author: BLANCHE, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Theodore A. LIROCCHI.
    No. 10610.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Refused May 28, 1976.

      D. Ross Banister, Gen. Counsel, Highway Dept., William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Robert L. Ledoux, Asst. Gen. Counsels, Baton Rouge, for appellant.
    Golden Mills, Baton Rouge, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, State of Louisiana, through the Department of Highways, appeals a judgment awarding to defendant-appellee, Theodore A. Lirocchi, the sum of $75,335, subject to a credit of $8,877 previously deposited in the registry of the court, together with interest at the rate of 7 percent per annum on the difference from the date of taking, March 26, 1971, until paid, and for all costs, including $2,050 in expert witness fees. The defendant, Theodore A. Lirocchi, answered the appeal, seeking additional compensation.

The award was made for the expropriation of 2.818 acres of defendant’s land, including a .222 acre drainage servitude, which was conceded to be the equivalent of a taking in full ownership in connection with the construction of State Route Louisiana 1-10.

The area taken was part of a 60-acre tract that defendant had previously designated as Forest Lawn Subdivision, near Dutchtown, Louisiana. However, for purposes of the instant suit all of the appraisers considered the defendant’s property as comprising a total of only 3.918 acres, representing that area of the subdivision reserved for commercial development. All other lots in the subdivision are deed restricted to residential use.

The 3.918 acre tract is located at the westernmost edge of the 60-acre tract, at the intersection of two hard-surfaced asphalt highways, Louisiana Highway Nos. 621 and 73. Prior to the taking, the property had approximately 500 feet frontage on Louisiana Highway 73 and approximately 300 feet frontage on Lousiana Highway 621. The tract is rectangular in shape, level, well drained, and is supplied with gas and electrical utilities. Its location is in a rural-industrial area, approximately 4 miles northwest of Gonzales, Louisiana, and is not subject to any zoning restrictions.

The taking involved all of the frontage on Louisiana Highway 73 and all except 60 feet of the frontage on Lousiana Highway 621. Because of the position of the drainage servitude, the taking leaves a jagged, irregularly-shaped remainder of 1.1 acres.

Both appraisers for the Department considered that the highest and best use of the tract at the time of taking was residential. Using the comparable sales method of evaluation, Oren Russell valued the tract at $3,150 per acre, and Daniel G. Carlock, Jr., arrived at a figure of $3,100 per acre.

The defendant’s appraisers contended that the highest and best use of the tract at the time of the taking was commercial.

The trial judge agreed with defendant’s appraisers and found that the highest and best use of the tract was commercial, based upon its location at the intersection of two heavily traveled highways and its proximity to the petro-chemical industrial complex located along the Mississippi River. He also considered that its ease of access to neighboring Gonzales and Baton Rouge made it a highly desirable location. Additionally, he noted that the tract was designated as commercial on the subdivision plat.

He rejected the Department’s contention that the highest and best use of the property was residential on the basis that the comparable sales used by its experts were unrealistic. The Department’s experts contended that there was no significant difference between the market value of residential and commercial tracts in the area. However, the trial judge found that they reached an erroneous conclusion since all of their comparable sales consisted of residential property except for one, and the trial judge found that it was not really comparable to the subject tract. He, therefore, concluded that they failed to prove there was no difference between the value of commercial and residential property in the area.

By contrast, the trial judge found that the defendant’s appraisers used more realistic comparables, most of which were located at other similar highway intersections. He agreed with the defendant that the highest and best use of the subject tract was commercial. The record amply supports this finding and it will not be disturbed on appeal.

The most complex issue presented on this appeal is the value of the commercial tract.

The defendant contends that the tract had two distinct commercial uses and, accordingly, it also had two separate values. He argues that the .9 acre corner portion of the tract was best suited for a major service station site and, therefore, that portion of the tract had the highest commercial value. He further argues that the remainder would best be suited for use as a shopping center development consisting of service-oriented establishments such as a drug store convenience food store, laundry, et cetera, and that it had a correspondingly lesser value than the service station site.

The trial judge refused to accept the contention that the highest and best use of the .9 acre corner of the tract was as a service station site. Accordingly, he placed one value on the entire tract, that is, $20,000 per acre, which was the value for ordinary commercial land in the area and which value was clearly substantiated by defendant’s appraisers.

The trial judge rejected defendant’s contentions regarding the corner, even though he was particularly impressed with the appraisal of one of defendant’s experts, John Lejeune, a service station site locator for Texaco and Humble Oil Companies.

Although the trial judge noted that all of Lejeune’s criteria for a good service station site seemed to be met by the subject tract, the trial judge, in his Reasons for Judgment, stated that he was rejecting Le-juene’s conclusion because it was based in part upon a count of residences, businesses, and traffic conducted by Bruce E. Prairie in September of 1974. Since the taking occurred in March, 1971, he concluded that Prairie’s report did not prove that the referred-to counts existed in 1971. In view of the foregoing, he concluded that Le-jeune’s appraisal was based upon inaccurate data.

The trial judge erred when he concluded that Lejeune relied upon the 1974 report. We note from the record the following testimony of Lejeune:

“Q. Now, perhaps we left the court with an [erroneous] impression with regards to Mr. Williams’ appraisal. You did not rely on Mr. Prairie’s traffic count in making your appraisal did you ?
“A. No, sir. My appraisal was made as I said April 16, 1971, and it was updated before this trial, and I at the time had no knowledge of this traffic count.
“Q. So as I understand it insofar as traffic is concerned you relied upon your own observation regarding traffic.
“A. Solely on my own judgment based on many many appraisals of other service station sites.
“Q. And not — did not rely upon Mr. Prairie’s traffic count ?
“A. No, sir, I did not.”
(Record, pp. 561-562)

The appraisal of Kermit Williams, defendant’s other expert, was also prepared prior to Prairie’s report. It is, therefore, evident that neither of the defendant’s appraisers relied completely upon Prairie’s report to determine that the tract would support a service station.

Perhaps the confusion concerning the basis of the appraisals arose during Williams’ testimony. Williams’ report was prepared August 13, 1974, and evaluated the property as of the date of taking, March 26, 1971.

From the record, at page 493, it is obvious that Williams made his initial appraisal based upon his own information. However, after reaching his initial conclusion that the tract was best suited for a service station, Williams testified that he made a feasibility study to determine whether or not his judgment was correct. It was in that context that he, and not Le-jeune, utilized Prarie’s report (which is dated after Williams’ appraisal) to reinforce his prior conclusion that the tract would support a major service station.

Based upon the language in his reasons, we can safely assume that were it not for his erroneous conclusion concerning the basis of Lejeune’s appraisal, the trial judge would have agreed with defendant’s contention that the highest and best use of the .9 acre corner portion of the subject tract was as a service station site. Furthermore, the reports of both of defendant’s experts contain ample evidence to support such a finding. We, therefore, conclude that the corner of the subject tract should have been valued as a service station site rather than as an ordinary commercial site, as was the remainder.

Since the trial judge did not determine the value of the corner as a service station site, we must now make that finding, based upon the evidence presented at trial.

In this regard, LSA-R.S. 19:9 and LSA-C.C. Art. 2633 require that the landowner be paid the true value of the land on the date of the taking, including any enhancement of value brought about by the contemplation that the improvement would be built. However, any enhancement occurring after the contemplated improvement becomes a proposed improvement is to be deducted from the value given to the landowner. See, also Shreveport Traction Company v. Svara, 133 La. 900, 63 So. 396 (1913).

The rationale of the statutes and jurisprudence is clear, that is, no one property owner should be required to bear a disproportionate share of the burden of a public improvement. If an owner chooses not to sell his land during the period of contemplation, he should not be penalized by receiving less from the State when the land is ultimately expropriated. For that reason, this defendant landowner cannot be penalized merely because he held onto his land from the date of purchase in 1957 until a portion of it was eventually taken in 1971. On the other hand, an owner should not be allowed to profit by holding his land after the State is committed to build the project and then to force the State to compensate him based upon the enhancement in value that was brought about simply by building the project. The point at which the landowner cannot receive further enhancement is defined by the statutes as that point where the contemplated improvement becomes a proposed improvement.

The above propositions are not in dispute in this lawsuit. However, as will be seen infra, the issue to be resolved herein is at what point a contemplated improvement becomes a proposed improvement.

As mentioned hereinabove, the Department’s experts contended that the highest and best use of the entire tract was residential, and, therefore, they did not submit opinions concerning the value of the property based upon commercial service station use. Since we have decided that the tract had commercial use, their evaluations of the subject tract are of little usefulness.

However, the landowner contended that the .9 acre corner of the tract is best suited for a service station site and his experts utilized comparable sales to arrive at its value. We accept this method of evaluation as being correct. State, Department of Highways v. Smith, 304 So.2d 77 (La.App. 1st Cir 1974); State, Department of Highways v. James, 226 So.2d 535 (La. App. 4th Cir. 1969).

In this connection, the main comparable relied upon by the defendant’s experts is the January, 1968, sale of .602 acres from Bilwood Smith to Gulf Oil Corporation for $57,500, or $95,514.95 per acre. Since that property is located directly across Highway No. 621 from the subject tract, it would ordinarily be the best indication of the value of the subject tract.

