author: BEER, Judge.

text:
    Richard J. SCHACKAI v. Nuncio LAGRECO and Lucy Lagreco.
    No. 8349.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      Louis A. DiRosa, New Orleans, for plaintiff-appellant.
    Louis C. Philips, New Orleans, for defendant-appellant.
    Edward S. Bopp, Ronald A. Welcker, Arabi, for defendant-appellee.
    Before SAMUEL, LEMMON and BEER, JJ.
   BEER, Judge.

Appellant, Morris Vaccarello, a real estate agent, appeals from the trial court’s denial of his claim for a commission allegedly due. The sale on which the commission depended was never consummated because the proposed vendors, Nuncio Lagreco and Lucy Lagreco, were not able to deliver title consistent with the property description in the purchase agreement. The related controversies which arose between the original parties to this litigation as a result of the description inconsistency have been resolved and are not before us. This appeal is limited to our consideration of Vaccarello’s claim which comes about as the result of his “re-conventional demand” against Nuncio La-greco and Lucy Lagreco. In view of the fact that this reconventional demand was dismissed in the trial court and is now the only issue before us, we have designated Vaccarello as appellant and the Lagrecos as appellees.

The basic facts are not seriously contested: Appellees had a previous listing agreement with Vaccarello covering the same property which is here involved. Sometime after expiration of that agreement, appellant secured a subsequent listing of the property. At that time, there was some discussion and apparent disagreement between Nuncio and Lucy concerning the dimensions of the property. Lucy believed it measured 192 feet in width; Nuncio thought it was 144 feet. Vaccarello accepted Lucy’s version and put the 192 foot measurement down in the listing agreement. This measurement was inconsistent with the first listing, which showed the lesser dimensions. According to Nuncio La-greco, who could not read and who could only write his name, the document was not read to him and he did not know the measurement specified therein when he signed it. Vaccarello and Lucy Ann Lagreco gave conflicting testimony as to whether Vaccar-ello actually knew (or had known) of the correct dimensions prior to the signing of the October 8th listing agreement which shows the incorrect dimensions.

It is uncontested that a subsequent title examination showed that the true width of the property was 147 feet, and, thus, the sale was never consummated because of vendors’ inability to deliver merchantable title to a 192 foot wide lot as per the listing agreement.

It is appellant’s contention that this case is governed by the following:

“Where, as was the case here, the broker’s contract was to find a purchaser, his right to his commission is dependent upon whether he has found and produced one, who is able, ready, and willing to buy on the terms prescribed by his principal. When the broker produces such a purchaser, he is entitled to his commission, although the sale is not consummated, because of the inability of the vendor to comply with his offer. 2 C.J. pp. 769, 770. The broker, in such a case, in the absence of notice to the contrary, has the right to act upon the assumption that his principal has a marketable title.” Mathews Bros. v. Bernius, 169 La. 1069, 126 So. 556, 558 (1930) (emphasis added). Accord, Strahan v. Weiland, 216 So.2d 169 (La. App. 1st Cir. 1968),; Kuhn v. Stan A. Plauche Real Estate Company, Inc., 178 So.2d 296 (La.App. 4th Cir. 1965), reversed on other grounds, 249 La. 85, 185 So.2d 210; Doll v. Russo, 7 So.2d 406. (Orl.La.App.1942); Caruso-Goll v. D’Alfonso, 1 So.2d 120 (Orl.La.App.1941).

Appellant further contends that actual knowledge of a defect in vendors’ title is. required, and that inferential notice such as to put him on inquiry is an insufficient basis for denying his commission. ■

Here, the real estate agent had accepted a. prior listing of the identical property with obviously conflicting dimensions. The fact that, without the aid of the prior listing, he remembered that it excluded the Picarrello tract and changed the original draft of the second listing to so provide, suggests that he had actual knowledge of the dimensions from the prior listing. Even were this not so, the argument between the Lagrecos as to the dimensions of .the property, which occurred in appellant’s presence, and the existence of conflicting dimensions in the prior listing in his own files should certainly have alerted him to the probability of error in the second listing.

Under the circumstances of this case, failure to ascertain the correct measurements of the property constituted a breach of the duty of a real estate agent “to act strictly in conformity with his authority and in good faith and with reasonable care, skill, and diligence.” Liuzza v. Stassi, 83 So.2d 400, 403 (Orl.La.App.1955). Professor Yiannopoulos, in an examination of the civil law authorities on brokeragé, concludes:

“Even where the broker undertakes no obligation to act, he is bound by certain obligations resulting from the principle of good faith and he is held to a certain standard of conduct. He is obliged to conduct the entrusted business in good faith, to promote the interests of his principal, and to protect him from possible losses. He must at once notify the principal with regard to all doubts or reservations he may have concerning the person of the prospect, the quality of the object of the transaction, and any other aspects capable of producing loss. In all cases he should act according to the directions of his principal. The principal, on the other hand, is under an obligation to inform the broker that the transaction is concluded, whether or not as a result of the broker’s activity, so that unnecessary efforts may be avoided.” Yiannopoulos, “Brokerage, Mandate, and Agency,” 19 L.L.R. 777, 788-789 (1959) (emphasis added) (footnotes omitted).

We have previously denied a real estate agent’s commission where his duty was breached. See, e. g., Norgren v. Harwell, 172 So.2d 723 (La.App. 4th Cir. 1965); Treigle v. Cole, 138 So.2d 652 (La.App. 4th Cir. 1962). In Norgren v. Harwell, supra, the agent knew that purchaser intended to develop the roadfront of a certain tract as a commercial area, and that a servitude along the roadside would conflict with this purpose. Before the signing of a purchase agreement, the realtor represented to purchaser (apparently, innocently) that there was no servitude on the property. The sale was never consummated because a title search revealed a roadfront servitude. We denied the realtor’s commission, observing:

“Plaintiff became the agent of both parties to the purchase agreement as of the time of its execution, and in view of his knowledge of the intended use of the property his affirmative statement that no servitude existed was a breach of the duty owed by him to Springwood Park Inc. For this reason we are of the opinion that the loss caused by his misrepresentation should be borne by him rather than with Springwood Park, Inc.” Id., at 726 (emphasis added).

The facts of the instant case are within the Norgren holding. The real estate agent need not be a seer nor a title examiner, but, nevertheless, he is required to act with due diligence where, as here, such circumstances exist as to alert a reasonable broker to reconcile an apparent discrepancy in the description of the property to be listed before allowing his principals to bind themselves to sell property of doubtful dimensions.

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

AFFIRMED.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    Tyrell J. MANIERI v. HORACE MANN MUTUAL INSURANCE COMPANY.
    No. 8351.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    William J. O’Hara, III, New Orleans, for plaintiff-appellant.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Harvey L. Strayhan, New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and BEER, JJ.
   LEMMON, Judge.

This suit by plaintiff against his uninsured motorist insurer involves a car-truck collision in which plaintiff, the driver of the car, was injured and his two passengers were killed. The heirs of the two passengers filed separate suits, and the three cases were consolidated in the trial court.

The two wrongful death suits against defendant, seeking recovery in a direct action under the liability coverage and alternatively seeking recovery as an insured under the uninsured motorist coverage (with limits of $5,000.00 for each person and $10,-000.00 for each accident), were compromised for $4,250.00 each. Defendant then offered to pay plaintiff the $1,500.00 remaining under the limits of the uninsured motorist coverage. Plaintiff declined to accept and moved for a summary judgment in the amount of $5,000.00. Defendant also filed a motion for summary judgment, seeking to limit its liability to $1,500.00. Defendant’s motion was granted, and plaintiff appealed.

Plaintiff’s principal complaint against the limitation of his recovery is that defendant should have prorated the funds and allotted more of the policy limits of its uninsured motorist coverage to his claim.

A liability insurer faced with multiple claims to inadequate proceeds is generally not required to prorate, but may enter into compromise agreements with one or several claimants to the exclusion of others, even to the extent of exhausting the entire fund, as long as the compromises are reasonable and are made in good faith. Richard v. Southern Farm Bureau Cas. Ins. Co., 254 La. 429, 223 So.2d 858 (1969); 70 A.L. R.2d 416 (1960); 15 Couch, Insurance Law § 56.32 (1966).

The reasoning which apparently underlies this general rule is that a liability insurer has an obligation to its insured not to arbitrarily refuse reasonable offers of settlement within policy limits, when its insured faces liability in excess of the policy limits. The insurer, in discharging this obligation in good faith, may exhaust the policy limits to the exclusion of particular claimants, because the liability insurer’s foremost obligation is to its insured and not to the claimants.

Liability insurance, however, is not involved in the present case. Therefore, the reasoning stated above arguably does not apply. Here, with the insurer concerned only with uninsured motorist coverage, there was no excess liability confronting the named insured, and all of the claimants qualified as insureds under the policy. A different obligation of- the insurer was involved, and perhaps prorata distribution should have been required, at least after all possible claims had been presented and the suits had been consolidated.

We are not required, however, to squarely decide that question. Assuming for argument that proration should have been required, we note that attached to the motions for summary judgment are copies of pleadings in the wrongful death actions, which indicate that widows and minor children were involved in both suits, and a copy of the judgment in plaintiff’s federal court action against the truck driver, which judgment awards plaintiff $25,000.00. These facts indicate that plaintiff’s insurer achieved substantial proration of the uninsured motorist proceeds, and plaintiff has filed no countervailing affidavits which would support a contrary conclusion.

Accordingly, we hold that no genuine issue of material fact has been shown and that defendant is entitled as a matter of law to have judgment rendered in favor of plaintiff, limited to $1,500.00 plus court costs and accrued interest. The summary judgment rendered by the trial court is affirmed.

AFFIRMED.

      . If liability insurance is a fund for the protection of injured claimants as well as for protection of the insured against liability, then it is arguable that prorata distribution should be preferred, at least after suits have been filed by all prospective claimants and only one suit or consolidated actions are involved.

