text:
    Mrs. Mary C. FIORELLO v. Mrs. Mamie Musso, wife of Frederick J. KNECHT.
    No. 7433.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearing Denied July 29, 1976.

      George H. Van Geffen, New Orleans, for plaintiff-defendant in reconvention and third party plaintiff-appellee.
    Friedman, Ortiz & Selenberg, Maurice B. Friedman, New Orleans, for defendant and plaintiff in reconvention-appellant.
    Adloe Orr, Consulting Engineers, Inc. unrepresented third party defendant-appel-lee.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

This is a boundary dispute. Plaintiff seeks to establish a boundary between property belonging to herself and contiguous property belonging to defendant, as well as the removal of a three-foot encroaching fence, allegedly located on plaintiff’s property between the contiguous parcels. The encroaching fence is located between lot 9, owned by defendant, and lot 10, owned by plaintiff, as designated on a court-ordered survey by Gandolfo, Kuhn & Associates, dated August 12, 1972. From a judgment in favor of plaintiff, defendant appeals. We affirm.

The chronology of acquisition of the disputed property is as follows. The square in which the property is located was originally part of a section subdivided into “groves’” belonging to the New Orleans Lakeshore Land Company as designated on a survey by C. O. Hooper, dated November 10, 1918. This section was resubdivided into squares and lots by Gilbert & Kelly, Surveyors, in May, 1926. Prior to 1954, the lots involved in this litigation were owned by a common ancestor in title, Mil-chiori Quartararo. In June, 1954, the common ancestor in title sold three lots to defendant, including the lot involved in the present litigation. The disputed fence was constructed in August, 1955, and according to defendant, its location and construction were supervised by Quartararo. Plaintiff acquired four lots in the square, including the lots involved in this litigation, from the succession of her deceased mother in 1963, and by sale from her father, Quartararo, in 1964. Apparently, in 1969, plaintiff constructed improvements on the ground contiguous to defendant’s property, and learned, at that time, of the three-foot encroaching fence. This suit followed in November, 1971.

In peremptory exceptions of no cause of action and prescription filed in this court, defendant pleads ownership of the three feet in dispute through 10, 20 and 30-year acquisitive prescription. In a supplemental and amended peremptory exception, also filed in this court, defendant reurges the 10 and 30-year acquisitive prescription and also claims that a continuous and apparent servitude of “fence” has been created. Defendant further contends that the trial judge erred when he accepted the boundary established by the 1926 Gilbert & Kelly survey and rejected the boundary fixed by the court-appointed surveyor. Finally, defendant claims that since the peremptory exceptions filed in this court are based upon prescription, LSA-C.C.P. art. 2163 requires that the exceptions be remanded for hearing in the trial court.

Disposing of defendant’s contentions in inverse order, we find no merit in the assertion that the exception based on acquisitive prescription filed in this court should be remanded for hearing in the trial court. LSA-C.C.P. art 2163, in pertinent part, provides:

Art. 2163. Peremptory exception filed in appellate court; remand if prescription pleaded
“If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.” (underline ours)

It appears, from a reading of the article, that it is plaintiff’s right to demand a remand. In the instant case, no such demand has been made by plaintiff. Furthermore, the article contemplates the necessity of an evidentiary hearing in connection with the prescription issue. In the instant case, no necessity exists for an evi-dentiary hearing on defendant’s 10-year possession. It is undisputed that more than 10 years elapsed between the time that the fence was placed at its present location (19SS) and the time that the suit was filed (1971). Under the circumstances, no purpose would be served in a remand. We can perceive of no prejudice to either party by disposing of the matter in this court.

We also find no merit to defendant’s claim of ownership of the disputed property through 30-year acquisitive prescription. LSA-C.C. art. 3499, upon which defendant relies, states:

Art. 3499. Immovables, possession without title or good faith
“Art. 3499. The ownership of immov-ables is prescribed for by thirty years without any need of title or possession in good faith.”

Approximately 16 years elapsed between the date that defendant acquired ownership of the property and the date the suit was filed. However, defendant seeks to satisfy the Codal provision by tacking those years of ownership and possession of his ancestor in title. This argument is clearly without merit. Quartararo was the common ancestor in title of plaintiff and defendant, but he is not an ancestor in title of defendant as to the three feet to which defendant has no title. Quartararo remained the common owner until defendant purchased in 1954. It is apparent that the subject properties were held in common ownership within 30 years of the filing of this boundary action. Under the circumstances, defendant is unable to tack his possession to that of his ancestor in title. See Jones v. Dyer, 71 So.2d 648 (La.App. 1st Cir. 1954); Porche v. Martin, 177 So.2d 288 (La.App. 1st Cir. 1965); Babin v. Montegut Insurance Agency, Inc., 271 So.2d 642 (La.App. 1st Cir. 1972).

The most serious argument raised by defendant is ownership of the disputed property through 10-year prescription. Defendant bases her 10-year prescription argument on LSA-C.C. art. 3478 which provides :

Art. 3478. Immovables, possession in good faith with just title; accrual of prescription against incapables
“Art. 3478. He who acquires an immovable in good faith and by just title prescribes for it in ten years. This prescription shall run against interdicts, married women, absentees and all others now excepted by law; and as to minors his prescription shall accrue and apply in nineteen years from the date of the birth of said minor; provided that this prescription once it has begun to run against a party shall not be interrupted in favor of any minor heirs of said party.”

and LSA-C.C. art. 853:

Art. 853. Errors of surveyor; rectification, prescription
“Art. 853. If the boundaries have been fixed according to a common title, or according to different titles, and the surveyor had committed an error in his measure, it can always be rectified, unless the part of the land on which the error was committed, be acquired by an adverse possession of ten years, if the parties are present, and twenty years, if absent.”

Clearly, LSA-C.C. art. 3478 is not support for defendant’s position. Under this article, acquisition by 10-year prescription requires not only 10 years possession, but also just title. According to James Couturie, surveyor, on March 25, 1955, Adloe Orr surveyed the lot previously purchased by defendant in 1954. The sale of the lots (including lot 9) by Quartararo to defendant, Knecht, refers to a survey by Gilbert & Kelly, dated May 18, 1926. According to Couturie, a conflict in these surveys is created because each surveyor started at a different point. Despite Cou-turie’s testimony, both the Gilbert & Kelly survey and the Orr survey describe the lots, including lot 9, as commencing 125 feet from the corner of Hayne Boulevard and Michigan Street and measuring each 25 feet on Michigan Street. However, the Orr survey monuments place defendant’s lots three feet south of the Gilbert & Kelly lines. Defendant’s title does not include the disputed three feet in its description. Accordingly, defendant did not have a just title to the three feet. Under the circumstances and in view of the requirement of a just title under LSA-C.C. art. 3478, this Codal provision cannot support defendant’s claim to ownership of the disputed three feet.