However, the Department objects to the Use of the Smith sale, claiming that it reflects enhanced value brought about by the proposed improvement and that its use as a comparable would, therefore,' give the subject tract the benefit of enhancement of value due to the proposed project. As we have noted, this would be in contravention of R.S. 19:9 and Civil Code Article 2633.

The defendant, of course, contends that the Smith sale transpired prior to the improvements becoming proposed and urges that it reflects only enhanced value due to the mere contemplation that the improvement would be built. If the defendant is correct, the Smith sale should be utilized since it is obviously the best indication of the value of the subject tract, being located directly across Highway No. 621.

In this context and since the Department does not contest the validity of the Smith sale (having utilized said sale in its own appraisal of the after-value of the subject tract), we must decide whether or not the Smith sale transpired prior to the time the contemplated improvement became a proposed improvement. In order to do so, we must determine the meaning of the term “proposed improvement” as it is used in the statutes.

We find that although R.S. 19:9 and Civil Code Article 2633 set forth the law in this area, they fail to establish guidelines by which to determine at what point the contemplated project becomes proposed. However, we note from the Shreveport Traction Company case, supra, that it is this Court’s duty to make that determination and that there is no one fixed point at which any given improvement becomes proposed. To the contrary, the determination depends upon the facts and circumstances of each case.

The Shreveport Traction Company case also informs us that an improvement becomes proposed when “the period of uncertainty — of mere hope, speculation, anticipation, or contemplation” which is necessarily associated with the building of public improvements has passed. Stated differently, the Court said that an owner is entitled to the value of his property as of the moment it is legally demanded for a proposed improvement.

The project, therefore, becomes proposed (1) at the first moment the State declares that the improvement will, in fact, affect the property; or (2) at the first moment it is reasonably certain that the property will be affected, even though the State has not yet declared same. See State, Department of Highways v. Port Properties, Inc., 316 So.2d 749 (La.App. 1st Cir. 1975).

In the record of the instant case, the first indication that the improvement would affect the Smith tract was contained in a July, 1969, Department of Highways map, Exhibit P-3. That map reflected that both the subject tract and the Smith tract would be affected by an interchange to be built at the intersection of the improvement and Louisiana Highway 73. Subsequently, in November, 1969, the resolution of the Board of Highways confirmed the fact that the property would be affected. The Smith tract was purchased in January, 1968, prior to the publication of the map and the resolution of the Highway Department.

To show that at the time of the Smith sale there was no reasonable certainty that the tract would be affected by the improvement, the defendant introduced a file containing the minutes of public hearings held by the Department prior to construction of the improvement, including correspondence pertaining thereto. It is obvious from a reading of that evidence that the exact route of the improvement was subject to much confusion up to and including the date of the Smith sale.

As defendant noted in his brief, it is conceivable that the Department knew prior to July, 1969, that the Smith tract would be affected, but, nevertheless, it did not disclose that information to the public or to the landowner. We agree that no disclosure was made, but we think it was more probable than not that the reason for the nondisclosure was that the Department itself did not know for certain whether the Smith tract would be affected. At the trial of this matter, the Department was aware that the defendant was claiming enhanced value based upon the Smith sale, yet it failed to come forward with any evidence to prove that either the general public or the owner of the Smith tract knew or should have known prior to July, 1969, that the tract would be affected. Of course, the presumption from this failure is that there is no evidence to substantiate the Department’s claim that the improvement was proposed prior to July, 1969.

In effect, the Department would have this Court deprive the landowner of the enhancement rightfully due him under the law, based merely upon the Department’s own unsubstantiated insistence that the project had become proposed prior to the Smith sale. In exercising our function of determining at what point a contemplated public improvement becomes proposed in accordance with Shreveport Traction Company, supra, we demand more objective standards than those offered by the Department. We find that the burden is certainly upon the State, when it claims a sale was influenced by a proposed improvement, to show that the improvement was, in fact, proposed at that time. Innuendos, inferences and suppositions are not enough.

It appears from the record that the State had not declared that the Smith tract would be affected in January, 1968, nor aside from that, was it reasonably certain that such would be the case. Accordingly, we hold that the sale of the Smith tract occurred prior to the time that the contemplated improvement became proposed, and the sale of that tract is, therefore, a valid comparable by which to value the subject tract.

Our rationale that some objective manifestation by the expropriating authority is necessary to change a contemplated improvement into a proposed improvement is supported by Board of Levee Commissioners v. Aurianne, 229 La. 83, 85 So.2d 39 (1955). In Aurianne, the Supreme Court was forced to determine at what point a contemplated appropriation of property to expand the Lake Pontchartrain Levy System became a proposed project. The Court unhesitatingly decided that the point in time was the date of the solution by the Board of Levy Commissioners to appropriate the property. This was so, even in view of the fact that two years prior to the resolution a state constitutional amendment made it clear to the public that the project would, in fact, be undertaken. We realize that the Aurianne case is not controlling in this expropriation suit since it involved an appropriation of property under other constitutional provisions. However, it illustrates that the courts of this state look to some objective standard to determine the point at which a contemplated public improvement becomes proposed.

See, also, United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943), wherein the Court said a landowner can no longer receive increases in value of his land after the point where the property probably comes within the scope of the project and the government is committed thereto. The Court further defined the point wherein the landowner ceases to receive further enhancement as that point in time when the property becomes clearly within the confines of the project. The confines of the instant project were unknown on the date of the Smith sale.

The evidence indicates that the average major service station site consists of .9 acre. Since the Smith tract sold for $95,514.95 per acre, the defendant is, therefore, entitled to recover $85,963.45 for the value of the .9 acre corner of the subject tract.

The trial judge found that based upon the testimony of the defendant’s experts the remainder of the tract had a value of $20,000 per acre for commercial purposes. That finding is clearly supported by the record and will not be disturbed on appeal. State Department of Highways v. Browning, 315 So.2d 784 (La.App. 1st Cir. 1975); State, Department of Highways v. Spillman, 276 So.2d 905 (La.App. 1st Cir. 1973); State, Department of Highways v. Hickman, 277 So.2d 525 (La.App. 3rd Cir. 1973). Therefore, the defendant is entitled to recover $38,360 for the remaining 1.918 acres of the subject tract.

The trial judge awarded severance damages after finding that the remaining 1.1 acres had been reduced in value to $2,750 per acre. As he stated, a mere glance at the irregular configuration of the remainder reveals great difficulty in any attempted use thereof. The drainage servitude causes the southern one-third of the remaining 1.1 acres to be almost completely useless. He, therefore, found that the remainder was damaged by $17,250 per acre (the before-value of $20,000 less after-value of $2,750), or a total of $18,975. This determination is amply supported by the record and will not be disturbed.

In view of the foregoing, the judgment of the trial court is amended so as to increase the total award to defendant, Theodore A. Lirocchi, to the sum of $143,298.-45, being $85,963.45 for the .9 acre corner of the subject tract, $38,360 for the 1.918 acre remainder, and $18,975 as severance damages. In all other respects the judgment is affirmed.

The appellant is cast for all costs of these proceedings as may legally be assessed against the State of Louisiana.

AMENDED AND AS AMENDED, AFFIRMED.

      . An amended judgment incorrectly listed this amount as “$75,355,” but both parties to the suit acknowledge the correct amount to be “$75,335.”

      . LSA-C.C Art. 2633 provides:
      “In estimating the value of the property to be expropriated, the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.”


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    E. C. CHAPPELLE, Jr. v. The GREATER BATON ROUGE AIRPORT DISTRICT et al.
    No. 10621.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Refused. June 9, 1976.

      Herschel C. Adcock, Baton Rouge, for appellant.
    Joseph F. Keogh, City Parish Atty., and Edward V. Fetzer, Asst. Parish Atty., Baton Rouge, for appellees.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   EDWARDS, Judge.

Plaintiff-appellant sued to enjoin defendant-appellees from removing him from his position as member of the Greater Baton Rouge Airport Commission. When the preliminary injunction was denied, appellant was removed from the Commission. Appellant amended his petition and sought a declaratory judgment relative to his qualifications to hold the position on the Commission and alternatively asked to be reinstated to his former position of Executive Director and Secretary of the Greater Baton Rouge Airport District (District). The trial court rendered judgment in favor of defendants and against plaintiff, dismissing his suit. From this ruling plaintiff now appeals.

There are three issues before us:

1. Did appellant fulfill the requirement of Act 151 of 1969 that appointees to the Commission must own “property assessed in East Baton Rouge Parish ?”

2. If not, is that requirement violative of appellant’s rights under the Fourteenth Amendment to the United States Constitution guaranteeing equal protection of the laws ?

3. Was a contract of exchange effectuated between appellant and appellees whereby appellant was to give up his position as Director of the District in return for his appointment to the Commission, and did his removal from the Commission constitute a breach thereof warranting in law the relief of reinstatement to his former position?