      . Although the insurer was originally faced in the other two suits with claims by the passengers’ heirs under liability coverage, there apparently (from the affidavits and other attachments to both motions for summary judgment) was never any question that the truck driver was solely at fault. Furthermore, the petition in this suit alleged, and the answer admitted, that the truck driver was at fault and plaintiff was not.

      . For a contrary decision see Harmon v. State Farm Mut. Automobile Ins. Co., 232 So.2d 206 (Fla.App.1970).

      . The federal court found there was no insurance coverage and dismissed the truck driver’s alleged insurer.


author: SCHOTT, Judge.

text:
    John M. MONNERJAHN, Jr. v. AETNA LIFE & CASUALTY CO., Roy Wiley, Jr. and Louisiana State Department of Highways.
    No. 8364.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    William J. Doran, Jr., Sp. Asst, to Gen. Counsel, and Philip K. Jones, Marshall W. Wroten, Robert J. Jones and Doran & Ki-vett, Baton Rouge, for defendant-appellant, Louisiana Dept, of Highways.
    Charbonnet & Charbonnet, Wayne E. Garrett, New Orleans, for plaintiff-appellant.
    Rene A. Pastorek, Gretna, for defendants-appellees, Aetna and Roy Lee Wiley, Jr.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

This is a suit for personal injuries sustained by plaintiff when the motorcycle he was operating collided with a tractor-trailer driven by Roy L. Wiley, Jr., owned by his employer, A & P Pood Stores, and insured for liability by Aetna Life & Casualty Company.

Plaintiff had been proceeding west in the left lane of Jefferson Highway at about 30 miles per hour when defendant’s vehicle entered the highway from a road leading to the A & P Warehouse complex on plaintiff’s right. The intersection which, on the other or river side of the highway, led to Ochsner Foundation Hospital, was controlled by an electric semaphore system. The light facing plaintiff was green.

In the meantime, Wiley had brought his vehicle to a stop at the intersection in obedience to the semaphore signal facing him, which was red at the time, but shortly after he stopped the light turned green for him, whereupon he looked both ways and proceeded across the intersection. The impact occurred on the left front fender of Wiley’s vehicle within the left westbound lane of Jefferson Highway.

The parties have stipulated that the lights malfunctioned so that both drivers had green lights when the accident occurred.

The Department of Highways was made a defendant along with Wiley and Aetna, and the case was tried to a jury with respect to the liability of Wiley and Aetna, while the judge tried the case against the Highway Department. The jury exonerated Wiley from liability. The judge found the Highway Department liable and found plaintiff free of contributory negligence. An award of $75,000 was given to plaintiff by the trial judge.

Plaintiff appealed from the judgment exonerating Wiley, the Highway Department appealed from the judgment casting it in damages, plaintiff answered that appeal seeking an increase in quantum, and Wiley and Aetna answered the appeal as a protective measure to hold the Highway Department liable and to enforce contribution in the event this court would reverse the trial court’s judgment dismissing plaintiff’s case against them.

In addition to the stipulation that the lights malfunctioned the Highway Department also agreed at a pre-argument conference in this court that the finding of the trial court as to the Department’s negligence was correct. However, the Department reserved contentions that its negligence was not the proximate cause of the accident but rather that plaintiff’s contributory negligence and/or Wiley’s negligence was the proximate cause.

There is evidence of record which furnishes a basis for the conclusion of the trial judge and the jury as to freedom from negligence on the part of both plaintiff and Wiley.

Plaintiff was proceeding toward the intersection in his left lane at 30 miles per hour or 44 feet per second when Wiley began to move from a stop at a point 17 feet from the right lane. As Wiley moved forward he got up to three miles per hour by the time he reached the right side of the highway and thus took 7.7 seconds to cover this distance at an average of IV2 miles per hour or 2.2 feet per second. During this interval of 7.7 seconds plaintiff covered about 340 feet at a time when he had the right to assume that Wiley would stop in obedience to what plaintiff thought was a red light. Austrum v. City of Baton Rouge, 267 So.2d 284 (La.App. 1st Cir. 1972), writ granted but affirmed on this point, 282 So.2d 434 (1973). Shortly after Wiley entered the right lane plaintiff attempted to stop but required about 100 feet to do so and it was too late for him to avoid a collision since it took Wiley less than three seconds to cross the right lane.

In the meantime, when Wiley started from his stopped position, according to his testimony, he did not see plaintiff approaching from his left. Even if he had seen plaintiff, he was over 400 feet away and Wiley could assume that plaintiff would stop in obedience to the red light Wiley thought plaintiff now had. We see no error in the trial judge’s conclusion that Wiley discharged his duty of maintaining a general observation of the intersection before he began to cross over. Labostrie v. Whitaker, 342 So.2d 249 (La.App. 4th Cir. 1977), writs refused 344 So.2d 4 (1977).

As to quantum, this 25 year old plaintiff suffered a fracture and dislocation of his right hip and injury to the right sciatic nerve. He was hospitalized and in traction for almost three months and was still wearing a foot brace at the time of the trial in May, 1976, eighteen months after the accident. He was estimated to have a 50% permanent disability of the right leg. A truck driver before the accident, he was unable to resume this occupation at trial time and had taken a job as- a clerk with earnings of $650 per month less than he made before the accident. Both plaintiff and the Department argue from different points of view that the $75,000 award is inappropriate, but neither position is persuasive.

An analysis of the award of $75,000 proves it to be quite low but the question is whether we can raise it in the light of the jurisprudence. The award encompasses some $6,000 for medical expenses and $14,-000 for wages lost to date of trial, leaving $55,000. If we assume that the trial judge awarded $25,000 for pain and suffering this leaves $30,000 for future earnings. As to the $25,000 we cannot say this is an abuse of discretion in the light of Coco v. Winston, La., 341 So.2d 332 (1976).

As to future earnings, this is a 25 year old high school graduate who has been required to change employment from a truck driver to a bank clerk at a cut in pay, but it is speculation to assume that this reduction is permanent. The trial judge may have presumed that after four years in his new position, during which time $30,000 will compensate him for the loss of earnings, he may become proficient in a new position to the extent that he will have no more loss of future earnings. We are not considering here a case of total disability where prospects for future employment do not exist, but rather a partial disability which requires plaintiff simply to start in a new field. In the light of Robinson v. Graves, La., 343 So.2d, 147 (1977), we cannot say the trial judge abused his discretion.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Abbey NEWLIN, wife of Michael Frederick Little v. Michael Frederick LITTLE.
    No. 8389.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      William E. Wright, Jr., Baldwin, Haspel, Rainold, Meyer, Reso, Dussom & Little, New Orleans, for Michael F. Little, defendant-appellant.
    Steven R. Plotkin, New Orleans, for Abbey Newlin, plaintiff-appellee.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

In a post-divorce rule, the mother of 9 year old Michael F. Little, Jr. was awarded an increase in child support from $175.00 to $400.00 per month. The father appeals, contending there has been no change in the circumstances since the prior award.

The record discloses that the amount of $175.00 child support was first set by judgment of October 8, 1974 and continued at that amount in the divorce judgment of February 13, 1975 and last maintained in a judgment of October 20,1975. The present rule was brought on April 26, 1976 by the mother alleging material change in circumstances and particularizing additional expenses for special therapy, summer camp and medical expenses; resulting in the increase to $400.00 per month by judgment dated June 22, 1976.

The record discloses that plaintiff has proven increased expenses and change in circumstance on those items, as well as under the child’s general situation. At the time of the prior rule the child’s mother had remarried and moved to Denver, Colorado, with her new husband. At the time of this rule, the family had moved back to New Orleans with some small increases in food and rental expenses allotted to the child support. Additionally the trial judge found that certain expenses which had been borne by agreement by the child’s father should now be included within the amount awarded, so that the mother could take care of all such expenses herself and thus eliminate a source of disagreement between the child’s parents. It is further noted that the father’s ability to pay support has changed from comparative limited ability to comparative unlimited ability to furnish appropriate child support.

Considering these facts, we cannot say that the increase in alimony was unreasonable, and we affirm the judgment.

AFFIRMED.


author: REDMANN, Judge.

text:
    Blanche BLANCO, wife of Marcos J. Blanco v. The TRAVELERS INSURANCE COMPANY et al.
    No. 8405.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      Sidney D. Torres, III, George N. Bischof, Jr., Chalmette, for plaintiff-appellee.
    James L. Selman, II, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for Travelers Ins. Co. et al., ap-pellees.
    John I. Hulse, IV, Hammett, Leake, Hammett, Hayne & Hulse, for American Liberty Ins. Co., appellant.
    Before REDMANN, GULOTTA and BEER, JJ.
   REDMANN, Judge.

Plaintiff was a guest passenger in the automobile of Blanco (insured by American Liberty Assurance Company) when it collided with one driven by Mrs. Bernice Riche and insured by Travelers Insurance Company. The trial judge cast American alone for plaintiff’s damages, rejecting American’s third party demand against Riche and Travelers. American appeals. We reverse as to the third party demand for contribution.

The collision occurred in a supermarket parking lot. Accordingly highway regulatory laws are not applicable; Cavalier v. Peerless Ins. Co., 1964, 246 La. 336, 164 So.2d 347; Chaney v. Brumfield, La.App. 1 Cir. 1976, 333 So.2d 256. Riche entered the lot from a major thoroughfare and passed, on her right, a gasoline-pump area and a single line of cars parked perpendicular to and 68 feet from the lot’s front line and, on her left, three lines of parked cars and an access lane, composed of a single line of cars, parked perpendicular to and at the lot’s front line, followed by a 28-foot wide access lane and then a double line of cars, parked facing each other and also perpendicular to the lot’s front line. The accident occurred either at the next access lane, 85 feet from the street, or (as Riche’s own drawing suggests) the following access lane, 151 feet from the street. In either event, this is not a case of an accident occurring just at the entrance to the lot so that somehow the preferred major thoroughfare status might carry over into the threshold of the parking lot.

