text:
    CITY OF SHREVEPORT, Plaintiff-Appellee, v. Rayburn E. THOMAS, Defendant-Appellant.
    No. 13395.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.

      Skeels, Baker & Coleman by Donald L. Baker, Shreveport, for defendant-appellant.
    Roland J. Achee, Tommy K. Cryer, John Gallagher, Neil Dixon, James R. Malsch, Shreveport, for City of Shreveport.
    Before BOLIN, MARVJN and JONES, JJ.
   JONES, Judge.

Defendant appeals from a judgment enjoining him from operating a child day care center on Amelia Street in violation of plaintiffs zoning ordinance which zones defendant’s location as residential. The trial court rejected defendant’s plea of two years prescription because of his representations to his neighbors and to the city that his location on Amelia was temporary. The trial court further held defendant estopped from urging the prescriptive plea because of his failure to promptly advise the city when he changed his mind and decided to remain permanently on Amelia Street. LSA-R.S. 9:5625. We affirm.

Defendant has owned and operated a day care center in the area for approximately ten years. Prior to February, 1972, defendant’s business was located in an area zoned commercial on Jewella Road. In early 1972 plaintiff purchased a portion of defendant’s Jewella Road property for street improvement. Following defendant’s sale he planned the construction of a new day care center on his remaining property located on Jewella. Defendant could not commence construction of the new building until plaintiff substantially completed the road work adjacent to defendant’s property.

Defendant acquired a temporary location for his center on Amelia Street in an area zoned residential. To facilitate the move the city aided defendant in his relocation by moving the playground equipment' to his temporary location. The city and defendant agreed the Amelia Street location was temporary and defendant would cease operating the center on Amelia and return to Jewella when the street project was substantially completed. Defendant believed he would be able to commence construction on his new building by summer, 1972. The Jewella Road project was not completed by the city until the summer of 1975, approximately 3V2 years after defendant moved his business to Amelia Street.

Between February, 1972 and summer, 1974, defendant acknowledged to plaintiff, his Amelia Street neighbors and the public that the location of the center on Amelia was temporary. In July, 1975, one of defendant’s Amelia Street neighbors wrote a complaint letter to plaintiff asking why defendant had not been forced to move his center to Jewella since the street project was completed. Plaintiff’s zoning administrator, in response to the neighbor’s letter, wrote defendant on October 2 he was to commence construction of the building on Jewella as soon as possible. On October 15, defendant filed an application for a special exception permit to the residential zoning of his Amelia Street property. This application was the first indication to plaintiff that defendant intended to remain permanently not temporarily on Amelia Street.

The special exception permit for the day care center on Amelia Street was granted by the Zoning Board of Appeals, but subsequently denied by the City Council of Shreveport following appeal by the defendant’s neighbors. The council allowed defendant 90 days to submit plans for the new day care center on Jewella. Following defendant’s failure to submit plans for the new location plaintiff filed suit on September 9, 1976.

The only issue is has plaintiff’s cause of action to enjoin defendant’s operation of the day care center on Amelia in an area zoned residential prescribed by defendant having operated the center continuously since the Spring, 1972? LSA-R.S. 9:5625 provides an action by the city to enforce compliance with a zoning restriction must be brought within two years from the first act constituting the commission of the violation. The defendant has acknowledged on numerous occasions between February, 1972 and Summer, 1974 (see footnote 2 for acts of interruption) that he was only temporarily operating the day care center on Amelia Street and he intended to permanently move the center to its original location on Jewella when the city completed road work adjacent to the Jewella location. These acknowledgements, which consisted of firm declarations not to permanently violate plaintiff’s zoning regulations, interrupted the running of the two year prescription. See C.C. Art. 3520; Maddox v. Vanlangendonck, 334 So.2d 739 (La.App., 3d Cir. 1976); Camus v. Rittiner, 209 So.2d 155 (La.App., 4th Cir. 1968) and Industrial Lumber Company v. Greer, 170 So.2d 408 (La.App., 3d Cir. 1965).

Under these particular facts and circumstances, defendant recognized plaintiff’s right to enjoin him from violation of the residential zoning and further represented to plaintiff and his neighbors such action to enjoin was unnecessary because the location was temporary.

The evidence established defendant’s representations from February, 1972 to Summer, 1974 that the care day care center was temporarily located on Amelia were made in good faith. In January, 1975 defendant decided it was no longer feasible for him to build a new center on Jewella because of increased building costs due to inflation and new fire code requirements. For this reason he decided to permanently retain his day care operation on Amelia. He failed to notify his neighbors or plaintiff of his decision to permanently operate his day care center on Amelia in violation of the zoning ordinance.

While defendant’s numerous representations to his neighbors and plaintiff of the temporary status of his Amelia Street operation were all made in good faith, once he decided the location was permanent, he was under a duty to immediately disclose his change of plans to his neighbors and plaintiff. His failure to do so had the effect of making his former representations of “temporariness” misrepresentations. This inaction on the part of defendant was in bad faith and fraudulently led his neighbors and plaintiff to believe defendant continued in his intention to remove the day care center to Jewella at his earliest opportunity. Defendant’s inaction caused his neighbors and plaintiff to continue to refrain from enforcing the zoning restriction by injunction.

While prescription commenced to run following plaintiff’s last declaration of intention to remove the day care center to Jewella in Summer, 1974, and had run for a period of approximately six months as of January, 1975, same was suspended by defendant’s failure to disclose his decision in January to remain permanently on Amelia. Williams v. Red Barn Chemicals, Inc., 188 So.2d 78 (La.App., 1st Cir. 1966); Tassin v. Allstate Insurance Company, 310 So.2d 680 (La.App., 4th Cir. 1975). The suspension of prescription remained in effect until defendant first advised plaintiff of his intention to remain permanently on Amelia by filing an application for special exception permit dated October 17, 1975, with the zoning administrator. This permit would give defendant the right to permanently operate the day care center in the area zoned residential. Following this October disclosure the suspension of prescription terminated and the remaining eighteen months of the prescriptive period commenced to run. Eleven months later, plaintiff filed suit on September 9, 1976, some seven months before plaintiff’s action would have prescribed.

For reasons assigned, the judgment is affirmed at defendant’s cost.

      . “A. All actions civil or criminal, created by statute, ordinance or otherwise, except those actions created for the purpose of amortization or nonconforming signs and billboards enacted in conformity with the provisions of R.S. 33:4722, which may be brought by parishes, municipalities or their instrumentalities or by any person, firm or corporation to require enforcement of and compliance with any zoning restriction, building restriction or subdivision regulation, imposed by any parish, municipality or their instrumentalities, and based upon the violation by any person, firm or corporation of such restriction or regulation, must be brought within two years from the first act constituting the commission of the violation; . , .

      . ACKNOWLEDGEMENTS OF DEFENDANT OF TEMPORARY STATUS OF AMELIA STREET LOCATION:
      (a) Defendant hired a contractor to draw plans and construct the new center on Jewella; in July, 1972, defendant applied for but was refused a building permit for the new building because the old construction had not been torn down; (b) in April, 1973, defendant applied for a temporary building permit which was granted in June only after a city official advised the zoning administrator, who favored denial of the permit, to grant same because the location of the center was temporary; (c) in May, 1973 defendant assured at least two neighbors the location was temporary; one neighbor testified he was assured of the temporary status on numerous occasions. Both testified they would have sought to enjoin defendant initially had he not been so convincing as to the center’s temporary status; (d) in a letter to the city dated May 15, 1973, defendant again acknowledged the temporary status of the Amelia center and his intent to build on Jewella; (e) in June, 1973, while defendant was constructing a temporary classroom on skids, Mrs. M. E. Mitchell, a neighbor, strongly complained to city officials about the zoning violation. Following this complaint defendant, in order to placate the complainant, persuasively assured her the child care location was only temporary and the reason the building was constructed on skids was to facilitate its easy removal to the permanent day care center on Jewella; (f) defendant erected a sign on the Jewella property shortly after his move which read “SITE OF NEW BUILDING, HAPPY DAY NURSERY (with sketch of building). VISIT OUR TEMPORARY LOCATION 2401 AMELIA AVENUE”; this sign remained on the property two years until removed by defendant in the summer of 1974.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Winifred Leshe MADDEN, Plaintiff-Appellant, v. Reid R. MADDEN, III, Defendant-Appellee.
    No. 13396.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.

      Bethard & Davis by Henry W. Bethard, III, Coushatta, for plaintiff-appellant.
    Whitehead & McCoy by C. R. Whitehead, Jr., Natchitoches, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

This appeal is from a judgment sustaining a peremptory exception of one-year prescription filed by defendant and dismissing this suit to recover the value of personal belongings allegedly “wrongfully confiscated” by the defendant.

Appellant’s principal specification of error is that this action is governed by the ten-year prescriptive period for personal actions provided in LSA-C.C. Art. 3544 because the cause of action arises out of a breach of a quasi contractual relationship under negotiorum gestio or a contractual relationship of lease or usufruct.

After defendant’s elderly mother, who had lived in the house owned by defendant rent free for over 20 years, became ill and began to live with her daughter and later in a nursing home, defendant boarded up the house in order to protect the house and its contents. Defendant later removed the mother’s personal belongings, most of which were old, worn and worthless, burning some of the belongings, giving some away and keeping some himself. Defendant’s actions took place more than a year prior to the filing of this suit.