FACTS

The facts as found by the trial court and as reflected by the record are not in dispute. Appellant served as Director of the District for a period of some five years until his resignation on May 13, 1974. Prior to this date, appellant had experienced increasing unspecified harassment in his capacity as Director. As a compromise gesture, he then proposed to Dr. C. O. Currier, member of the City-Parish Council, the appointing authority for the Commission, that he, appellant, would resign his position as Director in exchange for his being appointed to the Commission. On May 13, 1974 the appellant resigned as Director and was appointed to the Commission. Subsequently, the Parish Clerk declared appellant’s position on the Commission vacant. The basis for this action was a legal opinion of the Parish Attorney stating that appellant was not qualified to serve as member of the Commission because at the time of his appointment he owned no property assessed in East Baton Parish. This suit followed.

(1) "Property assessed” under Act 151 of 1969

Act 151 of 1969 requires that an appointee to the Commission own “property assessed in East Baton Rouge Parish.” At the trial, appellant introduced evidence that he had paid sales tax on an automobile that he purchased prior to his appointment in 1974. He also introduced evidence of a purchase of a piece of immovable property located in East Baton Rouge Parish on February 7, 1975.

Initially, we agree with the trial court’s determination that the purchase on February 7, 1975, several months after the appointment, is irrelevant to the determination of appellant’s qualifications for the appointment. Qualifications for appointive office are determined at the time of the appointment.

The question remains whether the ownership of and the payment of sales tax on the purchase of the automobile satisfy the requirement of “property assessed.”

The appellant contended and the trial court agreed that the term “property” should include movables as well as immov-ables. Where, as here, there are no limitations placed on the term within the particular statute in question, both the legislation and jurisprudence support such a broad, unrestricted interpretation. See La.Civ. Code art. 14; La.Code Civ.P. art. 5251 (13); Kansas City Life Ins. Co. v. Hammett, 177 La. 930, 149 So. 525 (1933); 73 C.J.S. Property § 1.

The further qualification contained in the Act is that the property be “assessed in East Baton Rouge Parish.” Appellant argues that (1) property does not have to appear on the assessment rolls to be assessed and (2) the payment of a sales tax constitutes an assessment of that property. Pretermitting for the moment appellant’s initial contention, we cannot accept the argument that the payment of sales tax constitutes an assessment. Black’s Law Dictionary 150 (rev. 4th ed. 1968) makes clear the distinction between the two. “Assessment” is:

The listing and valuation of property for the purpose of apportioning a tax upon it, either according to value alone or in proportion to benefit received. Also determining the share of a tax to be paid by each of many persons; or apportioning the entire tax to be levied among the different taxable persons, establishing the proportion due from each. It fives the liability of the taxpayer and ascertains the facts and furnishes the data for the proper preparation of the tax rolls . . .
“Assessment” and “levy” are frequently used interchangeably . . . Though properly speaking it does not include the levy of taxes . . . Assessment is also popularly used as synonym for taxation in general, the authoritative imposition of a rate or duty to be paid, but in its technical signification it is only taxation for a special purpose or local improvement, local taxation as distinguished from general taxation; taxation on principle of apportionment according to the relation between burden and benefit; whole taxes are impositions for purpose of general revenue . . .
An assessment is doubtless a tax, but the term implies something more; it implies a tax of a particular kind, predicated upon the principle of equivalents, or benefits, which are peculiar to the persons or property charged therewith, and which are said to be assessed or appraised, according to the measure or proportion of such equivalents; whereas a simple tax is imposed for the purpose of supporting the government generally, without reference to any special advantage which may be supposed to accrue to the persons taxed. Taxes must be levied, without discrimination, equally upon all the subjects of property; whilst assessments are only levied upon lands, or some other specific property, the subjects of the supposed benefits: to repay which the assessment is levied.

So defined, the payment of a sales tax does not constitute an assessment.

Although, as appellant contends, the appearance of property on the assessment rolls may not be the exclusive proof of assessment, such listing is indeed competent evidence, and such that the legislature might choose to rely upon for determining assessment and ownership of property assessed.

(2) Constitutionality of Act 151 of 1969

Does the requirement of Act 151 of 1969 that appointees own property assessed in East Baton Rouge Parish violate appellant’s right to equal protection of the law?

When a legislative classification is challenged, as here, on Fourteenth Amendment equal protection grounds, one of two tests may be applied to determine the validity of the statute. The “compelling state interest” test is applied when there is involved a “fundamental” right, such as the right to vote or to marry whomever one chooses, or when there is employed a “sus-p.ect” criterion, such as race or sex. In all other cases traditional equal protection standards apply. Appellant cites, and this court has found, no cases holding that the right to be considered for appointive public office is a fundamental right. Therefore, we will test the classification herein by traditional standards of equal protection.

Traditional standards of equal protection have been long established. In McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), the Court summarized the rule:

The constitutional safeguard (equal protection) is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. 81 S.Ct. at 1105

In enacting Act 151 of 1969, the legislature sought to insure that the members of the commission would have a substantial interest in performing their duties effectively and conscientiously. The legislature could have concluded reasonably that property owners of East Baton Rouge Parish would have that interest. To effectuate this objective, the legislature chose as its criterion for appointment to the Commission, the ownership of “property assessed in East Baton Rouge Parish.” The fact that the determination of property ownership could have been made otherwise in no way militates against the validity of the choice made. In the achievement of a valid legislative objective, there is no requirement under traditional equal protection standards that the legislature choose the best method available, but only that there be a rational basis for the means chosen.

La.R.S. 47:1956-1957 require every owner of property, movable and immovable, to submit to the Parish Assessor a list of that property. The legislature could have chosen to utilize this requirement as a simple method of determining property ownership for the purposes of eligibility for appointment to the Commission under Act 151 of 1969. Such a scheme is not irrational.

Appellant contends that the payment of sales tax on the purchase of an automobile should suffice to qualify him under the Act. . There is no doubt that the payment of such a tax is evidence of ownership of property, at least at the time of purchase. However, it does not constitute an assessment of his property, as indicated supra. At issue is the rationality vel non of the legislative scheme employed. The legislature chose to make assessment, rather than payment of sales tax, the criterion of ownership. We are not concerned with the relative merits of the possible schemes; the one chosen is rationally related to a valid legislative objective and is therefore constitutional.

Appellant cites Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) as mandating that we hold Act 151 of 1969 unconstitutional. In Turner, the Court found a Georgia statutory requirement of ownership of immovable property for appointment to a county board of education to deny equal protection of the laws under the traditional test. However, considering our increasing population and diminishing availability of land, there are many good citizens who own no immovable property but who do own movable property in varying amounts. Therefore, a classification like that of the Georgia statute which eliminates those who own no immovable or real property from consideration for public office is far more invidious than one like ours which bars only those who own no property at all. With this in mind, we note the Court’s closing remarks in Turner, supra.:

Without excluding the possibility that other circumstances might present themselves in which a property qualification for office-holding could survive constitutional scrutiny, we cannot say, on the record before us, that the present freeholder requirement for membership on the county board of education amounts to anything more than invidious discrimination. (emphasis added). 90 S.Ct. at 542.

We therefore hold the legislative scheme employed under Act 151 of 1969 prima facie constitutional. There has been no allegation that the assessment practices as applied in this case are unconstitutional, nor has there been any evidence adduced on this issue. We cannot take judicial notice of the assessment practices of the assessor of East Baton Rouge Parish, La.R. S. 15:422. We therefore do not pass on the issue of the constitutionality of the application of the legislative scheme.

(3) Exchange

Appellant testified at the trial concerning his proposal to Dr. Currier and of the understanding that he, appellant, had that an agreement was made to “exchange” his position as Director for a position on the Commission. Because he was later ousted from the Commission, appellant now invokes La.Civ.Code art. 2663 for relief in the form of reinstatement as Director.

Appellant is not in a position to avail himself of the provisions of this article.

La.Civ.Code art. 2660 defines exchange as a contract whereby the parties give to one another one thing for another. La. Civ.Code arts. 2660-2667 (Of Exchange) are found in Book III of the Civil Code— “Of The Different Modes Of Acquiring The Ownership Of Things.” The last, Article 2667, states that, except for the differences found in the preceding seven articles, all the provisions relative to sales apply to exchange. Chapter 3 of Title VII (Of Sale) is titled “OF THINGS WHICH MAY BE SOLD.” “Effects of commerce” (Article 2448); “the rights, titles and interests to an inheritance” (Article 2449); “an uncertain hope ... as the fisher sells a haul of his net before he throws it” (Article 2451) — all are illustrative of the various things which may be sold or exchanged. However, implicit in every sale or exchange is ownership, acquired and divested. A public official does not own the public office he holds; he cannot barter or sell his office as an effect of commerce, an inheritance right, an uncertain hope, or as anything else. He is elected or appointed to a position of fidelity to the public trust.

There is no merit in, and this court will not consider, applying the codal provisions of our private law of exchange to a political controversy involving the attempted barter of public office.

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

AFFIRMED.

      . The exchanger, who is evicted by a judgment of the thing he has received in exchange, has his choice either to sue for damages or for the thing he gave in exchange.


text:
    Bobby PICKETT v. C. E. MILLER d/b/a C. E. Miller Seafoods.
    No. 10622.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Keith M. Whipple and Jules D. Boquet, Houma, for appellant.
    Darryl Carimi, Gretna, for appellee.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   EDWARDS, Judge.