The ease is one of a collision at the intersection of two lanes in a parking lot. Blanco’s cross lane was 28 feet and Riche’s entrance lane to Blanco’s right was 40 feet wide (about a third wider). These circumstances, however, do not make the broader entrance lane a superior one in law, even if a driver suppose the wider lane a favored one; Chaney, supra. (In Chaney, the cross-lanes were one-way, presumably narrower than ours.)

Cars were parked beyond the marked spaces into the 40-foot lane on which Riche travelled, and one car was left unattended in the right side of the 28-foot lane in which Blanco travelled. Neither driver saw the other until accident-time, and the Riche car struck the rear fender of the Blanco car behind the rear wheel.

While we agree that Blanco was at fault in proceeding across Rich’s lane without seeing her, we are unable to agree that Riche was without fault.

Riche testified that Blanco was “traveling fast because he could not bring his car to a stop for quite a few feet after the accident.” The investigating deputy testified he measured the distance of 20 feet from point of impact to Blanco’s rear bumper. Allowing the typical .75-second reaction time, one cannot conclude that Blanco’s speed was so excessive that Riche is blameless for not seeing him, especially since there is no testimony that Blanco left skid marks during his 22- or 23-foot stopping, which would indicate maximum braking and might fix his speed (at slightly over 20 mph). Even at 10 mph, a car travels 11 feet during reaction time, and moderate rather than maximum braking might easily take 11 or 12 feet. If Blanco’s speed were 10 mph (even if still too high), it would have taken him over three seconds to traverse the 40-foot lane of Riche’s travel plus over 3.5 feet past it (as his car’s front end had to be) to bring its rear end to the point of impact. During that three seconds Riche herself had also to travel 43.5 feet at 10 mph — a distance during which she could easily have stopped. Her testimony that she did not see him until a “split second” before impact, when he was completely athwart her path, thus convicts her of contributory fault.

General damages of $6,000 may approach the upper limits of but do not patently exceed the trial judge’s “much discretion” under C.C. 1934(3). Plaintiff’s principal injury was “tennis elbow” (epicondyli-tis), established from subjective complaints. (Diagnosis also included short-lived strains, of the trapezius with brief spasm and of the lower back.)

Defendants argue that plaintiff is not entitled to lost wages because, first, her wages were replaced by sick leave pay and, second, the use of sick leave did not deprive plaintiff of possible future use because plaintiff quit her job and thereby forfeited all remaining sick leave. Defendants take their premise from Kipp v. Hurdle, La.App. 1 Cir. 1975, 307 So.2d 125, writ refused La., 310 So.2d 643, which theorized (quoting the trial judge) that the replacement of lost wages by sick leave (or vacation leave) was itself a loss, in that accumulated sick leave “is as valuable an asset as a policy of health insurance” (as is accumulated vacation leave). We prefer to reason that the collateral source rule makes it immaterial that lost wages have been replaced by sick pay; Reeves v. Gulf States Util. Co., La.App. 1 Cir. 1976, 327 So.2d 671, writs refused, La., 330 So.2d 309, 311. It thus becomes irrelevant that sick leave is later forfeited (and thus would have been lost whether or not the accident had occurred).

Reversed as to third party demand; judgment for contribution of half in favor of American and against Riche and Travelers; otherwise affirmed; all costs to be paid half by American and half by Riche and Travelers.


text:
    William C. HALL, Sr. v. Mr. and Mrs. Joseph PHILLIPS.
    No. 8520.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      Robert F. Fadaol, Gretna, for William C. Hall, plaintiff-appellant.
    Steven K. Faulkner, Jr., Morphy, Hol-brook & Faulkner, New Orleans, for Mr. and Mrs. Joseph Phillips, defendants-appel-lees.
    Before STOULIG, BOUTALL, and SCHOTT, JJ.
   BOUTALL, Judge.

A prospective purchaser of real estate, William C. Hall, Sr., sued owners Mr. and Mrs. Joseph Phillips for breach of a contract to sell, seeking as damages the profit made on a later sale to another for a higher price, or alternatively, for double his deposit. From an adverse judgment he appeals.

The sale was conditioned upon the assumption by the purchaser of an outstanding mortgage at the rate of 714% held by the Fifth District Homestead Association. The Homestead approved an assumption loan but at a rate of 814% interest, not 7V4%. At issue here is whether the purchaser agreed with the increased interest rate and timely obtained the loan. The contract was dated February 13, 1974 and recited the following:

“Should purchaser, seller, or agent be unable to obtain the loan stipulated above within 10 days from acceptance hereof, this contract shall be null and void, and the agent is hereby authorized to return the purchaser’s deposit in full. Commitment by lender to make loan . shall constitute obtaining of loan.
* * * * * *
“This offer remains binding and irrevocable through February 23, 1974.”

Although the parties dispute the reasons, it is undisputed that Mrs. Phillips on March 11, 1974 returned Hall’s deposit check un-cashed, and it was received by Hall the following day. It is contended by Hall that he had agreed with the Homestead for the assumption of the loan, and had borrowed money to enable him to make the necessary down payment, and was prepared to take title. The Phillips’ contend that Hall refused the assumption loan, told them that he would not go through with the sale, and they promptly returned his deposit check and sought another purchaser. In October, 1974, the property was sold to another at an increased price, and a year thereafter, October, 1975, Hall brought this suit.

The trial judge made the following finding of fact:

“The evidence shows that this contract was to be consummated by assumption of a loan at the rate of llU%. The evidence is conflicting in that matter, but the Court is of the opinion that when the interest on the assumption was raised from lVi% to 814% (sic) the purchaser was unwilling to comply with this agreement. The deposit check was returned on March 12, 1974. The date of the termination of the contract was April 19, 1974. From the date of the return of the check on March 12 past the termination date of the agreement of April 19, 1974 up to the time of the filing of the suit in October of 1975 no demand was made for the title to be delivered, no mention was made of the agreement to the assumption at the increased rate, nothing was done other than the filing of the suit to put the Defendants on notice in anyway whatsoever that the Plaintiff wanted title to this property. By this time the property had already been sold.”

We agree with these findings. The testimony produced by the parties in support of their positions is directly in conflict. In questions of credibility or belief of witnesses, the trial judge’s decision is granted great weight, and we cannot simply substitute a different opinion as to credibility. He cannot be reversed in his findings of fact unless they are manifestly erroneous. In this case we find no manifest error and in fact, Hall’s inaction and the passages of time herein after return of the deposit lend support to a finding that he let the contract expire by its own terms because he was unwilling to pay a higher rate of interest.

The agreement between the parties placed an obligation upon the purchaser to notify the seller in some manner that either the loan was secured or that purchaser was willing to proceed to buy under the provisions of the remainder of the agreement. To hold the owner liable under the facts here found, purchaser should have notified seller that he intended to go through with the sale and have placed him in default.

For the reasons assigned, the judgment is affirmed.

AFFIRMED.


text:
    Robert LEWIS, Sr., Individually and as Administrator of the Estate of his minor son, Robert Lewis, Jr. v. ST. BERNARD PARISH SCHOOL BOARD.
    No. 8583.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      Gilbert V. Andry, III, New Orleans, for defendant-appellant.
    Anthony A. Fernandez, Jr., Chalmette, for plaintiff-appellee.
    Before REDMANN, SCHOTT and BEER, JJ.
   BEER, Judge.

This is a personal injury suit by appellee, Robert Lewis, Sr., on behalf of his minor son, Robert Lewis, Jr., an eighth grade student at St. Bernard High School. Robert further opened the solid wooden door to the school’s soundproof music practice room without using the doorknob but, rather, by grasping the edge of the already partly opened door. Another student, Stephen Lopez, who was inside the practice room, apparently did not notice Robert’s hand around the edge of the door and slammed it shut, severing the very tip of his fourth finger.

Robert’s uncorroborated testimony indicates that the handle to the door was loose, and the lock did not catch well, causing the door to swing open from the closed position. (Tr. 23, 29.) Robert’s further uncorroborated testimony indicates that students using the soundproof room found it necessary to place a chair against the door to keep it shut.

The door- in question was solid wood, whereas most other doors in the school have glass windows which permit a person inside to see someone entering. It did not have air locks or similar safety device which would have slowed its closing.

Judgment was rendered (without written reasons) casting appellant for damages in the amount of $3,587.25, of which $587.25 represented special damages for medical bills, etc. They appeal, arguing that the school board cannot be vicariously liable for the negligent act of a student and contending that independent negligence on their part was not proven. Lewis also appeals, seeking an increase in quantum.

Liability of the school board for an allegedly dangerous condition of a door which purportedly necessitated the practice of slamming it shut could be imposed if it were shown that a dangerous condition had existed for sufficient time to justify the conclusion that they are charged with knowledge of the dangerous condition, or if they actually had knowledge of the dangerous condition and did not remedy it. See: Bourgeois v. Indemnity Ins. Co. of North America, 60 So.2d 718, 720 (Orl.App.1952).

In Sears v. City of Springhill, 303 So.2d 602 (La.App. 2nd Cir., 1974), writ refused, La., 307 So.2d 371, the existence of a ditch surrounded by knee-high weeds on school property was an observable hazard, particularly in view of the fact that the playing of “touch” football near it was not only permitted but encouraged, and a student who broke his leg upon falling into the ditch during a football game was allowed to recover damages.

Similarly, in Johnson v. Orleans Parish School Board, 261 So.2d 699 (La.App. 4th Cir., 1972), we found negligence on the part .of the school board where plaintiff was injured by the fall of a cracked glass window which had been held together by tape for at least four months. In that case, there was evidence that the school authorities knew of the dangerous condition and had delayed its repair until the window could be replaced with a nonbreakable substance.

