text:
    David MUSTIFUL, Plaintiff-Appellant, v. F. Norman GALASPY, Defendant-Appellee.
    No. 13084.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied Jan. 10, 1977.
    Writ Refused March 11, 1977.

      Mecom, Scott & Woods by B. J. Woods, Shreveport, for plaintiff-appellant.
    Colvin, Hunter, Brown & Plummer by D. Scott Brown, Mansfield, for defendant-ap-pellee.
    Before BOLIN, HALL and MARVIN, JJ.
   BOLIN, Judge.

In this possessory action David Mustiful alleges he had been in possession of approximately 140 acres of land for a number of years when F. N. Galaspy disturbed his possession by filing in the public records a deed to him describing 100 acres of the property. The trial judge found plaintiff failed to prove he had possessed the land for one year prior to the disturbance as required by Louisiana Code of Civil Procedure Article 3658. From judgment rejecting plaintiffs demands and taxing him with costs, including the fees of two expert witnesses, he appeals. We amend the judgment by reducing the fees of the experts.

The issues are:

(1) Whether or not plaintiff proved the necessary possession required by C.C.P. Article 3658(1)(2);
(2) If the lower court judgment is otherwise correct, should plaintiff have been required to pay the expert witness fees?

It is undisputed that of the 140 acres plaintiff owned and occupied a 40-acre tract, upon which plaintiff’s house was located and which was enclosed by a four-strand barbed wire fence. It is the remaining 100 acres that is the subject of this dispute.

Plaintiff testified that preceding defendant’s disturbance he had been possessing the 100 acres continuously for a number of years by building and maintaining fences around the property and grazing his cattle thereon. Several of plaintiff’s neighbors also testified generally to the same effect. However, upon cross-examination each of these witnesses admitted the fences were poorly maintained and the cows more or less roamed at will from the 100-acre tract to adjoining land.

Defendant offered the testimony of two foresters who were familiar with this property, each of whom said the land was not completely enclosed by fences. Also testifying for defendant was a school teacher who had formerly been an insurance adjuster. This witness was familiar with the property and took several photographs of the fences. Although these photographs were taken several months after the disturbance in question, they do reflect that the alleged fences in many places were remnants of former fences.

The trial judge found “portions of an existing . . . fence of dubious quality and effectiveness were partially maintained, on intermittent occasions . [but] no ‘enclosure’ was maintained. Some of plaintiff’s cattle grazed through the two tracts [20-acre and 80-acre tracts], although it is all wooded and no pastures were on these tracts, and none was attempted. No cultivation of any nature occurred on the 100 acres during the period of time at issue.”

The type of possession required to maintain a possessory action is the same as that required to maintain the acquisitive prescription of thirty years. Louisiana Code of Civil Procedure Article 3660; Hill v. Richey et al., 221 La. 402, 59 So.2d 434 (1952); Broussard v. Louisiana Land and Exploration Co., 164 So.2d 84 (La.App. 1st Cir., 1964); Broussard v. Motty, 174 So.2d 246 (La.App. 3rd Cir., 1965).

The grazing of cattle on a tract of land which is enclosed by properly maintained fences may form the basis of a pos-sessory action. Robertson v. Morgan, 116 So.2d 141 (La.App. 1st Cir., 1959); Johnson v. Merritt, 131 So.2d 562 (La.App. 2nd Cir., 1961).

We agree with the factual findings of the trial judge. Under these facts plaintiff has not established sufficient possession to form the basis of a possessory action. At most he grazed some cattle on the property which was never enclosed by a fence maintained by him.

During oral argument before this court plaintiff for the first time contended the lower court erred in fixing the expert fees of the two foresters at $250 each and taxing these fees as costs. Both witnesses were accepted by the lower court as experts and gave opinion evidence. Each testified as to the service rendered by him and that his charge to the defendant for his service was $150. The court fixed each fee at $250. Louisiana Revised Statutes 13:3666 authorizes the court to determine the amount of expert witness fees which may be taxed as costs. These fees may be determined from the testimony adduced during trial or by rule to show cause. In this case we find there was ample testimony from which the court could determine the fees. The amount of the fee is left largely to the discretion of the trial court. However, there is no evidence to support a fee in excess of $150 to each expert.

The judgment is amended to reduce the fee of each expert witness from $250 to $150, and as thus amended the judgment is affirmed at appellant’s cost.

      . Art. 3658.
      To maintain the possessory action the possessor must allege and prove that:
      (1) He had possession of the immovable property or real right at the time the disturbance occurred.
      (2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
      (3) The disturbance was one in fact or in law, as defined in Article 3659; and
      (4) The possessory action was instituted within a year of the disturbance.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    O. S. COOPER, Plaintiff-Appellant, v. CONAGRA, INC., Defendant-Appellee.
    No. 13086.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied Jan. 10, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Waltman, Napper & Madden by O. L. Waltman, Jr., Ruston, for defendant-appel-lee.
    Before BOLIN, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff, O. S. Cooper, filed suit against defendant, Conagra, Inc., for damages, alleging defendant breached a broiler feeding contract by failing to provide plaintiff with chickens to raise in accordance with the agreement. The trial court found that the contract was terminated by defendant in accordance with the terms of the contract prior to the alleged breach. Plaintiff appealed, contending the required notice of termination was not given by defendant. We affirm the trial court’s judgment.

Plaintiff raised chickens for eight or nine years. He maintained two broiler houses, each with a capacity of about 14,000 chickens. For the first few years of his operation, plaintiff raised chickens for McGehee Poultry Company. That company sold its business to Conagra, Inc., defendant in this suit.

On April 25,1972, plaintiff and defendant executed a “broiler feeding agreement”, which generally required defendant to deliver baby chicks to plaintiff, together with supplies necessary to raise the chicks. Plaintiff was obligated to raise the chicks to maturity. The clause in controversy in this lawsuit provided:

“The duration of this contract will cover a period of time sufficient to produce one flock of broiler chickens, but shall remain in effect thereafter, until can-celled by either party upon ten (10) days notice.”

Early in 1973, Conagra, Inc. made the decision that all growers raising chicks for them should insulate their broiler houses. Plaintiff was advised that Conagra would place no broilers in uninsulated houses after August 15, 1973. Field representatives of defendant discussed this requirement with plaintiff on several occasions, as did Bill Gilley, defendant’s production manager.

Plaintiff and his wife admitted being so advised, but testified they were told by. Gilley that delivery of chicks would resume in April, 1974, despite the fact that plaintiff’s houses were not insulated. Plaintiff testified he was led to believe an exception would be made for him due to his advanced age. Gilley testified he repeatedly told plaintiff that insulation was an absolute prerequisite to any further deliveries and denied telling plaintiff an exception would be made in his case. Gilley’s testimony is supported by the following letter written by Gilley to plaintiff on January 25, 1974:

“In our discussion of January 17, 1974, you asked that I write you a letter explaining why I cannot place birds back on your farm. Beginning August 15, 1973, we have not placed and will not place any birds in houses that are not insulated. “We feel like insulation will make you money along with making us money in fuel savings and feed conversion respectfully. (sic)
“If you insulate your houses to our specification, we will place birds on your farm. If I can be of further help to you, let me know.”

Factually, we conclude, as did the trial judge, that defendant’s representatives clearly advised plaintiff that he would receive no more chicks after August, 1973, unless and until he insulated his houses. Plaintiff was mistaken in his impression that an exception would be made in his case for the April, 1974 delivery.

Plaintiff contends the verbal and written notices given plaintiff were insufficient to terminate the contract, and that specific and unconditional notice of termination was necessary. The basic question is whether the above letter, which contains the essence of several verbal discussions between the parties, was merely an attempt to unilaterally modify the contract or whether that letter sufficiently informed plaintiff that the Contractual relationship was terminated unless plaintiff insulated his houses.

Plaintiff relies on Scallan v. Mark Petroleum Corporation, 303 So.2d 498 (La. App. 2d Cir. 1974) writs denied 307 So.2d 370 (La.1975), which held that the defendant bears the burden of proving the termination of an agreement in the manner specified in the agreement. In Scallan, the agreement required written notice of termination and stipulated that no verbal evidence of termination would be admissible in any proceeding. Written notice was also required by the agreement under consideration in Crow v. Southern Natural Gas Company, 210 So.2d 596 (La.App. 2d Cir. 1968), writs denied 252 La. 834, 214 So.2d 160 (1968), also relied on by plaintiffs. In the instant case, no particular manner of termination is specified in the contract. Defendant must, however, prove that notice of termination was communicated to plaintiff. This notice must be sufficiently clear to apprise the other party of the action being taken. Atlantic Banana Company v. Standard Fruit & Steamship Company, 493 F.2d 555 (5th Cir. 1974).

The notice given by defendant was unequivocal in stating that the business relationship was terminated unless and until plaintiff insulated his houses: “Beginning August 15, 1973, we have not placed and will not place any birds in houses that are not insulated.” This notice was given months before the date plaintiff testified he expected his birds to be delivered. Defendant’s employees all testified that no exceptions were made to the policy. Even if doubt existed in plaintiff’s mind prior to the receipt of the letter, the letter should have removed that doubt. As in Tillman v. New Orleans Saints Football Club, 265 So.2d 284 (La.App. 4th Cir. 1972), written notice of the sort which plaintiff claims was necessary would have been a mere ceremony. The notice given by defendant was sufficient. Therefore, the contract terminated and defendant was under no obligation to deliver chicks in April, 1974.

Plaintiff correctly points out that one party cannot unilaterally modify the terms of a contract. However, in the instant case either party could terminate the contract upon giving ten days notice. Defendant’s position throughout the conversations with plaintiff was that this right was being exercised unless and until plaintiff insulated his broiler houses. Defendant did not modify the contract. Instead, defendant terminated the contract. The fact that defendant offered to resume its contractual relationship with plaintiff if the latter insulated his houses does not alter the unequivocal communicated intent of defendant to terminate the relationship unless or until that was done.