Plaintiff, Bobby Pickett, a resident of Terrebonne Parish filed suit against the defendant C. E. Miller d/b/a Miller Seafoods on open account to collect a debt resulting from the sale of commercial seafood.

Since Miller was a resident of Florida, jurisdiction was obtained through a nonresident attachment. Pursuant to the writ of non-resident attachment the Sheriff of Terrebonne Parish seized a refrigerated trailer truck, owned by Miller, while it was in Terrebonne Parish.

Miller substituted a surety bond in order to release the seizure on his truck and the appellant, Adams, signed as surety.

Miller was represented by counsel, made a court appearance, the matter was tried, and resulted in a money judgment being rendered in favor of Pickett and against Miller in the amount of $5,513.17 plus interest from judicial demand and costs.

This judgment which was signed on October 1, 1974 is a final judgment — no appeal was ever taken. Almost four months later the original plaintiff filed a rule against the surety, Adams, for him to show cause why judgment in a like amount should not be rendered against him.

This proceeding resulted in the rendition and signing of a money judgment against Adams in the amount of $5,513.17 plus cost and interest. This judgment also was not appealed, and is clearly final.

This litigation results from plaintiff’s efforts to collect the judgment against Adams. Plaintiff obtained a writ of fieri fa-cias and the sheriff’s return reflects that he seized: (1) conveyor located at 700 Du-lac, and (2) all of Delton Adams leasehold interest in and to the property leased by him at Box 700 Dulac .

Adams then brought a “petition for injunction to arrest seizure and sale by writ of fieri facias . . .” The basis for the injunction was that under LSA-RS 13:3881(2) the property seized is exempt from seizure.

The trial court concluded that the conveyor is a “tool of the trade” and exempt from seizure, but that the leasehold interest was not exempt, and therefore is subject to seizure. The judge, however, ordered that the judgement denying the preliminary injunction in relation to the leasehold interest be suspended during the pen-dency of an appeal.

Plaintiff-appellee has not answered the appeal challenging the correctness of the trial court’s decision as to the conveyor, and that issue is therefore not before this court on appeal.

Defendant-appellant has suspensively appealed the judgment holding that the leasehold interest is subject to seizure. Appellant contends the trial court committed error in holding that the leasehold interest in the location where he conducts his business is not exempt for the reason that it is an incorporeal and therefore not within the exemption provided in R.S. 13:3881(2).

La.R.S. 13:3881 provides:

“The following income or property of a debtor is exempt from seizure under any writ, mandate or process whatsoever:”
(2) The tools, instruments, and books necessary to the exercise of a trade, calling, or profession by which he earns his livelihood, in whole or in part; . . .”

Both counsel acknowledge that the question of whether leased premises of a debtor are exempt from seizure under R.S. 13:3881 (2) is res nova.

In the cases relied on by counsel for appellant the determinative issue was the purpose for which the object was used, and not a characterization or analysis of the object itself, as is the issue here.

All of the cited cases involved corporeal moveables such as an automobile, Holt v. Flournoy, 24 So.2d 171 (La.App.2d Cir. 1945); a boat, Cox v. Smith, 275 So.2d 459 (La.App.2d Cir. 1973); barber tools, Talbot v. Scogin, 147 So. 722 (La.App.2d Cir. 1933) etc.

There is no support by analogy for including a leasehold interest. A proper interpretation of the statute indicates that an incorporeal leasehold interest is not included within the term “tools, instruments and books.” Counsel for appellant has not cited any persuasive authority, for interpreting these words beyond their ordinary meaning.

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

Affirmed.


text:
    Peter GONZALES et ux. v. The XEROX CORPORATION et al.
    No. 10054.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 20, 1976.
    Rehearings Denied April 12, 1976.

      Roy Maughan, Baton Rouge, for plaintiffs-appellants.
    Charles W. Franklin, Baton Rouge, for defendants-appellees.
    Before LANDRY, BLANCHE and NEHRBAS'S, JJ.
   BLANCHE, Judge.

This case was remanded to us by the Louisiana State Supreme Court for a further consideration of the trial record and a decision on the merits.

Our findings of fact in this case are as stated in our opinion at 307 So.2d 153 (La.App. 1st Cir. 1974), save in one minor detail. Our statement that there is a conflict as to exactly what happened when reached the roadside is inaccurate.

Concerning the testimony of the witness Donald Barrios, we agree with the suggestion of counsel for appellant that a careful analysis of his testimony will show that there is no actual conflict with the testimony of the other eyewitness but rather the testimony is only in conflict within itself.

W'e need not speculate regarding whether the youth of Barrios or his fear at the deposition and later at the trial was a reason for giving two different versions of what happened when he saw the child standing on the roadside before the accident, for we give his testimony little or no weight.

We accept the testimony of John Thibaut, who witnessed the accident from a balcony overlooking the road not more than 150 feet away and who was aware of all that transpired up until the fatal moment when Dawn Rene was killed. Based on his testimony, we believe that she was standing in plain view approximately three feet from the edge of the road and waited for one car proceeding from the opposite direction to pass before she started to cross the road in the path of the vehicle driven by Juan Hernandez. In such an event, she would have been standing on the side of the road long enough for the defendant Hernandez to have seen her and to have become aware that she was a child of tender years. However, neither Hernandez nor his wife saw the child until she was in the road in front of them and too late to stop. Since we find that she was there and that nothing obstructed Hernandez’ view, his failure to see the child and to bring his vehicle under control until he passed her, in our opinion, is due to his failure to keep a proper lookout. .

The duty of care which a motorist owes to a child who is of such tender years as to be incapable of negligence is a high duty of care because of the great risk of harm involved. The risk involved to a motorist encountering a child standing on the roadside is that the child might suddenly run out into the roadway in front of him. This is so because young children are possessed of but limited judgment and their actions are likely to be sudden and unpredictable. Thus, a motorist should anticipate the risk involved when a young child is standing at the edge of the road, i. e., that the child might suddenly run out into the roadway without looking to see that the way is clear.

It has been held that the high burden of care is not discharged by merely blowing a horn in warning or reducing one’s speed below the maximum limit, because a motorist under such circumstances owes a duty to such children to keep his vehicle under such control as to avoid injuring them. Pea v. Smith, 224 So.2d 37 (La.App. 1st Cir. 1969), and the citations therein referred to.

Furthermore, a motorist’s duty to look ahead and observe never ceases, and a motorist must see what he can and, in legal contemplation, should see; and his failure to see what he could and should have seen by exercising due diligence makes him liable for injuries to others when he fails in this duty.

We hold that defendant Hernandez breached his duty toward plaintiff’s child because he could and should have seen her standing by the side of the road. Having failed to see what he could and should have seen, he then failed to discharge the duty placed upon him by law to keep his automobile under such control as not to injure plaintiff’s daughter, whom he might reasonably have expected to dart out in the road in front of him. Gomales v. Xerox Corporation, cited supra, and the opinion in the same case of the Louisiana Supreme Court on writ of review, 320 So. 2d 163.

Defendants argue that plaintiffs were negligent in leaving their four-year-old child on the beach and in the care of their eight-year-old daughter. However, the grandfather of the deceased child, the father of Peter Gonzales, was also on the beach in the vicinity thereof, although he was fishing in the surf. Patricia Gonzales, the child’s mother, also testified that she had pre-arranged with her husband that she and the grandmother of the deceased child, the mother of Peter Gonzales, were to go to the beach when Peter Gonzales returned to the camp. There is also evidence that the Gonzales children were playing with other children. In our opinion there was no reason to fear for the safety of Dawn Rene for the short period her father was to be away from her. We, accordingly, find this defense to be without merit.

Lastly, we come to the more difficult question of deciding what the loss of love and affection for Dawn Rene by her parents is worth. It is plainly arbitrary to compute such a loss in dollars and cents, as nothing short of bringing her back to life could really compensate them. While evidence was produced on their bereavement and emotional instability after their child’s death, it is our view that the plaintiffs loved their four-and-a-half-year-old child as normal parents and could reasonably be expected to suffer great anguish and grief over her loss.

Therefore, in our discretion we decide that each parent should have judgment in the sum of $25,000 for the loss of love and affection that formerly existed between them and their daughter Dawn Rene. We are aware of all the jurisprudence on the subject, having examined into the matter in Wright v. Romano, 279 So.2d 735 (La. App. 1st Cir. 1973), writs refused, 281 So. 2d 757, 758. However, the award here is well within our discretion. Special damages of $1,062.72 were stipulated at. trial and will be awarded to plaintiff, Peter Gonzales.

For the above reasons, the judgment of the trial court is reversed and set aside and judgment is rendered herein in favor of the plaintiffs, Peter Gonzales and Patricia Gonzales, in the sum of $25,000 each, against defendants, The Xerox Corporation, Juan G. Hernandez and Employers Insurance of Wausau, in solido. There is further judgment herein in favor of plaintiff, Peter Gonzales, in the sum of $1,062.-72 for special damages, against said defendants. All costs are to be borne by defendants-appellees.

It is further ordered, adjudged and decreed that the expert witness fee of Dr. Allen Johnstone be fixed at the sum of $75 and taxed as further costs to said defendants.