Dealing with appellant’s specification of error, there is no evidence in the record to support the existence of a lease agreement between the mother and defendant or that a right of usufruct was ever established by defendant in the mother’s favor. Likewise, there is no indication that defendant ever took upon himself the management of his mother’s affairs in such a manner as to give rise to the quasi contractual relationship of negotiorum gestio under LSA-C.C. Art. 2295. His actions in boarding up the windows of the house and disposing of the contents were acts consistent with his ownership of the house and management of his own affairs. The claim for damages does not spring from any right the mother had to the house, but rather from her ownership of the movables within the house and defendant’s conduct with respect to those items.

The common law tort of conversion — a distinct act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s right therein — has been recognized by Louisiana courts for over a century as an offense or quasi offense under LSA-C.C. Art. 2315. Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (1957); Deshotels v. Statewide Trailer Sales, 333 So.2d 259 (La.App. 1st Cir. 1976); Lincecum v. Smith, 287 So.2d 625 (La.App. 3d Cir. 1973), writ refused 290 So.2d 904 (La.1974), and cases cited therein. See and compare A. N. Yiannopoulas, Real Actions in Louisiana and Comparative Law, 25 La.L.Rev. 589 at pp. 645-667.

We hold that the cause of action asserted in this case is delictual under LSA-C.C. Art. 2315 and is prescribed by one year under LSA-C.C. Art. 3536. The trial court correctly sustained the defendant’s peremptory exception of prescription and we affirm, at appellant’s costs.

Affirmed.


author: PRICE, Judge.

text:
    William Earl TINGLE, Plaintiff-Appellant, v. BUSINESS MEN’S ASSURANCE COMPANY OF AMERICA, Defendant-Appellee.
    No. 13397.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    Bethard & Davis by Henry W. Bethard, III, Coushatta, for appellant.

      Goff, Goff & Levy by A. K. Goff, III, Ruston, for appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

William Earl Tingle brought this suit against Business Men’s Assurance Company of America for penalties and attorney fees for the alleged failure of defendant to pay timely two claims filed by plaintiff under a hospital insurance policy. Defendant paid the full amount of the claims prior to suit being filed, but beyond the thirty-day period provided in the penalty statute for health and accident policies, La.R.S. 22:657.

The claims were made for hospital costs incurred in treatment of plaintiff’s wife on February 12 through 14, 1976, and from March 21 through 29, 1976.

The trial court awarded penalties equal to the claim of $436.92 for the first confinement and attorney fees of $750. Plaintiff’s demand for penalties and attorney fees on the second confinement was rejected.

Plaintiff has appealed asking for an increase in the amount of penalties and attorney fees. Defendant answered the appeal requesting the reversal of the judgment awarding any penalty or attorney fees. We find no error and' affirm.

The issues presented are: 1) Whether defendant has shown it was in good faith in failing to pay the claims within the thirty-day period prescribed by the statute; 2) Whether attorney fees may be awarded where payment of the claim was made prior to filing of suit even though it was not within the thirty-day period.

The proof of claim form furnished to plaintiff in connection with the first confinement of February 12 through February 14 was received by defendant on March 23, 1976. Proof of the second confinement of March 21 through March 29 was received by defendant on April 2, 1976. Payment of both claims was mailed by defendant on May 28, 1976. Defendant contends it was in good faith in not paying the claims within the statutory period of thirty days for two principal reasons. First, the policy of insurance was issued as a group policy to persons employed only in the dairy industry and in plaintiff’s proof of loss he is shown to be employed as a “mud logger” (an oil industry employee). Therefore, defendant contends it was necessary to determine if he was properly covered under the policy issued to him. Secondly, as the policy was within the contestable period, it was necessary to obtain further medical information to determine whether the illness causing plaintiff’s wife’s second confinement might have preexisted the issuance of the policy.

We find no merit to defendant’s first contention. There is no provision in the policy issued to plaintiff which would give defendant the right to refuse payment if plaintiff were not in fact a dairyman. Defendant’s sole right in such an instance would be to refuse to renew the policy at the end of the one-year term. In any event, defendant made no investigation in regard to plaintiff’s employment other than to ask plaintiff’s lawyer who advised that plaintiff was employed part time in dairying.

The trial judge found defendant was in good faith in failing to pay the claim for the March 21 hospitalization of Mrs. Tingle within thirty days after receipt of the initial proof of loss as defendant was justified in requiring further medical records to determine if the illness for which she was being treated did not originate prior to the issuance of the policy. Plaintiff contends this finding is in error, and prays for penalties and attorney fees to be awarded on this claim.

The evidence shows defendant did not receive complete information in regard to the second hospital confinement until May 21. We do not find that the delay in obtaining the complete medical records was due to any fault on defendant’s part. Payment of this claim was made within five days of receipt of this information. Therefore, the trial court was correct in denying penalties and attorney fees on this claim.

The defendant contends judgment should not have been awarded for any attorney fees as the statute only intends such an award to assist an insured in collecting a claim under the policy and not in an attempt to recover penalties where payment was made prior to the filing of suit. As authority for this position defendant relies on Colvin v. Louisiana, Hospital Service, Inc., 321 So.2d 416 (La.App. 2d Cir. 1975). We do not interpret Colvin as holding that in every instance where payment is made of the primary claim prior to suit being filed that attorney fees may not be imposed against the insurer. In Colvin the court found under the circumstances it was not necessary to file suit for the substantial portion of the claim, and therefore, denied an award of attorney fees in that instance.

The statute provides that the failure to comply with its provisions entitles an insured to the specified penalties, “together with attorney’s, fees to be determined by the court.”

The intent of the statute is to allow an insured to recover attorney fees when it is necessary to employ an attorney to obtain accrued penalties as well as policy proceeds. We therefore find no error in the trial court’s awarding of attorney fees under the circumstances and’ no abuse of discretion in determining the amount for this purpose.

The judgment is affirmed at appellant’s cost.


author: MARVIN, Judge.

text:
    Wendell P. SHELTON, Plaintiff-Appellee, v. Gary L. SHELTON, Defendant-Appellant.
    No. 13398.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    Blackwell, Chambliss, Hobbs & Henry by Sam 0. Henry, III, West Monroe, for defendant-appellant.
    Voelker, Ragland, Brackin & Crigler by James C. Crigler, Jr., Lake Providence, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

The defendant appeals from a judgment ordering specific performance of his verbal obligation to incorporate a business with his brother, the plaintiff. The issues are factual. They were resolved below in favor of plaintiff and we find no manifest error.

In summary, defendant desired to purchase and operate the Office Lounge in Monroe, the owner of which required a $15,-000 down payment. Defendant was unable to borrow the down payment without a guarantor. Plaintiff agreed to personally guarantee the bank loan for the down payment on the conditions that the business be incorporated with plaintiff and his wife owning 25 percent of the corporate stock and defendant and his wife owning the remainder and that these four persons would comprise the board of directors of the corporation.

Defendant contends he never agreed to the exact terms and specifics under which the business would be incorporated. Finding otherwise, the lower court observed:

“Testimony shows that the parties had agreed that the corporation would be controlled by a board of four directors composed of themselves and their wives . The proposed Articles . . . were presented to [defendant] and his wife at . 11:00 a.m. . “It was agreed that these were to be examined and signed that same afternoon at . 4:00 p.m. in the lawyer’s office in Monroe. . . . [Defendant] then proceeded to obtain [plaintiff’s] obligation to secure the . . . indebtedness. . . . [A]round 3:30 p.m., [defendant] did not question the terms or the contents of the Articles of Incorporation; instead, he insisted he was now ‘in the driver’s seat’ and . . . was not obligated to incorporate under any terms whatsoever if he did not care to do so.”

The record supports the conclusions of the lower court. Under these circumstances, the assets of the Office Lounge, acquired individually by the defendant from the seller, are legally deemed to be the property of the corporation. Sentell v. Richardson, 211 La. 288, 29 So.2d 852 (1947). Answering defendant’s appeal, plaintiff contends the judgment should be amended to order specific performance under this principle of law. We agree. Other portions of the judgment, which ordered plaintiff to cosign the note representing the credit portion of the sale price of the lounge in further performance of the verbal agreement between the litigants, were not complained of by either litigant.

Accordingly, judgment is amended to order defendant to execute all instruments necessary to transfer legal title to the corporation of all assets conveyed to the defendant individually by the credit sale, and at appellant’s cost, the judgment, as amended, is

AFFIRMED.


text:
    Dudley Ray COBB, Plaintiff-Appellant, v. Dorsey Edward BETTS, F-S Prestress, Inc., Structural Concrete Erectors, Inc. and Home Insurance Company, Defendants-Appellees.
    No. 13399.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.

      Wilson & Veatch by Thomas A. Wilson, Jr., Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Shreveport, for defendants-appellees.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff, Dudley Ray Cobb, appeals from a judgment in favor of defendant, Dorsey Edward Betts, his employer, and their liability insurer. The trial judge rejected plaintiff’s claims for damages arising out of a highway accident on a finding that the accident was unavoidable and the defendant was not negligent. We affirm.