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

Affirmed.


author: PER CURIAM.

text:
    PEOPLES BANK & TRUST COMPANY, Plaintiff-Appellee, v. Robert D. JOLLEY, Defendant-Appellant.
    No. 13150.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    Jack & Jack, by Wellborn Jack, Jr., Shreveport, for defendant-appellant.
    Hal V. Lyons, Shreveport, for plaintiff-appellee.
    Before BOLIN, C. J., and PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

Based on a preliminary review of the record in this case, the court noticed a probable lack of jurisdiction resulting from the failure of appellant, Robert D. Jolley, to timely perfect the appeal. The court apprised appellant of this fact and ordered him to show cause within ten days why the appeal should not be dismissed. This delay has expired and appellant has not responded.

The judgment in favor of plaintiff was signed on May 21, 1976. Notice of judgment was mailed on May 27,1976. The time for applying for a new trial expired June 8, 1976. Defendant had ninety days from that time to perfect his appeal. LSA-C.C.P. Art. 2087. No appeal bond was filed until October 11, 1976, well after the time for perfecting the appeal had expired. The filing of an appeal bond is an essential step in perfecting an appeal, and unless the bond is filed timely, the appellate court lacks jurisdiction to hear the appeal. Guilliot v. City of Kenner, 326 So.2d 359 (La.1976).

For the reasons assigned, the appeal is dismissed at appellant’s costs.

Appeal dismissed.


author: LEMMON, Judge. MORIAL, Judge

text:
    David CARRIERE v. TRIANGLE AUTO SERVICE et al.
    No. 7666.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.
    Pitard, Pitard & Porobil, Gregory M. Po-robil, New Orleans, for plaintiff-appellee.
    Bruce J. Borrello, Stephen L. Huber, Robert A. Katz, George J. Richaud, A. Miles Pratt, III, Metairie, for defendants-appellants.
    Before«'LEMMON, GULOTTA, BOU-TALL, MORIAL and BEER, JJ.
   LEMMON, Judge.

The sole issue in this case is whether Liberty Mutual Insurance Company is liable for the damages sustained by plaintiff in an automobile accident caused by the negligence of Mrs. Wilma Hard.

The only allegation as to Liberty’s Mutual liability was contained in Article III of the petition, as follows:

“That defendant, Liberty Mutual Insurance Company, is a foreign insurer autho-fized to do and doing business in the State of Louisiana, and had in full force and effect a policy of liability insurance covering said Chevrolet truck owned by Triangle Auto Service and operated by Wilma Hard for the liability hereinafter asserted.”

Plaintiff alleged no facts to suggest that Triangle either was individually liable for the accident or was vicariously liable for Mrs. Hard’s negligence. Neither Triangle nor Mrs. Hard was served with the petition,\ and they made no appearance at trial.

Liberty Mutual’s answer contained the following response to plaintiff’s Article III:

“The allegations of article 3 are denied except to admit that at all times relevant herein Liberty Mutual Insurance Company did have in full force and effect a policy of liability insurance issued to Triangle Auto Service but avers that the same is a written contract and as such is the best evidence of its own terms, coverages, limitations and exclusions.”

This allegation that Liberty Mutual issued a policy to Triangle is at most an admission of coverage of Triangle’s liability. This pleading simply cannot be construed as anything but an unqualified denial that the policy provided any coverage whatsoever to Mrs. Hard.

In an action on an insurance contract the plaintiff has the burden of pleading and proving that his claim falls within the general policy, while the insurer has the burden of proving exclusions from coverage. Myevre v. Continental Cas. Co., 245 So.2d 785 (La.App. 4th Cir. 1971). Liberty Mutual admitted issuance of a policy to Triangle and in the face of this admission perhaps would be required to plead and prove any exclusion to coverage for Triangle’s liability. But neither the pleadings nor the evidence contain any suggestion that Triangle was liable for this accident, either independently for its own negligence or vicariously for Mrs. Hard’s proved negligence. There was no showing or suggestion of any relationship between Triangle and Mrs. Hard.

Furthermore, it cannot be assumed that the policy admittedly issued to Triangle provided coverage to Mrs. Hard. Triangle is the only party for whom coverage can be presumed; any other party must be presumed not to be covered.

The record established only that Mrs. Hard was driving an automobile owned by Triangle. The policy is not in the record, and we therefore cannot determine (aside from the problem of sparsity of facts) whether Mrs. Hard qualified as an insured under the policy.

While this record contains insufficient evidence for us to impose liability upon the only defendant who was served, we note that Liberty Mutual obtained a statement from Mrs. Hard and issued a subpoena to her in care of Triangle. Since this suggests Mrs. Hard was employed by Triangle, and since we would prefer not to turn the decision on a point completely unrelated to the merits of the case, we remand the case solely for additional evidence as to whether Mrs. Hard was covered by the policy admittedly issued by Liberty Mutual to Triangle.

Accordingly, the judgment of the trial court is set aside, and the case is remanded for the evidence specified in the opinion. Costs will be assessed upon final disposition of the matter.

SET ASIDE AND REMANDED.

MORIAL, J., dissents and assigns reasons.

MORIAL, Judge

(dissenting).

A plaintiff suing on an insurance contract has the burden of establishing the existence of the policy sued on, its terms and provisions, and that his claim is within its coverage. Boyd v. White, 123 So.2d 835 (La.App. 2 Cir. 1960). However, this rule is modified by the principle that once the existence of a liability policy is admitted, the burden shifts to the insurer to prove that an exclusion existed under the acknowledged policy. See B.T.U. Insulators, Inc. v. Maryland Casualty Co., 175 So.2d 899 (La.App. 2 Cir. 1965).

Liberty admitted the existence of a liability policy it issued to Triangle Auto Service and, therefore, was bound by its answer. A plaintiff need not prove that which has been admitted in the pleadings. Johnson v. New Orleans Disposal Service, 289 So.2d 825 (La.App. 4 Cir. 1974). Therefore, the burden was on Liberty to prove the facts necessary to relieve it of liability under the existing policy. See B.T.U. Insulators, Inc. v. Maryland Casualty Co., supra.

Furthermore, after having admitted the existence of the liability policy in the manner and style in which it did, it was then incumbent upon Liberty to plead further any exclusion as an affirmative defense. LSA-C.C.P. Article 1005; Tudury v. Cooperative Cab Co., 265 So.2d 307 (La.App. 4 Cir. 1972). Liberty’s failure to plead an affirmative defense precludes the introduction of proof to show the exclusion. Accordingly, a remand to afford an opportunity for proof to be submitted in this connection is, therefore, of no avail. Tudury v. Cooperative Cab Co., supra.

For the foregoing reasons I respectfully dissent.

      . Compare Gay v. Travelers Ins. Co., 262 So.2d 578 (La.App. 4th Cir. 1972).


author: SCHOTT, Judge.

text:
    Ranton BROUILLETTE v. PHOENIX ASSURANCE COMPANY. Ranton BROUILLETTE v. Vincent BROUILLETTE.
    No. 7701.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.
    Writ Refused March 16, 1977.

      Lemle, Kelleher, Kohlmeyer & Matthews, Charles E. Lugenbuhl and Stanley A. Mil-lan, New Orleans, for plaintiff-appellant.
    Christovich & Kearney, J. Walter Ward, Jr., New Orleans, for Phoenix Assur. Co.
    Oliver S. Livaudais, Jr., Charles H. Livau-dais and Robert J. Klees, Chalmette, for Vincent Brouillette.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

These consolidated cases arose out of an incident in which defendant Vincent Brouil-lette deliberately drove a bulldozer into a wooden frame, house allegedly owned by plaintiff, knocking the house from its foundation and causing it to be extensively damaged. In the first suit, plaintiff sought to recover from his insurer, Phoenix Insurance Company of New York, the policy limits of $10,000 under the malicious mischief and vandalism portions of the policy. In the other suit, plaintiff sought to recover from Vincent Brouillette damages in the amount of $24,000, consisting of damage to his house, alleged to be $13,000, plus the cost of removal of the house, rental income and exemplary damages. In the second suit Phoenix intervened to recover from Vincent whatever amount for which it might be cast in judgment in favor of plaintiff in the first suit. From a judgment dismissing plaintiff’s claims in both suits he has taken an appeal.

In January, 1967, plaintiff purchased from the Louisiana Department of Highways the house in question for $776. It was then located in the City of New Orleans on the right-of-way of the Interstate-10 Highway and was moved at a cost of $850 to Lot 22 in Creedmore Subdivision in St. Bernard Parish. Creedmore Subdivision was owned and being developed by plaintiff and his two brothers, Vincent and Bruman Brouil-lette. Lot 22 was owned by a partnership composed of the three brothers. Between January and February, 1967, plaintiff employed carpenters to repair the house and had repairs done to the roof. According to his testimony he personally worked on the house in his spare time from the time it was placed on the lot until August of 1968, when the incident which is the subject of these suits took place. Plaintiff testified that as of that date he still had four or five more days of work to do on the house consisting of, a walk and a concrete slab on the front porch, after which the house would be ready to rent.

There were hard feelings between plaintiff and his two brothers. The latter apparently resented the general attitude plaintiff took in connection with their business dealings, and specifically they objected to plaintiff’s placing this house in this particular location because they felt that it was incompatible with the new brick homes which had been constructed in that area of Creed-more Subdivision. An illustration of the extent of the animosity which existed among the brothers was an incident which took place about six months prior to the bulldozing incident of August, 1968, in which plaintiff had taken a sledge hammer and demolished a portion of a house being worked on by Vincent in another part of the Creedmore Subdivision. Vincent admitted that on August 22,1968, he deliberately shoved the house off its foundation with a bulldozer. He explained his conduct on the basis that his brother over the years had provoked him because of the manner in which he treated him in their business operations.

In dismissing the suit against Phoenix the trial court reasoned that because Lot 22 was owned by the partners the house placed on the lot became the property of the partners, with the result that plaintiff had no right to recover under the policy for the loss of the house. Furthermore, he reasoned that the tortious act of Vincent was imputed to plaintiff because of their partnership relationship so that he was denied recovery just as though he were making a claim occasioned by his own tortious act.