Reversed and rendered.


author: LOTTINGER, Judge. ELLIS, Judge

text:
    STANDARD BRANDS INCORPORATED v. DEPARTMENT OF HIGHWAYS, State of Louisiana, et al.
    No. 10611.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearings Denied April 12, 1976.
    Writs Granted June 2, 1976.
    David S. Bell, Baton Rouge, for Standard Brands & Comm. Union Assur.
    Robert J. Vandaworker, Baton Rouge, for Robert L. Davis and Ryder Truck.
    William J. Doran, Jr., for State, Hwy. Dept.
    Judith A. Chevalier, Baton Rouge, for U. S. F. & G.
    Bernard Kramer, Alexandria, for Walter Mull.
    John B. Noland and Boris F. Navratil, Breazeale, Sachse & Wilson, Baton Rouge, for Robert T. Wilson.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit for property damages filed by Standard Brands, Inc. against the Louisiana Department of Highways, Robert Wilson, Ryder Truck Rentals, Inc., R.. L. Smith Manufacturing Company and Robert L. Davis. From judgment in favor of the defendants, plaintiff has perfected this appeal.

This case is one of four suits consolidated for trial below arising out of the same accident. Our reasons for judgment in all four suits as well as the judgment in this case will be given in this opinion, however, separate judgment will be rendered in each of the other consolidated suits.

In suit number 10612, La.App., 329 So.2d 826, United States Fidelity & Guaranty Company, as the subrogee of R. L. Smith Manufacturing Company, Inc., seeks recovery for $4,595.54 from the State of Louisiana, through the Department of Highways, and Robert E. Wilson. The Department of Highways seeks contribution from Robert L. Davis and Robert E. Wilson.

In suit number 10613, La.App., 329 So.2d 826, Ryder Truck Rentals, Inc. seeks recovery of $9,103.44 from the Department of Highways, State of Louisiana, and Robert E. Wilson. The Department of Highways seeks contribution from Robert L. Davis, R. L. Smith Manufacturing Company and Robert E. Wilson.

In suit number 10614, La.App., 329 So.2d 827, Walter L. Mull seeks recovery of $32,000.00 for personal injuries and expenses from Robert L. Davis, R. L. Smith d/b/a R. L. Smith Manufacturing Company, R. L. Smith Manufacturing Company and the Department of Highways, State of Louisiana. R. L. Smith was dismissed from this suit on a declinatory exception. Commercial Union Assurance intervened to recover workman’s compensation benefits paid to Walter L. Mull. The Department of Highways seeks contribution from Robert E. Wilson.

The facts point out that a trailer truck driven by Robert L. Davis, owned by Ryder Truck Rentals, Inc., but leased to R. L. Smith Manufacturing Company struck the headache bar located on the west side of the Atchafalaya River Bridge on U.S. 190 at Krotz Springs, Louisiana. The trailer truck operated by Robert L. Davis was being followed at a distance of 150 to 200 feet by a truck being driven by Walter L. Mull. When the Davis truck made contact with the headache bar, the rear portion of his trailer was sheared away, and the headache bar made contact with the truck being operated by Walter L. Mull. Mull received personal injuries as well as property damage to the truck which was owned by Standard Brands, Inc.

The evidence adduced at the trial below, which was not seriously in dispute, was summarized by the Trial Court as follows:

“On the west end of the old Atchafalaya River Bridge there was a so-called ‘headache’ structure composed of an H beam upright on each side of the roadway connected across the tops by a 24 inch I beam so that there was a clearance of 14 feet 6 inches between the bottom of this I beam and the roadway surface. There was a sign on the crossbeam announcing this clearance. The standards on each side were encased to a depth of about 20 inches in a concrete footing two feet square and four feet deep.
“On October 28, 1972, Robert E. Wilson, a driver for Eagle Trucking Company with cargo measuring 14 feet 4 inches, for which he had a permit, came under this ‘headache’ bar. When a small piece of angle iron allegedly was knocked from atop his trailer he backed down under the bar and proceeded under it a third time. There was no damage to his cargo.
“Sgt. R. L. Montgomery, III of the Louisiana State Police assisted the Chief of Police of Krotz Springs in investigating the incident of October 28, 1972. He was not sure the angle iron came from Wilson’s trailer, which had no difficulty in repassing under the bar which could have been scraped, but was not bent or twisted.
“Chief Soileau testified the Wilson truck passed twice under the bar without difficulty and there was no damage to the bar. He did not report the matter to the Highway Department.
“In some manner, however, the matter was reported to J. H. Drake, Chief Maintenance and Operations Engineer, who wrote a letter dated November 1, 1972, to W. C. Vincent, District Engineer at Lafayette asking for an accident report and stating that Section 10 would remove and replace the clearance bar ‘at the earliest possible date, compatible with other duties.’ See Ryder Exhibit 16. Mr. Drake testified that he did not consider the matter a traffic hazard.
“On November 2, 1972, Henry Delrie, Bridge Maintenance Engineer for the Department of Highways, passed under the bar and noticed in the light from automobile headlamps that the standards had been knocked out of plumb about six to eight inches causing the cross piece to be lowered about four inches he judged. He called the Lafayette District office and reported the matter to a nightwatchman who answered the radio call. He thought the bar had been scraped but did not consider the situation dangerous.
“Gerald Lee Trahan, Engineer Inspector with the Lafayette District was called by the watchman about 5:45 [A.M.] and given such sketchy details that he decided to talk to Troop I who talked to Troop K of the Louisiana State Police who reported no trouble at the Krotz Springs Bridge. Trahan therefore concluded that they were being subjected to a prank call.
“Between 7:00 and 7:30 [A.M.] Charles R. Grave, an Equipment Specialist with the Department of Highways, after being delayed for about five minutes to allow a truck with a drag line boom to traverse the bridge, crossed under the clearance bar and found the standards leaning eastward ‘not too much.’ He did not see the crossbar because of being involved in heavy traffic including trucks. He reported the leaning condition to Roy Gilbert, connected with the Lafayette District office, who met him one mile west of the bridge. Mr. Gilbert passed eastward under the bar and then turned around and passed westward under the bar, observing it while driving slowly.
While he did not consider it an immediate hazard, he called the Lafayette District Headquarters and told them it should be attended to. It was arranged that a crew would be sent out that day to take care of the matter.
“Robert L. Davis, the driver of the truck that struck the bridge testified he had gone over this bridge a number of times without difficulty. He noticed nothing out of order. The first notice of anything awry was a loud noise caused by the crossbar ripping through the trailer. The leading end of the trailer cleared the crossbar, the first contact being some four to five feet back of the front end. He assumed he was driving a thirteen and one half foot trailer but saw it measured by the trooper at thirteen feet eight inches.
“Walter Mull, the driver of the Standard Brands truck, the following one, was driving at about thirty miles per hour, when he heard a loud noise and saw a portion of the preceding trailer going up. He received injuries to the head, elbow and abdomen for which he was hospitalized from Thursday through Sunday. He was off work two to three weeks thereafter. His pains continued for about a month except that he still has some difficulties with his jaw.”

The Trial Court held that the alleged negligence of Robert Wilson on October 28, was insufficient to convince the Court that the crossbar was struck and especially that any damage occurred to the clearance structure and, therefore, absolved him from any liability.

With regard to any negligence on the part of Robert L. Davis, the Court said that his trialer was marked as being 13 feet 6 inches in height and he assumed it to be so. Although the undamaged portion of the trailer, after the accident, was measured at 13 feet 8 inches, and the Trial Court assumed that a part of his rig even exceeded this height, it was shown that he had safely proceeded under this headache bar with the same rig on previous occasions without any problems. The Court also said that a rig over 13 feet 6 inches in height requires a permit but the issuance of a permit for a height up to 14 feet 6 inches would probably not have been questioned and the accident would still have occurred. The Court, therefore, absolved Mr. Davis from any negligence causing the accident.

The Court similarly reasoned that R. L. Smith Manufacturing Company and Ryder Truck Rentals, Inc. were free of negligence contributing to the accident because there was no evidence tending to show that they knew or should have known of the over-height status of the truck, but even if they had, and provided the height was 14 feet 6 inches or less, the accident would still have occurred because everyone thought the clearance of the Krotz Springs Bridge was 14 feet 6 inches.

With regard to the negligence, vel non, of the Department of Highways the Court cited LaBorde v. Louisiana Department of Highways, 300 So.2d 579, 583 (La.App. 3rd Cir. 1974), reh. denied (1974), writ refused (1974), as follows:

“The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it (Citations).”
The Trial Judge further concluded:
“There is no evidence, whatsoever, that the alleged incident of October 28, 1972, resulted in a condition dangerous in any degree. The letter of Mr. Drake referring to the incident certainly is not evidence of any knowledge of any hazardous condition.
“The proof of any negligence, or any knowledge of a hazardous condition must arise from the evidence as to the events of November 2nd. Mr. Delrie at about 5:30 [A.M.] noticed a leaning of the standards and a possible lowering of the crossbar to the extent of about four inches. He reported this to Lafayette District but did not consider it dangerous. Even if there had been no mixup in the Lafayette District Headquarters, there would have been no urgency since there would have been no hint of danger. Both Messrs. Graves and Gilbert saw the leaning standards but did not consider the situation dangerous. Mr. Gilbert reported it routinely by radio for handling not as an emergency but as an ordinary part of his District’s work.
“Mr. Davis did not see anything out of the ordinary even though he had driven this truck and trailer over the bridge a number of times before. There is no evidence of anyone else having any notice or knowledge of a dangerous situation.
“The Court therefore finds that ‘the hazardous condition complained of was’ not ‘patently or obviously dangerous to a reasonably careful and ordinarily prudent driver,’ and that the department had no ‘notice, either actual or constructive, of the existence of the defect-.’ ”

Though we do not agree with the conclusion of the Trial Judge that the Department of Highways had no notice, either actual or constructive, we can find no manifest error in the holding of the Trial Judge that “the hazardous condition complained of was not patently or obviously dangerous to a reasonably careful and ordinarily prudent driver.”