In each of the cases discussed, there existed a dangerous condition of which the school authorities had either actual or constructive knowledge. Here, Lewis seeks to show such a dangerous condition existed in the allegedly defective door latch which necessitated the constant slamming of the door. Yet, Robert’s statement that the door latch was defective is not corroborated by plaintiff’s witness, Kirk Serigne, who stated that the handle was in working condition. Even if we were to accept the finding of fact that the latch was defective, we cannot agree that Lewis is entitled to judgment since there has been no showing of knowledge of the defect, either actual or constructive, on the part of the school board or any of its personnel.

The existence of actual knowledge is in fact contravened by the testimony of Robert Blanchard, the supervisor of buildings and grounds for the St. Bernard Parish School Board, who stated that records of complaints were kept, and there had been none concerning the door in question. Furthermore, Blanchard’s testimony established that he inspected the school for cleanliness and necessary repairs on a monthly basis.

Constructive knowledge of the defect might be found were it so inherently dangerous that the school authorities should have known of it, or if the practice of propping the door closed with a chair so widely known and followed that the school personnel should have known of it. We do not find that the existence of a defective latch was a condition so inherently dangerous that knowledge can be imputed. Nor do we find, from the scant evidence on the question, that the practice of propping the door closed was widely known: under direct examination of plaintiff’s witness, Lopez, the following dialogue occurred:

“Q. Okay. Now, Steve, was a chair ordinarily used with that door in keeping the door closed?
A. No, not that I know of.
Q. You don’t recall, okay. You never did it?
A. No.”

As to the allegation of negligence on the part of the school board in not having air locks on the practice room door, we can find no affirmative requirement that such a lock be used, and do not find that absence indicates negligence.

Finally, it is contended that there was independent negligence of the school board in failing to properly supervise the students. It repeatedly has been held that “(t)he fact that each student is not personally supervised every moment of each school day does not constitute fault on the part of the School Board or its employees.” McDonald v. Terrebonne Parish School Board, 253 So.2d 558, 562 (La.App. 1st Cir., 1971), writ ref., 260 La. 128, 255 So.2d 353. Accord, Partin v. Vernon Parish School Board, 343 So.2d 417 (La.App. 3rd Cir., 1977); Bourgeois v. Indemnity Ins. Co. of North America, supra.

In the absence of a finding of actual or constructive knowledge of the existence of a dangerous condition on school premises, or of failure to properly supervise, we must reverse.

Accordingly, it is ordered that the judgment of the 25th Judicial District Court for the Parish of St. Bernard be reversed, and plaintiff-appellee’s suit is dismissed at his costs.

REVERSED AND RENDERED.


text:
    Mr. & Mrs. Karl W. BECKER et al. v. Mrs. Carol Wilkerson JOHNSON et al.
    No. 8595.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Charles F. Barbera, Metairie, for plaintiffs-appellees.
    Gregory M. Porobil, Pitard, Pitard & Po-robil, New Orleans, for defendants-appellants.
    Before REDMANN, SCHOTT and BEER, JJ.
   REDMANN, Judge.

Defendants appeal from a judgment which declared forfeited their $4,600 deposit on an agreement to purchase a house and which also awarded a real estate agent a commission. We reverse.

The only breach of the buy-sell agreement that plaintiffs’ petition alleged was defendants’ failure to accept a loan commitment. But that failure was no breach. The loan was not an obligation upon defendants. Their “ability” to obtain the loan was a condition in defendants’ favor (and that condition was fulfilled: they were indeed able to make the loan, as the lender’s commitment proved). Accordingly, that failure does not excuse plaintiffs from the necessity of putting defendants in default.

Defendants’ answer (after pleading an error of fact as invalidating their contract) pleaded “that their refusal to sign the loan commitment . . . does not constitute a default under the terms of said [buy-sell] agreement; and that, therefore, defendants were not put in default by a tender of title as specified in said agreement.”

Plaintiffs nevertheless neither pleaded nor proved the putting in default required both by general law, C.C. 1933, and (as to sellers’ right) the agreement itself. (Under the agreement the seller may declare the deposit forfeited “without formality beyond tender of title to purchaser.” Thus tender is a prerequisite, even if — as the evidence may suggest — the purchaser gave some indefinite verbal indication he did not want to purchase, Schuler v. A. K. Roy, Inc., La.App.Orl.1953, 65 So.2d 333.) Accordingly plaintiff sellers are not entitled to declare the deposit forfeited.

Nor is plaintiff agent entitled to a commission. The contractual provision that commission is earned when the agreement is signed and the loan secured does not, in the first place, entitle the agent to commission irrespective of subsequent events; Williams v. Bel, La.1976, 339 So.2d 748. Furthermore, the agent is entitled to collect his commission from the purchaser, under the buy-sell agreement, only in the event the purchaser “fails to comply with”, i.e., breaches, the agreement. For the agent to recover on the buy-sell agreement (as distinguished from the listing agreement with the seller), he must show either that purchaser or seller breached or that purchaser agreed with seller to rescind; see Andrew Dev. Corp. v. West Esplanade Corp., La. 1977, 347 So.2d 210. There is no hint of a rescission. And there is no evidence that defendants breached: to the contrary, the testimony of plaintiff agent’s own employee, proffered and incorrectly ruled inadmissible, is that plaintiff sellers and agent together executed an agreement to resell the house to a third party on April 11, 19 days after the agreement here sued on, while defendants’ loan application was pending and three days before the loan commitment was made. The only explanation of the resale was that plaintiff sellers’ lawyer had written the agent that the property was “back on the market.” The agent thus had not even “earned” the commission he now sues for (since the loan had not yet been secured) at the time he admits he actively breached the agreement (see Schuler, supra). Unless the agent has established an active anticipatory breach by defendants prior to April 11, he is not entitled to commission from defendants. The “breach” (of the loan commitment) alleged by the petition came after April 14.

Defendants had earlier expressed some disinclination to perform this contract (although “not really” a decision not to buy). That disinclination was expressed to defendants’ own real estate agent — whose firm plaintiffs made a party defendant to demand that it present its claim for half the commission as provided in the buy-sell agreement, resulting in its answer that the firm “does not desire to assert any claim for any real estate commission arising out of the transaction which forms the basis of this suit.” Yet plaintiffs successfully objected to defendants’ agent’s being allowed to testify, and also successfully objected to defendant husband’s stating the reason for his disinclination to buy — namely, as his answer pleaded as an invalidating error (a contention we do not decide)— that he had been induced to offer $46,000 by being tqld that the sellers had paid $44,-000 for the house 19 months earlier when in fact they bought for only $37,900. No doubt defendants felt imposed upon. But our conclusion is that plaintiff agent did not prove a breach by defendants which alone would make them liable for the agent’s commission if any is due.

Reversed at plaintiffs’ cost.

      . See C.C. 1823, 1824, 1825, 1826, 1842, 1845, and 1847(3) and (4).


text:
    Joseph P. KRIEG v. Jack SCIORTINO.
    No. 8605.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Joseph S. Russo, Jefferson, for Jack Sciortino, defendant-appellant.
    Raymond A. Milly, Metairie, for Joseph P. Krieg, plaintiff-appellee.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

The owner of a building sues one of his tenants for possession of leased premises. From a judgment of eviction the tenant appeals.

The basis of the suit is the failure of the tenant to pay the monthly rental which, under the terms of a written lease agreement, was due on the 1st of each month. Beginning in July, 1976, the rental was late, and in each month the lessor sent a 10 day written notice to pay the past due rent as required by the lease. The rent was always paid in accordance with the letter until November, 1976, during which month the tenant decided to withhold $150.00 of the $650.00 rent, to help pressure the landlord into making the repairs complained of. The $500.00 check sent for the portion of the November rent was returned NSF and it was not until after Notice of Eviction was sent that the tenant attempted to replace that check with a money order. The rent for December was not paid, the tenant insisting he had a right to retain the entire amount until repairs were made. After notice of eviction, the tenant tendered money orders to bring his account up to date.

It is clear that the tenant did not pay his rent when due, that the required 10 day notice of arrears was sent to him, and at the time the landlord exercised his option to evict, the rental for November and December were unpaid, entitling the landlord to eviction. The ténant urges in defense that the monthly rental was always paid late and the landlord had waived his right to insist upon payment in accordance with the lease. The record supports an opposite conclusion. The landlord sent a 10 day written notice in accordance with the lease each time the rent was late, and it was not until payment was not made thereafter that he cancelled the lease.

The other contention is that the landlord breached the lease by refusal to make repairs necessary to occupancy of the building. One item was water cascading from the floor above, from premises not a portion of this lease, when the toilet was flushed. The other defect was an opening in the rear wall wherein water leaked into the premises during heavy rains. It is clear that these defects occurred but it was not until November that the tenant gave the landlord notice of the defects as required by the lease, and he immediately attempted repairs. The evidence shows that the toilet leak was corrected, although there is a dispute as to whether the leaking wall was corrected. We conclude that the landlord was making repairs in accordance with the lease and did not breach its provisions.

The judgment is affirmed at appellant’s cost.

AFFIRMED.


author: STOULIG, Judge.

text:
    Albert W. LOPEZ v. CITY OF NEW ORLEANS.
    No. 8744.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Levy & Smith, Michael A. Villa, New Orleans, for plaintiff-appellee.
    Philip S. Brooks, City Atty., Jackson P. McNeely, Delbert G. Talley, Asst. City At-tys., for defendant-appellant.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   STOULIG, Judge.

Plaintiff, Albert Lopez, was awarded a judgment against the City of New Orleans for maximum workmen’s compensation benefits for a job-connected injury that the trial court concluded left him totally and permanently disabled. Lopez had been employed with the New Orleans Fire Department for 22 years when the accident occurred and, at the time, had attained the rank of deputy fire chief.