With respect to the dismissal of the tort claim by plaintiff against Vincent, the court reasoned that this was a demand by one partner against another in advance of a settlement of partnership affairs and that such a demand was premature until a liquidation of the partnership would be effected.

PLAINTIFF’S CLAIM AGAINST PHOENIX

We do not agree with the trial judge that the house became the property of the partnership simply because the land itself was owned by the partnership. While the ownership of the soil normally carries with it the ownership of all that is directly above and below it, LSA-C.C. Art. 505, Art. 506 provides that “ [Constructions . made on . the soil, are supposed . to belong to [the owner] unless the contrary be proved . . . ” Art. 508 outlines certain conditions under which the owner of the soil may become the owner of works made on the soil by a third person. Based on these articles and the jurisprudence construing them, cf. Louisiana Land & Pecan Co. v. Gulf Lumber Co., 134 La. 784, 64 So. 713, and the testimony of all three brothers that plaintiff purchased and constructed the house for himself, we have concluded that the trial judge erred in holding that this house became the property of the partners. It follows that plaintiff, as the owner of the house, had a right to collect the proceeds under the policy insuring him against vandalism by anyone, including his brother, even though they were engaged in a partnership with respect to their business dealings. There is no basis for the imputation of Vincent’s malicious act to plaintiff who was the victim of the tort which caused the damage to the insured house. We have thus rejected the reasoning of the trial court in disposing of plaintiff’s claim against Phoenix.

In this Court Phoenix has strenuously urged its special defense of a lack of coverage based upon the following provisions of the policy:

“1. This Company shall not be liable for loss if the described building(s) had been vacated or unoccupied beyond a period of thirty (30) consecutive days immediately preceding the loss, whether or not such period commenced prior to the inception date of this endorsement; but a building in process of construction shall not be deemed vacant or unoccupied, nor shall the unoccupancy provision of this endorsement be applicable to private dwelling property or to property described as seasonal on the first page of the policy. Definitions:
Vacant — Containing no contents pertaining to operations or activities customary to occupancy of the building.
Unoccupied — Containing contents pertaining to occupancy of the building while operations or other customary activities are suspended.”

The insured house was always vacant and was never occupied but the question is if it was a “building in process of construction” so as to make it insured despite the fact that it was vacant and unoccupied.

In the first place, we do not accept the distinction Phoenix seeks to make between “construction” in the policy and the process which was going on with respect to this house at the time of the loss. We cannot accept the proposition that unless the building was constructed from the beginning and this process was still going on at the time of the loss the policy provision does not apply. This house was moved a considerable distance before it was placed on the foundations prepared for it on Lot 22. When it arrived at its new location it seems that it was a virtual shell. The walls on the inside were to be completely refinished with sheetrock or plaster, all of the utilities were to be installed, a septic tank was to be constructed, and other major steps were to be taken before it was ready for occupancy. While it is true that plaintiff had something with which to start when the house was placed on Lot 22 as opposed to construction from the beginning, we cannot say that a reasonable interpretation of construction would exclude the process of reconstruction of this particular house.

The uncontradicted testimony of plaintiff was that the house was not yet ready for occupancy at the time of this loss. Phoenix introduced evidence to show concern on its part about the fact that the property was vacant and unoccupied as of July, 1967, but plaintiff produced two witnesses who testified that some of the repairs were made within thirty days prior to the loss. This was the crucial period for a determination of coverage or not under the policy provisions. The policy places no time limit on how long construction may take so as to call into effect the vacancy or occupied provisions of the policy. The problem as to how long or to what extent a building’s construction must progress before the exclusion comes into play, as well as the problem of the meaning of the word “construction,” are ambiguous areas in the policy which must be construed against the insurer.

Finally, in contesting liability, Phoenix contends that Plaintiff did not have any insurable interest in the house because of the property in question being titled in the name of the partnership. The problem is not susceptible to an easy solution and requires that C.C. Art. 508 be considered more closely and the facts more carefully scrutinized. The article reads as follows:

“When plantations, constructions and works have been made by a third person, and with such person’s own materials, the owner of the soil has a right to keep them or to compel this person to take away or demolish the same.
“If the owner requires the demolition of such works, they shall be demolished at the expense of the person who erected them, without any compensation; such person may even be sentenced to pay damages, if the case require it, for the prejudice which the owner of the soil may have sustained.
“If the owner keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby. “Nevertheless, if the plantations, edifices or works have been made by a third person evicted, but not sentenced to make restitution of the fruits, because such person possessed bona fide, the owner shall not have a right to demand the demolition of the works, plantations or edifices, but he shall have his choice either to reimburse the value of the materials and the price of workmanship, or to reimburse a sum equal to the enhanced value of the soil.”

The evidence shows that plaintiff was in good faith in placing the house on the property in January, 1967, and reconstructing it until August of 1968. There is no evidence in this record to show that plaintiff’s brothers took any action against him because of his placing the house there initially. While it is true that they were dissatisfied with the appearance of the house the fact remains that they did nothing about it. Only after this extended period of time did the incident take place, and from the testimony of Vincent it is clear that it was more a question of revenge for a general attitude on plaintiff’s part rather than the appearance of the house. Nothing in Vincent’s testimony suggests that he was demolishing the house because plaintiff had no legal right to use the lot. The record shows that Lot 22 was eventually to be allocated by title to plaintiff, just as other lots in the subdivision were to be allocated to the other two brothers. The fact that the act of exchange or partition had not yet been passed prevented plaintiff from taking legal title but demonstrates that he was in good faith when he placed the house on the lot.

From the foregoing, it follows that plaintiff had an insurable interest in the house since he was in good faith when he placed the house on the lot based upon the last paragraph of Art. 508. The same result was reached in Rigdon v. Marquette Casualty Co., 163 So.2d 442 (La.App. 2nd Cir. 1964), writ refused.

Plaintiff’s claim for the policy limits is based upon the testimony of a contractor, Charles Branch, who saw the house once in October, 1969. He testified that the house was absolutely unrepairable and should be demolished and a new house rebuilt at a cost of over $14,000. He had the background sufficient to qualify him as an expert. But, the cornerstone of his conclusion was his opinion that the house could not be shored up and put back on the foundation. When asked why this wasn’t possible, the answer was “I just don’t think you could do it in the condition it’s in.”

His testimony was in total conflict with Vincent Brouillette’s expert, Sherman A. Bernard, who had been in the house moving and shoring business for nineteen years and qualified as an expert in this field. He saw no problem about shoring up the house and moving it back onto the foundations, and submitted a bid to do just that for $772. He testified that most of the floor joists were intact as well as the roof rafters and those which required replacing could be for a specific price. Bernard explained exactly how he proposed to accomplish the shoring. He mentioned some of the hazards that were involved and after extensive examination and cross-examination stuck to his conclusion that the house could indeed be shored and moved. When his testimony is compared to the arbitrary statement by Branch that he simply didn’t think it could be done, it becomes more probable than not that Branch’s supposition was erroneous. Because Branch started with that supposition he itemized no specific amounts to repair the house, but defendant, Vincent Brouillette, produced his own testimony consisting of an itemization of exactly what would be necessary to repair the house after it was moved by Bernard under his bid which came to a total figure of $1993.

We recognize that Vincent’s testimony must be considered as self-serving and viewed with some suspicion. But it is uncontradicted, and apparently prepared at the suggestion of Vincent’s attorney in connection with an offer to compromise the case by making such repairs. Finally, while the amount of the estimate seems low it must be considered in the light of the only hard figures produced by plaintiff for his work on the house in the first instance which totaled only about $600 plus his own labor. Plaintiff had the burden of proof on the amount of the loss and failed to show that the repairs would exceed the $1993 figure established by Vincent Brouillette. Therefore, plaintiff is entitled to recover that amount against Phoenix.

PLAINTIFF’S CLAIM AGAINST VINCENT BROUILLETTE

We reject the reasoning of the trial court that plaintiff is relegated to a claim in the settlement of partnership affairs. He was a victim of a tort and he is entitled to compensation under C.C. Art. 2315. According to plaintiff’s testimony, the house had reached the stage where only four or five days of work would put it in condition where it could be rented for $90 per month. We are not favored with the amount of time it might take for the repairs proposed by Vincent Brouillette to be completed, but it does not appear that this work would exceed two months, so that plaintiff is entitled to $180 for lost rent. However, plaintiff is neither entitled to exemplary damages as he prayed for, Holcombe v. Superior Oil Co., 213 La. 684, 35 So.2d 457 (1948), nor other compensatory damages since he did not pray for or prove such. Phoenix is also entitled to recovery from Vincent on its intervention.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of plaintiff, Ranton Brouil-lette and against defendants, Vincent Brouillette and Phoenix Insurance Company of New York, for the sum of $1993 with legal interest from date of judicial demand (April 19, 1969) until paid, and for all costs.

There is judgment in favor of Phoenix Insurance Company of New York and against Vincent Brouillette on the intervention for any amount Phoenix pays to Ran-ton Brouillette under his judgment.

There is judgment in favor of Ranton Brouillette against Vincent Brouillette for the additional amount of $180 with legal interest from date of judicial demand (August 21, 1969) until paid, and for all costs.

REVERSED AND RENDERED.


author: MORIAL, Judge.

text:
    Dennis James SCHEDLER v. BAYOU FABRICATORS & ERECTORS.
    No. 7705.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Dunn & Rasch, Ltd., Michael H. Rasch, Metairie, for plaintiff-appellee.
    Peter A. Winkler, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff instituted this suit against defendant pursuant to LSA-R.S. 23:631 and 632 to recover wages, penalties and attorney’s fees. After a trial on the merits the district court rendered judgment in favor of the plaintiff in the amount of $468.00 plus attorney’s fees of $300.00. Defendant appeals. We affirm.