For the reasons hereinabove assigned, the judgment of the Trial Court will be affirmed, all costs of this appeal to be paid by plaintiff.

AFFIRMED.

ELLIS, J., dissents and assigns reasons.

ELLIS, Judge

(dissenting).

In these cases, the trial court, and the majority of this court, following the traditional negligence approach, found no negligence on the part of the Department of Highways or any of the other defendants, and dismissed all claims. Since the time of the judgment below, however, the Supreme Court has handed down its decision in Loescher v. Parr, 324 So.2d 441 (La., 1975). In that case, it was held that Article 2317 of the Civil Code made the persons who are legally responsible for the supervision or care of a thing liable for damage caused by a vice or defect in the thing. Their fault is presumed, and they can escape liability only by proving that the damage was caused by the fault of the victim, by the fault of a third party, or by an irresistible force.

In this case, there are two defective things involved: the headache bar, which was too low, for which the Department of Highways is responsible; and the Ryder trailer, which was too high, for which R. L. Smith Manufacturing Company, and Ryder Truck Rentals, Inc. are responsible. It is obvious that, had either the headache bar or the trailer been the proper height, this accident would not have happened. I therefore have no difficulty in concluding that the two defective things caused the accident and the consequent damage. The State, and Ryder, and Smith should therefore be presumed liable for damage suffered by innocent third parties.

I find no fault on the part of Mr. Mull or of Standard Brands, Incorporated, and they should be able to recover from the responsible parties, in solido, for their damages.

Finally, there is the question of whether the State might escape liability because the damage which lowered the headache bar was caused by a third person. The record reflects that a trailer 14 feet four inches in height was driven under the headache bar on October 28. There is no evidence that any agency of the State or any other person or thing struck the headache bar thereafter. However, we know that at 5:30 a.m. on the day of the accident, the south upright of the headache bar was bent, and the bar thereby lowered.

I am of the opinion that the logical inference is that the headache bar was struck and lowered by some third person for whom the State was not responsible. I believe that the State should be found liable only if it had sufficient notice, actual or constructive, to enable it to protect the public against the danger created by the defect in the headache bar. I find no error in the conclusion of the trial judge in that respect.

I therefore concur in the result in cases Nos. 10612 and 10613, in which recovery is denied to Ryder and U.S.F. & G., as subro-gee of Smith.

In case No. 10611, I dissent from the refusal to grant recovery in favor of Standard Brands, Inc. against Ryder and Smith; and in case No. 10614 I dissent from the refusal to grant recovery in favor of Walter L. Mull. I further believe the intervention of Commercial Union Assurance Company for workmen’s compensation benefits paid to Mr. Mull should be allowed. I concur in the judgments rendered in all other respects.


author: LOTTINGER, Judge.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY v. DEPARTMENT OF HIGHWAYS, State of Louisiana, et al.
    No. 10612.
    Court of Appeal of Louisiana, First Circuit
    March 1, 1976.
    Rehearings Denied April 12, 1976.
    David S. Bell, Baton Rouge, for Standard Brands & Comm. Union Assur.
    Robert J. Vandaworker, Baton Rouge, for Robert L. Davis and Ryder Truck.
    William J. Doran, Jr., Baton Rouge, for State, Hwy. Dept.
    Judith A. Chevalier, Baton Rouge, for U. S. F. & G.
    Bernard Kramer, Alexandria, for Walter Mull.
    John B. Noland and Boris F. Navratil, Breazeale, Sachse & Wilson, Baton Rouge, for Robert T. Wilson.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is one of three suits which were consolidated with the suit entitled Standard Brands, Inc. v. Department of Highways, State of Louisiana, 329 So.2d 821 (La. App. 1st Cir. 1976). The four suits were tried together in the Trial Court, however, separate judgments were rendered. We have considered the four suits together and have given our reasons for judgment this day in suit No, 10611.

For the reasons this day rendered in Standard Brands, Inc. v. Department of Highways, State of Louisiana, supra, the judgment of the Trial Court will be affirmed, all costs of this appeal to be paid by plaintiff.

AFFIRMED.

ELLIS, J., concurs.


text:
    RYDER TRUCK RENTALS, INC. v. DEPARTMENT OF HIGHWAYS, State of Louisiana, et al.
    No. 10613.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearings Denied April 12, 1976.
    Writs Granted June 2, 1976.
    David S. Bell, Baton Rouge, for Standard Brands & Comm. Union Assur.
    Robert J. Vandaworker, Baton Rouge, for Robert L. Davis and Ryder Truck.
    William J. Doran, Jr., Baton Rouge, for State, Hwy. Dept.
    Judith A. Chevalier, Baton Rouge, for U. S. F. & G.
    Bernard Kramer, Alexandria, for Walter Mull.
    John B. Noland and Boris F. Navratil, Breazeale, Sachse & Wilson, Baton Rouge, for Robert T. Wilson.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is one of three suits which were consolidated with the suit entitled Standard Brands, Inc. v. Department of Highways, State of Louisiana, 329 So.2d 821 (La.App. 1st Cir. 1976). The four suits were tried together in the Trial Court, however, separate judgments were rendered. We have considered the four suits together and have given our reasons for judgment this day in suit No. 10611.

For the reasons this day rendered in Standard Brands, Inc. v. Department of Highways, State of Louisiana, supra, the judgment of the Trial Court will be affirmed, all costs of this appeal to be paid by plaintiff.

AFFIRMED.

ELLIS, L, concurs.


text:
    Walter L. MULL v. Robert L. DAVIS et al.
    No. 10614.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearings Denied April 12, 1976.
    Writs Granted June 2, 1976.
    David S. Bell, Baton Rouge, for Standard Brands & Comm. Union Assur.
    Robert J. Vandaworker, Baton Rouge, for Robert L. Davis and Ryder Truck.
    William J. Doran, Jr., Baton Rouge, for State, Hwy. Dept.
    Judith A. Chevalier, Baton Rouge, for U. S. F. & G.
    Bernard Kramer, Alexandria, for Walter Mull.
    John B. Noland and Boris F. Navratil, Breazeale, Sachse & Wilson, Baton Rouge, for Robert T. Wilson.
    Before ELLIS, BLANCHE and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is one of three suits which were consolidated with the suit entitled Standard Brands, Inc. v. Department of Highways, State of Louisiana, 329 So.2d 821 (La.App. 1st Cir. 1976). The four suits were tried together in the Trial Court, however, separate judgments were rendered. We have considered the four suits together and have given our reasons for judgment this day in suit No. 10611.

For the reasons this day rendered in Standard Brands, Inc. v. Department of Highways, State of Louisiana, supra, the judgment of the Trial Court will be affirmed, all costs of this appeal to be paid by plaintiff.

AFFIRMED.

ELLIS, J., dissents and assigns reasons and dissented from the refusal to grant a rehearing.


author: SARTAIN, Judge.

text:
    Lindsey BEALS, Plaintiff-Appellant, v. CITY NATIONAL BANK, Defendant-Appellee.
    No. 10620.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Refused June 4, 1976.

      Joel B. Dickinson, Baton Rouge, for plaintiff-appellant.
    Judith Atkinson Chevalier, Baton Rouge, for defendant-appellee.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   SARTAIN, Judge.

Lindsey Beals, (appellant), as universal legatee of Albertha Beauchamp Adolphus (decedent), appeals from a judgment rejecting his demands against City National Bank of Baton Rouge (appellee) for the alleged wrongful release of funds held by appellee. We affirm.

On May 9, 1973, appellant and decedent opened a joint savings account with appel-lee and deposited the sum of $10,699.56. Admittedly, this sum was obtained by decedent from the sale of real property. With the exception of $2,000.00 withdrawn by appellant following decedent’s death under the provisions of Act 235 of 1936, the account lay dormant save for regular interest deposits made to the account by appellee.

Decedent died at her domicile in Baton Rouge on May 26, 1974. She was survived by three brothers and one sister, Hosea Beauchamp, Eddie Beauchamp, Walter Beauchamp and Ida Beauchamp Ricks. These heirs, without knowledge of an existing will, opened her succession and caused themselves to be placed in possession of the funds on deposit in the joint account. On the date the judgment of possession was signed, June 14, 1974, these heirs together with their attorney appeared at appellee’s branch office and presented to the latter a certified copy of the judgment. They obtained and receipted for the balance left in the account in the amount of $9,178.60.