On appeal, the defendant seeks reversal contending that (1) plaintiff failed to prove an accident compensable under the Louisiana Workmen’s Compensation Law did occur on February 8,1975; (2) plaintiff failed to adduce medical evidence to establish the alleged accident either caused a cervical injury or aggravated a pre-existent neck condition; and (3) plaintiff failed to notify his employer of his claim within the six-month period of limitation set by R.S. 23:1291.

We preface our discussion of these contentions with the comment that plaintiff has a commendable work record since he began with the fire department in 1953 through his disability retirement on March 17, 1975. While engaged in fire fighting over this period he was injured on at least six occasions. The one relevant to his pending claim is a 1965 neck injury that subsided with the passage of time.

On February 8,1975, plaintiff testified he reinjured his neck while responding to the general alarm fire at the Parkchester Apartments. As he emerged from the official fire department car, he began pulling on his raincoat and felt a sharp pain in his neck. It caused him to stagger and fall against the car. Despite the pain, he continued with his firefighting duties.

That the neck injury was not a post-retirement afterthought is amply proven by the testimony of Robert Soulit, his chauffeur, who actually witnessed the accident, and Fire Chief Earl Hymel and Captain Adam Jochim. The latter two are co-workers who testified plaintiff described the accident and the resultant neck difficulties to them within 24 hours of its occurrence.

The City points out plaintiff nonetheless failed to file a written report of his injury with his supervisor as the internal rules of the fire department require. This oversight is not a sound basis for denying compensation because an internal departmental rule cannot supersede the six-month notice period prescribed in the law itself. Nor is there validity in defendant’s contention plaintiff failed to notify his employer of his claim within six months of the accident.

Plaintiff testified he expected to receive workmen’s compensation benefits as well as disability retirement pay. Thinking the paper-shuffling might require several months, plaintiff made no inquiry until two months elapsed after he was retired on disability. He asked Deputy Fire Chief Nolan Delatte in the administrative office why he had received no compensation. At this time Chief Delatte relayed the fire department’s position that he was not entitled to benefits. Chief Delatte corroborates plaintiff’s claim to the extent he recalls the inquiry being made. Understandably, he could not pinpoint the time. The evidence preponderates to the effect that the fire department was given notice of plaintiff’s claim for compensation between two and four months after the accident.

Finally we consider whether the medical evidence is sufficient to sustain plaintiff’s claim. Fire Department Dr. Jack Ruli rendered a report on plaintiff’s condition in March 1975 for the purpose of establishing plaintiff’s rights to a disability pension. It leaves no doubt plaintiff had suffered a cervical disc problem that became exacerbated within several months of his retirement. However, the report does not answer medical questions pertinent to a workmen’s compensation claim because it was prepared to assist the Board of Trustees of the Firemen’s Pension and Relief Fund in processing plaintiff’s application for retirement on disability. Retirement involves disability per se while compensation contemplates injury or aggravation of a pre-existing problem in a job-connected accident. Specifically the medical evidence does not answer whether the February 8, 1975 accident aggravated the dormant cervical problem to a point where it rendered plaintiff totally and permanently disabled.

While rules of evidence are relaxed in favor of the claimant, the plaintiff in a workmen’s compensation suit is nonetheless obligated to prove his claim by a preponderance of the evidence. See Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286 (1965); Pelt v. Cement Products Service, Inc., 323 So.2d 191 (La.App. 1st Cir. 1975).

Because we are convinced plaintiff suffered an accident on the job on February 8, 1975 of which defendant received proper and timely notice, we remand this matter to permit plaintiff, if he is able, to establish by competent medical evidence a connexity between the disability of which plaintiff now complains and the accident of February 8, 1975. The scope of this remand is limited to medical proof of a relationship or nonre-lationship between the accident and the disability.

For the reasons assigned, the judgment appealed from is annulled and this matter is remanded for further proceedings consistent with the views expressed. Costs should be assessed when this matter becomes final.

JUDGMENT ANNULLED; REMANDED.

      . The inference is plaintiff never claimed workmen’s compensation for any of these injuries but returned to his duties as soon thereafter as he could.

      . The medical evidence consisted of the two written reports of Dr. Jack Ruli, the fire department’s physician. No medical expert testimony was adduced.


text:
    Olee PRITCHETT v. Mrs. Dannie PRITCHETT.
    No. 8759.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      Louis DiRosa, New Orleans, for plaintiff-appellee.
    Guy Huard, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and BEER, JJ.
   REDMANN, Judge.

A separated wife appeals from a judgment in her husband’s favor evicting her and their 13-year-old child from a house which is the husband’s separate property (although over half paid for by community funds). We affirm.

Insofar as this record shows, the use of the house by the wife and child was not awarded by the Civil District Court in fixing child support or in refusing alimony pendente lite (although the need hereafter to pay rent may increase those items). The record therefore reveals only a case of a property owner evicting someone whom he previously allowed to occupy the property rent-free.

The petition did not allege such a case (as Stroughter v. Shepherd, La.App. 4 Cir. 1968, 207 So.2d 865, holds essential to state a cause of action). However, the parties stipulated without objection as to the facts and we hold the issues therefore treatable “as if they had been raised by the pleadings.” C.C.P. 1154.

The property remained the separate property of the husband despite payment of its mortgage with community funds. C.C. 2334; Fontenot v. Fontenot, La.App. 3 Cir. 1976, 339 So.2d 897, writ refused, La., 342 So.2d 217. The mere fact that the occupants of the property are the owner’s separated wife and his child (of whom the wife has custody) does not affect the owner’s right to possession of the property. The owner’s obligations towards his separated wife and child should be fixed by orders of the district court for such alimony and child support as may be due, and there is no order obliging the owner to allow them to occupy these premises or accepting their occupancy as a payment in kind of alimony or support.

Affirmed.


author: GUIDRY, Judge.

text:
    Alvin W. McGEE et al., Plaintiffs-Appellants-Appellees, v. SECO TIMBER CO., Defendant-Appellee-Appellant.
    No. 6125.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 14, 1977.

      Ryder & Deshotels, by Errol D. Deshotels, Oberlin, for plaintiffs-appellants-appellees.
    John P. Navarre, Oakdale, for defendant-appellee-appellant.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   GUIDRY, Judge.

In this suit plaintiffs, Alvin W. McGee and Katherine Wainwright, seek to recover damages for wrongful trespass and conversion of timber upon their respective properties located in Allen Parish. Security Timber Company, Inc. (hereinafter referred to as SECO), is made a defendant to the action along with two of its officers, Charles Wale and Tallie Perkins. After trial on the merits, judgment was rendered by the trial court holding only the corporate defendant liable to plaintiffs, the trial judge finding there was no evidence which would attach personal responsibility to the individual defendants. The trial judge found that timber had in fact been cut from the western portions of plaintiffs’ land and that the defendant trespasser was in good faith. Pursuant to these findings the trial court rendered judgment in favor of plaintiffs in the amount of $1,000.00 each to Alvin W. McGee and Katherine Wainwright. All parties have appealed from the judgment, plaintiffs claiming the award is too low, and defendant claiming that the award is excessive.

Plaintiffs do not question the correctness of the judgment insofar as it dismisses their demand against the individual defendants.

We agree with the trial judge’s finding that the individual defendants should not be cast in judgment.

The sole issues presented on this appeal are whether the quantum awarded for the alleged timber trespass is correct, and also, whether or not plaintiffs are entitled to recover additional damages for diminution in value of their respective properties, mental anguish, anxiety, worry and attorney fees.

The facts giving rise to this litigation are not seriously in dispute. The evidence shows that plaintiffs, Alvin W. McGee and Katherine Wainwright, are owners of adjacent tracts of land located in Allen Parish. The property is located between Oakdale and Oberlin, La., and lies immediately east of U.S. Highway 165. The McGees own approximately 5.37 acres (hereinafter referred to as the McGee tract) which is to the north of and adjacent to the 4.16 acres owned by Katherine Wainwright (hereinafter referred to as the Wainwright tract). On or about June 3, 1972, SECO purchased the timber on a tract of land owned by a Mr. Virgil Reeves. The Reeves property lies adjacent to the western boundary of the McGee and Wainwright tracts. The timber deed describes the property as follows:

“All merchantable timber 8" in diameter 10" from the ground being on the following described land SWVi of SWV4 Sec 32; SE of SW Sec 32-T3S-R3W lying west of M.O.P.R.R., Less 10 ac to McGee & 3 ac for R/W.”

It is alleged by plaintiffs that on or about May 30,1973, persons cutting timber on the Reeves property at the direction of SECO crossed over onto the western portions of the McGee and Wainwright tracts and cut certain timber that was growing there. Plaintiffs also allege that defendant’s trespass was intentional and constitutes a willful tort. Defendant does not deny that the trespass did take place, but claims that it was acting in good faith.

Turning first to the issue of the proper quantum to be allowed for the timber trespass, we find that the criterion which is to be followed in the assessment of damages for a timber trespass is well settled. In the case of Kennedy v. Perry Timber Company, 219 La. 264, 52.So.2d 847 (La.1951) the court set forth the criterion to be applied:

“The measure of damages allowable for the unlawful cutting of timber is well settled in this State. If the trespass has been reckless and willful, the trespasser is said to be guilty of moral bad faith and is liable for the converted value of the timber without allowance or deduction for costs and expenses. In cases where the trespasser believes himself to be owner but should have known otherwise, either from information available to him or other ascertainable facts which would have placed a reasonably prudent man on notice, he is held to be in legal bad faith and the actual expenses incurred by him in converting the timber are to be deducted in assessing the damages. And in cases where the trespasser is in good faith, that is, where he believes that the timber belongs to him and there is no valid reason for him to suppose otherwise, he is liable only for its stumpage value.”

Considering the evidence in the record in light of this well-settled criterion, we conclude that the damages awarded are grossly excessive.