The essential facts of this case are as follows: Plaintiff was employed by defendant as an iron worker at the rate of $4.50 per hour. He was paid weekly on each Friday for an eight (8) hour per day, forty (40) hour work week ending at the close of business on the preceding Wednesday. On the morning of Tuesday, October 16, 1973, plaintiff’s employment was terminated following his refusal to perform certain duties because of a work-related injury he sustained on the previous day. Shortly after his termination plaintiff went to the office of defendant and requested payment of wages for twenty-three (23) hours work. He was told by Helen Hoffnagel, an employee of the defendant that she was instructed by R. W. McGuffie, the owner of Bayou Fabricators & Erectors not to give him his check and that he could pick up his check on Friday, October 19, 1973 at 3:30 P.M. Plaintiff contacted defendant’s office on October 19, 1973 at about 4:00 P.M. about getting his check. He was told by Hoffnagel that it was too late for him to come to the office for his check. Plaintiff then contacted his attorney who called the office of defendant and was told that plaintiff could call for his check at defendant’s office on Saturday morning about 9:00 A.M. On Saturday morning, October 20, 1973 at about 9:00 A.M., plaintiff visited defendant’s office accompanied by another former employee of defendant, Joseph Slaughter, Jr. They were told that they would have to wait until McGuffie arrived. Plaintiff and Slaughter waited until around 12:00 o’clock noon when McGuffie arrived. Each requested his check. Slaughter was given his check by McGuffie who told plaintiff that his attorney could collect his money. On October 26, 1973 plaintiff filed this suit. Plaintiff received his check on October 29, 1973 though McGuffie testified that he mailed the check to plaintiff’s home address on the evening of October 19, 1973.

Defendant argues that: (1) plaintiff was employed at an hourly rate, and therefore, did not come within the purview of “ * * employment * * * by the day, week or month, * * * ”, as provided for in LSA-R.S. 23:631; and (2) under the circumstances it acted reasonably and in good faith and should not be subjected to statutory penalties and attorney’s fees. We cannot agree with either of defendant’s arguments.

The evidence is clear that the plaintiff was not employed for a job or for the duration of a certain project. He was paid an hourly rate based upon a weekly pay period; i. e., he was paid weekly for a forty hour (40) hour work week. See Colbert v. Mike-Baker Brick Co. of New Iberia, Inc., 326 So.2d 900 (La.App. 3 Cir. 1976).

The trial court concluded that the plaintiff personally demanded his pay the day his employment was terminated and again on October 20,1973, but did not actually receive his pay until October 29, 1973. The evidence amply supports these findings. A careful analysis of all of the facts leads us to the inescapable conclusion that defendant acted in bad faith and was not justified in delaying plaintiff’s receipt of his wages beyond the statutory period. We find that greater justice will be attained by the assessment of penalties. See Becker v. Choate, 204 So.2d 680 (La.App. 3 Cir. 1968).

For the foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.

      . LSA-R.S. 23:631 and 23:632 read as follows:
      R.S. 23:631
      “It shall be the duty of every person, employing laborers or other employees of any kind whatever when discharging any laborer or other employee, or when any such laborer or employee has resigned, within twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of employment whether the employment is by the day, week or month, upon demand being made upon the employer by the discharged or resigned laborer or employee at the place where the employee or laborer is usually paid.”
      R.S. 23:632
      “Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety day’s wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorneys’ fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after twenty-four hours shall have elapsed from time of making the first demand following discharge or resignation.”


author: SAMUEL, Judge.

text:
    James R. PERTUIT and Federal Insurance Company v. CHAS. J. MUNCH & SONS, INC. and Insurance Company of North America.
    No. 7707.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Christovich & Kearney, R. K. Christovich, New Orleans, for plaintiffs-appellees.
    George F. Riess, New Orleans, for defendants-appellants.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiffs, James R. Pertuit and his insurer, Federal Insurance Company, filed this suit against Charles J. Munch & Sons, Inc., and its insurer, Insurance Company of North America, for damages they allege were caused by the negligence of Munch in the installation of plumbing fixtures in the Pertuit residence causing extensive flooding therein. The defendants’ answer denies negligence on Munch’s part.

After, a trial on the merits, judgment was rendered in favor of plaintiffs and against defendants in the amount of stipulated damage^. Defendants have appealed.

The evidence contained in the record consists of the testimony of both parties, the testimony of their experts in the field of engineering, and some exhibits. There is conflict in the testimony.

The trial judge assigned written reasons for judgment. In those reasons the court stated he found Munch had installed the plumbing in a bathroom in Pertuit’s home during the course of its remodeling. The work was completed on April 22, 1974, at which time the faucets worked properly. Shortly after completion, Mrs. Pertuit noticed water draining from the vanity in the bathroom and Mr. Pertuit had the valves to the faucets closed by the marble contractor who had installed the vanity top. The marble contractor noticed fittings on the hot water installation were loose and required a few turns to close. No damage resulted, and the valves remained closed until June 23, 1974.

The trial court further found that on July 23,1974 Pertuit opened the stop valves and, when no leaks appeared, left them open. On several occasions prior to retiring he checked for leaks and found none. During the night he was awakened by a hissing sound and found water spurting out of the vanity in the bathroom. When he attempted to close the stop valves, the cold water pipe between the valve and the faucet pulled completely out of its fitting. The trial court concluded the pipes had not been changed or damaged subsequent to the work performed by Munch, there had been no negligence on the part of Pertuit when he attempted to close the valves, and the leak and subsequent damage were caused by Munch’s negligent workmanship in failing to properly tighten the fittings.

The proper allocation of trial and appellate court functions requires the reviewing court to afford great weight to the conclusions of the trier of fact. When conflict in the testimony exists, reasonable evaluations of credibility and inferences of fact cannot be disturbed on appeal in the absence of manifest error, even if the appellate court concludes its own evaluations and inferences are equally reasonable.

Given this wide discretion if fact finding, the record does not disclose sufficient evidence to support a reversal of the trial court’s conclusion that the defendant plumber’s negligence was the cause of the flooding.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Canter v. Koehring Co., La., 283 So.2d 716.


author: STOULIG, Judge.

text:
    Betty Daigle, wife of Richard Felix TRAHAN v. Richard Felix TRAHAN.
    No. 7713.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Graffagnino & Perez, Lester J. Wald-mann, Metairie, for plaintiff-appellant.
    Cabral, Daniel & Merlino, Harry R. Cabral, Jr., Metairie, for defendant-appellee.
    Before GULOTTA, STOULIG and BEER, JJ.
   STOULIG, Judge.

Appellant, Mrs. Betty Trahan, has appealed a judgment decreeing her at fault in the dissolution of her marriage to Richard Trahan. She contends, inter alia, the trial judge erred in hearing evidence in support of appellee’s post-divorce petition to determine fault because her freedom from fault had previously been adjudicated in a default judgment of separation from bed and board and could not be relitigated.

Initially, Mrs. Trahan filed suit for separation a mensa et thoro alleging abandonment and cruel treatment. On October 30, 1972, her petition was granted by a default judgment of separation. On September 17, 1973, she filed suit for divorce on the ground of adultery. On January 4, 1974, with the first divorce action still pending, appellant filed an R.S. 9:302 divorce action based on having lived separate and apart from her husband without reconciliation for a year after rendition of her judgment of separation.

After having the cases consolidated, ap-pellee pleaded the exception of lis pendens to the adultery action and answered the R.S. 9:302 suit with a general denial. On April 15, 1974, appellant was awarded a judgment of divorce on the no-fault petition and both litigants agreed to pretermit the question of fault and by consent this stipulation was made part of the judgment:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that by consent of the parties herein, the question of fault between the parties is pretermitted at this time.”

On May 6,1974, appellee filed a “Petition to Determine Fault”. Appellant filed a general denial to the averments of fault and invoked the doctrine of judicial estoppel based on the Supreme Court decisions in August v. Blache, 200 La. 1029, 9 So.2d 402 (1942), and Fulmer v. Fulmer, 301 So.2d 622 (La.1974).

Both cases hold the question of the wife’s fault may not be relitigated after the marriage has been dissolved by an R.S. 9:302 action if the wife put the question of her husband’s fault at issue in a petition for separation from bed and board and obtained a judgment either in an adversary proceeding or in confirming a default. (See Frederic v. Frederic, 302 So.2d 903 (La. 1974).

In overruling the plea of estoppel, the trial judge indicated his awareness of this jurisprudence, but concluded the consent judgment to pretermit the question of fault effectively reserved the husband’s right to have the question of fault reconsidered. He reasoned, Fulmer notwithstanding, a consent judgment concerning alimony was as binding on the parties and had the same efficacy as one rendered after an adversary proceeding.

The cases he cited to support his conclusion are Grice v. Grice, 281 So.2d 145 (La. App. 4th Cir. 1973), and Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973). Both of these cases hold consent judgments fixing alimony awards should be given the same effect as any other judgment, thus either spouse wishing to alter the award must establish a change in circumstances. These holdings are inapposite here. In Bernhardt and Grice, the parties entered into a valid agreement on a matter in which they had the legal right to contract and incorporated their agreement in a consent judgment. But in this case, the litigants cannot require the courts to relitigate a matter that has been previously adjudicated. The purpose of ruling the litigants are entitled to one hearing on the question of preseparation fault is to achieve judicial economy. In Fulmer the Court stated:

“Ultimately, as we will explain more fully, we reject or modify the second and third line of decisions, since we have concluded that the first position represents the correct interpretation of Article 160— that the judicial determination, in the separation proceeding, of the party at fault in the separation bars re-litigation, in the subsequent divorce proceeding, of the fault which caused the separation, when such need be determined for the purpose of awarding post-divorce alimony under the code article. We do so, as we will explain, on the basis of what we believe to be the legislative intent as deduced from the legislative history of the article.
“We assume that the legislative choice is based on the judicial economy and consistency represented by having the separation-causing fault determined once and in the separation proceedings itself, rather than litigating (or re-litigating) it in the much later divorce proceedings— where, with different testimony or less recent recollection, the separation-causing fault might even be determined contrary to that determined at an earlier well-tried and hotly-contested separation adjudication.” 301 So.2d at 625.

