dam, the court, in affirming an award in favor of plaintiff, applied LSA-C.C. art. 667 and cited Gulf Insurance Co. v. Employers Liability Assur. Corp., La.App., 170 So.2d 125, 127 (1965) which stated that the liability under this article “. . .is absolute and that proof of negligence is not required in order to recover for a violation or breach thereof”. Interestingly, the Louisiana Supreme Court denied writs in the Hamilton case and assigned the following reason:

“Writ denied. The result reached by the Court of Appeal is correct under the provisions of Art. 2315 of the Civil Code.”

The First Circuit in Sharon v. Connecticut Fire Insurance Company, 270 So.2d 900 (La.App. 1st Cir. 1972), on rehearing, in a case where sewage backed into plaintiffs property, stated that once the municipality has compelled a plaintiff to connect to its sewerage system, the municipality incurs the obligation to dispose of the sewage properly. Although finding that the damage to plaintiffs property resulted from negligence of the City’s employees, the court went on to say,

“ * * * Even if there be no proof of negligence on the part of the City’s employees, the evidence, nevertheless, clearly warrants imposition of liability on the basis of violation by the City of either Louisiana Civil Code Articles 660 or 667.”

The court went on to say, “The fact that this breach might have occurred without negligence does not make it inactionable.” Following this decision, the First Circuit, in Carr v. City of Baton Rouge, 314 So.2d 527 (La.App. 1st Cir. 1975), writ denied, 318 So.2d 53 (La.1975), predicated an award to plaintiff for damages resulting from overflowing commodes on LSA-C.C. art. 667. Recognizing that the record did not support a holding founded on negligence, the court went on to say that judgment is warranted under the application of LSA-C.C. art. 667, the liability without negligence article. Writs were denied by the Louisiana Supreme Court.

In a comparatively recent case, the Second Circuit, in LaCroix v. Travelers Indemnity Company, 333 So.2d 724 (La.App. 2d Cir. 1976), rehearing denied en banc, stated:

“ * * * Although we find these facts do not support a finding of negligence, we do find the trial judge properly found the plaintiffs suffered damages which were caused by the sewer backing up. Further, the evidence clearly warrants imposition of liability on the basis of violation of La.C.C. Art. 667 as interpreted in Sharon v. Connecticut Fire Insurance Company and Carr v. City of Baton Rouge, supra.

Based on the jurisprudence as we appreciate it, we conclude that the liability of a municipality or a sewerage district, where damages have been sustained as a result of the back-up of sewage into a property owner’s home, is based upon the absolute liability set forth in LSA-C.C. art. 667.

In the instant case, although the evidence does not show that the Sewerage District negligently or improperly failed to maintain the system below recognized standards, the record clearly establishes that plaintiff was not notified, prior to the time he sustained damage, of the cause of the problem, although the employees of the Sewerage District had been aware of the problem. Under these circumstances, we hold that liability attaches to a municipality or sewerage district where plaintiff has established damages resulting from sewage back-up into his home from a sewage disposal system constructed and maintained by the municipality or sewerage district.

DAMAGES

Our review of the record indicates that the award in the instant case is neither excessive nor inadequate. We find no merit to defendant’s claim that in the absence of showing actual damages, plaintiff is not entitled to recover for mental anguish, worry and inconvenience. The court in Carr included in its award damages for mental anguish in addition to actual damages. In accord with the First Circuit (in the Carr case), we conclude that mental anguish and inconvenience in these cases are appropriate items of damage.

Plaintiff stated that the trouble commenced as early as 1970. He testified that when excessive accumulation of water occurred in the system, the overflowing toilet created a “mess in the bathroom”. On occasions during heavy rain, according to plaintiff, the bathroom could not be used for a period of approximately 65-68 hours. Mrs. Delta C. Falgout, plaintiffs wife, generally corroborated the testimony of her husband but added that on occasions when the toilet was not functioning, she was compelled to use the facilities at her daughter’s place approximately a block away. She described the incidents of sewage back-up occurring on several occasions. Plaintiff’s daughter testified that there was, on occasion, an accumulation of raw sewage in the yard and in the ditch in front of plaintiff’s house. The testimony considered, we cannot say that the $7,500.00 award constitutes an abuse of the trial court’s discretion. The judgment is affirmed.

AFFIRMED.

REDMANN, J., dissents in part.

REDMANN, Judge,

dissenting in part.

Under C.C.P. 2164’s authority to render any judgment which is proper upon the record, we should enjoin the sewerage district to remedy plaintiff’s predicament by installing a pump or otherwise within a time to be fixed by the district court (and we should reduce the damage award to $1,000). The awarding of large general damages for mental anguish and inconvenience (rather than as cost of pump or other remedy) might ultimately teach the sewerage district the lesson, but meanwhile plaintiff does not obtain full relief.

      . Section 5-09 provides:
      “In all buildings in which any building drain is too low to permit gravity flow to the public sewer, sanitary sewage carried by such drain shall be lifted by approved artificial means and discharged to the building sewer.”
      The record fails to disclose that employees of the Sewerage District identified plaintiffs elevation problem when the inspection was made in 1969. Apparently, plaintiff learned of the problem only after the back-up occurred and the Board and its employees were notified of the problem.

      . LSA-C.C. art. 667 reads as follows:
      Art. 667. Limitations on use of property
      “Art. 667. Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”