As shown by the Kennedy case, supra, the good faith or bad faith of the defendant in a timber trespass case has a direct bearing on the amount of damages to be awarded. Being in good faith does not relieve the defendant from liability, but it does affect the amount of damages for which he must respond.

As aforesaid the trial court found defendant to be in good faith. Our careful examination of the record prompts us to conclude that the defendant acted in legal bad faith.

The evidence convinces us that there was no clearly defined boundary separating the Reeves property from the western portions of the McGee and Wainwright tracts. The evidence indicates that the area involved in the trespass is lower than the rest of the plaintiffs’ property and is frequently covered by standing water. It is overgrown with briars and other growth and is what is frequently referred to as a slough. The record indicates that the western boundary of plaintiffs’ property may have at one time been marked by one or more standing fences, however at the time of the trespass in May of 1973, these fences, for the most part, were down and not readily visible.

Although we agree with the trial court that the trespass was unintentional, the evidence also preponderates to the effect that the defendant made only minimal efforts to ascertain the correct boundary separating the Reeves property from the McGee and Wainwright tracts. Though the record does contain testimony that plaintiffs’ western boundaries were described to one of defendant’s officers by Mr. Reeves, the evidence shows that the precise boundary was never clearly ascertained. Defendant could have easily contacted the adjacent property owners or taken other measures to insure that the timber would be harvested from the correct property. We find that the defendant did not take the proper precautions that were called for in this situation. Thus, we hold that the defendant is to be considered to be in legal bad faith, that is, he believed that he was on the correct property, but could have ascertained otherwise. Terral v. Riley, 293 So.2d 912 (La.App. 2nd Cir. 1974). Therefore the measure of damages to which plaintiffs are entitled is the converted value of the timber, less the costs and expenses of the conversion.

We determine on the basis of the record that the highest actual value placed on the timber removed was by defendant’s expert witness, Mr. Robert E. Richardson. Although the defendant corporation testified that it only received $46.00 for the timber cut, other evidence produced by the corporation itself, through Mr. Richardson’s testimony, indicates that the value of the timber cut was $177.09 for the McGee tract and $161.40 for the Wainwright tract. This is the only , proof in the record as to the converted value and it is more equitable to allow plaintiff the higher of the two values.

By finding the defendant in legal bad faith, ordinarily he would be entitled to deduct from the award the costs and expenses of conversion. There is no credible evidence in the record to indicate with any degree of certainty what defendant’s costs and expenses were in connection with the removal of this timber. In the absence of proper proof as to these costs and expenses, we will base our award on the converted value of the timber as stated by Mr. Richardson without allowance for the cost of conversion.

We finally note that there is no suggestion in the record that the timber taken from the McGee and Wainwright tracts was not sold for its fair market value, nor is there any indication that any fraud was practiced on plaintiffs.

In his written reasons for judgment the trial judge simply made an in globo award of damages without itemization. It may be that the trial court awarded damages in excess of the above values on the basis of plaintiffs’ allegations that their properties were diminished in value and that each suffered mental anguish, anxiety and worry.

We conclude that plaintiffs, under the circumstances of this case, are not entitled to a damage award for any mental anguish, anxiety and worry which each may have suffered.

In Foster v. Beard, 221 So.2d 319 (La.App. 2nd Cir. 1969), the defendant was found to be in legal bad faith. The court rejected plaintiff’s claim for mental anguish by stating:

“With reference to plaintiffs’ proof of damages, it can be said, without any serious question of doubt, that they have failed to establish with legal certainty the diminution of value of the property as a result of the destruction of the timber; they made no showing whatsoever of the ornamental character of the trees. The same may be said of the items of loss with reference to the aesthetic value of the trees and as to the humiliation, grief, and worry attributable to the removal of the timber. These items were properly rejected. The latter does not constitute a legitimate item of damages. Anders v. Tremont Lumber Company, 171 La. 1,129 So. 649 (1930), (emphasis added)
“Plaintiffs’ desire that the character of the property not be altered or disturbed and changed from woodland to open, agricultural land constitutes no basis for the allowance of damages. Such an award must be predicated upon actual damages sustained to the property itself. Thus, the question of damages relates solely to the timber destroyed or removed.” (emphasis added)

Our review of the applicable jurisprudence indicates that under certain circumstances, landowners may recover damages for mental anguish and trespass done to their property. The cases allowing such recovery involve situations where the defendant trespassers were found to be in moral bad faith or to have committed a willful and wanton trespass on plaintiffs’ property. Knoll v. Delta Development Company, 218 So.2d 109 (La.App. 3rd Cir. 1969, writ refused); Campbell v. Gray, 294 So.2d 841 (La.App. 2nd Cir. 1974); Turner v. Southern Excavation, Inc., 322 So.2d 326 (La.App. 2nd Cir. 1975); and Dickerson v. R.J.M. Pipeliners, Inc., et aL, 331 So.2d 501 (La.App. 2nd Cir. 1976). We find, as the trial judge apparently did, that defendant, SECO, was not in moral bad faith. In order to hold the defendant in moral bad faith, it would have been necessary to find that the defendant had consciously performed some wrongful act in cutting timber on plaintiffs’ lands. The case of Estate of Boyett v. L.L. Brewton Lumber Co., 223 So.2d 495 (La.App. 2nd Cir. 1969), further explains the definition of “moral bad faith” as stated in the Kennedy case, supra. The court stated:

“However, the Supreme Court in the Kennedy case, supra, has ruled that to consider one in moral bad faith the trespass must not only be reckless but must be willful and wanton. The meaning usually attributable to the words willful and wanton require that the party acting willfully or wantonly possess an intent to perform the act with utter disregard for the rights of others. It is usually required that he be conscious of the wrongfulness of his act. We must profess that it is very difficult to evaluate the state of mind of an individual to determine his intent at some prior time. This is a classic example of the ideal situation for the applicability of the rule frequently quoted by the appellate courts of this State that the finding of fact made by the trial judge who had the opportunity to see, hear and personally evaluate the credibility of the witnesses, should not be disturbed unless he has committed manifest error.” (emphasis in original)

We do conclude that plaintiffs are entitled to damages, in addition to the converted value of the timber removed, for the diminution in value of their respective properties. Although plaintiffs offered no testimony showing diminution in the values of their respective properties, the record does contain evidence adduced by defendant which was uncontradicted that each of the plaintiffs sustained damages in the amount of $150.00 for diminution in the value of their properties. Such recovery is allowable upon a proper showing of adequate proof. See Foster v. Beard, supra, and Frusha v. Jackson, 228 So.2d 197 (La.App. 3rd Cir. 1969). We accept the testimony of Mr. Leonard H. Thomas, based on his appraisal, that each plaintiff suffered diminution in property value in the amount of $150.00. We will allow plaintiffs these damages.

Plaintiffs contend that the trial court erred in its refusal to award attorney’s fees. We find no merit in this contention. Generally, attorney’s fees are not allowed in the absence of a contract or statute authorizing same. Although there are jurisprudential exceptions to this general rule the instant action does not, fall within one of these exceptions.

Finally, we observe that prior to trial of this matter the defendant tendered into the registry of the court the exact amount of damages which we find are due to the plaintiffs. Considering this circumstance, we believe that it would be equitable to assess the court costs incurred in this matter, both on the trial level and on appeal, one-half to plaintiffs and one-half to defendant.

For the reasons assigned the judgment of the trial court is affirmed but amended so as to reduce plaintiffs’ award to $327.09 for Alvin McGee and $311.40 -for Katherine Wainwright. The costs incurred both on the trial level and on appeal are assessed one-half to plaintiffs-appellees and one-half to defendant-appellant.

AMENDED AND AFFIRMED.

HOOD, J., concurs in the result.

      . The record does not precisely indicate the exact amount of acreage involved in the trespass, but we determine that between IV2 to 2 acres of plaintiffs’ land were involved.

      . Evidence adduced at trial by plaintiffs shows that there were 67 trees cut on the McGee tract and 77 trees cut on the Wainwright tract. Defendant’s evidence indicates 61 trees for the McGee tract and 53 trees for the Wainwright tract. The trees were of varying species, mainly oak, gum and pine.

      . At trial, plaintiffs introduced expert testimony through a Mr. Robert Spears as to the value of the timber as it left the manufacturer. This clearly is not the proper criterion for the assessment of damages. In Terry v. Butler, 240 La. 398, 123 So.2d 865 (La.1960), the Supreme Court clarified some of the language it had employed in Kennedy, supra. The court stated: “While in the Kennedy case we did not spell out what was meant by the term “converted value” used in referring to the trespasser in moral bad faith, the remainder of the quoted language clearly shows that the court intended that the owner would be entitled to the value of the product as converted by the trespasser." (emphasis in original) Addressing itself to the term “manufactured value”, the court then stated: “We recognize, of course, that in some decisions cited by plaintiffs the court has used the term “manufactured value” in assessing damages for timber wrongfully taken. But obviously it was so employed for the reason that the timber had been changed through the efforts and expense of the trespasser into products more refined than mere logs, poles or pulp wood.” (emphasis in original). In the case at bar, the evidence clearly shows that the defendant merely sold the timber to a saw mill and made no effort to refine the products.


author: DOMENGEAUX, Judge.

text:
    Rodney HOPKINS et al., Plaintiffs-Appellees, v. DEPARTMENT OF HIGHWAYS, State of Louisiana, Defendant-Appellant.
    No. 6079.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.

      Mengis, Roberts, Durant & Carpenter by Charles M. Roberts, Sharon P. Frazier, Baton Rouge, for defendant-appellant.
    Davis & Simmons by Kenneth N. Simmons, Many, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   DOMENGEAUX, Judge.