The language of Fulmer is explicit. Re-litigation of fault is barred. We do not think the litigants can contract to alter the Supreme Court’s pronouncement on this point.

Even if we assumed arguendo they could, the agreement entered into is not binding. In written reasons for judgment the trial court indicated appellee relinquished his right to put fault at issue in the divorce proceeding because he was led by confusing jurisprudence from this court. Randle v. Gallagher, 169 So.2d 224 (La.App. 4th Cir. 1964), and Gamino v. Gamino, 199 So.2d 202 (La.App. 4th Cir. 1967), held fault could be relitigated in cases similar to this one, while Richardson v. Richardson, 275 So.2d 845 (La.App. 4th Cir. 1973), indicated otherwise.

We point out that at the time the consent judgment was entered, the Supreme Court’s ruling in August v. Blache, supra, which was later reaffirmed by Fulmer, was controlling. Even if this circuit was confused, it cannot be disputed that August v. Blache, supra, was the law because, in the final analysis, the law is what the Supreme Court says it is. If the wife’s consent to preter-mit an issue which had previously been decided in her favor was based on confused jurisprudence, we can only conclude it was vitiated because it was based on an error of law. C.C. arts. 1819, 1820 and 1822 provide consent based on error is, in effect, no consent at all. C.C. art. 1823 provides that if an error of law is a principal factor in entering into the agreement, the error is sufficient to invalidate the agreement. In this case, we can only conclude an error of law prompted Mrs. Trahan to agree to relit-igate an issue already decided in her favor. Accordingly, we conclude the plea of estop-pel should have been maintained.

For the reasons assigned, the judgment appealed from is annulled at appellee’s cost.

JUDGMENT ANNULLED.


author: BEER, Judge.

text:
    William M. CARLTON, Jr. v. GREAT AMERICAN INSURANCE COMPANY et al.
    No. 7718.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.
    Writ Refused March 16,1977.

      Cameron C. Gamble, New Orleans, for plaintiff-appellant.
    Robert J. Young, Jr., Joseph R. McMahon, Jr., Edward L. Levert, Jr., E. Gordon Schaefer, Jr., Donald D. Hammett, New Orleans, for defendants-appellees.
    Before GULOTTA, STOULIG and BEER, JJ.
   BEER, Judge.

William M. Carlton, Jr. sought damages for injuries and medical expenses allegedly resulting from a rear-end collision which took place on November 11, 1969, and allegedly due to the negligence of William Harvey Moynan. Great American Insurance Company (hereafter, “Great American”) and American Southern Insurance Company (hereafter, “American Southern”) were sued as Moynan’s liability insurers. Subsequently Carlton supplemented and amended his petition:

(1) to dismiss Great American as a party defendant and to add Canadian Universal Insurance Company (hereafter, “Canadian”) and Continental National American Insurance Company (hereafter, “Continental”) as defendants,

(2) to allege aggravation of a preexisting physical condition and precipitation of latent physical defects, and

(3) to allege traumatic neurosis in addition to the previously itemized damages resulting from the accident.

Answering, Moynan specifically pleaded a compromise agreement as extinguishment of any and all claims arising from the accident. Moynan also filed a third party action against his insurer, Great American, seeking indemnification in the event he was cast in judgment.

American Southern answered, alleging compromise and release. American Southern also filed a third party action against Great American seeking indemnification.

Canadian answered, alleging that its insurance was excess, available only in the event that the primary policy limits were exhausted. Canadian, also, pleads compromise and release. In a third party action, Canadian alleged that Great American was the primary insurer and sought indemnification if cast in any manner other than excess insurer.

Travelers Insurance Company, self-insured employer of Carlton, filed a petition of intervention, seeking to recover $2,804.77 in workmen’s compensation payments and medical expenses.

American Southern, Canadian and Moy-nan amended their answers to further allege that an unknown female driver crowded from the left land of traffic into the right lane of traffic in which Moynan was traveling, causing him to be forced to the right side of the two-laned street, causing the collision. Thus, they contended that the accident was unavoidable.

Prior to trial, the parties essentially agreed that primary coverage was afforded to Moynan by American Southern with primary limits of $5,000 and there was also in effect a policy of excess insurance written through Canadian with limits of $95,000. They also apparently agreed that Great American’s coverage excluded “owned” automobiles and that, therefore, they should be dismissed and, finally, that Continental American should also be dismissed because their policy was not in effect on the date of the alleged accident.

However, by second supplemental and amended petition, Carlton reinstated his claim against Great American who was represented at the trial and included in the judgment.

Exceptions of res judicata were filed by the various defendants premised upon a compromise and release agreement of July 29, 1970. The exceptions were directed against Carlton’s claim as well as Travelers’ intervention. Carlton responded averring that error and misrepresentations invalidated the release. After a hearing on the exceptions, the trial court rendered judgments in favor of defendants Moynan, American Southern, Canadian and Great American, and against Carlton and Travelers. Motion for new trial was denied. Carlton appealed and this court reversed and remanded (see La.App., 273 So.2d 655). Since Travelers did not appeal, the judgment dismissing its intervention became final. This court held that the compromise and release agreement dated July 29, 1970, between Carlton, Moynan and American Southern, as related to the November 11, 1969 accident, was null, void and of no effect. Writs were refused by the Louisiana Supreme Court in view of the fact that the case had been remanded by this court to the trial court and no final judgment was involved.

Moynan died on July 8, 1972, and his widow, executrix and sole heir, Norah Vives Moynan, was made a defendant in his place.

A jury trial on the merits (March 5-6, 10-12 of 1975) resulted in a verdict in favor of the defendants, Great American, American Southern, Canadian, Continental National and Norah Vives Moynan, and against plaintiff Carlton, dismissing his suit. Carlton devolutively appeals, contending that the verdict is manifestly erroneous in that the defendant-appellees never overcame the presumption of negligence which attaches in rear-end collisions and, in fact, were judicially bound by Moynan’s plea of guilty to the traffic citation issued at the time the accident was investigated. He further contends that the trial court manifestly erred in admitting into evidence the pleadings and record of a separate law suit instituted by him for damages caused by a subsequent accident and then compounded this error by disallowing Carlton’s attempt to acquaint the jury with the details of that settlement.

Carlton testified that he was working as assistant manager of the engineering section of Travelers Insurance Company when the accident occurred. He described the accident as follows:

“Q. All right. Now, on November 11, 1969, at the time of the accident that is involved in this matter, where were you going?
A. To the Sewerage & Water Board pumping station in the four hundred block of North Broad.
Q. Now, can you tell us what happened at the time of the accident, describe the accident, sir?
A. Yes, sir.
Just before getting ready to make the turn, I looked in the rear view mirror, and there was nothing behind me, and I had given the signal that I was turning right, and all of a sudden I was struck from the rear.
Q. Do you know the name of the individual that struck you from the rear?
A. Yes, sir, William Harvey Moynan.”

Berno Scallan, the investigating police officer, spoke with both drivers following the accident. He testified:

“A. Mr. Carlton, who was the driver of the first vehicle said that he was slowing down to turn into a drive, a driveway in the four hundred block of North Broad, and the driver of the other vehicle driven by Mr. Moynan struck his vehicle from the rear.
Q. Did Mr. Moynan explain how the accident happened?
A. Yes, sir, he stated as he was driving down the street, he was being crowded by another vehicle so he gave way a little bit, and didn’t notice Mr. Carlton’s vehicle, and ran into it.”

In describing the damages, Officer Scal-lan testified:

“A. As reflected on my report, Mr. Carlton’s vehicle was damaged to the left rear, light damage, Mr. Moy-nan’s vehicle was damaged to the right front, light damage.
Q. Does it also indicate how the vehicle left the scene?
A. Both vehicles were driven off by the operator.”

Carlton had, prior to the accident, experienced a long history of cervical and lumbar difficulties, but he contends that in November of 1969, his back and neck condition had stabilized and he had reached a desirable degree of comfortableness with respect to his prior disabling condition.

A review of this medical history indicates that in 1964, Carlton underwent a cervical disc operation necessitated by an industrial accident. In January, 1968, a new effort to fuse became necessary and the procedure was carried out. Again, in January, 1969, another fusion attempt was necessary. There were no further surgical procedures prior to the accident, and Carlton contends that he “felt good” during this interim period although a neck “collar” had been prescribed in October, 1969. After the accident, Carlton continued to work in November and December, but, thereafter, took vacation time off in lieu of sick leave because he “wasn’t feeling well after the accident.” In January, 1970, Mr. Carlton was seen at Mercy Hospital but tests were inconclusive and he was discharged on January 7. He returned to work but was again 'seen by Dr. Llewellyn on February 16,1970, and, again, on March 9, 1970. Dr. Llewellyn placed Carlton in Methodist Hospital in April, 1970, and Dr. Richardson, in neuro-surgical consultation with Dr. Llewellyn, performed a chordotomy operation on April 3, 1970. Carlton remained hospitalized for approximately four weeks following the operation. Subsequently, Carlton complained to Dr. Richardson of a severe burning sensation in the right leg, pain in the lower back, and difficulty in ambulation. However, the neck and arm pain decreased after the chordotomy and eventually subsided. Carlton returned to work in the latter part of June, 1970, and until December of 1970, his work record was, in his words, “one hundred percent.” However, Carlton entered Ochsner Foundation Hospital in December, 1970, due to “deep burning” pains in his right leg and low back.