On June 25, 1974, appellant filed in decedent’s succession proceedings a petition entitled “Petition in Opposition to Judgment of Possession and for Probate of Statutory Will”. The will was ultimately probated; the judgment of June 14, 1974 was vacated; appellant was recognized as the universal legatee of decedent’s estate and as such was sent into possession of all of decedent’s property, including the aforementioned savings account.

Appellant then instituted the present action claiming, inter alia, that under the provisions of L.R.S. 6:32(A) the funds in the joint savings account belonged to him as the surviving depositor and that appellee is liable to appellant for releasing said funds to the heirs of the decedent without authority from appellant.

L.R.S. 6:32(A) reads as follows:

“When a deposit is made in any bank, savings bank or trust company under the names of two or more persons, payable to each of such joint depositors, this deposit or any part of it, or any interest or dividend on it may be paid to any such joint depositor, whether the other joint depositor or depositors be living or not, and the receipt or acquittance of the person paid is a full release and discharge of the bank, savings bank or trust company for any payment made with respect to anyone; nor shall any bank, savings bank or trust company paying any such depositor in accord with the provisions of this section thereby be liable for any estate, inheritance or succession taxes which may be due this state, except that in the case of a joint account, a bank, savings bank or trust company having actual knowledge of the death of any joint account owner shall report payments made to the collector of revenue within one week after such payment is made.”

The statute relied upon by appellee and found by the trial judge to be controlling is L.R.S. 6:66 which provides as follows:

Upon proper authority and upon obtaining a receipt therefor, any bank may transfer any money or other property in its possession, belonging to a deceased person, to the decedent’s succession representative, heirs, or the legal representatives of the heirs.
The letters of the succession representative or the judgment recognizing and putting the heirs in possession, issued by a court of competent jurisdiction, and accompanied by letters of tutorship or curatorship of the heirs who are not sui juris, shall constitute proper authority for making the transfer, which when so made and receipted for shall be full protection to the bank.
Conclusive proof to the bank of the letters or judgment and of the jurisdict tion of the court rendering them shall result from copies thereof, duly certified when rendered by a court of this state, or certified according to the Acts of Congress when rendered by a court of any other state, or certified according to the law of the place when rendered by a court of any possession or dependency of the United States, or certified according to the law of the place with the genuiness of the certification attested by a consular agent of the United States when rendered by a court of any foreign country.
The receipt to be obtained by the bank may be in any form, but it shall be signed, either by the' succession representative accompanied by a certified copy of the letters, or by the heirs or the legal representatives of the heirs who are not sui juris, accompanied by a certified copy of the judgment recognizing and putting the heirs in possession and by a certified copy of the letters of tutorship or curatorship of the legal representatives of the heirs who are not sui juris.
No bank shall transfer any money or other property to a succession representative appointed by a court outside this state or to any heirs or their legal representatives until the inheritance tax due the State of Louisiana has been fixed and paid.

Thus the question posed for resolution here is whether a bank is fully protected by L.R.S. 6:66 when it releases funds of a joint account to the legal heirs of one of the depositors and when such release is ordered by a judgment of possession.

With respect to L.R.S. 6:32(A), we can not find that this particular statute creates any proprietary interest in a surviving depositor. We think its intent is clear. It (1) permits the bank to pay any part of the funds on deposit, interest or dividends, to any one of several joint depositors, whether another joint depositor is living or not, and (2) it relieves the bank of liability for inheritance taxes, but, (3) it requires the bank to report payments made to a surviving depositor to the Collector of Revenue.

Our perusal of L.R.S. 6:32(A) satisfies us that as between joint depositors on the one hand and a bank on the other hand, the latter has statutory authority to release funds in a joint account to any one of the former, notwithstanding the fact that one of the joint depositors may be deceased at the time of the withdrawal. The statute also relieves the bank of any obligation of inquiring into the origin of the funds or any particular interest a joint depositor may have over that of aiiy other joint depositor.

Further, the statute does not require that one joint depositor give notice to another joint depositor before funds are withdrawn from a joint account. Accordingly, we must reject appellant’s contention that he was entitled to notice by the heirs of the decedent of their intention to withdraw the funds or that the bank was required to give appellant notice of its intention to release these funds to the surviving heirs.

To hold that L.R.S. 6:32 (A) creates in a joint depositor a vested proprietary interest in the account as urged by appellant is tantamount to holding that this statute creates as between joint depositors the common law relation of joint tenancy and tenancy in common, two rules of law which have been consistently rejected by the jurisprudence of this state. Northcott v. Livingood, 10 So.2d 401 (La.App., 2nd 1942), and Dawson v. Capital Bank & Trust Co., 261 So.2d 727 (La.App., 1st 1972).

Our courts have consistently held that a judgment of possession, even an ex parte judgment, is prima facie evidence of ownership which entitles the party recognized by it to full and exclusive ownership until such time as someone else appears to assert and prove ownership in himself. Curry v. Caillier, 37 So.2d 863 (La.App., 1st 1948).

While L.R.S. 6:66 is silent as to ownership and relates only to statutory authority granted a bank for the release of funds, it must be viewed in conjunction with L.R.S. 6:32(A) and the presumption of ownership announced in Curry, above. Thus, where we have a joint account, a deceased depositor, a judgment of possession recognizing the legal heirs of the deceased depositor, and a surviving depositor, a bank may, absent prior notice to the contrary, (L.R.S. 6:32[B]), pay any part or all of the funds in such account to a surviving depositor (L.R.S. 6:32[A]) or the surviving heirs, when these heirs are recognized as such by a judgment placing them in possession of such account.

Accordingly, for the above and foregoing reasons, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


text:
    Jenny Lynn Smith MAPES v. NATIONAL FOOD STORES OF LOUISIANA, INC., et al.
    No. 10543.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Refused May 28, 1976.

      Eric L. Pittman and Thomas H. Ma-theny, Hammond, for appellant.
    Sidney L. Shushan, New Orleans, for appellees.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   EDWARDS, Judge.

This is a suit for damages resulting from an alleged illegal detention for suspected shoplifting. Appellant Jenny Lynn Smith Mapes appeals the decision of the trial court which dismissed her suit against National Food Stores of Louisiana, Inc. and its agents and employees James Blair and Thompson Foret.

There are two primary issues presented in this appeal: (1) whether or not there was reasonable cause to detain Mrs. Mapes for questioning and (2) whether the inquiry was conducted in a reasonable and sufficient manner.

On September 12, 1972 Jenny Lynn Smith Mapes was shopping in the National Food Store in Hammond, Louisiana. While in the store she put a small package of alka seltzer'in her purse and may or may not have put four packages of meat marinade in her purse also.

Mrs. Mapes was observed by a security guard, James Blair, both while doing her shopping and while checking out. After she exited the checkout counter, Blair confirmed with the cashier that Mrs. Mapes had not checked out nor paid for any alka seltzer. Thereupon Blair followed her into the parking lot and questioned her.

At Blair’s request Mrs. Mapes returned into the store, went to the “breakroom” (for employee coffee and cigarette breaks), and exposed the contents of her purse. Included therein were a package of alka seltzer and four packages of meat marinade. Present in the room were an assistant manager and several other employees. Mrs. Mapes signed a statement that she took the alka seltzer without having paid for them, the police were called, and she was taken to the police station.

Where the detention complained of is authorized by La.Code Crim.P. art. 215, the merchant will be immune from criminal and civil liability. For this privilege to be operative, that statute simply requires a reasonable cause in the mind of the merchant to believe that the person has committed a theft. The article does not address, and we are not concerned with, the state of mind of the person detained. That issue, the criminal intent, is relevant only in determining guilt or innocence of a criminal charge.

Blair, the security guard, observed Mrs. Mapes put the alka seltzer in her purse and leave the store. After he ascertained that the item had not been checked out, he followed Mrs. Mapes into the parking lot, verified that she had the alka seltzer, and asked her to return into the store. Clearly Blair had reasonable cause at that point to believe a theft had been committed. The initial detention was therefore privileged;

Appellant next complains that the inquiry was conducted in an unreasonable manner; that it was calculated to humiliate the appellant rather than to determine whether there was a reasonable explanation for appellant’s actions.

In the break room, Mrs. Mapes was asked to and did sign a statement admitting that she took the alka seltzer without paying for it. Basically, this was the extent of the inquiry. Appellant did not and does not now in brief deny the admissions in the statement. Her complaint is that the refusal to investigate further her insistence that she did not intend to take the item without paying for it renders the inquiry arbitrary and unreasonable.

We cannot agree. There was no way to verify appellant’s state of mind. She pointed out no facts by which her story could have been corroborated. The investigation was as complete as possible under the circumstances. In the absence of any other showing of ill treatment of the appellant, we hold the manner of inquiry reasonable and the privilege properly maintained.

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

Affirmed.


author: PONDER, Judge.

text:
    Albert J. PENNY, etc., et al. v. ST. PAUL FIRE & MARINE INSURANCE COMPANY and Dr. John Doe.
    No. 10564.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Denied June 9,1976.
    Lloyd P. Champagne, Baton Rouge, for appellants.
    Donald T. W. Phelps, Baton Rouge, for appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

This is a medical malpractice suit. Plaintiffs-appellants, Mr. and Mrs. Albert J. Penny, claim damages as a result of the alleged negligence of Dr. Charles L. Lee, a general practitioner. Dr. Lee’s insurer, St. Paul Fire and Marine Insurance Company, is also a defendant herein.