This suit involves a rear-end collision which occurred in the early evening on Highway 157, a two-lane blacktop road in Bossier Parish. It was raining and dark at the time of the accident. Cobb was following another vehicle driven by A. W. Perry-man. Just after the two vehicles came over the crest of a small hill Perryman stopped suddenly to avoid hitting a large black dog which darted across the highway. The Cobb vehicle was able to stop about a car length behind the Perryman vehicle. Betts came over the hill at about 35 miles per hour and, observing Cobb’s pickup truck stopped or stopping in his lane of travel an estimated 100 to 150 feet from the top of the hill, applied his brakes. His pickup truck skidded into the back of the Cobb pickup truck. The impact was slight causing minor damage to the bumper and the brace behind it. Plaintiff sustained a whiplash-type injury.

Plaintiff raises as error the trial court’s failure to find that defendant was in violation of LSA-R.S. 32:81 which provides that a driver shall not follow another vehicle more closely than is reasonable and prudent having due regard for the speed of such vehicle and the traffic upon and the condition of the highway. Plaintiff claims violation of the statute is negligence per se. Plaintiff also claims that the defendant failed to exculpate himself from the presumption of negligence on the part of the following driver which arises in rear-end collisions and that under the prevailing circumstances defendant’s conduct was negligent.

The findings of the trial court that defendant was not traveling at an excessive rate of speed, that defendant was not following too closely behind the plaintiff under the existing circumstances, that the accident was unavoidable, and that there was no negligence on the part of the defendant are amply supported by the evidence.

Defendant was traveling at a reasonable rate of speed. The evidence does not establish that he was following too closely in violation of the statute. Although plaintiff and his passenger testified they saw the lights of defendant’s vehicle behind them as they traveled along the highway, neither testified as to the distance between their vehicle and defendant’s vehicle. The small hill momentarily blocked defendant’s view of the road ahead. Defendant was unable to see the events transpiring in front of him until he got to the top of the rise, at which point there was not sufficient distance for him to stop even under dry conditions. He could not instantly determine whether there was oncoming traffic and there was only a narrow shoulder along the road. Defendant forcefully applied his brakes and almost came to a stop before hitting the plaintiff’s truck, taking the only reasonable action available to him in the face of the sudden emergency. Defendant successfully rebutted the inference of negligence on his part. Grinnel Mutual Reinsurance Company v. Rich, 251 So.2d 450 (La.App. 1st Cir. 1971) writ refused 259 La. 898, 253 So.2d 222 (1971); Taylor v. Genuine Parts Company, 192 So.2d 241 (La.App. 4th Cir. 1966) writs refused 250 La. 23, 193 So.3d 530 (1967).

This case is distinguishable from the cases cited by plaintiff in which the lead vehicle or vehicles made sudden stops in plain view of a following vehicle which was following too closely to avoid a rear-end collision.

The judgment is affirmed at appellant’s costs.

Affirmed.


text:
    Wyett NICHOLS et ux., Plaintiffs-Appellants, v. Walter T. PIPES et al., Defendants-Appellees.
    No. 13400.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.
    Writ Refused Feb. 24, 1978.

      Joel M. Sermons, Shreveport, for plaintiffs-appellants.
    Peters, Ward & Miller by Hugh T. Ward, Shreveport, for defendant-appellee American Bank & Trust Co.
    Donald R. Miller, Shreveport, for defendant-appellee Walter T. Pipes.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

Plaintiffs, Mr. and Mrs. Wyett Nichols, have appealed the judgment sustaining an exception of prematurity on behalf of American Bank and Trust Co. in the suit brought by plaintiffs against the bank and Walter T. Pipes to collect the credit portion of a sales contract allegedly guaranteed by the bank.

Prior to the execution of the agreements sued on, plaintiffs were the owners of the shares of stock of Nichols Roofing and Metal Works, Inc., located in Shreveport. On July 9, 1974, they signed a written agreement to sell Pipes all of the stock of the corporation. The agreement provided for Pipes to pay $50,000 as a down payment and for the balance of $300,000 to be paid in eighty-three monthly installments. The agreement to sell was conditioned on the credit balance being guaranteed by the bank. On July 12,1974, a formal act of sale and transfer of the stock was executed which adopted by reference all of the terms of the agreement to sell. On August 1, 1974, an instrument was executed by the bank, Nichols Roofing and Metal Works, Inc., and plaintiffs acknowledging that the bank had agreed to lend Pipes the necessary funds to purchase the Nichols stock and to guarantee the credit balance owed to plaintiffs by Pipes. The agreement provided that “. . . beginning August 15, 1974, and on the 15th of each month subsequent thereto, until the $300,000 is paid to Seller (plaintiffs), the payment due shall be deducted from the account of Borrower (Nichols Roofing and Metal Works, Inc.), and deposited by Lender (bank) to the account of Seller. In the event there are not sufficient funds in Borrower’s account to make the monthly payment, then Lender, as guarantor of the sales price to be paid to Seller, shall contribute the necessary amount to make the total monthly payment.” (parentheses added)

Plaintiffs filed suit in January 1977 against Pipes and the bank alleging that payments due for October, November, and December 1976 were not made and remained unpaid after formal demand on both parties.

The bank filed an exception of prematurity alleging it had been sued as a “surety” under the loan agreement, and since the agreement did not bind it in solido with the principal debtor, plaintiffs must exhaust their remedies against the primary'debtor, Pipes, before calling on it as a surety.

The trial court sustained the exception and dismissed the suit against the bank without prejudice for substantially the same reasons set forth in the allegations of the bank’s exception.

The sustaining of the exception is in error, and we reverse for the reasons assigned.

In so far as the issue of prematurity is concerned, it is immaterial whether the guaranty agreement of the bank is a primary or secondary obligation. A creditor can always join a surety with the principal debtor and obtain judgment against both. The law merely allows the surety who has retained the benefit of discussion to demand that execution of the judgment first be made against the property of the primary debtor. See C.C. Art. 3051 and C.C.P. 5151-5156.

The reasons for prematurity alleged in the bank’s pleading in the trial court are therefore without merit.

In brief and oral argument to this court the bank projects an additional basis for sustaining the exception of prematurity. It contends the guaranty provided by the subject agreement was conditional, and that plaintiffs have not alleged that the conditions precedent necessary to activate the obligation have occurred. The portion of the agreement relied on for this position is as follows:

3. In consideration of said advance to BORROWER by LENDER, and in further consideration of LENDER extending a line of credit to BORROWER and guaranteeing payment of the balance due SELLER in said stock transaction, BORROWER agrees as follows:
(a) To procure a permanent loan acceptable to BORROWER and LENDER in an amount not less than eighty thousand and no/100 ($80,000.00) dollars and escrow said funds with LENDER at an interest rate equal to the prevailing rate for certificates of deposit of like amounts, payable to BORROWER;
(b) to promptly pay to SELLER all installments on said $300,000.00 debt due SELLER as they come due, * * *
(c) to grant LENDER a real estate collateral mortgage on all real property owned by BORROWER to secure LENDER on advances made to BORROWER prior to procurement by BORROWER of said permanent loan;
(d) to grant LENDER a collateral chattel mortgage on all equipment and inventory owned by BORROWER;
(e) to grant LENDER a pledge of all outstanding shares of stock in BORROWER;
(f) to grant LENDER an assignment of accounts receivable due BORROWER, in accordance with L.S.A.-R.S. 9:3101.

We do not construe the requirements set forth to be met by the borrower under paragraph 3 above to create conditions precedent as to the obligation of guaranty flowing from the bank to plaintiffs. These requirements relate solely between the bank, the borrower, and its guarantors, Pipes and Joe G. Huffman. Therefore, these conditions have no effect on plaintiffs’ right to proceed against the bank in this action.

The judgment sustaining the exception of prematurity is reversed, and this suit is remanded to the district court for further proceedings consistent with the views expressed herein and in accord with law.

Costs of this appeal are assessed to appel-lee. All other costs are to await final determination of this cause.


text:
    Tony L. RICHARD, Plaintiff-Appellant, v. CITY OF SHREVEPORT, Louisiana, Defendant-Appellee.
    No. 13401.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.

      Freeman & Hall by J. Stacey Freeman, Shreveport, for plaintiff-appellant.
    James R. Malsch, Asst. City Atty., Shreveport, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff, Tony L. Richard, appeals from rejection of his demand against the City of Shreveport for damages sustained when he lost control of his motorcycle allegedly because of the presence of transmission fluid left on the street by a city policeman after the policeman had car trouble.

The issue on appeal is whether .the trial court manifestly erred in finding plaintiff failed to prove the accident was caused by the presence of the slick oily substance on the street.

Plaintiff, Richard, and a passenger, Benny Lynn Bowden, were riding plaintiff’s motorcycle south on the two-lane portion of Jewella Avenue in the City of Shreveport when the motorcycle suddenly skidded out of control at a point just prior to where the two-lane blacktop portion of the street widens to a four-lane concrete street. Plaintiff suffered serious injuries. Plaintiff and his guest passenger were the only eyewitnesses to the accident.