Nor does LSA-C.C. art. 853 support defentant’s position. As pointed out here-inabove, it is not disputed that defendant possessed the property for a period of 10 years. However, we reject defendant’s argument that since she has acquired by adverse possession in excess of 10 years, and since the fence is located on a boundary fixed as a result of an error in the placement of Orr survey monuments, the location of the fence cannot be changed.

As hereinabove pointed out, in the property description by which defendant, Knecht, purchased from Quartararo, the description makes reference to a survey by Gilbert & Kelly, dated May 18, 1926. Further, in the act by which plaintiff purchased from Quartararo, the description was designated in accordance with a survey made by Gilbert & Kelly, dated March 12, 1960. Therefore, the Gilbert & Kelly survey is controlling as to the location and dimensions of the properties conveyed. Monuments placed in accordance with the Orr survey are not controlling.

Furthermore, in matters involving the fixing of boundaries and surveying lands, the Louisiana Civil Code places formal requirements on surveys to be used as the basis for fixing the boundaries. Those requirements are set forth in LSA-C.C. arts. 833 et seq. Among other requirements set forth in the Codal provisions are that notice of the day and hour when the property limits will be fixed must be given by the surveyor to the interested owners. See LSA-C.C. art. 834. Also required is that a sworn proces verbal of the survey- or’s work, in the presence of two witnesses, be made. See LSA-C.C. art. 833. Admittedly, the Orr survey (obtained by defendant), made nine months after defendant purchased the disputed property, was not made in accordance with the requirements of LSA-C.C. arts. 833 et seq. Since the Orr survey was not made in accordance with formalities set forth in the Code, LSA-C.C. art. 853 cannot serve as the basis for supporting defendant’s claim to the disputed three feet. Accordingly, we conclude that defendant’s claim, based on LSA-C.C. art. 853, is without merit.

Defendant, relying on LSA-C.C. arts. 727, 728 and 765 , contends that she has acquired a servitude of use or servitude of “fence” on the property on which the fence is located. We disagree.

Although not clear in argument, defendant appears to assert that because the fence had been constructed in its present location for a period in excess of 10 years, defendant has acquired a servitude of “fence” over that strip of land on which the fence is located. We have been unable to find either statutory or jurisprudential authority for the establishment of a servitude of “fence”. A person asserting a servitude of “fence”, as in the instant case, is claiming ownership of the property enclosed by the fence, a concept different from' that of a servitude of drain or passage. The effect of recognizing the servitude of “fence” would be to place ownership, dominion and control of three feet of plaintiffs property with defendant. We cannot conclude that the servitude articles of the Code contemplate this result.

Finally, we find no merit to defendant’s claim that the court erred in refusing to accept the survey made by the court-appointed surveyor, F. C. Gandolfo, which showed a 1.5 foot encroachment of the fence on plaintiff’s property. We do not agree, as claimed by defendant, that the court is compelled to accept the survey made by the court-appointed surveyor. As was stated in Union Producing Company v. Placid Oil Company, 178 So.2d 392 (La. App. 1st Cir. 1965), writ refused, 248 La. 447, 179 So.2d 432 (1965), where a boundary is located is a question of fact to be determined by the trier of fact. The purpose of expert witnesses, court-appointed or otherwise, is to assist the court in making a determination of a fact or of an issue. The opinion of a court-appointed expert is not conclusive, but is evidence to be weighed as any other evidence. The court is not required to accept the findings and conclusions of a court-appointed expert.

The acceptance or rejection of expert evidence lies within the decision-making responsibility of the trial judge. We cannot say the judge erred when he declined to accept the survey made by the court-appointed surveyor.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . Defendant was granted judgment for the costs of these proceedings against a third-party defendant, Adloe Orr, Consulting Engineers, Inc., whose survey was relied on by defendant.

      . See LSA-C.C. arts. 3478, 853 and 3499.

      .There exists a line of jurisprudence which holds that the 10-year prescription set forth in LSA-C.C. art. 853 applies only where the lines are fixed based on a survey made in accordance with the formal requirements of LSA-C.C. arts. 833 et seq. See: Christen v. Coulon, 94 So.2d 47 (La.App.Orl.1957); Owens v. T. Miller & Sons Building Supply Company, 101 So.2d 773 (La.App. 1st Cir. 1958); Harvey v. Havard, 225 So.2d 615 (La.App. 1st Cir. 1969).
      Another line of cases permits reliance on LSA-C.C. art. 853 where a survey has not been made in compliance with the Codal provisions, but the parties acquiesced in the surveyed boundary for a requisite period of time, or where there has been no prior survey, but visible boundaries have been made by consent of the parties and acquiesced in by them for the required time. See Lacalle v. Chapman, 174 So.2d 668 (La.App. 3d Cir. 1965); Dictum in Opdenwyer v. Brown, 155 La. 617, 99 So. 482 (1924), and in Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957).
      We are inclined to adopt the conclusion reached in those cases requiring a survey made in accordance with the formalities set forth in the Code. Further, as stated in 40 Tul.L.Rev. 644 (1966):
      “Of the two possible interpretations of article 853, the one requiring a formal survey has more consistent judicial support and is more in keeping with the codal provisions. The interpretation which does not require a formal survey is less settled, the best expressions of the rule are dicta, and there are relatively few instances where it has been applied to allow the prescription of article 853.”

      . Art. 727. Servitudes, continuous or discontinuous

      “Art. 727. Servitudes are either continuous or discontinuous.
      Continuous servitudes are those whose use is or may be continual without the act of man. Such are aqueducts, drain, view and the like. Discontinuous servitudes are such as need the act of man to be exercised.
      Such are the rights of passage, of drawing water, pasture and the like.”

      . Art. 728. Servitudes, apparent or non-apparent

      “Art. 728. Again, servitudes are either visible and apparent or non-apparent.
      Apparent servitudes are such as are to be perceivable by exterior works ; such as a door, a window, an aqueduct.
      Non-apparent servitudes are such as have no exterior sign of their existence; such, for instance, as the prohibition of building on an estate, or of building above a particular height.”

      . Art. 165. Acquisitive prescription of continuous apparent servitudes, and of roads

      “Art. 765. Continuous and apparent servi-tudes may be acquired by title, or by a possession of ten years. * * * ”

      . See LSA-C.C. arts. 714 and 699.

      . See: Bonilla v. Arrow Food Distributors, Inc., 202 So.2d 438 (La.App. 4th. Cir. 1967).


source: Caselaw Access Project

author:
DOMENGEAUX, Judge.
      MILLER, Judge

license: Public Domain

text:
    Steve G. DOUCAS, Plaintiff and Appellant, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY et al., Defendants and Appellees.
    No. 5495.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.