Carlton was involved in another rear-end collision on January 4, 1971. On January 8, 1971, Dr. Llewellyn “felt that the patient had experienced yet another aggravation of the old neck problem. . . . ” He hospitalized Carlton at Methodist Hospital in mid-January, 1971, for bedrest, x-rays and examinations. Ten days later, he was discharged and returned to work. In May, 1971, Carlton was again hospitalized. He was then having difficulty walking. A lumbar laminectomy was performed and he was discharged about seven weeks later. In August, 1971, a foot drop brace was necessitated due to weakness in the right leg. Carlton returned to a “modified work schedule” in November, 1971. On April 12, 1972, plaintiff was rehospitalized in Methodist Hospital where another lumbar lami-nectomy was performed. Carlton returned to a “modified work schedule” in September, 1972. In November, 1972, Carlton went on “extended disability” with Travelers Insurance Company and has not worked since that time. Carlton then saw Dr. Hay-nie, a psychiatrist, between April 24, 1973 and March 12,1974. He was hospitalized in 1973 and operated on by Dr. Ralph Sagrera because of the formation of bladder stones. In March, 1974, Dr. Llewellyn hospitalized him for a one month term for medication' and tests and, thereafter, on August 6, 1974, Dr. Llewellyn again performed surgery in the lumbar area. After approximately one month in the hospital, Carlton was discharged but continued to be followed as an out patient by Dr. Llewellyn and Dr. Sagrera.

Dr. Llewellyn testified that he first treated Carlton in 1964 and at intervals up to the time of trial. Based upon his March, 1970 examination, he concluded that “. the patient had aggravated the preexisting chronic unresolved neck problem, his cervical disc problem. . . . ” And the aggravated condition “. . . was a consequence of him (Mr. Carlton) experiencing an automobile accident on November 11, 1969.” He acknowledges, however, that there was no evidence of fracture or dislocation of the cervical spine following the November 11, 1969 accident and further acknowledges that Carlton’s low-back complaints were more likely related to the second automobile accident of January 4, 1971. .

Dr. Jose L. Garcia Oiler was first consulted by Carlton on October 3, 1969 (just prior to the November accident), and noted a history of three previous operations attempting to alleviate his neck problems. Carlton next saw Dr. Garcia Oiler on December 15, 1969, following the November 11,1969 accident. Dr. Garcia Oiler testified that at the time of the December examination, he believed: “. . . as a result of this accident of November 11th that Mr. Carlton had suffered an injury to the liga- ■ ments of his neck and probably a stretching of the nerve structures of his neck and it was my opinion that he was likely, that after a period of several months, he would recover from the results of this accident.”

Dr. Garcia Oiler again examined plaintiff on January 5, 1970, and with respect thereto states:

“. . .in summary he had no sign of nerve pressures in the region of his back and in as far as his arms and neck, the condition was essentially the same as when I had previously examined the patient two weeks before.”

Dr. Garcia Oiler’s opinion was summarized as follows:

“Q. Doctor, in summation, having treated Mr. Carlton before, both before and after the November, 1969 accident, is it still your opinion that he received a cervical strain, a sprain type of injury in the accident and should have recovered within several months from the date of the accident?
A. Yes, sir, that’s my opinion.”

Dr. Donald E. Richardson, a neurosurgeon, testified that the chordotomy was necessary due to the “continuous pain in his (Mr. Carlton’s) right arm.”

Dr. H. G. Haynie, a psychiatrist, testified that he first consulted with Carlton on March 31, 1970, and on seven subsequent occasions between April 24,1973 and March 12, 1974, at the recommendation of Dr. Llewellyn. He states:

“Well, Dr. Llewellyn was hopeful that I could help Mr. Carlton make somewhat better emotional adjustment to his pain, learn to live more freely, comfortable with his pain and he also hoped that I might be able to adjust the various medications to help him to be more either emotionally comfortable or of less pain through regulation of his pain medication directly.”
He further observes:
“(M)y impression was that this man was carrying on rather well and continuing to work and that he was just growing rather weary and somewhat tired because óf his chronic neck and arm pain and at that time that was part of the consideration of doing the neurological procedure for relief of the pain.”

Prior to the January 4, 1971 accident, Carlton apparently indicated to Dr. Haynie that he was “coming along well” but after the second accident the pain was very severe. Dr. Haynie related this pain to the January 4, 1971 accident (Tr. Vol. II at p. 122). Carlton felt that Dr. Haynie “has the dates mixed up.” However, Dr. Haynie testified on cross examination: “. . .1 don’t know anything about a 1969 accident.”

Dr. Sagrera was of the view that Carlton’s bladder condition probably existed several years prior to his April, 1970 examination.

In the course of the trial, defendants’ counsel questioned Carlton regarding the January 4, 1971 accident and the law suit emanating therefrom. Able counsel for all parties have stipulated that Carlton’s counsel interposed an objection at this point in the proceedings which was overruled by the trial judge. On redirect, Carlton’s counsel questioned him regarding the amount of the settlement of that claim. At this point in the proceedings, defense counsel requested that counsel for both parties be permitted to approach the bench. There was an off-the-record discussion. Immediately following that discussion, the record reflects only the following:

“THE COURT:
“All right, gentlemen, any further questions?
MR. GAMBLE:
Your Honor, I have no further questions.”

Again, able counsel for all parties have stipulated that defendants’ counsel interposed an objection to the admission of the information regarding the settlement which was sustained by the trial judge.

When the record is augmented by the stipulations noted above, the contentions of Carlton’s counsel, with respect to the assignment of error regarding the trial court’s rulings, are clarified.

Stated another way, the chronological sequence of events was as follows:

1. Counsel for the defendants sought to place before the jury the record that dealt with the second accident and the litigation resulting therefrom.

2. Carlton’s counsel objected.

3. The court overruled the objection.

4. Carlton’s counsel sought, by a question directed to Carlton, to demonstrate to the jury the amount that Carlton received in settlement of that litigation.

5. Defendants’ counsel objected.

6. The court sustained the objection.

Although we are concerned about the correctness of these rulings when considered individually, our concern is substantially dissolved by the holding in Naquin v. Maryland Casualty Company, 311 So.2d 48 (La.App. 3rd Cir., 1975) writ ref., La., 313 So.2d 598, which states:

“When a review of the record indicates the trial court judgment is correct and that justice has been done, the judgment will not be overturned because of error which did not affect the merits. LSA-C. C.P. 2164; Shows v. Williamson, 256 So.2d 688 (La.App. 2 Cir. 1972). When error is detected, it must be weighed to determine whether such error is harmless or prejudicial. Lauro v. Travelers Insurance Company, 261 So.2d 261 (La.App. 4 Cir. 1972). When there is evidence before the trier of fact which, upon reasonable evaluation, furnishes a factual basis for the trial court’s finding, the appellate court, on review, should not disturb this factual finding absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).”

This mandate has recently been fortified in Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (Sup.Ct., 1976):

“An appellate court, even if it believes that errors committed at trial influenced the jury’s verdict, must undertake an independent evaluation of the facts and adjudicate the controversy before it. Gonzales, supra.”

Turning to Carlton’s other contention, we are of the view that even if defendants failed to overcome the presumption of negligence enunciated in LSA-R.S. 32:81 and Eubanks v. Brasseal, 310 So.2d 550 (La.Sup.Ct., 1975), the medical and lay testimony adduced at the trial could reasonably have been interpreted by the jury as failing to establish the requisite causal link between an act of negligence on the part of Moynan and Carlton’s alleged disabilities.

Stated another way, the record supports the reasonableness of a conclusion by the jury that Carlton’s physical and/or mental problems were not related to the accident of November 11, 1969. Had interrogatories been propounded to the jury with respect to the various factual determinations which they were required to make, sorting out the jury’s factual conclusions might have been simplified. However, we work with what we have, and, in this instance, we believe that the form of the jury verdict is a satisfactory and understandable expression of their views regarding this case.

The judgment of the Civil District Court for the Parish of Orleans is affirmed. All parties to this appeal shall bear their own costs.

AFFIRMED.


author: REDMANN, Judge.

text:
    COMMERCIAL UNION INSURANCE COMPANY v. Roubin I. MAISE et al.
    No. 7720.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.
    Writ Refused March 16, 1977.
    John Dale Powers, Gerald E. Songy, Sanders, Miller, Downing & Kean, Baton Rouge, for Louisiana National Leasing Corp.

      Harry C. Stumpf, Knight, D’Angelo & Knight, Gretna, for Guaranty Bank and Trust Co.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   REDMANN, Judge.

One loss payee on a vessel-and-equipment insurance policy appeals from a judgment which awarded the entire $16,000 policy proceeds to another in this concursus brought by the assurer after a constructive total loss. We amend to award to appellant a share proportionate to its insurable interest.

The question is one of contract law. The policy provides, with no explanation or limitation, “loss payable to” three named persons (the assured owner being the third). The two payees who asserted claims in the concursus are a preferred mortgagee of the vessel (owed $16,137.25) and the lessor-owner of the vessel’s radar (owed $2,317.40). Under basic contract law (e. g., La.C.C. 2081) an obligation contracted towards several persons is a joint obligation which, in the absence of other considerations, suggests that the obligees are entitled, as among themselves, to virile shares. One other consideration here is that the two claimants have disparate insurable interests (the radar lessor’s being far less than a third of the insurance proceeds). A second consideration is that the radar lessor itself requested of the assurer that it be added as a loss payee, without increase in amount of insurance, to the renewal of the policy which previously provided loss payable only to owner and mortgagee.

That last circumstance provides no basis for excluding the radar lessor from at least pro-rata participation in the proceeds. If the addition to the policy of the lessor as a loss payee were not authorized or ratified by the assured it could be held ineffective, since the contract is between assured and assurer. But the mortgagee has not shown absence of authorization. Therefore the radar lessor must remain a loss payee.

The ultimate goal is to distribute the proceeds in accord with the assured’s intent in contracting for the insurance, which had to be to provide for his named creditors, although not beyond their insurable interests in the insured vessel and equipment. The disparateness of their insured interests is inconsistent with an intent that they should share alike. Because the basic rule of distribution of a debtor’s assets among his creditors is proration in the absence of some lawful preference (C.C. 3183), we conclude that, in the absence of evidence to the contrary, the intent of the assured in, and therefore the result of, naming loss payees without any qualification is that each should receive a part of the proceeds proportionate to his insurable interest.