Approximately 30 to 45 minutes prior to the accident a police car driven by Sergeant Edward H. Power of the Shreveport City Police lost its drive shaft and dumped a quantity of transmission fluid onto the blacktop in the area where plaintiff lost control of his motorcycle. Sergeant Power testified he requested a sand truck to clean up the fluid but this was not done prior to the accident. He also stated that while waiting to be taken back to the police station he watched ears driving over the spill and spreading it out or dissipating it over the road surface.

Power, who investigated the motorcycle accident, testified there was loose gravel on the roadside and tire tracks indicating the motorcycle traveled through that area. The City postulates the loose gravel and excessive speed caused the plaintiff to lose control. Plaintiff testified he was driving in the right lane near the center of the street within the posted speed limit of 35 miles per hour.

Plaintiff called two experienced motorcyclists who testified that oil or grease slicks are of particular danger to motorcyclists because the rear wheel does the pulling on a motorcycle. Their testimony describing the reaction of a motorcycle when going over a grease or oil spill corroborates the testimony of Richard and Bowden as to the way the accident actually happened.

Bowden testified he went back to the scene of the accident a couple of hours later and saw a dark area where the transmission fluid had been. Plaintiff testified he saw an oily substance on his tire a week or so after the accident.

The entire case rests on reconstruction of what was the probable cause of the accident based upon circumstantial evidence.

The trial judge found as a fact that the fluid spill had been dissipated sufficiently by the passage of cars during the 30 or 40 minute interval to render the spill no longer hazardous and that plaintiff failed to prove that he lost control of his motorcycle at the point where the fluid spill occurred. He determinéd that the motorcycle accident was caused by plaintiff’s own negligence in losing control of his motorcycle rather than the presence on the street of transmission fluid from one of defendant’s police cars.

In spite of strong arguments by the plaintiff to the contrary and although reasonable minds could differ as to the cause of the accident, there is sufficient evidence to furnish a reasonable factual basis for the trial court’s findings. Canter v. Koehring, 283 So.2d 716 (La.1973). The judgment is affirmed at appellant’s costs.

Affirmed.


author: BOLIN, Judge.

text:
    Thomas P. MOORE, Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees.
    No. 13403.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendants-appellees.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

Plaintiff sues for damages for personal injuries resulting from a head-on collision between his pickup truck and a winch truck driven by one of the defendants. The accident occurred in plaintiff’s lane of travel. The trial court rejected plaintiff’s demands on finding defendant’s winch truck was within a barricaded construction zone when struck by plaintiff’s vehicle. Contesting primarily this factual finding, plaintiff appeals. We affirm.

Defendant construction company was laying telephone cable on the north side of a two-lane country road running east and west. The winch truck was being used to extricate a trenching machine which was bogged down in the ditch by the side of the road. At a distance of 400 to 500 feet east of the work site, company employees had blocked the westbound lane with a sawhorse barricade and had positioned several orange construction cones at intervals on the road’s centerline between the sawhorse and the construction site. At the time of the accident there was construction equipment in the area other than the trenching machine and the winch truck.

As plaintiff was driving west on a clear afternoon he crested a.hill about 1,000 feet east of a small bridge. His visibility was unobstructed from the crest of the hill to the bridge. Cognizant of the. sawhorse blocking his lane of travel, as well as the winch truck beyond the bridge ahead, he slowed his pickup and proceeded around the barricade into the eastbound lane. Thinking he had passed the protected construction zone, plaintiff drove his vehicle back into the westbound lane before reaching the bridge. Shortly thereafter his vehicle struck defendant’s truck, which was moving slowly east in the westbound lane to get into position to attach its winch cable to the trencher. The headon impact occurred at the west end of the short bridge. There were no eyewitnesses other than the drivers of the vehicles involved.

After reviewing the testimony of the two drivers and a deputy sheriff who investigated the accident, the trial judge found plaintiff drove his vehicle back into the westbound lane before the protected area ended; that this action constituted negligence which contributed to the accident and prevented plaintiff’s recovery. Since this finding is amply supported by the record, we will not disturb it on appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Plaintiff argues the trial court failed to apply the rule that when a collision occurs between two vehicles, one of which is in the wrong lane of travel, the driver of that vehicle is presumed to be negligent. Simon v. Ford Motor Company, 282 So.2d 126 (La.1973). We hold this rule inapplicable to this case since defendant was driving within a protected construction zone when the collision occurred.

The judgment is affirmed at plaintiff’s cost.


text:
    McVicker M. COLEMAN, Zenobia Coleman Hart and Helen Marie Bailey, Plaintiffs-Appellees, v. Irene HENDERSON, Defendant-Appellant.
    No. 13405.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.

      John M. Stewart, Arcadia, for defendant-appellant.
    Goff, Caskey, Butler & Davis by H. Rus•sell Davis, Arcadia, for plaintiffs-appellees.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

In this action plaintiffs, McVicker M. Coleman and his sister, Zenobia Coleman Hart, their vendee, Helen Marie Bailey (originally named as a defendant but now aligned as a plaintiff), and defendant, Irene Henderson, seek to establish the boundaries between their respective properties. Plaintiffs’ claims are based on title and defendant’s claim is based on possession. From a judgment generally in favor of plaintiffs, defendant appeals. For reasons expressed in this opinion we modify the judgment of the district court and establish the boundaries as claimed by defendant on a finding that defendant and her ancestors in title possessed the property claimed by defendant within visible boundaries for a period of more than 30 years.

In 1907, plaintiffs’ father acquired a 10-acre tract described as the East half of the North half of Northwest quarter of Northwest quarter of Section Twenty three (23) Township Eighteen (18) North, Range Seven (7) West, Bienville Parish, Louisiana. By deed dated in 1913 and recorded in 1914, plaintiffs’ father sold to defendant’s father “Lots Twenty one (21) and Twenty two (22) in Block Three (3) in Stewartville a newly opened annex to the town of Gibsland in Bienville Parish, Louisiana.” There is no recorded plat of Stewartville and, therefore, the location and quantity of land intended to be conveyed to and acquired by defendant’s father cannot be determined from the records. From 1913 or 1914 defendant’s father and his family lived in a house located on the 10-acre tract and he farmed a portion of the land around the house until his death in 1943. Defendant and one or more of her brothers continued to live in the house and to work the land until 1957. A few cows were pastured on the property until the early 1960’s, after which defendant continued to live on the property but the land was not worked. It was the understanding of the Henderson family that they owned a 2-acre tract.

In 1971, plaintiffs sold to Bailey a 156 by 156 foot lot in the northwest corner of the 10-acre tract. Defendant’s brothers and sister sold their interest in the property to her in 1974. In 1975, defendant had the land surveyed for “a 2-acre tract” and fenced in the 2-acre tract, enclosing the tract deeded to Bailey. Plaintiffs then filed this suit.

The parties stipulated that defendant’s tract of land is located within the 10-acre tract and that its boundaries should be determined based upon the extent, nature and duration of possession exercised by defendant and her ancestors in title. The parties further agreed that a survey prepared by Robert E. Jones & Associates dated May 9, 1977, correctly showed various landmarks on the property and that the sole issue at trial would be the determination of boundaries based on defendant’s possession.

Essentially, it is defendant’s position that her father and then her brothers and herself exercised possession over an approximately 2-acre tract in the northwest corner of the 10-acre tract for more than 30 years by living on the property and by farming it between visible boundaries consisting of a fence and street on the north, a fence on the east, a terrace row, Mimosa tree' and rock piles on the south, and a ditch and old fence on the west, encompassing the tract sold to Bailey. It is plaintiffs’ position that defendant’s possession to the west and south extended only to an old pasture fence, which would not include the tract sold to Bailey. The trial court, in oral reasons for judgment expressed at the conclusion of the trial, held that the pasture fence was the best evidence of defendant’s possession, although acknowledging that defendant or her father had farmed the property west of the fence to the drain. The trial court set defendant’s west boundary as the pasture fence but, based on “equity”, fixed the southern boundary beyond the pasture fence at the old terrace row.

Fences are not the only visible boundaries sufficient to support acquisitive prescription based on 30 years’ possession. A ditch, a hedge, a road, a turnrow, or the like, may be sufficient. LSA-C.C. Arts. 852 and 3475; Bihm v. Voorhies, 241 So.2d 915 (La.App. 3d Cir. 1970); Branch v. Hinson, 183 So.2d 655 (La.App. 1st Cir. 1966); Baudin v. Charrier, 137 So.2d 440 (La.App. 3d Cir. 1962).

The great preponderance of the evidence is that the land outside of the pasture fence to the west and to the south, within the visible boundaries mentioned above, was cultivated by defendant’s father from 1913 to 1943 and by defendant and her brothers from 1943 to 1957, a period in excess of 30 years. Numerous witnesses so testified. Conflicting testimony by plaintiff, being virtually unsupported and lacking sufficient clarity as to the area claimed to have been cultivated by or for plaintiff in the 1930’s, must yield to defendant’s more convincing evidence. Defendant established ownership to the visible boundaries and the boundaries between the parties’ respective properties should be established accordingly.

Plaintiffs’ recent intermittent activities on the property consisting of a garden crop grown by another person with plaintiffs! permission and possibly the cutting of some pulpwood are of insufficient duration or extent to deprive defendant of the ownership of the land she acquired through acquisitive prescription.