      Dubuisson, Brinkhaus, Guglielmo & Dau-zat by Jimmy L. Dauzat, Opelousas, for plaintiff and appellant.
    McLure & McLure by Thomas C. Mc-Lure, Jr., and John G. McLure, Alexandria, for defendants and appellees.
    Before MILLER, DOMENGEAUX, and PAVY, JJ.
   DOMENGEAUX, Judge.

This tort action arose from an intersec-tional collision on November 5, 1971, in Marksville, Louisiana, involving plaintiff-appellant, Steve Doucas, and defendant-ap-pellee, O. J. Scallan, Jr. Also made defendants were Scallan Motor Company, the Estate of Ogere J. Scallan, Sr., and Universal Underwriters Insurance Company, the liability insurer of Scallan Motor Company. Following trial on the merits, the District Judge awarded plaintiff $3,500.00 for pain and suffering only. Plaintiff has appealed seeking an increase in the award for general damages and additionally an award for special damages for certain medical expenses allegedly incurred by him as a result of the accident. Defendants have answered the appeal seeking a reversal on the issue of their liability for the collision and alternatively petition this court to reduce plaintiff’s award to $1,000.-00.

THE ACCIDENT

On the morning of November 5, 1971, in Marksville, Avoyelles Parish, Louisiana, plaintiff was driving his automobile in an easterly direction on Acton Road (La. Hwy. # 1189) a paved two-laned highway running east and west. Defendant was driving north on Poret Drive, a graveled road running north and south. Acton Road and Poret Drive meet, forming a “T-intersection” with Poret Drive coming to a dead-end at Acton Road. On the date in question, there was no stop sign at the above described intersection.

Plaintiff was traveling within the speed limit (40 to 45 miles per hour) and observed defendant’s car approaching the “T-intersection”. Defendant apparently stopped at the intersection and looked both ways, however his view was obstructed somewhat by an automobile which was parked on the southern side of Acton Road. Defendant pulled out from Poret Drive, attempting to make a left turn onto Acton Road and, seeing plaintiff’s automobile approaching, stopped his vehicle at approximately the center line of Acton Road. Plaintiff applied his brakes and after skidding for approximately 98 feet, collided with defendant’s automobile.

We have no hesitancy in concluding that, although no stop sign was present on Poret Drive plaintiff was possessed with the right-of-way at the intersection. The evidence clearly indicates that Acton Road was a main thoroughfare and that Poret Drive was merely a side road. A vehicle entering a main highway from a side road at a “T-intersection” must yield the right-of-way, and a driver on the main road has a right to assume that the operator on the subordinate highway will stop and yield. Trahan v. Lantier, 33 So.2d 136 (La.App. 1st Cir. 1947). Generally speaking, a main road is favored and persons traveling thereon enjoy a right-of-way. McMorris v. Webb, 67 So.2d 146 (La.App. 1st Cir. 1953). The term “main thoroughfare” is synonymous with “favored street”. Butler v. O’Neal, 26 So.2d 753 (La.App. 2nd Cir. 1946).

The rule is well settled in our jurisprudence that a driver entering a right-of-way street where the view is obstructed is under a duty to proceed with extraordinary caution. See Continental Insurance Company v. Duthu, 235 So.2d 182 (La. App. 4th Cir. 1970), writ refused 256 La. 820, 239 So.2d 346; Berry v. Festervan, 215 So.2d 398 (La.App. 2nd Cir. 1968); Crowe v. Allstate Insurance Company, 211 So.2d 369 (La.App. 1st Cir. 1968), writ refused 252 La. 869, 214 So.2d 544; Taylor v. Haik, 208 So.2d 433 (La. App. 4th Cir. 1968); Sunday v. United States Fidelity and Guaranty Company, 243 So.2d 310 (La.App. 4th Cir. 1971); and Dowden v. Houston Fire & Casualty Insurance Company, 81 So.2d 103 (La.App. 2nd Cir. 1955).

In his reasons for judgment the trial judge stated:

“The Court has no difficulty in arriving at the conclusion that defendant, O. J. Scallan, Jr., who was the driver of one vehicle, was negligent, and that his negligence was the cause of the accident forming the bases [sic] of this suit.”

We find that the evidence supports the trial judge’s finding that the defendant Scallan, failed in his duty to exercise extraordinary care in entering the favored street (Acton Road) after stopping at the T-intersection on Poret Drive, and that his negligence caused the accident.

Although the trial judge did not discuss the issue of contributory negligence in his written reasons for judgment, it is obvious that he concluded that plaintiff was not negligent in causing the accident. After carefully reviewing the record, we find that the evidence amply supports the trial court ruling that the accident was caused solely by the negligence of the defendant Scallan.

DAMAGES

The trial judge awarded plaintiff $3,500.00 for “added pain and suffering only” and denied all claims for special damages. We note at the outset that the damages issue presents a problem which is infinitely more complex than the one concerning liability.

Plaintiff was an extremely poor candidate for an automobile accident. Several years prior to the accident he underwent major cancer surgery which entailed the removal of a portion of his jaw and numerous muscles in his neck and right shoulder. Furthermore, he suffered from an extremely bad back, with disc problems at several levels and a general degenerative disc disease.

For some time prior to his accident plaintiff had been under the care of Dr. John Jackson, an orthopedic surgeon in New Orleans, Louisiana. On September 10, 1971, Doctor Jackson removed the D-3, L-4, L-5, and S-l discs from plaintiff’s back. At that time Doctor Jackson was of the opinion that the C-5 and C-6 discs also needed removal. However, due to plaintiff’s weak condition the surgeon felt that the cervical disc operation would have to be postponed until plaintiff was stronger. He testified, by deposition, as follows :

“Q. You didn’t find that was feasible to have both operations at the same time?
A. I thought that it was too much considering his age, to do both. Both are big operations and to put him through a double operation might be a little too much for him.”

Plaintiff contends that the November accident aggravated his back condition and precipitated the cervical disc operation. As did the trial judge, we find no merit in this argument. The second operation was already tentatively scheduled to be performed as soon as plaintiff had sufficiently recovered from the first one. Doctor Jackson further testified:

“Q. Would it be fair to say that you are not in a position to say that this man’s symptoms in the automobile accident of November 5, 1971, are related from the cause and effect standpoint ?
A. I can’t be 100% certain. I can say that he seemed to have more pain after the accident, but neurological ly, I don’t think he was any different.” (Emphasis added)

Doctor Jackson was also of the opinion that had plaintiff been a young, strong individual both operations would have been performed at the same time (September 10, 1971), prior to the accident. Plaintiff’s claim that the accident aggravated his cervical disc condition and precipitated the operation thereon is simply unsupported by the evidence, and we find that the trial judge correctly denied any compensation therefor.