Plaintiffs, Rodney Hopkins, Otis Faust, and Melvin Raiford, brought this action to recover damages to their property allegedly caused by the Department of Highways. All parties are property owners in Sabine Parish, Louisiana. The Highway Department owns a 5.8 acre tract upon which it operates a highway maintenance unit. Faust owns 5 acres adjoining the western boundary of the Highway Department tract; Hopkins owns 5 acres immediately west of the Faust tract; and Raiford owns 30 acres on the western boundary of the Hopkins tract. The Raiford tract also borders the northern boundary of the Hopkins and Faust tracts.

A small depression runs through the Highway Department’s tract and across the Raiford, Hopkins, and Faust tracts, which constitutes a natural drain.

Plaintiffs allege that over a period of several years the Highway Department allowed oil, grease, and tar waste to enter and contaminate the water in the drain. Plaintiffs further allege that large amounts of sand from the Department property entered the drain. They aver that as a result of these activities the soil and trees surrounding the stream have been damaged. Furthermore, the stream is no longer fit for watering livestock and has become completely obstructed in several places.

A hearing was held on March 24,1975, on defendant’s exceptions of no cause of action and prescription and plaintiffs’ prayer for preliminary injunction. The exceptions and the prayer for injunction were consolidated for trial purposes. After considerable testimony was adduced the hearing terminated and it was agreed that all evidence thus far taken would be used at trial.

Trial on the merits was held on September 29, 1975. Counsel for plaintiffs moved that all the witnesses, except parties or their representatives, be sequestered. The trial judge granted the Order.

During the trial, plaintiffs’ counsel objected to the use of two of defendant’s sequestered witnesses on the grounds that they had violated the sequestration order. The trial judge sustained the objection and disqualified the witnesses from testifying. When counsel sought to make a proffer of proof the trial court stayed the proceedings in order to allow defendant to seek supervisory writs. A different panel of this court denied supervisory writs. (Hopkins v. Department of Highways, State of Louisiana, No. 5302, Nov. 13, 1975). At the time the application was pending defendant moved to substitute the offending witnesses with two new experts and for leave to reinspect plaintiffs’ property. This motion was denied by the trial court subsequent to the writ denial.

The case proceeded to conclusion. The trial judge awarded damages in the amount of $11,174.00 for Mr. Hopkins, $14,773.00 for Mr. Raiford, and $7,646.00 for Mr. Faust’s widow and heirs. Faust had died during the proceedings and his widow and heirs were substituted as parties. The trial judge found that the stream bed was filled with sand in places, forcing the stream from its normal bed and over a large area, especially after rain. He also determined that tar, slush, grease, and oil were found under the sand and concluded that these pollutants came primarily from a grease rack where their Department trucks were regularly serviced and from a tar tank on defendant’s property near the grease rack.

The threshold issue raised on this appeal revolves around the scope of the power of the trial judge when there has been a violation of the sequestration order.

Sequestration of witnesses is an ancient device at least as old as the Bible. It serves the dual purpose of preventing the witnesses from being influenced by prior testimony and strengthening the role of cross-examination. State v. Ardoin, 340 So.2d 1362, 1363 (La.1976); State v. McDaniel, 340 So.2d 242 (La.1976). In Louisiana its statutory origin can be traced to Article 371 of the 1928 Code of Criminal Procedure. That Article provided that the sheriff would take charge of a witness placed under the rule in order to prevent violation of the sequestration order. If a violation did occur the witness was automatically disqualified from testifying. The trial judge had limited discretion to permit testimony under some circumstances and a violating witness could be called to testify if the violation took place without the knowledge and connivance of the party calling him.

The new Code of Criminal Procedure deleted the provision requiring the sheriff to take charge of the witnesses and the provision dealing with automatic disqualification of violating witnesses. Article 764 gives the court wide discretion in modifying the sequestration order and does not specify penalties for its violation.

Express authority for sequestration of witnesses did not appear in the Code of Civil Procedure, however, until a 1966 amendment to Article 1631. That Article now provides:

“The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.
On its own motion the court may, and on request of a party the court shall, order that the witnesses, other than parties, be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interest of justice, the court may exempt any witness from its order.”

Thus, a party has a right to request sequestration of witnesses, qualified by the power of the trial court to exclude a witness from the rule in the interest of justice. The Article does not deal expressly with expert witnesses; however, the comments following the Article state in part:

“Except in most unusual situations, persons called to testify as expert witnesses are not excluded from the courtroom during the trial of the case. Since they are not called to testify to the facts of the case, but only to give their expert opinions to hypothetical facts, there would seldom be either reason or necessity for excluding them. This article gives the trial judge discretion either to exempt the expert witness from the operation of his order, or to exclude him from the courtroom in those rare cases where the interest of justice may demand it.”

Expert witnesses would normally be exempted from the rule since their function is to give opinions on facts which form the basis of the evidence. It would be impractical to sequester most expert witnesses from the trial because to do so may require repetition of numerous and detailed facts already placed into evidence by other witnesses each time an opinion was solicited.

There may be circumstances, however, when it becomes desirable to place expert witnesses under the rule. This occurs when the expert is also used as a fact witness and there is danger that the expert will be influenced by other testimony. Thus while it may be of limited utility to sequester an aerospace engineer called upon to testify as to faulty plane design, it may be useful to sequester an automobile mechanic called upon to testify as to whether an automobile’s brakes were working properly before a collision.

In this case the trial judge placed expert witnesses under the rule. We find no abuse of his discretion. There existed the possibility that the expert witnesses sequestered would testify as to facts concerning the physical condition of the property. The trial judge was in a better position to make the determination and his ruling should not be upset on appeal.

Article 1631 of the Code of Civil Procedure does not specify the sanctions available to the court when there has been a violation of the sequestration order. There is a paucity of decisions on the subject and courts seek enlightenment from eases developed in the criminal sphere. Aetna Casualty and Surety Company v. Braud, 327 So.2d 183, 186 (La.App. 4th Cir. 1976). A review of the criminal cases indicates that three sanctions are available. A violating witness, of course, can be placed in contempt. He can also be allowed to testify with the violation going to the credibility of the evidence or can be disqualified altogether. For example, in State v. Badon, 338 So.2d 665 (La.1976), the Supreme Court found no error in allowing a violating witness to testify because the trial judge determined that the testimony was based upon the witness’ own memory. In State v. Watson, 305 So.2d 923 (La.1974), the Court approved the trial judge’s instructions to the jury to disregard the testimony of witnesses who had violated the rule. In State v. Holmes, 305 So.2d 409 (La.1974), the Court approved the disqualification of a sequestered witness who had remained in the courtroom throughout the trial. In short, the choice of remedy imposed for violation of a sequestration order rests in the sound discretion of the trial judge. See Work of the Louisiana Appellate Courts for the 1974-75 Term—Criminal Trial Procedure, 36 La.L.Rev. 605, 621-624 (1976).

Giving wide latitude to the trial judge conforms to our reading of Article 1631 of the Louisiana Code of Civil Procedure. The provision makes no specification regarding the penalties for violation of a sequestration order. In Benoit v. Camelle, 300 So.2d 850 (La.App. 3rd Cir. 1974), writ denied, 304 So.2d 668 (La.1974), this court approved the disqualification of a witness who had violated the sequestration order. In Aetna Casualty and Surety Company v. Braud, supra, the Fourth Circuit permitted the trial judge to let a violation of the sequestration order go to the weight of the testimony. Finally, Article 225 of the Louisiana Code of Civil Procedure authorizes punishment for contempt when an order of the court is violated. Thus, all three alternatives are available to the trial court when there is a violation.

In the present case the trial judge inquired into the circumstances surrounding the alleged violation. Defendant’s counsel requested a recess during the cross-examination of one of plaintiffs’ witnesses. At that time the two attorneys for the defendant entered into a discussion with Mr. Terry and Mr. Futrell, defendant’s two expert appraisers, in the same room. Also present in the room was Mr. Cramer, a former expert witness who was excused from testifying at trial but who sat in the courtroom taking notes in order to provide defendant’s counsel with a record of expert testimony.' There is some question as to whom spoke with whom, but the trial judge determined that some evidence in the case was discussed. The court ruled that a violation had taken place and disqualified Terry and Futrell from testifying. We will not modify this determination on appeal. Although disqualification of witnesses may be the most severe penalty, the trial judge was more familiar with the physical surroundings of his courtroom and he was in a better position than us in determining the severity of the violation. We will not substitute our judgment for that of the trial court, even though we may feel that a lesser sanction may have been more appropriate.

Defendant contends that a proffer of testimony from the disqualified witnesses should have been allowed under Louisiana Code of Civil Procedure Article 1636. We find that the trial judge erred in disallowing the proffer. Article 1636 is mandatory, not discretionary. However, since we have been unable to find manifest error in the disqualification of the witnesses, the proffer would serve no purpose on this appeal. The issue is moot.

We feel obligated nevertheless to remand this case because of its peculiar factual setting. Defendant has alleged in its brief that its two disqualified witnesses would have offered rebuttal testimony to that of Mr. Stevens, plaintiffs’ expert appraiser. Mr. Stevens not only testified as to the appraisal value of plaintiffs’ property but to the issues of negligence and damages. It is plain that the trial judge relied heavily on this testimony in reaching this decision. Defendant sought to substitute his two disqualified experts with two new witnesses. Plaintiffs would-not permit the new experts to inspect their property and the court denied a motion compelling inspection after our denial of the supervisory writ.