The boundaries should be established on the east, south and west according to the red lines shown on the plat prepared by Robert E. Jones & Associates dated May 9, 1977. The north boundary should be established as College Street and the north line of Section 23. An exact legal description of the boundaries cannot be determined from the plat in the record and the case will be remanded to the district court for establishment of the exact legal description of the boundaries by survey, agreement of the parties, or other appropriate method.

For the reasons assigned, the judgment of the district court is reversed and set aside and the case is remanded to the district court for the purpose of establishing the exact legal description of the boundaries between the parties’ respective properties in accordance with the views expressed in this opinion.

Reversed and remanded.


author: JONES, Judge.

text:
    Jessie Eugene HARPER, Plaintiff-Appellant, v. Kenneth Randall JEANS et al., Defendants-Appellees.
    No. 13406.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.
    Writ Refused Feb. 24, 1978.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for appellant, Jessie Eugene Harper.
    William J. Guste, Jr., Atty. Gen., State of La., Baton Rouge by Hudson, Potts & Bernstein, James A. Rountree, Monroe, for ap-pellees, Louisiana Forestry Commission, Kenneth Randall Jeans and James E. Mix-on.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff appeals from a judgment rejecting his claims for damages for injury to his reputation- and character caused by an alleged defamatory statement by defendant Jeane to plaintiff’s supervisor. Defendant’s statement, which was admitted, was that plaintiff disrupted the work of employees at a fire tower operated by Louisiana Forestry Commission. We affirm.

Plaintiff’s wife was the tower watcher at Hood’s Mill Fire Tower and was responsible for keeping lookout for forest fires. Plaintiff, an employee of a lumber and forestry corporation, worked in the vicinity of the firetower. In late 1974 and early 1975, plaintiff visited his wife at the fire tower frequently. His frequent visits caused his wife to often leave the tower and otherwise detracted her from her required duty of keeping a close lookout for forest fires. This conduct was reported to Jeane who was the wife’s supervisor and responsible for operating the fire tower. On or about February 3, 1975, Jeane telephoned plaintiff’s work supervisor to inquire into whether defendant’s forestry crew had been guilty of drinking and loitering around the town of Chatham during work hours. During this conversation Jeane advised plaintiff’s supervisor plaintiff had been spending a lot of time at the tower and his presence disrupted his wife’s work. Defendant suggested “it would be a good idea that he (plaintiff) not hang around unless he had business until they (plaintiff and his wife) had their personal differences settled.” These statements to plaintiff’s supervisor are the basis for the defamation action. The trial court found defendant’s statements were not defamatory in nature; that defendant proved his statement to be true and plaintiff was not damaged in any way.

The issue on appeal is whether the statement is slanderous, and if so, was plaintiff damaged.

The essential elements of a defamation action are: (1) defamatory words; (2) publication, that is, communication to some person other than the one defamed; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Carter v. Catfish Cabin, 316 So.2d 517 (La.App., 2d Cir. 1975).

In Brown v. News-World Publishing Corporation, 245 So.2d 430 (La.App., 2d Cir. 1971), we said:

“A ' statement is defamatory when it tends to expose a person to contempt, hatred, ridicule or obloquy; or which causes a person to be shunned or avoided; or which has a tendency to deprive him of the benefits of public confidence or injure him in his occupation; and includes almost any language which upon its face has a natural tendency to injure the person’s reputation, either generally or with respect to his occupation. The intent and meaning of an alleged defamatory statement must be gathered not only from the words singled out as libelous but from the context as well, and the true meaning must be ascertained from a consideration of all parts of the statement as well as the circumstances of its publication. The test is the effect the article is fairly calculated to produce and the impression it would naturally engender in the minds of the average persons among whom it is intended to circulate. . . . ” Id. page 432.

See also Ryan v. Shreveport Times Publishing Company, 344 So.2d 114 (La.App., 2d Cir. 1977).

The record supports the trial judge’s finding that the statement was not slanderous and in the absence of manifest error, we will not disturb the trial court’s findings. Canter v. Koehring Company, 283 So.2d 716 (La.1973). The statement made to plaintiff’s supervisor was related to the work activity of plaintiff’s wife and had no connection to plaintiff’s occupation nor to his reputation or character. Considering the nature of defendant’s conversation with plaintiff’s supervisor and the circumstances surrounding the communication, we agree with the trial court that the statement made by defendant about plaintiff is not defamatory.

The trial court found the evidence established the alleged defamatory statement was true. We concur in this finding. Truth is an absolute defense to an action for defamation. Pool v. Gaudin, 209 La. 218, 24 So.2d 383 (1945).

For the reasons assigned, we affirm the trial court judgment at appellant’s cost.


text:
    Alice Nomey NAMIE, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 13407.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.
    Writ Refused Feb. 24, 1978.

      Johnson & Johnson by Don H. Johnson, Monroe, for defendant-appellant.
    Baker, Culpepper & Brunson by Herman A. Castete, Jonesboro, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Defendant appeals a judgment awarding damages against it for trespass. We reduce the award and as modified, affirm.

Plaintiff owns on the north side of U.S. Highway # 167 (referred to as Pershing Highway in plaintiff’s title) in Jonesboro, Louisiana, two lots described as follows:

“Beginning 580 ft. North and 132V2 ft. East of the SW/c of NE xk of NW Vi Sec. 31-15-3 West, and running 624 ft. due East, thence North 134 ft., thence run West 100 ft. for a starting point, thence run South to the North R/W line of Pershing Hwy., thence run Northwesterly along and with said R/W line to the East line of Alley running North and South, thence run North 50 ft., thence East 50 ft. to the starting point.
“Lot beg. at SE/c of Lot 10 of Blk. 2, McDonald Add. thence run South 20 ft. for beg; thence West 75 ft. South of R/W of Pershing Hwy., thence East with Hwy. about 75 ft. to point due South of beg., North to beginning.”

Plaintiff contends the south line of her lots is the north edge of the pavement of the highway.

Defendant, while widening the highway, built a drain basin on the south portion of each of plaintiff’s lots connected by a 15 inch pipe and constructed a curb and gutter along the front of plaintiff’s lots. This work activity was established to have been on the south I8V2 feet of plaintiff’s property if the south line of her property is the north edge of the pavement. Plaintiff obtained an injunction against defendant prohibiting defendant from encroaching upon her property. Following this injunction defendant continued the work activity and completed construction of the drain basins, curbs and gutters. Plaintiff filed a contempt proceeding to enforce the injunction judgment, and in connection with the contempt proceedings defendant removed the items constructed on the property and restored it to the same condition it was prior to commencement of construction with the exception defendant did not replace blacktop removed from the area in front of plaintiff’s 50 foot lot.

At commencement of widening activities there existed a 24 inch culvert under the highway in front of plaintiff’s 75 foot lot. This culvert carried water collected in an underground drainage system on the south side of the highway to the north side. The underground system collected through surface catch basins rain water falling on property located on the south side of the highway for a distance of approximately 200 feet to the east. Plaintiff’s lots were subject to a servitude of natural drain to higher elevated property to the east. Prior to trespass plaintiff installed an underground pipe on her 75 foot lot and connected it with the culvert on the north side of the highway. Through this pipe the water from the south side of the highway drained into a ditch located on the north end of plaintiff’s 75 foot lot. Defendant replaced the 24 inch culvert with a 15 inch pipe and reconstructed the three catch basins located on the south side of the highway. The evidence established there was no significant increase in the water flowing through the replaced basins' and through the new 15 inch pipe which defendant connected to plaintiff’s pipe when the 24 inch culvert was removed.

The trial court found defendant had trespassed upon plaintiff’s property and awarded the following damages:

Rent $ 757.51
Replacement of cost of blacktop 369.00
Taking of drainage servitude 1250.00
Damage to lot caused by the drainage servitude 1000,00
$3376.51

Defendant asserts its right-of-way in front of plaintiff’s property was 18 feet or more north of the paved portion of U.S. # 167 and all work was performed within the right-of-way. Defendant further contends plaintiff failed to prove any damages for which she received judgment.

Defendant admits there is no formal written right-of-way grant of record and offered no proof it actively used or maintained any area beyond the north edge of the 18 foot hard surface highway.

Defendant introduced in evidence a survey made in April, 1977 in an attempt to show the south line of plaintiff’s lots did not extend to the north edge of the pavement. Defendant contends plaintiff’s south line is its north right-of-way line as shown on a plat of this survey to be at its widest point more than 30 feet north of the paved edge of the highway. The plat shows the former location of the two drainage basins, connecting pipe, curb and gutter, and the area where plaintiff’s blacktop- was removed, to be within the right-of-way. Defendant’s engineer testified all construction activities in connection with these improvements were performed within the right-of-way as reflected on the plat. The engineer, under whose supervision the survey was made, testified the north right-of-way line shown on the plat was established by following the calls in a correction deed dated July 31,1939, wherein plaintiff’s ancestor in title acquired a lot having frontage of 155 feet on Pershing Highway which included the 50 foot lot belonging to plaintiff. This deed did- not contain any provision dedicating a right-of-way. Defendant contends plaintiff’s ancestor in title impliedly dedicated a right-of-way as shown on the plat because the call from the northwest corner of the lot, which is established by the survey, provided the south line of the lot was the highway 50 feet south of the northwest corner of the lot. The corrected description contained in this correction deed was as follows:

“Beginning 580 feet north and 132V2 feet east of the Southwest corner of the NE Vi of NW Vi of Section 31 Tp. 15 N. R. 3 West, and running 624 feet due east, thence North 134 feet for a starting point, thence due west 150 feet, thence south 50 feet, more or less to the right of way of the Pershing Highway, thence southeast along the Pershing Highway a distance of 155 feet, thence North 90 feet, more or less to the starting point.”