Doctor Jackson also found that plaintiff suffered from a degenerative disc disease and had been afflicted with that condition for some time. Plaintiff argues that the accident aggravated said condition and furthered the degenerative processes. When queried on this issue the only conclusion which Doctor Jackson could make was that a “possibility” existed that the accident had some effect upon the degenerative disc disease. However, considering the totality of the doctor’s testimony and without going into great detail on this matter, we find that the evidence is far too speculative to preponderate in plaintiff’s favor relative to this issue, and we therefore concur in the trial judge’s denial of any damages for said claim.

Shortly after the accident plaintiff complained continually of pains in and about his neck. On January 21, 1972, Doctor Jackson performed a second operation on plaintiff at which time he removed the C-5 and C-6 discs. Thereafter plaintiff continued to suffer from neck pains, but Doctor Jackson attributed such complaints to typical post-operative difficulties. However, on February 28, 1972, approximately one month after the operation, plaintiff continued to be plagued with difficulties in the neck area. At that time Doctor Jackson felt that plaintiff’s condition was not connected with the operation but found the difficulty to be muscular rather than spinal and concluded that said muscular condition was probably a resqlt of the November 5, 1971, accident. Plaintiff’s difficulty continued and on August 31, 1972, Doctor Jackson diagnosed his muscular condition as traumatic cervical fibromyositis. He thereafter referred plaintiff to Dr. Karl E. Keller, a specialist in internal medicine and rheumatology, who confirmed the diagnosis. Doctor Jackson described the ailment as follows:

“. . . .1 felt the diagnosis was a traumatic cervical fibromyositis, that means a traumatic—means due to trauma. Cervical fibromyositis means—cervical means referring to the neck, fibromyo-sitis means an inflammation of the muscles of the neck in which the fibrosis has occurred, the neck muscles, that’s call [sic] fibromyositis . . . ”

Stedman’s Medical Dictionary, Unabridged Lawyers’ Edition (1966) defines fibromyositis as a type of inomyositis which is “chronic inflammation of the muscle with an overgrowth, or hyperplasia, of the connective tissue.”

Dr. Emile Ventre of Opelousas, Louisiana, plaintiff’s family physician, who had treated him for many years testified that plaintiff exhibited no symptoms of fibro-myositis prior to the accident, and the physician concluded that said accident was the causation thereof. His testimony, coupled with that of Doctors Jackson and Keller, preponderates in plaintiff’s favor that the traumatic cervical fibromyositis condition was the result of the accident in which plaintiff was involved on November 5, 1971. We find, therefore, that the trial judge erred in his failure to award plaintiff damages for any medical expenses incurred in treatment of that condition. Although plaintiff is not entitled to all of the medical expenses which he claims, the evidence indicates that a certain portion of them bear a connexity to the traumatically induced fibromyositis.

Plaintiff was examined by Doctor Jackson on three occasions for the fibro-myositis, February 28, 1972, July 7, 1972, and August 31, 1972. However, according to the physician’s records these examinations were made without charge to plaintiff, and we award no damages therefor. Approximately one year after the accident in question plaintiff was involved in a second serious collision in which his vehicle was struck from the rear by a truck. He was also struck in the head and neck area by a falling limb sometime in 1973. We feel that these accidents necessarily contributed to plaintiff’s condition and are of the opinion that any treatments which plaintiff received after August 31, 1972, cannot be fairly attributed to the November 5, 1971, accident.

Plaintiff received physical therapy at his home for a period of exactly one year, said treatments being prescribed by Doctors Ventre and Jackson for the fibro-myositis. These physical therapy sessions cost $4.00 each, and plaintiff has submitted a bill in the amount of $1,316.00 apparently for 329 treatments. Based upon Doctor Ventre’s testimony that plaintiff required therapy two or three times a week, we conclude mathematically that plaintiff is entitled to the amount of $624.00 for such therapy.

Additionally, we award plaintiff $10.00 for the examination given him by Dr. F. P. Bordelon of Marksville to whom plaintiff was taken immediately after his accident and further award him $50.00 for services of Dr. Carl E. Keller, the necessity of which was clearly related to the accident.

We also award plaintiff the sum of $55.-00 for examinations and treatment by Doctor Ventre on November 8, 1971, and November 11, 1971. These visits were shortly after the accident, and the evidence indicates that they were necessitated by the collision. Doctor Ventre treated plaintiff for exactly three years after the accident for various neck ailments. These ailments included the cervical disc difficulty, the degenerative disc disease as well as the fibro-myositis. Since all of Doctor Ventre’s charges for these various conditions are integrated we find it impossible to determine from the record exactly which treatments were for the fibromyositis and which were for other difficulties. We conclude therefore that plaintiff has failed in his burden to demonstrate which of Doctor Ventre’s other charges were related to the fibro-myositis caused by the November 5, 1971, accident, and consequently deny recovery therefor. We likewise reject plaintiff’s claim for damages for laboratory work performed on January 10, 1972, by Doctor Ventre. This work was done at Doctor Jackson’s request and was intended in preparation for plaintiff’s disc operation of January 21, 1972, to which we have already determined the accident was inconsequential.

The evidence indicates that plaintiff’s fibromyositis ailment cleared up prior to the time of the commencement of this litigation. It is apparent that the trial judge considered the fibromyositis condition in determining the extent of plaintiff’s award for general damages for pain and suffering. After reviewing the particular circumstances of this case in light of the broad discretion which must be accorded the trier of fact in assessing such damages pursuant to LSA-C.C. Article 1934(3), we feel that the trial judge’s award of $3,500-00 for general pain and suffering is neither excessive nor inadequate.

For the above and foregoing reasons the judgment of the trial court is amended so as to increase the damages awarded plaintiff from $3,500.00 to $4,239.00, so as to include the above mentioned medical expenses, and as thus amended is affirmed. Costs of this appeal are assessed against the defendants-appellees.

AFFIRMED AS AMENDED.

MILLER, J., concurs and asigns written reasons.

MILLER, Judge

(concurring).

I concur. The doctrine of Comparative Negligence, LSA-C.C. art. 2323, supports the result.

The majority concludes that defendant stopped his vehicle “at approximately the center line of Acton Road.” I respectfully submit the evidence will not support that finding. Nothing in the record indicates defendant’s car reached a point beyond the centerline of the eastbound lane of Acton Road.

Plaintiff and his wife admit that the front of his car struck the left front fender of defendant’s car while plaintiff was in his eastbound traffic lane. The only evidence concerning the location of the debris laid down during the accident was given by the investigating officer. He testified at Tr. 34 that the debris was in the center of the eastbound lane. Defendant testified at Tr. 320 that he stopped his car when he reached a point about two or three feet into plaintiff’s traffic lane.

Under these facts there were approximately 22 feet of paved roadway available for plaintiff to go around defendant’s stopped vehicle. Plaintiff saw defendant’s vehicle at least five seconds before he hit him. Because of the sudden emergency, plaintiff might be excused for his negligence.