In April, 1971, with complaints of nausea and fatigue, Mrs. Penny, a schoolteacher, saw Dr. Lee. Clinical evidence of jaundice was present and a diagnosis of viral hepatitis was made. Mrs. Penny was referred to Dr. Bruce Baer, a specialist in Gastroenterology, a sub-speciality of internal medicine.

Dr. Baer confirmed the diagnosis of viral hepatitis. On April 2, 1971, the SGOT (serum glutamic oxalacetic transaminase) oxalacetic enzyme test indicated 770 units and the SGPT (serum glutamic pyruvic transaminase) pyruvic test indicated 980 units. An upper normal unit of SGPT is 40 units.

The SGOT dropped to 62 by April 23rd. However, Mrs. Penny suffered a flare-up in mid-May and by May 22nd her SGOT was 825. On June 4th the SGOT had subsided to 67 and on July 1st it was normal. Her SGOT remained normal through November 10, 1971, with her next scheduled test due on February 7,1972.

On December 21, 1971, Mrs. Penny returned to Dr. Lee complaining of a sore throat. Dr. Lee noting a sore throat, stopped sinuses and general congestion, treated her with injections of Linocin with a small amount of Aristocort, Ornade and a prescription calling for a four or five day supply of ahtibiotic Ilosone pills, to be taken three or four times daily.

Mr. and Mrs. Penny testified that she began feeling ill on Christmas Eve. She experienced slight abdominal pain, vomiting and nausea on Christmas Day. On the next day her throat had not improved, she was still nauseated and a rash developed on her buttocks. She went to the emergency room of Baton Rouge General Hospital and was seen by Dr. W. T. Brown. A throat culture was taken and the result was sent to Mrs. Penny’s family physician, Dr. Vance Byars.

Dr. Byars saw her five days later on December 31st. Concerned about the rash, he made an appointment for her with Dr. Judith Patrick, a specialist in the field of Dermatology. Mrs. Penny saw Dr. Patrick on January 5th and 7th. Dr. Patrick, recognizing the rash as reflecting a drug reaction, gave her two injections of Cele-stone, prescribed a short term course of oral Decadron and recommended some Benadryl for itching.

Mrs. Penny testified that the rash had almost disappeared between the middle and end of January, 1972, but that the nausea and fatigue continued into February. She stated that she missed much school in January. Mr. Penny testified that he substituted for his wife in January, once five days in a row.

On February 8, 1972, she went to see Dr.^Baer for her regularly scheduled liver tests. Her SGOT was remarkedly abnormal at 1480 units. She had hepatitis. Dr. Baer hospitalized her the next day for further evaluation. On February 16th Mrs. Penny was sent home. She was told to stay in bed for six to eight weeks.

On April 19, 1972, she saw Dr. Byars again. Supposedly worried about potential ill effects of an accidental pregnancy, Mrs. Penny inquired about having herself sterilized. Dr. Byars advised her against sterilization and suggested that she not return to teaching for about one year. Still, she went to Dr. David McKowen, a specialist in the fields of Gynecology and Obstetrics, and arranged for the sterilization. Dr. McKowen testified that because of Mrs. Penny’s hepatitis, she could not safely take birth control pills. However, he stated that Mrs. Penny did not ask about alternatives. When he brought up the possibility of a vasectomy, she stated that she did not want her husband subjected to that procedure. Dr. McKowen further testified that at one time the Pennys told him they were not particularly desirous of having children. A tubal ligation was performed in May, 1972.

The 1971 edition of the Physician’s Desk Reference published by drug manufacturers and the American Medical Association’s book on drug evaluation both state that Ilosone is contraindicated for patients with pre-existing liver conditions. On the theory that Dr. Lee was under a legal duty not to prescribe Ilosone to Mrs. Penny in view of her past history of liver problems, and that the breach of this duty caused drug induced hepatitis, plaintiff instituted this suit.

The lower court found that the plaintiffs failed to prove by a preponderance of the evidence that there was a causal connection between the medication prescribed by Dr. Lee on December 21, 1971, and the hepatitis diagnosed on February 8, 1972, and dismissed plaintiff’s suit. Plaintiffs appeal that decision.

The question that is dispositive of this suit is whether the hepatitis diagnosed in February was drug induced or a flare-up of the viral hepatitis Mrs. Penny had the previous April through June. Much medical testimony was elicited with regard to this issue.

Dr. Edward Boagni, an expert in the field of anatomical clinical pathology, was called by the plaintiffs. He examined the biopsy slide taken in February, 1972. He stated that Ilosone can cause symptoms of hepatitis within two to twenty-one days of its injection into the body system. Many cases of drug induced hepatitis cannot be differentiated from viral hepatitis by biopsy, including those induced by Ilosone. However, it was his opinion that once the drug is removed, then the cholestasis (a stoppage of the flow of bile) would begin to subside and this took five days to two weeks. (The drug had been removed slightly over five weeks before.) A high level of SGOT (1480 units) was also indicative of viral hepatitis. The inflammatory response to the drug induced cholestatic condition is usually eosinophilic leukocyte (a cellular mass in blood readily stained by the drug eosin). He found no eosinophils. Dr. Boagni concluded that “the probability is that this would be a viral origin.”

Plaintiffs contended that the basis of Dr. Boagni’s conclusion, that of their own witness, was erroneous, on the basis that cortisone injections given to plaintiff by Dr. Patrick would have done away with the eosinophils. Dr. Boagni answered that “it is possible but in my opinion not probable.” He dismissed plaintiffs drug rash as coincidental and reasserted his opinion that “on probability alone I would still stick to a viral etiology.”

Dr. Byars was called by the plaintiff and was asked his opinion of the cause of the hepatitis diagnosed in February, 1972. He testified that he “would assume that some drug or some other agent had caused an exacerbation or recurrence of her illness, and with the immediate history that I had about that time, the most likely three drugs were either Lincocin, Ilosone and codeine.” He admitted that he stated in a letter of September 12, 1972, that “many factors can influence liver functions in drug actions. Consequently, it will be difficult to state that these drugs could be definitely responsible for any exacerbation of hepatitis such as occurred in Mrs. Penny’s case in February of 1972.”

Dr. Baer, Mrs. Penny’s treating physician in April of 1971 and February, 1972, testified that it was his opinion that the Il-osone had nothing to do with the flare-up of the hepatitis in February, which he unequivocally characterized as viral. There are two types of jaundice, obstructive jaundice with blockage of bile ducts (a cholestatic-type jaundice) and jaundice secondary to acute damage to the liver tissue. Jaundice that is secondary to Ilosone is predominately cholestatic, with a marked elevation of the alkaline phosphatase. In obstructive jaundice (drug induced) the transaminase is usually below 400 units, and this propensity carries a diagnostic accuracy of approximately 85%. Dr. Baer .stated that this particular case “was fairly clear-cut — we had a 1480 transaminase, tremendous elevation — we felt quite confident from this that we were dealing with a relapse of the hepatitis and not dealing with an entrahepatic cholestasis.” Later, he also stated “If you had a patient with Ilosone hepatitis and you did a biopsy on them three weeks later and the biopsy was normal, you would certainly not expect to see clinically on the same day a serum transaminase of 1560.” Dr. Baer knew of no cases where Ilosone had led to chronic liver disease. Also, it was his opinion that upon withdrawal of a drug causing a liver problem, the problems disappeared rather rapidly.

Mrs. Penny testified that Dr. Baer told her that the Ilosone caused her liver condition in February, 1972. Dr. Baer denied telling her this and stated that if that had been his opinion he would have noted it in the hospital record. The record contained no such diagnosis.

The lower court stated it has “no alternative but to rely on the sworn testimony of expert witnesses such as Dr. Boagni and Dr. Baer, who are recognized experts in their respective fields. In difficult cause and effect issues such as the one presented here, their testimony must prevail over general printed statements of medical authorities, particularly when the experts agree with the general principles but testify adverse to the plaintiffs’ position in a particular case, giving logical and plausible bases and foundations for their opinions.

“In technical fields such as medicine, and particularly in deciding issues the resolution of which depend on complex and difficult diagnosis of complex diseases, this Court must rely and in this case is relying heavily on the testimony of these two specialists. The Court was particularly impressed with the qualifications of Dr. Baer and the manner in which he presented his testimony.

“Counsel for plaintiffs has, both by questions and comment during the trial and by written brief, asked the Court to conclude that the experts who testified contrary to plaintiffs’ interest were not being truthful and were attempting to mislead the Court to aid a fellow member of the medical profession. This Court is unable to subscribe to any such notion.”

We agree and adopt that reasoning as our own. We agree too, with the lower court that plaintiffs have not fulfilled their burden in proving that the cause of the February, 1972, hepatitis was Ilosone. Therefore, discussion of whether Dr. Lee was negligent in prescribing the contraindicated drug is not necessary.

Affirmed.

Appellant to pay costs of this appeal.