The judgment is reversed only insofar as it rejected the radar lessor’s claim, and there is judgment for Louisiana National Leasing Corporation for 2,317.49/18,454.65 of the funds in the district court clerk’s hands attributable to this concursus after all costs are paid.

      . We note that the mortgagee does not attach to the radar, C. I. T. Corp. v. Oil Screw Peggy, 5 Cir. 1970, 424 F.2d 767, so that the mortgagee would not “outrank” the radar lessor even if there were a policy provision making the insurance proceeds subject to the priorities applicable to the vessel and equipment.


text:
    Alfred ALEXANDER v. QWIK CHANGE CAR CENTER, INC.
    No. 7727.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.
    Writ Granted March 11,1977.

      Samuel Richard Exnicios, Roger R. Roy, Exnicios & Nungesser, New Orleans, for plaintiff-appellee.
    James F. Mulla, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   REDMANN, Judge.

Defendant appeals from a judgment which gave plaintiff both the value of an automobile and the value of its lost use. We reduce the award to the automobile’s value, eliminating the duplicative award of lost use.

The automobile was delivered to defendant for replacement of its engine with one supplied by plaintiff. Defendant left automobile and engine outside, and delayed in accomplishing the work (more than plaintiff had expected). Parts were stolen from engine and automobile which defendant declined to replace. Finally defendant did repair the automobile, and used it to some extent for parts deliveries. The automobile itself subsequently disappeared.

Defendant’s argument that it had to supply and install parts at a charge of $102 which plaintiff refused to pay is not supported by the $102 invoice. The parts are trifles such as thermostat, oil filter and PCV valve, for installing which the $80 labor charges would have been a gross overcharge, especially since defendant was already to be paid an agreed price ($55) to replace the engine. The trial judge’s rear sons described defendant’s witness’s testimony as evasive and evidently disbelieved it. We cannot say the trial judge erred in this respect.

Defendant is liable as a depository for failure “to preserve [the thing deposited] and return it in kind,” C.C. 2926, and for failure “to use the same diligence in preserving the deposit that he uses in preserving his own property,” C.C. 2937.

But an award of the automobile’s market value is an award for its total value, which includes the value of its use. Thus the award of an additional $1,000 for loss of use is duplicative and must be eliminated.

The judgment is reduced to $1,150 with interest from judicial demand (as prayed) and otherwise affirmed.


author: GULOTTA, Judge.

text:
    Daniel E. BECNEL, Jr. v. Donald BOUDREAUX.
    No. 7740.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.
    Daniel E. Becnel, Jr., Reserve, in pro. per.
    Carville & Edrington, Richard L. Edring-ton, Roland J. St. Martin, LaPlace, for defendant-appellant.
    Before GULOTTA, STOULIG and BEER, JJ.
   GULOTTA, Judge.

Defendant in this defamation suit appeals from a $5,000.00 judgment in favor of plaintiff. We reverse.

The litigation arose out of utterances made by defendant, a member of the St. John the Baptist Parish School Board, at a public meeting of the Board. Several months before this incident, plaintiff, Daniel E. Becnel, Jr., a practicing attorney, had filed against the Board, at its request, a suit to reapportion the school board districts. A consent decree was rendered. Subsequently, however, the Board deemed it necessary to modify the decree, and the District Attorney for St. John the Baptist Parish filed the appropriate motion. Plaintiff, in answer to the motion, objected to the amendment and additionally requested a $2,500.00 attorney’s fee for prosecution of the aforementioned suit against the Board. The motions were set for simultaneous hearing. Prior to that hearing, however, the Board invited Becnel to attend its regularly scheduled meeting to discuss the pending motions.

During the ensuing discussion at this meeting, Becnel indicated he would not consent to the amended decree unless an agreement for the payment of his attorney’s fees could be reached. Plaintiff further indicated reopening the matter might cause Board members to run for re-election before the expiration of their present terms. Thereafter, an Assistant District Attorney, who was legal counsel to the Board, stated in effect, “You [the Board] are being blackmailed.” Whereupon, defendant-Bou-dreaux stated, “I refuse to be blackmailed! Mr. Becnel is blackmailing us! ” A reporter who was in attendance at the meeting included, in an article in the local newspaper, the utterances made by the Assistant District Attorney and the defendant. Becnel’s suit against Boudreaux followed; no suit was filed against the Assistant District Attorney.

In his reasons for judgment, the trial judge, relying on a line of cases holding that words which impute crime to another are slanderous and malicious per se, concluded that defendant had defamed Becnel and had caused injury to him. Though plaintiff did not show any loss of earnings as a result of the defamation, an award was made on the basis of plaintiff’s showing that he had suffered public embarrassment, humiliation, pain and mental anguish.

Defendant seeks a reversal on three grounds: 1) that the utterances, when considered in the context in which they were made, were not in fact defamatory; 2) that the utterances concerned a matter of public interest and, absent a showing of actual malice, were not defamatory; and, 3) that the statements were privileged under the doctrine of “fair comment”.

It is true, as pointed out by the trial judge, that words unjustly imputing a crime to another are defamatory per se. However, we are also cognizant of the established principle of Louisiana law that the court, in making its determination whether the words are defamatory, must look not only to the words themselves but to the context and circumstances in which they were used. Flanagan v. Nicholson Pub. Co., 137 La. 588, 68 So. 964 (1915); Sterkx v. Sterkx, 138 La. 440, 70 So. 428 (1915); Dyer v. Davis, 189 So.2d 678 (La. App. 1st Cir. 1966), writ refused, 250 La. 533, 197 So.2d 79 (1966); Brown v. News-World Publishing Corp., 245 So.2d 430 (La. App. 2d Cir. 1971). In Flanagan v. Nicholson Pub. Co., supra, the defendant described the plaintiff as “the rankest kind of traitor” because he had favored San Francisco over New Orleans as the locale for the Panama Exposition. In affirming a judgment for the defendant, the Louisiana Supreme Court stated:

“The words ‘traitor,’ ‘dangerous and suspicious character,’ and ‘fellow,’ . do have a very disparaging meaning; . . But the connection in which the words are used control their signification, and the expressions here in question might well be used in a connection altering their ordinary meaning; and we think they were so used in the present case. * * * ”

The court further cited several English cases and Newell on Slander and Libel to show that words such as “murderer”, “thief” and “robber” when used to characterize another must be viewed in the context in which they were spoken. Similarly, the court in Mihojevich v. Bodechtel, 48 La.Ann. 618, 19 So. 672 (1896) [cited in Flanagan], stated:

“ * * * True it is that such words as ‘dirty rat,’ ‘thief,’ and ‘swindler,’ . are bad enough, in their way, and little suited to ears polite; but, under all the circumstances surrounding this case, we do not feel disposed to give them the significance that is claimed for them by plaintiff’s counsel. * * * ”

Applying these principles to the instant case, and considering the atmosphere surrounding defendant’s use of the word “blackmail”, we conclude that his utterances were not defamatory. Defendant testified he believed plaintiff was attempting to exert undue pressure on the school board for payment of exorbitant attorney’s fees. Furthermore, Boudreaux used the term “blackmail” shortly after the Assistant District Attorney used the same term. The sequence of defendant’s statement following that of the Board’s legal counsel indicates that the seed for Boudreaux’s use of the term “blackmail” might have been planted by the Assistant District Attorney’s use of the term. We conclude, under these circumstances, that defendant did not intend to accuse plaintiff of the crime of blackmail or impute to him the crime of extortion, but rather expressed, albeit in strong language, his belief that the Board was being unduly pressured or intimidated. As the court stated in Flanagan, supra, 68 So. at p. 967, such circumstances “explain and go towards excusing the severity of the language used”.

Having so concluded, we need not consider defendant’s alternate contentions that the utterances were not defamatory because they were made without malice and concerned a matter of public interest, and because they were privileged under the doctrine of fair comment.

Accordingly, the judgment of the trial court is reversed, and plaintiff’s suit is dismissed at his costs.

REVERSED AND RENDERED.

      . Lamartiniere v. Daigrepont, 168 So.2d 370 (La.App. 3d Cir. 1964); Edwards v. Derrick, 193 La. 331, 190 So. 571 (1939); Savoie v. Scanian, 43 La.Ann. 967, 9 So. 916 (1891).

      . The trial judge cited also the following definition of “blackmail” as defined in Black’s Law Dictionary, 3d Ed.:
      “The extortion of money by threats or overtures towards criminal prosecution or the destruction of a man’s reputation or social standing.”

      . Counsel in oral argument are in agreement that the word “blackmail” was first uttered by the Assistant District Attorney. The record is not clear on the sequence of the use of the word.


author: BEER, Judge. STOULIG, Judge

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Lawrence B. BERTHEAUD et al.
    No. 7746.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.
    Writ Refused March 11, 1977.

      William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Baton Rouge, Jennings Bryan Miller, Lake Charles, for plaintiff-appellant.
    C. Cyril Broussard, New Orleans, Martin, Himel & Peytavin, Lloyd R. Himel, Lutcher, for defendants-appellees.
    Before GULOTTA, STOULIG and BEER, JJ.
   BEER, Judge.

This is an expropriation suit. Plaintiff-appellant is the State of Louisiana, Department of Highways, acting pursuant to Article VI, Section 19.1 of the Louisiana Constitution (1921) as amended, and LSA-R.S. 48:441 et seq., commonly referred to as the “quick taking statute.” The land actually taken is a 2.77 acre “strip” of a larger (approximately 50 acre) rectangular tract of land, owned by the defendant-appellees, Lawrence B. Bertheaud and Marquerite B. Cicero. The property is located in St. James and Ascension Parishes, fronting River Road below Donaldsonville. The Sunshine Bridge West Approach (State Project No. 426-02-01) set up the need for this expropriation and the Highway Department, on March 20, 1964, deposited the sum of $1,146.00 into the registry of the 23rd Judicial District Court and proceeded to make use of the “strip” noted above. This figure was determined by multiplying the acreage of the land taken (2.77) by the valuation of $400.00 per acre. The taking diagonally severed the property in two: one 9.67 acre section to the southwest of the highway and another 36.73 acre section to the northeast of the highway and fronting the River Road.