The quantum awarded is justified by application of the doctrine of Comparative Negligence. LSA-C.C. art. 2323. See Professor Malone’s Article on Comparative Negligence, 6 La.L.Rev. 125, (1945); the concurring opinion in Eubanks v. Brasseal, 310 So.2d 550 (La.1975); the dissenting and concurring opinions in Haas v. Southern Farm Bureau Casualty Insurance Co., 321 So.2d 380 (La.App. 4 Cir. 1975).

I respectfully concur in the result.


author: GUIDRY, Judge.

text:
    Preston N. AUCOIN, Plaintiff-Appellee, v. Frank Cazan FONTENOT, Defendant-Appellant.
    No. 5524.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.

      Jules Ashlock, Ville Platte, for defendant-appellant.
    Gilbert Aucoin, Ville Platte, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and BERTRAND, JJ.
   GUIDRY, Judge.

Preston Aucoin brings this suit for a dimunition in the purchase price of a building he bought from the defendant Frank Cazan Fontenot because of certain alleged defects.

Plaintiff bases his claim for dimunition on the premise that the slab piping in the building sold to him developed massive leaks to the end that all- slab piping had to be abandoned; and, that defendant knew or should have known at the time of sale that galvanized pipes within a concrete slab previously laid by him would cause massive leakage in the building, thereby rendering the building unsuited for plaintiff’s purposes. Plaintiff further asserts that the defendant intentionally neglected to inform him of this nonapparent situation although he specifically inquired concerning the type of pipe incorporated in the slab. After a trial on the merits, judgment was rendered in favor of plaintiff in the amount of $4500.00. Plaintiff’s claim for attorney’s fees was denied. Defendant appeals from that judgment and plaintiff has answered the appeal asking that the trial court judgment be maintained, but praying that he be awarded reasonable attorney’s fees.

Plaintiff’s action was filed on January 14, 1974 praying for damages in the amount of $10,000.00 and for attorney’s fees. Defendant excepted to plaintiff’s petition alleging no cause or right of action and prescription. These exceptions were referred to the merits. The defendant then answered and reconvened against plaintiff asking that the sale of the building between plaintiff and defendant be rescinded; that the property be returned to defendant; and, that judgment be rendered in his favor for $42,000.00 as rental for the subject property from the date of sale to the recission of the contract, and for attorney’s fees. Thereafter plaintiff, defendant in reconvention, filed an exception of no cause or right of action, a rule for judgment on the pleadings, and a motion for summary judgment. The trial court denied the plaintiff’s motion for summary judgment, and all other matters were referred to the merits.

The uncontroverted facts show that by credit sale dated February 20, 1967, Frank Cazan Fontenot sold to Preston Aucoin “a certain lot or parcel of ground, together with all buildings and improvements thereon and all fixtures furniture in said building known as the “Cazan Hotel”. The sale of this building from defendant to plaintiff was made for $40,000.00 with $2500.00 being paid in cash and the balance to be paid in fifteen annual installments of $2500.00 each, plus interest.

Frank 'Cazan Fontenot had owned the building nearly twelve years when he sold it to the plaintiff, Preston Aucoin. During this period of ownership Mr. Fontenot made extensive changes in the building. In 1961 or 1962 defendant had substantial electrical and plumbing work performed, as well as, having the old wooden floor replaced with a concrete slab.

Shortly after the sale from defendant to plaintiff, around August of 1967, the latter also began remodeling the building. The building, which was a two story structure located near the courthouse in Ville Platte was restructured by plaintiff for use as his law office and also to provide other available rental space.

In August or September of 1973, some six years after plaintiff’s purchase of the building, he noticed an extensive water leak coming from under the concrete slab floor. As a consequence of the leak plaintiff filed this suit against defendant, vendor, for a diminution of the purchase price of the building.

The defendant contends that the trial court erred in failing to sustain his peremptory exceptions of no cause or right of action and prescription because the leak which plaintiff alleges developed in his building happened 6j4 years after the purchase thereof and is not a redhibitory defect as contemplated by LSA-R.C.C. Article 2520. Defendant further contends that the leak did not render the building “absolutely useless” and that an inspection of the building would have revealed to plaintiff the type of pipe used in the building’s plumbing. In support of his position defendant avers that at the time he remodeled the building in 1961 or 1962 all of the plumbing work was done under the supervision of the Plumbing Inspector of the City of Ville Platte; that the plumbing work met the requirements of the City Plumbing Code; and, that defendant did not have any knowledge of any redhibitory vices which he failed to reveal at the time of sale.

The testimony of the defendant, Frank Cazan Fontenot, indicates that he was aware that galvanized iron water pipes were located beneath the floor of the building, and that these pipes were not replaced during the remodeling, but rather more galvanized pipes were added. He testified however, that he was under the impression that this plumbing was in accordance with the City Plumbing Code, and no mention of any possible difficulty with these pipes was conveyed to him either by the City Inspector or his plumbing contractor. Defendant further testified that at the time of the sale of this building he was never asked by plaintiff if the water pipes under the building were of copper or galvanized iron, nor did he ever tell plaintiff that the slab piping was copper.

Sammy Guidry, former plumbing inspector for the City of Ville Platte was called as an expert in the field of plumbing. The testimony of this eighty-four year old gentleman did not establish that the plumbing installed in defendant’s building was in accordance with City requirements. He stated that his inspection of the building in 1961 or 1962 was only relative to the drain pipes in the structure. He testified that while he was City inspector it was required that copper pipes be used in or under concrete slabs.

Plaintiff’s testimony related that during the pendency of negotiations for his purchase of the building he contacted Ray Verrette, operator of the Verrette Building Contracting & Lumber Yard, Inc., and asked him if he would examine the structure to determine if it were suitable for remodeling into law offices. Ray Ver-rette’s testimony confirmed plaintiff’s actions. Ray Verrette stated he told plaintiff at this time to inquire of defendant whether the slab water pipe plumbing was copper or not, informing plaintiff that if the pipes were not of copper he would be hesitant about performing extensive remodeling due to the possible deterioration of the iron pipes from contact with concrete. Plaintiff, as a consequence of this inquiry by the contractor, testified that he contacted defendant and asked him if the slab piping was copper. According to' plaintiff’s testimony defendant assured him that all the water piping was copper. Plaintiff, having been assured that the pipes incorporated in and beneath the concrete slab were copper he purchased the said building from the defendant and began his proposed renovation. The record reveals that it was not until August of 1973, some six years after the sale, that plaintiff noticed a water leak from the north side of his building. Plaintiff’s testimony indicated that the floor of the building stayed continually moist. The leak was further evidenced by a marked increase in the plaintiff’s water bill. Upon discovery of this leak the plaintiff called in Edwin “Chuck” Smith, a plumber who had done work previously on the building for the defendant.