The surveyor explained when he arrived at the northwest corner of this lot he proceeds south 50 feet and at this point he found the north right-of-way line of the highway represented by an imaginary line parallel to the center line of the paved portion of the highway. As set forth in the description this call reads:

“ * * * thence south 50 feet more or less to the right-of-way of Pershing Highway.”

The engineer testified with a call of this kind proper surveying practices required him to measure 50 feet and stop, rather than proceeding south to the paved edge of the highway. However, under cross-examination, he seems to acknowledge the proper practice in measuring calls of this kind was to proceed beyond the designated feet in the call to the monument which in this instance would have been the north edge of the paved surface of road.

The trial judge gave as one reason for rejecting the north right-of-way line of U.S. # 167 as established by this survey the failure of the engineer to follow the correct practice of proceeding to the monument on the call rather than stopping at 50 feet and declaring that to be the right-of-way line. The trial judge was correct holding, that the monument takes precedence over distance in a description. Meyer v. Comegys, 147 La. 851, 86 So. 307 (1920). The deed defendant used in the survey does not support the location of defendant’s right-of-way north of the edge of the pavement as shown on its plat.

Defendant contends a plat of McDonald Addition to Jonesboro, recorded February 16, 1924 by plaintiff’s ancestor in title, which shows a “model road”, (now U.S. # 167) constitutes a legal dedication within contemplation of LSA-R.S. 33:5051. Defendant argues the road dedicated thus would place the north right-of-way line of U.S. # 167 where it was established by the survey prepared in 1977. This argument that the road was formally dedicated by recordation of the McDonald plat was made in Wilson Motor Co. Inc. v. McDonald, 69 So.2d 91 (La.App., 2d Cir. 1953) and there rejected. In refusing to hold the road dedicated, Wilson points out the road shown on the map was not adjacent to a large part of McDonald property included within the subdivision, although located on McDonald property, and the road was shown only with dotted lines and had been in use for many years prior to recordation of the plat. Defendant states Wilson is no longer the law, citing Chevron Oil Company v. Wilson, 226 So.2d 774 (La.App., 2d Cir. 1969). The Chevron case holds the fact the road was in existence when the plat was recorded does not preclude the road from statutory dedication within provisions of LSA-R.S. 33:5051 when the property owner records the plat showing the road. Chevron requires the conclusion that by including the road on the McDonald plat it became statutorily dedicated by virtue of LSA-R.S. 33:5051. Considering statutory dedication occurred by recordation of the McDonald plat, this does not have the effect of establishing a dedicated right-of-way for the present U.S. # 167 because it is not located at the place shown on the McDonald plat. There is a factual finding in Wilson Motor Company v. McDonald, supra, that the present U.S. # 167 was moved north of the road location shown on the plat in 1932 when the state first paved it. This is confirmed by an examination of the plat which shows the road some distance south of the property later acquired by plaintiff.

In State of Louisiana, Department of Highways v. Whitman, 313 So.2d 918 (La.App., 2d Cir. 1975) an expropriation proceeding involving property approximately 150 feet west of plaintiff’s property, we held where the Highway Department had no recorded plat or instrument showing it owned any property beyond the paved portion of the road, its ownership was limited to the paved portion of the road.

The only right-of-way established by defendant is the 18 foot paved road. The calls in the descriptions of plaintiffs lot established her south line to be the north right-of-way line of the highway which is the north edge of the pavement. The record supports the finding of the trial court that defendant trespassed upon the south 18 feet of plaintiff’s lot.

DAMAGES

Defendant failed to replace blacktop removed from the south end of plaintiff’s 50 foot lot, and the record supports the trial judge’s award of $369 replacement value of the blacktop.

Plaintiff’s 50 foot lot was rented when the trespass occurred, and she continued to collect rent during the trespass. The 75 foot lot was not rented when the trespassing commenced nor does the evidence establish plaintiff was prevented from renting the lot because of the trespass. Under these circumstances the rent award is not supported by the record.

Defendant’s activities revising the drainage system did not increase to a substantial extent the water plaintiff received through her drain pipe prior to construction activities. Under these circumstances defendant has not taken a drainage servitude from plaintiff but rather left her receiving water due her estate by the servitude of natural drain through the underground drainage system by which she formerly received it. For these reasons the lower court’s awards to plaintiff for a drainage servitude and damages in connection with its location are not supported by the record.

We find plaintiff is entitled to an award of damages against defendant because of its willful and deliberate trespass upon plaintiff’s property without her consent. This trespass was aggravated by defendant’s continuation of construction upon plaintiff’s property after, being ordered to cease its encroachment. A property owner was recognized as being entitled to damages from a trespasser for invasion of his property rights in LeBleu v. Vacuum Oil Company, 15 La.App. 689, 132 So. 776 (1st Cir. 1926). See also Layne Louisiana Company v. Superior Oil Company, 209 La. 1014, 26 So.2d 20 (1946). We find the sum of $1500 is a fair and reasonable amount to compensate plaintiff for defendant’s invasion of her property rights.

For reasons assigned the judgment in favor of plaintiff is reduced from $3,376.51 to $1,869.00, and, as modified, affirmed at appellant’s cost.


text:
    Jimmy P. BURNS and Deborah Guthrie Burns, Plaintiffs-Appellees, v. James B. McCRAW, Defendant-Appellant.
    No. 13408.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.

      Campbell, Campbell & Johnson, by Cecil P. Campbell, Minden, for defendant-appellant.
    Baker, Culpepper & Brunson, by Bobby L. Culpepper, Jonesboro, Hal R. Henderson, Arcadia, for plaintiffs-appellees.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Defendant, James B. McCraw, has appealed from the judgment maintaining plaintiffs’, Jimmy P. and Deborah Burns, right to possession of real property and ordering him to assert any adverse claim of ownership by a petitory action within sixty days of the date the judgment became final. The issues raised by defendant on appeal are: 1) Whether the trial court was correct in finding plaintiffs had actual or civil possession of the property during the year preceding the alleged disturbance, and 2) Whether the plaintiffs possessed the property as owners.

The pertinent facts are: In 1969 defendant sold the subject tract of land on Lake Bisteneau in Bienville Parish to Burns and his wife by credit sale deed. They immediately moved into the dwelling thereon and remained in actual possession until December 1973. On December 3, 1973, Burns executed an agreement to exchange the subject property to Francis P. Clemons in return for property in Houston, Texas and other considerations. By the terms of the contract, Burns agreed to pay the monthly installments due to defendant on the mortgage, and Clemons agreed to pay a like sum to Burns each month. Title to the property was not to be transferred until the indebtedness was completely liquidated. This agreement was not recorded. Clemons took possession and maintained actual physical possession of the property until November 1975. At that time Burns and Clemons signed a written lease to L. W. Patten. Patten continued in physical possession until May 1976.

The state and parish ad valorem taxes on the property were not paid for the year 1970, and without knowledge of any of the affected parties, the property was sold at tax sale on May 29, 1971, to R. Y. Butler. Defendant became aware of the tax sale in April 1976, after the period of redemption had expired, and acquired a quitclaim deed from Butler to the property for the sum of $750. This deed was recorded on April 30, 1976. A few days after recording the quitclaim deed, defendant went to see Patten and advised him of his purchase of the property from Butler. As a result, Patten moved from the property.

Plaintiffs contend the recordation of the quitclaim deed by defendant and his causing the tenant, Patten, to vacate the property constitutes a disturbance in law and in fact of plaintiffs’ possession under La.C.C.P. Art. 3659.

Defendant first complains that the trial court was in error in finding plaintiffs had actual or civil possession of the property for more than a year prior to the alleged disturbance. This position is primarily based on the contention that plaintiffs cannot claim to have exercised civil possession through Clemons under the exchange agreement as Clemons possessed for himself and not plaintiffs. Defendant contends this does not meet the requirement of La.C.C.P. Art. 3656 which provides: “A plaintiff in a possessory action shall be one who possesses for himself. * * * ”

Neither the testimony of, nor the agreement between Clemons and Burns, supports this position. The agreement is in the nature of a bond for deed contract, and Clemons testified he considered the property to belong to Burns until such time as he had fulfilled the conditions of the contract, at which time, he was to receive title. The fact that Clemons procured the permission of Burns to lease the property to Patten and had Burns sign as a lessor in that agreement corroborates that Clemons did not consider himself to be possessing as owner. Burns, therefore, had actual possession commencing in 1969, followed by civil possession through Clemons under their contractual agreement and continued through the lessee, Patten.

Defendant secondly contends that even if it is found that plaintiffs had possession, this possession was not as an owner at the time of the alleged disturbances as required by La.C.C.P. Art. 3658.

In support of this argument, defendant introduced an instrument signed by Burns on June 3, 1976, declaring that the latter had sold or traded the subject property to Clemons in December 1973, and had received the full consideration for the property and had quitclaimed any interest he might have had to Clemons.