Looking to the totality of the circumstances, we feel that defendant’s case has been unduly hampered. This appears to be one of those situations where we must exercise our power under Louisiana Code of Civil Procedure Article 2164 and remand the case. Foret v. Aetna Life & Casualty Company, 337 So.2d 676 (La.App. 3rd Cir. 1976); State of Louisiana, through the Department of Highways v. Willis, 278 So.2d 893 (La.App. 3rd Cir. 1973); Hamilton v. Hamilton, 258 So.2d 661 (La.App. 3rd Cir. 1972); Paletou v. Sobel, 185 So.2d 95 (La.App. 4th Cir. 1966); Turpin v. Turpin, 175 So.2d 357 (La.App. 2nd Cir. 1965). In the interest of being fair to all the parties, the Department of Highways should be allowed to use two new expert witnesses in the presentation of their case. Reaching the substantive issues would require a ruling on an incomplete record. To hold otherwise would violate the underlying philosophy of our Code of Civil Procedure under which the trial of a case is to protect substantive rights and serve as a search for the truth. C.C.P. Art. 5051; McMahon, Louisiana Code of Civil Procedure, 21 La.L.Rev. 1, 21 (1960).

This does not mean, however, that a party has an unqualified right to substitute witnesses when a violation of the sequestration order has occurred. Each case must turn upon its own facts.

Therefore, in the interest of discovering truth and under the authority vested in us by Article 2164 of the Louisiana Code of Civil Procedure, we reverse the judgment of the district court.

It is hereby Ordered that the case be remanded to the trial court for the limited purpose of allowing the defendant to have two new expert appraisers inspect the property and to give testimony, and for the taking of any proper rebuttal testimony.

It is further Ordered that the trial court render a new judgment based upon the complete trial record as supplemented by the above ordered testimony. All costs are to be assessed at the time the new judgment is rendered and according to the tenor of that judgment.

REVERSED AND REMANDED.

      . In Daniel 13:50 it is written that two elders had charged Suzanna with adultery. False evidence had been used to condemn her. Daniel had the two elders separated. When each was questioned separately, they gave different stories. See Weinstein’s Evidence, Par. 615[01].

      . Article 764 provides: “Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.”

      .Although sequestration of witnesses was practiced prior to the amendment, there was no express authority in the Code. See LeBlanc v. Gauthier, 174 So.2d 267 (La.App. 3rd Cir. 1965); Wilson v. Marquette Casualty Co., 156 So.2d 331 (La.App. 4th Cir. 1963), writ refused, 245 La. 96, 157 So.2d 235 (1963).

      .Article 1636 provides: “When a court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence. In all cases the court shall state the reason for its ruling as to the inadmissibility of the evidence. This ruling shall be renewable on appeal without the necessity of further formality.
      If the court permits a party to make a complete record of the evidence held inadmissible, it shall allow any other party to make a record in the same manner of any evidence bearing upon the evidence held inadmissible.”

      . Article 2164 provides: “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court,, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

      . We were impressed by the amount of expert testimony already introduced by the Department of Highways that did appear in the record. There was testimony to the effect that higher levels of hydrocarbons were found on land above and immediately east of the defendant’s tract than on plaintiffs’ land, which was lower and west of the Department’s tract. There was also testimony that some of the oil observed in the stream was vegetable in nature and came from the decomposition of leaves and other natural sources. Consequently, there could be a question as to the source of some of the pollution and the extent of the impact of the highway maintenance unit upon plaintiffs’ land. Since we are remanding the case, however, we express no opinion upon the sufficiency of the evidence. A complete determination can be made upon remand when all the facts are introduced.

      . We note that the trial judge cast the Highway Department with all costs of the proceedings, including plaintiffs' expert witness fees. La. R.S. 13:4521 exempts political subdivisions from paying court costs, except stenographer’s fees. Although the courts make an exception and require the Highway Department to pay expert witness fees as costs in expropriation cases, this exception has not been extended to damage suits of this type where there has been no “taking”. State, through the Department of Highways v. Reimers, 249 La. 1044, 192 So.2d 558 (1966); Dragon v. Orleans Parish School Board, 347 So.2d 306 (La.App. 4th Cir. 1977); McCallum v. State, Department of Highways, 246 So.2d 46 (La.App. 3rd Cir. 1971).


author: FORET, Judge.

text:
    Dennis TALLEY, Plaintiff-Appellant, v. Estate of John B. TALLEY et al., Defendants-Appellees.
    No. 6119.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.

      Dennis J. Talley, New Orleans, for plaintiff-appellant.
    Willis & Hardby, by Earl H. Willis, St. Martinville, for defendants-appellees.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   FORET, Judge.

This case involves a will contest. John B. Talley died February 9, 1976, and his will was probated on February 10, 1976. Decedent was never married, and was survived by his mother, three brothers, sisters, nieces and nephews. Dennis Talley, a brother of decedent, apparently feeling aggrieved that his deceased brother had left nothing to him under the terms of the will, filed proceedings seeking to have the will of John B. Talley declared null and void, on basically four grounds:

1. The will attempts to dispose of the legitime, in that decedent’s mother was not named in the will, and the will attempts to dispose of all of the property belonging to decedent;
2. It fails to comply with the formal requisites for a statutory will;
3. The testator was legally and physically incapacitated at the time he signed the testament; and
4. The will was not signed by decedent.

The case was alternately fixed for trial on December 6, 1976, December 10, 1976, February 17, 1977 (later rescinded by order), December 17, 1976, and January 20, 1977. For the hearing on December 17, 1976, neither plaintiff nor his attorney showed up in court, and the court allowed the defendant to present its evidence, and after hearing the evidence, the court dismissed plaintiff’s attack of decedent’s will.

On January 20,1977, after counsel for the succession agreed and consented to granting a new trial, and after introduction of testimony, the court again denied the opposition to the will of decedent and ordered all proceedings dismissed at plaintiff’s costs. A devolutive appeal was then filed in this Court.

On appeal, plaintiff changed his specifications of error somewhat, and we shall therefore discuss each of his specifications of error on appeal.

SPECIFICATION OF ERROR NO. 1

Appellant contends that the trial court erred in ignoring the testimony of the “expert witness who testified that the handwriting on the will and of samples submitted to him which were samples of the decedent’s handwriting were not the same, and accepting instead lay testimony”.

There is no testimony of the “expert witness”. The stipulation of counsel for appellant and counsel for appellees, in open court during the trial on January 20, 1977, was that one Cy Courtney, a handwriting expert, if called to testify by plaintiff, would testify that he examined some signatures of John B. Talley made prior to February 15, 1975, and his signature on his last will and testament dated January 20, 1976, and based on these examinations, he would conclude that the signature on the will was not similar, and that he had not examined decedent’s signature in the St. Martin Bank and Trust Company bank box on January 20, 1976, which had been signed by decedent; had not examined documents signed by decedent filed in the proceedings; and that he did not know that decedent had trouble with his handwriting beginning in November of 1975. In November of 1975, decedent John B. Talley sustained a stroke which partially paralyzed his right hand and affected his writing and his signing his name. Inasmuch as the expert witness had not seen decedent’s signature since he suffered a disabling stroke, the trial court could properly conclude that the handwriting expert’s testimony could only be of minimal probative value.

We point out, further, that the notary and the two witnesses who were present at the time of the signing of the will all testified that they were present at the time of, and witnessed, the signing of this will by the decedent. One of these witnesses was cross-examined by counsel for appellant in his presence, and the other two witnesses were available for cross-examination. Testimony of an eyewitness as to the facts prevails over the disputed testimony of experts which is based on comparison and is only an opinion. Testimony of experts must yield to that of one who has actually seen the signature affixed to the document. State, Dept. of Hwys. v. Moity, 276 So.2d 770 (La.App. 3 Cir. 1973). We are of the opinion, therefore, that this specification of error by appellant is without merit.

SPECIFICATION OF ERROR NO. 2

Appellant next contends that the trial court erred in proceeding with the hearing on December 17,1976, when neither plaintiff nor his attorney were present in court. The record shows that notice was sent to counsel for appellant by the Clerk of Court notifying him of the trial date. Be that as it may, however, counsel for appel-lee, on January 17, 1977, while appellant and his counsel were present in court, consented to a new trial of the case which began on that day, and continued to January 20, 1977, to allow appellant to get his witnesses to come and testify in his behalf. In open court it was announced that appellant had only three witnesses to testify: (1) himself, (2) a doctor from Lafayette, and (3) Cy Courtney, a handwriting expert. Appellant did testify himself, and had the opportunity to bring his other witnesses to testify. Appellant was granted the opportunity to present the handwriting expert and his doctor witness, and such additional evidence and/or rebuttal evidence desired. The testimony of the expert witness was stipulated to, as hereinabove mentioned, and no doctor was ever brought to testify on behalf of appellant. We find no merit in appellant’s specification of error in this contention.

SPECIFICATION OF ERROR NO. 3

Appellant assigns as another specification of error of the lower court, its acceptance of the testimony of Willis Talley regarding a sale and contract entered into by the decedent in January, 1976, alleging that the testimony of Willis Talley in court and in the interrogatories was different. We find no merit in this specification of error. There is no evidence whatsoever in the record that decedent was mentally or physically incapable of making a last will and testament on the date that he did, or at any other time until his death. Therefore the testimony of Willis Talley regarding a sale and contract entered into by the decedent in January, 1976, would be superfluous.

SPECIFICATION OF ERROR NO. 4

As his last assignment of error, appellant urges that the trial court gave too much weight to testimony taken at the hearing of December 17,1976, at which plaintiff-appellant was absent and also unrepresented by counsel. We note that at the hearing on January 20, 1977, appellant had the opportunity to call any witness he desired and to cross-examine any witness who had previously testified, and also to cross-examine all witnesses who testified for appellees on that date. We therefore find no merit in appellant’s last specification or error.

Appellant, representing himself at oral argument, made a valiant plea for a remand of the matter to the district court for further proceedings, so that he could “have his day in court”. We have examined the will and find that it is a statutory will which meets the requirements of LSA-R.S. 9:2442, and having thus concluded, and having disposed of the other specifications of error urged by appellant, we find that there is nothing to be gained by a remand for further proceedings.

Accordingly, we affirm the judgment of the trial court.

All costs of this appeal are assessed against plaintiff-appellant, Dennis Talley.

AFFIRMED.