The landowners answered the expropriation pleadings, contending that the property was best suited as an industrial site and/or as a subdivision; that the value of the land, when put to its highest and most profitable use, was in excess of $3,500.00 per acre; and they further contended that the property has suffered consequential and severance damages as a result of being cut in two.

The only contested issues at the trial were the value of the land taken and the determination of consequential damages. The trial court concluded that defendants were entitled to judgment based upon their expert’s appraisal as to the value of the taken property and were also entitled to severance damages. Judgment with written reasons was entered in favor of the defendants and against the Highway Department, raising the $1,146.00 previously deposited to a total of $15,947.50 and, also, awarding expert fees of $1,000.00 each to defendants’ two experts. The Highway Department devolutively appeals.

Appellant assigns the following errors to the trial court’s decision and reasons:

1. The District Court erred in finding that the highest and best use of subject tract before the taking was industrial.
2. The District Court erred in finding that the value of the land before the taking was $1,150.00 per acre and in awarding $3,185.50 for the 2.77 acres taken.
3. The District Court erred in finding severance damages, using values for the remainders after the taking which were unsupported by any evidence whatsoever of market data, loss of economic rent, or of any other recognized method of determining the true value of said remainders after the taking.
4. The District Court erred in finding that the larger of the two remainders was reduced in value by $150.00 per acre.
5. The District Court erred in finding that the smaller of the two remainders suffered a change in highest and best use from industrial to agricultural, causing a damage figure of $750.00 per acre.
6. The District Court erred in its findings as to the size of each of the remainders.

The Highway Department employed Mr. Chester A. Driggers to investigate and analyze the subject property and to estimate its fair market value and severance damage (if any) to the remainder of the property. Mr. Driggers used a market value approach. Significantly, he determined that the “(h)ighest and best use, as a separate entity, is for one or more house sites and as a small farm.” However, he also observed that “the land could possibly be combined with other lands for industrial use,” but qualified this by noting that such industrial use would be limited by the size of the land and by the availability of various support services. Regarding the loss of access after the taking, Mr. Driggers observed that each of the remaining portions of the defendants’ lands will be enhanced by having access to the highway. Mr. Driggers estimated the market value of the property taken at approximately $800.00 per acre. This estimate was apparently based on a consideration of prices paid for comparable tracts but reduced by twenty percent — apparently because of the smallness of the tract and the absence of railroad facilities.

Mr. Driggers was of the view that no severance damages existed. He believed that the before value of the defendants’ entire tract of land was $40,000.00, whereas the remaining land, after the taking, was worth $41,645.00, since special benefits due to the accessibility of the highway were valued at a total of $3,865.00.

Mr. Kermit A. Williams testified on behalf of the land owners. He employed a market data approach by considering eight comparable sales. He testified that the highest and best use of the property was industrial because of its river frontage with a stable and deep water channel and also concluded that the presence of other industries in the vicinity would make the subject land attractive to a “satellite industry,” not necessarily requiring railroad access. He observed that there was a strong demand for industrial sites along the river.

Mr. Williams also discussed severance damages based upon:

1. Diminution of size and industrial utility;
2. Intrusion upon and interference with the industrial everyday life by having a highway nearby:
3. Irregular shape of remainders; and
4. Controlled and limited access to highway as well as from one remainder to the other.

Based on comparable sales of industrial property, Mr. Williams estimated the “before taking” value of the property expropriated to be $1,150.00 per acre or $3,192.00 based on 2.776 acres. He estimated the severance damages to the remainder to be $12,767.00 based upon a diminution in value of the larger tract at $150.00 per acre and of the smaller tract of $750.00 per acre.

Mr. John LeJeune also testified on behalf of the defendants. He was of the view that the highest and best use of the property would have been either as a small industry tract or for use by a petro-chemical industrial supplier. He observed that sale prices of property located along the Mississippi River had steadily increased from 1955 to 1965. Mr. LeJeune believed that the property had a sufficiently deep river depth along the line that fronted the river, observing that a 38-foot depth is all that is necessary for most ocean-going vessels.

Mr. LeJeune corroborated the opinion of Mr. Williams, using the same market data comparison approach and reached the same general conclusions regarding severance damages but assigned a value of $1,000.00 per acre to the tract instead of $1,150.00.

We are in accord with the approach used by the able trial judge in his deliberations with respect to damages and agree that the ultímate determination should be based upon the following factors:

1. valuation of the land when put to its highest and best use;
2. severance damage (if any) to the large remaining tract;

3. severance damage (if any) to the small remaining tract.

In its deliberations, the court had, before it, evidence of several prior sales which might best be considered by viewing them in comparison with each other:

While we believe that the trial court was correct in the classification assigned to the land for valuation purposes, we believe that the evidence as a whole is more supportive of a valuation of $1,000.00 per acre rather than $1,150.00. We do not agree with the further diminution of that figure by twenty percent as suggested by the state’s expert since we are of the view that the $1,000.00 per acre figure takes into account those deficiencies for which the state’s expert would have made a further reduction.

We are in accord with the trial court’s determination that the small remaining tract should be valued at $400.00 per acre and thus ascribe a damage per acre figure to that tract of $600.00.

Our painstaking review of the evidence convinces us that no appreciable damage has been occasioned to the larger tract. We are of the belief that the same general purpose use is available to those approximately 37 remaining acres as was available to the original approximately 50 acre tract.

Accordingly, the judgment of the 23rd Judicial District Court is amended as follows: the original award of $1,146.00 is increased to the total sum of $8,572.00, with legal interest from March 20, 1963 on the increase of $7,426.00.

In all other respects, the judgment is affirmed without change. Each party is to bear its own costs of appeal.

AMENDED AND AFFIRMED.

STOULIG, Judge

(concurring).

I concur. Since comparables are not absolutes but merely guides in determining the market value of expropriated property, I have some misgiving in reducing the trial court’s valuation of $1,150 per acre to $1,000 per acre.

      . Interestingly, the comparables that Mr. Drig-gers used in making his acreage valuation were industrial sites, notwithstanding his opinion of the highest and best use for the land.


text:
    PIERCE ENTERPRISES OF LOUISIANA, INC. v. JOBOB TOWING, INC., et al.
    No. 7748.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.

      Garland R. Rolling, Metairie, for plaintiff-appellant.
    Monroe & Lemann, Benjamin R. Slater, Jr., Herman C. Hoffman, Jr., Richmond M. Eustis, New Orleans, for defendant-appel-lee, Armisted Miller Wallace, Inc.
    White, Fray & White, Robert H. Fray, Gretna, for defendant-appellee, Jobob Towing, Inc.
    Before GULOTTA, STOULIG and BEER, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment maintaining exceptions of no right and no cause of action. We affirm.

In its petition, Pierce Enterprises alleges that repairs were made by it to a vessel owned by Jobob Towing, Inc.; that Jobob advised plaintiff the repair bill would be paid by Jobob’s insurer, defendant-interstate Insurance Company; and that the invoice for the repairs has never been paid. Plaintiff further alleges that it is a third party beneficiary of the insurance contract between Jobob and Interstate, and, as such, is entitled to payment of the repair bill from the insurer. Pierce also seeks recovery against defendant-Armisted Miller Wallace, Inc., the insurance broker who placed the insurance, because of its “negligence” in writing an insurance policy with Interstate, an allegedly insolvent company.

No appeal has been taken from the judgment maintaining Interstate’s exception of no cause of action. This appeal is directed only against the judgment maintaining Ar-misted Miller Wallace, Inc.’s (hereinafter referred to as AMW) exceptions of no right and no cause of action.

Implicit in the trial court’s judgment maintaining Interstate’s exception is a determination that the insurance contract between Jobob and Interstate was not a contract for the benefit of a third party (Pierce). The claim asserted by Pierce against Interstate is based on the allegation in its petition that Interstate was a third party beneficiary of the insurance policy between Jobob and Interstate. Although it does not so assert in its petition, Pierce claims, on appeal, that representation to it by Jobob that the cost of the repairs would be paid by Jobob’s insurer, Interstate Insurance Company, was an assignment to Pierce of Jobob’s claim against Interstate.

We are unable to consider on this appeal whether or not Jobob’s insurance contract with Interstate was a contract for the benefit of third parties or was a valid assignment. These issues cannot now be raised. Any claim against Interstate was laid to rest when the trial judge maintained the exception of no cause of action and no appeal was taken from that judgment.

Plaintiff’s claim against AMW is based on this defendant’s negligence in providing insurance with Interstate. The basis of its claim against AMW is predicated on the existence of a contract for the benefit of third parties between Jobob and Interstate or on the existence of a valid assignment by Jobob of its claim against Interstate. Because these issues sought to be considered on this appeal address themselves to the claim against Interstate, they cannot be considered here. It necessarily follows that when a final judgment has been rendered dismissing plaintiffs claim against the insurer, no claim can be asserted against the broker (AMW) for negligently obtaining insurance from that insurer based on the insurer’s alleged insolvency. Whether Interstate was or was not solvent makes no difference. Plaintiff’s suit against Interstate has been dismissed. Since Interstate is not liable to Pierce, AMW cannot be liable to Pierce. Plaintiff simply has no right and no cause of action against AMW.

Accordingly, the judgment maintaining Armisted Miller Wallace, Inc.’s exceptions of no right of action and no cause of action is affirmed.

AFFIRMED.

      . Presently pending in this suit are third party complaints filed by Jobob against AMW and Interstate.

      . See Fussell v. Fireman’s Fund Insurance Company, 225 So.2d 727 (La.App. 1st Cir. 1969); Stevens v. Daigle & Hinson Rambler, Inc., 148 So.2d 105 (La.App. 1st Cir. 1962).