Edwin Smith stated that he had worked on the renovation of this structure in 1961 or 1962 and knew from that prior experience that the slab pipes were of galvanized iron. Mr. Smith, who testified as an expert in the field of plumbing, corroborated the testimony of Sammy Guidry that the placing of galvanized iron pipe within or below a concrete slab would cause such pipe to erode and break. Mr. Smith’s testimony indicated that after inspection of the building he determined there was an extensive water leak beneath the concrete slab, although he was not able to actually see the leak or the break in the pipe. Mr. Smith further stated that during an attempt to repair the plumbing he broke into the concrete slab whereupon he observed the presence of galvanized pipe incorporated therein. In conclusion Mr. Smith stated that it would cost approximately $4500.00 to repair the plumbing in the building. Such repair i would require the use of some exposed piping inside to completely eliminate reliance on the slab piping.

The trial court rejected defendant’s claim that he was not aware of any defect in the building. The trial court, citing Rodriguez v. Hudson, 79 So.2d 578 (La.App.1956), Guillory v. Sarpy, 177 So. 2d 403 (La.App.1965), found that non-copper pipe in a concrete slab is a serious defect and one that is contemplated by LSA-R.C.C. Article 2520. The trial court further found that galvanized pipe embedded in a concrete floor is not an “apparent” defect nor a defect that can be discovered by a simple inspection. Finally, the trial court concluded that defendant knew that the slab plumbing was not copper and that he nevertheless assured plaintiff that they were copper.

We cannot conclude that the trial court committed manifest error in reaching these factual conclusions. Our independent examination of the record reveals ample evidence which upon its reasonable evaluation as to credibility furnished a reasonable factual basis for the trial court’s findings. Canter v. Koehring Company, 283 So.2d 716, 724 (La.Sup.Ct.1973).

Based upon the trial court’s factual findings which we do not disturb, we like the trial court determine that the building sold by defendant to plaintiff contained a serious vice or defect; that defendant was aware of such a defect and neglected to declare it to the plaintiff even after inquiry; that plaintiff did not become aware of such defect until August or September of 1973; and, therefore that plaintiff’s action was timely filed (LSA-R.C.C. 2534). Additionally, based upon these factual findings we discern no error in the trial court’s determination that plaintiff is entitled to a diminution in the purchase price. LSA-R.C.C. Articles 2541 and 2542.

We find no merit in the defendant’s contention that the nature of the plumbing was certainly known or should have been known to plaintiff and his contractor when they renovated the building in 1967. The testimony did show that the contractor performed some plumbing work in 1967, however this work was limited to the installation of a new bathroom and a relocation of some piping so that a new stairway could be added. Considering that all of this work was done on piping located within the building, and no work was performed on the plumbing beneath the building the trial court could reasonably conclude that the existence of galvanized piping below the slab flooring did not become known to the plaintiff during the renovation.

Defendant filed a reconventional demand against plaintiff seeking a recission of the sale on the ground of redhibition, asking that the parties be restored to the status quo. The defendant further avers that this sale should be vitiated and annulled for lack of consent because of the failure of the principal motive and error as to the thing. LSA-R.C.C. 1797 and 1819.

The right to rescind a sale for a redhibitory defect is personal to the buyer. LSA-R.C.C. Article 2520. The trial court correctly denied the defendant seller’s claim in redhibition. Likewise the defendant’s assertion that the sale of the building should be vitiated and annulled for lack of consent because of failure of the principal motive and error as to the thing is without merit. Considering the trial court’s determination that the defendant was aware of the defect in the building and neglected to declare the same to plaintiff and that defendant in fact told plaintiff that the building possessed a quality which it did not have, we cannot now allow the defendant by virtue of his own misrepresentations to annul the contract for lack of consent on the part of the plaintiff.

Finally, the defendant contends that the trial court erred in not non-suiting the plaintiff for failure to establish with exactness the amount it would cost to make the needed repair to the building. The testimony of Edwin Smith, a plumber accepted by the Court as an expert, establishes that the needed repairs will require an expenditure of $4500.00. We conclude, as did the trial court, that this testimony is sufficient to establish the amount of the diminution of the price to which plaintiff is entitled.

The plaintiff answers the appeal asking for an award of attorney’s fees based upon LSA-R.C.C. 2545 which provides:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorney’s fees, is answerable to the buyer in damages.” (Emphasis ours)

The trial court specifically found that the defendant not only knew of the defects and vices in the building he sold, but additionally failed to declare the same to plaintiff even after an inquiry by plaintiff. Accordingly the trial court erred in failing to award to the plaintiff reasonable attorney’s fees. We are of the opinion that an award of attorney’s fees in the amount of $750.00 is reasonable. Ford v. Broussard, 248 So.2d 629 (La.App. 3rd Cir. 1971).

For the foregoing reasons the judgment appealed from is affirmed, but amended so as to award plaintiff the additional amount of $750.00 in attorney’s fees. Appellant is cast for all costs.

AFFIRMED AND AMENDED.


author: STOULIG, Judge.

text:
    Joyce Holsen Kliebert, wife of Steve Thomas KLIEBERT v. Steve Thomas KLIEBERT.
    No. 7900.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Gerald R. Cooper, New Orleans, for plaintiff-appellee.
    W. Monroe Stephenson, New Orleans, for defendant-appellant.
    Before GULOTTA, STOULIG and MO RIAL, JJ.
   STOULIG, Judge.

We dismiss this appeal because appellant permitted an extended return date to pass without paying costs of the transcript or the filing fee for this appeal as required by C.C.P. art. 2126. Appellant argues he was relieved of the obligation to pay these charges by obtaining an order signed by the judge of the district court permitting him to proceed in forma pauperis.

The procedural chronology pertinent to the issue before us in as follows:

February 12, 1976 - Judgment rendered.

March 12, 1976 - Defendant appeals and furnishes appeal bond.

April 5, 1976 - Appellant files motion to proceed in forma pauperis in

trial court and obtains order to this effect.

April 12, 1976 - Deputy clerk of the 24th Judicial District Court obtains a 60-day extension of return date because transcript incomplete.

June 14, 1976 - Appellee files motion to dismiss in this court.

At the time the trial judge signed the order permitting appellant to proceed without the payment of costs, the appeal bond had been filed and under C.C.P. art. 2088 the trial court was divested of all jurisdiction in the matter except for certain incidental proceedings and orders specifically enumerated. The granting of the right to proceed in forma pauperis is not one of the orders authorized under the exceptions listed in Article 2088. Had the order been issued by this court, appellant’s contention would have been procedurally well founded and sustainable in law. Creel v. Creel, 201 So.2d 871 (La.App. 4th Cir., 1967).

For the foregoing reasons we are of the opinion that the forma pauperis order procured in this case is invalid and accordingly we dismiss this appeal.