The trial judge rejected this argument on finding that the instrument was executed by Burns in connection with negotiation's of Clemons with defendant to reacquire the interest defendant bought from the tax-sale purchaser, Butler. The court found the negotiations did not materialize and that defendant returned the check tendered by Clemons, but retained the accompanying document which had never been recorded.

We believe the record supports this finding. At the time defendant acquired the quitclaim deed from the tax-sale purchaser, a dispute existed with Clemons and Burns as to whether payments were delinquent on the mortgage owed to defendant. In an attempt to settle the claimed delinquency, defendant offered to convey the interest he acquired in the property from the tax-sale purchaser directly to Clemons on payment of an agreed amount. Therefore, the instrument in question was prepared by Clemons’ lawyer and signed by Burns to rescue the property from the dilemma caused by the tax sale and expiration of the period of redemption. As the transaction for which the instrument was intended to be used did not take place, it should not be given the effect contended by defendant and preclude Burns from maintaining civil possession.

For the foregoing reasons, we affirm the judgment recognizing plaintiffs’ right to the possession and ordering defendant, James B. McCraw, to assert any adverse claim by petitory action within sixty days of finality of judgment, to the following described property:

A tract of land in Government Lot 5 in the SW Vi of Section 28, Township 16 North, Range 10 West, Bienville Parish, Louisiana, more particularly described as follows: From the Southeast corner of SW Vi of Section 28, said point being the Southeast corner of Government Lot 5, run thence North 706.9 feet; run West 741.0 to a point on the Northwest side of road for the point of beginning of the tract herein described; run thence South 45 degrees 0 minutes West with fence line 154.0 feet; run thence South 4 degrees 0 minutes East 250.0 feet to the waters edge of Lake Bisteneau; run thence Northwesterly with waters edge to a point on the Extended line (S56°W) of 0.8 acre tract;' run thence North 56 degrees 0 minutes East 13.8 feet to the Southeast corner of said 0.8 acre tract, continue North 56 degrees 0 minutes East with Southeast line of said 0.8 acre tract in all 255.0 feet to the Northeast corner of same on the North line of Lot 2; run thence East 260.7 feet to the point of beginning, containing 2.5 acres, more or less, LESS land below Government Contour line of Bisteneau Lake, all as per plat of said property prepared by Ben E. Ramsey, Registered Civil Engineer, dated July 3, 1959.

Costs of this appeal are assessed to appellant.


text:
    Charles W. RABORN d/b/a Sam’s Hill and Lee Ethel Waters d/b/a Lee’s Country Club, Plaintiffs-Appellants, v. BIENVILLE PARISH POLICE JURY, Defendant-Appellee.
    No. 13409.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.
    Writ Refused Feb. 24, 1978.
    Baker, Culpepper & Brunson by Herman A. Castete, Jonesboro, for plaintiffs-appellants.
    Leon H. Whitten, Dist. Atty., Jonesboro, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

Plaintiffs are liquor licensees seeking to nullify a local option election and to enjoin the local governing body from passing an ordinance prohibiting the sale of alcoholic beverages. From a judgment rejecting plaintiffs’ demands they appeal. We affirm.

The issue is whether a local option election is rendered invalid because the proposition as set forth in the ordinance calling the election varies substantially from the wording contained in both the electors’ petition seeking the election and the ballot submitted to the voters.

In the election petition signed by more than twenty-five percent of the voters of a ward in Bienville Parish, and on the subsequent printed ballot, Proposition One contained the following language:

Shall the sale of beverages of low alcohol content containing more than three and two-tenths percent alcohol by weight, and not more than six percent alcohol by volume, be permitted?

However, the corresponding proposition in the ordinance calling the election provided:

Shall the sale of beverages of low alcoholic content containing more than three and two-tenths percent alcohol by volume be permitted?

The Louisiana local option statute provides that registered voters may sue to set aside an election if there has not been substantial compliance with statutory requirements in the petition, call, or conduct of the election. Louisiana Revised Statutes 26:590. Since the wording on the ballot submitted to the voters complied exactly with the requirements of La.R.S. 26:587 and reflected the wishes of those who sought the election, and since the voters were not misled by the intervening error in the ordinance calling the election, this error was harmless under the circumstances. There was substantial compliance with the standards of the local option statute. See McGee v. Police Jury of Caddo Parish, 66 So.2d 408 (La.App. 2d Cir., 1953), aff’d 225 La. 471, 73 So.2d 424 (1954).

The judgment is affirmed at appellants’ cost.


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    Willene Peevy MOORHEAD, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 13410.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.

      Johnson •& Johnson by Don H. Johnson, Monroe, for defendant-appellant.
    Baker, Culpepper & Brunson by Herman A. Castete, Jonesboro, for plaintiff-appellee.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Defendant appeals a judgment awarding plaintiff $1,854.50 damages for trespass committed by defendant on her property adjacent to the highway right-of-way of U.S. # 167 in Jackson Parish, Louisiana. We affirm.

Defendant was widening U.S. # 167, and while this work was being performed adjacent to plaintiff’s property, the individuals doing the work trespassed beyond defendant’s right-of-way onto plaintiff’s property removing four pine trees, one oak tree, leaving other trees with exposed roots, destroyed San Augustine turf on approximately 562 square feet of plaintiff’s front yard and excavated the earth leaving a ditch in the area that previously had been a San Augustine lawn. Plaintiff, upon observing the damage being done to her property, obtained an injunction against defendant ordering it to cease encroaching on plaintiff’s land. The injunction judgment was affirmed in this court. Moorhead v. State of Louisiana, Department of Highways, 322 So.2d 330 (La.App., 2d Cir. 1975).

In this proceeding plaintiff seeks damages which she sustained as a result of the trespass.

Defendant asserts plaintiff failed to establish the trespass was committed directly by defendant, and for that reason it is not liable for plaintiff’s damage. In answer to this same argument made by defendant when we reviewed on appeal the proceedings wherein the injunction was granted we said:

“The Department contends that if any construction work was done on plaintiff’s property, it was not done by the Department, but was done by contractors, subcontractors, or utility companies over which the Department has no control and for whose activities it is not responsible. . The Department has responsibility for and supervision and control over construction, improvements and maintenance of highways. LSA-R.S. 48:21; 48:92. . . The Department offered no evidence to support their contention that the activities complained of were done by parties over whom the Department had no control. No evidence was offered by the Department as to who actually did the work, except a suggestion by one witness that it may have been a utility company, or as to the Department’s relationship (contractual or otherwise) with any such parties. In the absence of evidence to the contrary it can only be assumed the highway construction was being done by or at the direction of or under the control and supervision of the Department.” Moorhead v. State of Louisiana, Department of Highways, supra, at pages 332-333.

Defendant offered no evidence in the damage proceedings exculpating it from charges of having trespassed upon plaintiff’s yard and causing the damages established. The record reflects a bulldozer belonging to Louisiana Paving Company, defendant’s prime contractor, encroached upon plaintiff’s yard clearing an area for the relocation of public utilities. The relocation was necessary to the highway project. Defendant failed in its duty to supervise and control the work activity in connection with widening U.S. # 167 and permitted those performing the work to engage in activities beyond the defendant’s right-of-way line and on plaintiff’s property. Defendant did not attempt to establish that persons it was not responsible for and over whom it had no control cut plaintiffs trees and otherwise caused the damage complained of.

The trial judge found following issuance of the injunction against defendant there had been no further trespass upon plaintiff’s property and the damages occurring before the injunction were due to the activities of defendant or those over which it exercised supervision and control. The record supports these findings.

Defendant contends plaintiff failed to sufficiently prove damages. The four pine trees defendant cut from plaintiff’s yard had been planted by her in 1956 and the oak tree had been there much longer. Considering the esthetic value of these trees, the possibility that others with exposed roots might die, the destruction of some 500 square feet of San Augustine turf and disturbance of soil which will require extensive fill, the trial court’s award of actual damages of $854.50 is not excessive.

The actions of defendant in damaging plaintiff’s lawn caused her substantial mental anguish and the award of $1,000 she received for this element of damages was fair and reasonable. See Dickerson v. R. J. M. Pipeliners, Inc., 331 So.2d 501 (La.App., 2d Cir. 1976) wherein we reduced an award of $2,500 to $1,500 for mental anguish in a trespass case similar to the one here.

For reasons assigned, we affirm the decision of the trial court at defendant’s cost.


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    DELTIC FARM & TIMBER COMPANY, INC., et al., Plaintiffs-Appellees, v. BOARD OF COMMISSIONERS FOR the FIFTH LOUISIANA LEVEE DISTRICT, Defendant-Appellant. ANDERSON-TULLY COMPANY, Plaintiff-Appellee, v. BOARD OF COMMISSIONERS FOR the FIFTH LOUISIANA LEVEE DISTRICT, Defendant-Appellant.
    Nos. 13413, 13414.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.

      C. Calvin Adams, Jr., Tallulah, for Bd. of Com’rs for the Fifth Louisiana Levee Dist., defendant-appellant; Jerry B. Daye, Ferri-day, of counsel.
    Voelker, Ragland, Brackin & Crigler, by Frank Voelker, Jr., Lake Providence, for plaintiffs-appellees, Deltic Farm & Timber Co., Inc., et ál. and Anderson-Tully Co., plaintiffs-appellees.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

In these consolidated suits defendant appeals from a judgment recognizing plaintiffs’ lands taken by defendant for levee purposes were not subject to the levee servitude provided for in Civil Code Art. 665, and for this reason could not be appropriated. The court held fair market value must be paid for the land to compensate plaintiffs as in an expropriation proceeding.

Prior to trial the parties stipulated that only the legal issue of appropriation versus expropriation was to be tried and the issue of damages was specifically reserved for subsequent trial, in the event the court found the property subject to expropriation. This stipulation was incorporated in a pretrial order by the court. The case was tried in this posture.

This appeal presents the question as to whether this court has jurisdiction over an appeal from a judgment deciding the legal issue of expropriation vs. appropriation and reserving the issue of damages. Code of Civil Procedure Art. 2083 provides:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

Judgments rendered in tort cases where only liability and not quantum had been tried have been held not to be final judgments within the provisions of C.C.P. Art. 2083 and not appealable. Celestine v. Hub City Motors, Inc., 327 So.2d 700 (La.App., 3d Cir. 1976); Bettencourtt v. Boyd, 209 So.2d 339 (La.App., 1st Cir. 1968); Jeansonne v. Willie, 188 So.2d 170 (La.App., 4th Cir. 1966). This case poses the identical situation where the issue of defendant’s liability to plaintiffs for market value and severance damages was tried and the amount to which plaintiffs were entitled was to be determined in subsequent trial. The case presents an example of piecemeal litigation which fosters multiplicity of trials and appeals. Celestine v. Hub City Motors, Inc., supra.

The defendant’s appeal is dismissed because the judgment appealed from is neither a final judgment nor an interlocutory judgment causing irreparable injury. C.C.P. Art. 2083.

The case is remanded to the trial court for further proceedings. All costs on appeal are assessed against appellant.


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    Thomas Lee MARSH, Plaintiff-Appellant, v. COCA COLA BOTTLING COMPANY OF SHREVEPORT, INC. and Commercial Union Insurance Company, Defendants-Appellees, Michael Earl Mayfield, Third-Party Defendant-Appellee.
    No. 13415.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.

      Claudius E. Whitmeyer, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellees, Coca Cola Bottling Co. of Shreveport, Inc. and Commercial Union Ins. Co.
    Nelson & Achee, Ltd. by Roland J. Achee, Shreveport, for third-party defendant-ap-pellee, Michael Earl Mayfield.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff appeals from a judgment awarding him damages of $1,750 for pain and suffering, $750 for medical expenses, and $75 for property damage, arising out of a highway accident. The only issue on appeal is quantum.

The trial court held:

“The Court is of the opinion, however, that the striking or collision was very slight. The testimony indicated that the driver of the Mayfield vehicle was not sure that an actual striking had taken place. The Court has the complicated structure of a plaintiff with pre-existing physical and mental difficulties and a subsequent accident superimposed on any injuries that might have been sustained in the accident in question. The Court, taking into consideration all of these factors as well as that testimony which was believable and probative to the Court, awards the sum of $1,750.00 to the plaintiff for the pain and suffering which he sustained. The Court also had to make a determination as to what were reasonable and provable medical damages. The sum of $750.00 should be sufficient for those amounts. Plaintiff also claimed damages to the vehicle which was owned by the plaintiff. The Court feels that $75.00 is a reasonable and provable amount for the damages to the truck.”

On the morning of August 7, 1975, while plaintiff was riding as a passenger in a pickup truck owned by him, the truck was hit from the rear by defendant’s truck. The impact was slight and caused only minor damage to plaintiff’s truck. Plaintiff did not complain of injury at the scene of the accident.

Some three hours later plaintiff became nauseous, developed a headache and pain in the cervical area. He went to Dr. Carson Reed, an orthopedic specialist in Shreveport, who made a diagnosis of possible cervical sprain, prescribed Emperin and heat application, and sent plaintiff home. Later in the day, plaintiff went to Dr. Donald Taylor, a general practitioner in Mansfield. Dr. Taylor had plaintiff admitted to the Mansfield Hospital and diagnosed plaintiff’s injury as a cervical sprain. The doctor found muscle spasm and tenderness in the neck area. Plaintiff was treated with medication, heat and a cervical collar. After several days, Dr. Taylor was unable to account for plaintiff’s continued complaints of pain and referred him to.Drs. Dean and McAllister, orthopedic specialists in Shreveport. Dr. Dean had plaintiff admitted to Schumpert Hospital. His diagnosis was possible cervical sprain. He observed no muscle spasm or neurological changes. He noted that X-ray examination revealed no other abnormalities.

Dr. Dean called in Dr. L. C. Megison, a neurosurgeon, for consultation. Dr. Megi-son reported that plaintiff held his neck stiffly and had tenderness and spasm in the neck area. He diagnosed plaintiff’s condition as cervical musculoligamentous strain. Dr. E. H. Leatherman, a psychiatrist, was also called in. Dr. Leatherman determined that plaintiff was experiencing a significant emotional problem apparently of rather long-term duration, aggravated by his recent accident. He recommended further psychiatric workup. At this point plaintiff said his neck stopped hurting during a therapy session and asked to go home. He was discharged by Dr. Dean on August 19,1975.

A few days later plaintiff went back to see Dr. Taylor with continued complaints. Dr. Taylor saw plaintiff on subsequent occasions until December 4, 1975. His opinion, expressed at the trial, was that plaintiff had a cervical sprain and a conversion reaction.

Plaintiff went back to Dr. Dean on October 8. Dr. Dean found no physical basis for the continued pain.

Plaintiff’s attorney sent him to Dr. Baer I. Rambach, an orthopedic specialist in Shreveport, who first saw plaintiff on October 13,1975. Dr. Rambach diagnosed plaintiff’s condition as acute cervical sprain. He prescribed heat application, massage and a muscle relaxant and saw plaintiff again on November 22 and December 20. Plaintiff appeared to be progressing well and nearing recovery.

On January 8, 1976, plaintiff was involved in another accident, involving a rather severe impact. He was seen by Dr. Taylor in the emergency room of DeSoto General Hospital that evening. He went back to Dr. Rambach on February 22 with complaints of increased pain in the neck and additional complaints. Dr. Rambach continued to treat him and on April 30, referred him to Dr. W. P. Osborne, a dolo-rologist or pain specialist. Dr. Osborne saw plaintiff on several occasions, treating him with antidepressant tranquilizer therapy, hormone injections and a transcutaneous nerve stimulation unit. Plaintiff was also seen by Dr. Andrew J. Mullen, a psychiatrist, who was of the opinion that the psychiatric symptoms were functional in nature and not of organic origin and that additional stress such as this accident would aggravate his somewhat unstable personality-

At the time of trial in February, 1977, plaintiff had not seen a doctor since December 3, 1976. He complained of only minor and occasional headaches and neck pain.

The complicating feature of this case is the forty-one-year-old plaintiff’s background of severe mental and emotional problems, dating back almost twenty years. In 1973, his employment as a heavy duty diesel mechanic was terminated under total disability related to his mental instability and to a physical injury he had received to the cervical area. He has been in mental institutions on several occasions, the last being in 1964, and has not worked since 1973. There is no evidence he was having any problems from his previous physical injury at the time of the accident. There is evidence he had difficulty in coping with the problems of his everyday life. When asked what he did, plaintiff said he just tried to live with himself.

Defendant argues that plaintiff at most received a mild whiplash injury from which he should have recovered in a brief period of time with minimal medical expenses. Plaintiff argues that a tort-feasor must take a victim as he finds him, that plaintiff’s pain, suffering and disability were real and caused by the accident, and that plaintiff’s injury should be classified as a severe whiplash calling for a substantially increased award.

All of the doctors diagnosed a cervical sprain caused by the accident. The trial court recognized this in making an award of $1,750 for pain and suffering and $750 for medical expense. Undoubtedly, plaintiff’s reaction to the accident and injury was greater than that of the average person because of his mental and emotional condition. It is important to note, however, that no doctor testified plaintiff’s pain was not real or that he was malingering. Drs. Taylor and Rambach treated him through the end of 1975 for a real injury, complicated and drawn out beyond the usual and expected course by plaintiff’s preexisting situation.

Plaintiff had improved considerably prior to the second accident. It would be too speculative to relate his complaints after the second accident to the first accident.

We have, therefore, a case of a mentally unstable person who received a whiplash injury, was treated for it by competent doctors over a period of five months, spent thirteen days in the hospital, and suffered pain and discomfort which became only occasional after the first several weeks.

We conclude that plaintiff is entitled to recover his ■ actual medical expenses from the time of the accident until his last visit to Dr. Rambach prior to the second accident, in the amount of $2,264.65. We further conclude that the award for pain and suffering is so low as to amount to an abuse of discretion and should be increased to the least amount in the range of discretion, which we fix at $3,500.

As to the award for damages to plaintiff’s truck, the evidence does not establish damage beyond that awarded by the trial court.

The judgment of the district court is amended to award plaintiff a total of $5,839.65, and as amended is affirmed, at appellee’s costs.

Amended, and as amended, affirmed.