APPEAL DISMISSED.


author: MORIAL, Judge. LEMMON, Judge

text:
    Eddie PITTS v. Ethel H. LENZ and the Hanover Insurance Company.
    No. 7422.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied July 29, 1976.
    Jackson & Hess, Leonard A. Washofsky, New Orleans, for plaintiff-appellant.
    Bienvenu, Foster, Ryan & O’Bannon, H. F. Foster, III, New Orleans, for defendants-appellees.
    Before LEMMON, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff, Eddie Pitts, appeals from a judgment of the district court dismissing his action for damages against defendants, Mrs. Ethel H. Lenz and her insurer, The Hanover Insurance Company.

On June 10, 1972 at approximately 9:00 A.M. plaintiff and defendant, Mrs. Lenz, were involved in an automobile accident at the intersection of N. Peters and Iberville Streets in the City of New Orleans. N. Peters Street is an undivided two-way street with double yellow striped lines separating the traffic lanes running uptown to Canal Street and downtown to Esplanade Avenue. The street allows two lanes of traffic to move toward Esplanade Avenue while a parking lane in the Canal Street bound direction allows only one lane for moving traffic. Iberville Street runs one-way toward the river, and at its intersection with N. Peters, there is a stop sign requiring the vehicles on Iberville to stop and yield the right of way to the vehicles traveling on N. Peters. At the time of the accident, plaintiff was operating his vehicle on N. Peters Street heading toward Canal, while defendant was operating her vehicle in a river bound direction on Iberville Street. Plaintiff was alone in his vehicle. Defendant had one passenger, Mrs. Leona H. Terrebonne.

Plaintiff sued defendants for personal injury and property damages sustained as a result of the accident alleging the sole and proximate cause of the accident to be the negligence of Mrs. Lenz. Defendants in answering the petition denied the allegations of negligence and asserted as an affirmative defense contributory negligence on the part of plaintiff. After trial on four separate days conducted over the course of nearly three months, the trial court, without written reasons, rendered judgment in favor of defendants dismissing plaintiff’s suit at his costs. Plaintiff appeals. We reverse.

Plaintiff contends the record clearly establishes that the sole and proximate cause of the accident was the negligence of Mrs. Lenz in attempting to traverse the intersection at a time when it was obviously unsafe for her to do so.

Defendants contend that plaintiff was contributorily negligent in that he was proceeding at an excessive rate of speed and failed to keep his vehicle under proper control.

A total of five witnesses testified to the facts of the accident. Plaintiff testified that he was proceeding at a lawful rate of speed on N. Peters Street when, as he approached the intersection of N. Peters and Iberville Streets, suddenly and without warning defendant’s vehicle entered his path from Iberville Street at a time and in such close proximity to his vehicle that he could not avoid striking it.

Mrs. Lenz testified that she stopped at the stop sign at the intersection of Iber-ville and N. Peters Streets but could not see clearly due to cars in the parking lane of the Canal Street bound side of N. Peters Street. She stated she then proceeded forward until the front of her car was about even with the parked cars and stopped. She stated she then looked to the left through the windshield of a parked car situated about one car length from the corner, saw nothing, looked to the right, saw nothing, then to the left again, saw a car about a block away, and then assuming it was safe to do so, slowly proceeded forward into N. Peters Street with the intention of making a left turn onto N. Peters. She stated that the accident occurred after she had traveled approximately 12 to 14 feet to a position wherein the rear portion of her car was in plaintiff’s lane and the front portion of her car was across the double yellow lines which divide N. Peters Street. She admitted that she did not brake her vehicle after she began crossing the intersection and that she realized the collision was imminent only after she looked to her left upon hearing the squealing of plaintiff’s brakes. She estimated the speed of plaintiff’s vehicle at 40 to 45 mph stating that when she saw him he was heading for her “real fast” and therefore “he must have been flying.” However, she later stated that she did not really know how fast he was traveling. She stated that the impact of the collision swung her car completely around and damaged it from one end to the other with most of the damage concentrated around the center post on the driver’s side.

James R. Kyle, the police officer who investigated the accident, testified that he did not witness the accident and had no independent recollection of it. However, his report showed that the speed limit on N. Peters Street was 30 mph and that plaintiff told him that his speed before the accident was 35 mph. The report noted skid marks from plaintiff’s vehicle ranging from 30 to 45 feet and further indicated damage to plaintiff’s vehicle as heavy and damage to defendant’s vehicle as moderate with most of the damage to the rear of the driver’s door. The police report further indicated that the impact of the collision spun defendant’s vehicle around so that if was facing in the direction from which it had come and that plaintiff’s vehicle did not move after impact.

Mrs. Leona H. Terrebonne, defendant’s passenger, testified Mrs. Lenz stopped at the stop sign on Iberville Street then started out and slowed down. She stated she then heard Mrs. Lenz’s brakes squeal, she looked up, and the accident occurred. She testified she had not seen plaintiff’s vehicle before the accident and could not confirm, defendant’s testimony that she had checked for traffic before proceeding.

Plaintiff introduced the testimony of Louis Smith, an independent eye witness to the accident. Mr. Smith testified that he observed the accident from a distance of approximately one quarter block as he was walking on N. Peters toward Iberville Street. He stated the squealing of brakes attracted his attention to the intersection and when he looked up he saw the defendant’s vehicle come out of Iberville Street, proceed into traffic, and the collision occur. He stated he saw the cars before the collision and estimated plaintiff’s speed at between 20 to 30 mph.

Although he provided no written reasons for judgment, the trial judge apparently concluded plaintiff had been traveling at an excessive rate of speed and accordingly dismissed plaintiff’s suit based upon application of the rule which states:

“. . . that a motorist who enters the intersection of the right of way street from a less favored street, may upon observing the yield or stop sign, then proceed across the favored street or turn into the favored street and assume that vehicles on that street will observe the speed limit. . . .” Camet v. Guillot, 291 So.2d 438 (La.App. 4 Cir. 1974).

While we recognize that the factual findings of the trial judge are entitled to great weight, based upon our careful review of the record we believe the conclusions he apparently reached are manifestly erroneous.

As previously stated, the trial was conducted in a piecemeal fashion over an extended period of time. An examination of the physical facts of the accident bears no indication that plaintiff was traveling at an excessive rate of speed. Plaintiff never lost control of his vehicle. Plaintiff’s skid marks were in a straight line and his vehicle stopped immediately upon impact. Furthermore, the testimonies of the witnesses do not indicate any excessive speed or lack of control. Mrs. Lenz’s testimony was extremely equivocal on the question of speed and she finally admitted that she really did not know how fast plaintiff’s car was traveling. Furthermore, her testimony that she traveled from twelve to fourteen feet during the same time period as plaintiff traveled over 300 feet is incredible and leads to the conclusion that she never saw plaintiff until a moment before the impact. Mrs. Terrebonne did not see the other car and, therefore, could not estimate its speed. Pitts stated he was traveling within the speed limit and independent eyewitness Smith estimated plaintiff’s speed at between 25 and 30 mph. Thus, the police officer’s statement that Pitts told him he was traveling 35 mph is the only evidence which is indicative in any respect of excessive speed. The police officer, however, readily admitted that he did not specifically remember what Pitts had told him but that he said something to the effect that it was approximately 35 mph. Pitts, though, testified that he was not looking at his speedometer before the accident and could not precisely estimate his speed but that he had told the police officer he was going 25 to 30 mph.

Upon this set of facts, we believe it was manifestly erroneous for the trial judge to have apparently concluded that plaintiff’s rate of speed was such a contributing factor as to relieve Mrs. Lenz from the consequences of her negligence. We believe that the evidence clearly preponderates in favor of the conclusion that defendant was the sole and proximate cause of the accident in that she attempted to enter the superior thoroughfare at a time when it was obviously unsafe for her to do so because of the approaching Pitts vehicle. Blanchard v. All State Insurance Company, 240 So.2d 432 (La.App. 3 Cir. 1970). Accordingly, the judgment of the district court is hereby reversed.

Having reached the above result, we turn now to quantum. Plaintiff has prayed for an award for general damages, medical expenses, loss of wages, property damage and costs, including expert fees.

With respect to his claim for general damages plaintiff testified that the impact from the accident rendered him momentarily unconscious but that he did not at the time feel he had been injured. Subsequently, he stated his back began to stiffen and his neck began to hurt whenever he turned his head. He saw his family doctor for these complaints two days after the accident. His family doctor referred him to a specialist and the next day he saw Dr. Emmett Guillot. Dr. Guillot testified Pitts complained of pain in the shoulder and back which began the afternoon of the accident. His examination revealed positive physical findings of right trapezius tenderness, paralumbar tenderness and muscle spasm in the lower back. His diagnosis was an acute cervical lumbar sprain and he prescribed physiotherapy, heat treatments, pain medication and muscle relaxants. After extensive treatments for over two months, the doctor stated the patient’s neck problems had resolved but that he continued to complain of back pain. On August 18, 1972 the doctor referred plaintiff to a neurosurgeon, Dr. Kenneth Vogel, for treatment of a possible herniated disc. Plaintiff continued to see Dr. Guillot and on September 22, after finding tenderness in the lumbar area, Dr. Guillot continued the heat treatments. Plaintiff was next examined by Dr. Guillot on October 6, 1972 and again on January 8, 1973. At this time he complained of back pain in the morning. Although the doctor found no spasm he noted tenderness in the lumbar area. Dr. Guillot saw plaintiff again in September on referral back from Dr. Vo-gel and after finding slight lumbar tenderness continued his prior treatments. The patient was finally discharged in October 1973. At the time of discharge, examination revealed a total range of back motion. The total bill for Dr. Guillot’s services was $575.00.

Dr. Vogel first saw plaintiff on August 31, 1972 and after examination diagnosed a herniated lumbar disc. He encouraged the patient to employ complete back rest and to continue with Dr. Guillot’s therapy program. He stated that he believed at this time the patient was disabled for all types of gainful employment. On his next examination, about three weeks later, Dr. Guillot noted the patient’s condition as essentially unchanged. He saw plaintiff on February 1, 1973 and April 24, 1973. He stated the patient continued to complain of pain but that he found no evidence of a herniated disc. Dr. Vogel testified that he believed plaintiff had sustained a herniated lumbar disc which had resolved itself spontaneously in response to conservative treatments as happens in 90% of the cases he has seen. The total bill for Dr. Vogel’s services was in the amount of $115.00.

In an attempt to rebut the testimony of plaintiff’s treating physicians, defendants introduced testimony from Drs. Morrow, Kleinschmidt and Cary. Plaintiff saw Dr. R. Prosser Morrow on one occasion, approximately three months after the accident, with complaints of morning uretheral discharge. After examination of the discharged substance, the doctor concluded that plaintiff was suffering from nonspecific ureteritis and prescribed a sulphur drug. Defendants attempted to show through the testimony of this witness that plaintiff’s back problems were caused by his ureteritis and were not a result of the accident. Dr. Morrow, however, stated that although this type of infection could cause some back pain, such pain would be more localized and would be in the area below that in which plaintiff’s complaints were centered.

On September 18, 1972 plaintiff was examined by an orthopedic surgeon, Dr. Arthur Kleinschmidt, at the request of his employer, Avondale Shipyards. Dr. Kleinschmidt stated that plaintiff dressed and undressed with relative ease and could bend without great difficulty. On examination, however, he noted that plaintiff voluntarily restricted his motion and he, therefore, believed him to be exaggerating his complaints. He found X-rays to be within normal limits, no evidence of a disc problem and no positive findings that plaintiff’s complaints were related to the accident. It was his opinion that although plaintiff might have sustained soft tissue injury to the lumbosacral spine as a result of the accident, there were no positive findings to substantiate his present complaints of pain. He admitted, though, it is not uncommon to have pain without any positive objective findings and also that in most cases where a herniated disc is diagnosed, surgery is not performed.

Finally, Dr. George Cary, another orthopedic surgeon, testified that he examined plaintiff at the request of defendants on two occasions. After his first examination on October 18, 1972 he found no objective findings in the lower back area and it was his opinion that the patient had sustained a strain to the right lower back which to the most extent had resolved itself by the time of examination. He did not believe that plaintiff was over-exaggerating his responses but also found nothing suggestive of a ruptured or slipped disc. His second examination on May 2, 1973 again revealed no objective findings and he found the patient to be relatively asymptomatic with slight complaints of stiffness in the lower back area. On this date, he further noted that plaintiff’s condition had markedly in-proved but that he believed plaintiff had sustained some type of lower back injury from the accident.

After carefully reviewing the record and assigning the proper weights to the testimonies of the various testifying physicians, O'Donovan v. Bankers Life and Casualty Company, 305 So.2d 643 (La.App. 3 Cir. 1974), we conclude plaintiff suffered an acute cervical sprain necessitating treatment for approximately two months and a lumbar sprain with a possible herniated disc causing great discomfort and necessitating treatment for over a year. We believe, after taking all factors into consideration, that the sum of $5,000.00 adequately compensates plaintiff for the pain and suffering which he has sustained.

Plaintiff has additionally prayed for damages for loss of wages resulting from his inability to perform his work as a painter’s helper at Avondale Shipyards. The evidence conclusively shows that plaintiff sustained a loss of wages for the period June 22, 1972 through October 17, 1972 as a result of his injuries. Uncon-tradicted testimony at the trial disclosed that at the time of the accident plaintiff was earning $3.18 per hour and was working 45 but was being paid for 47j/^ hours of work per week. Accordingly, we find plaintiff is entitled to recover the sum of $1,923.23.

We further find that plaintiff is entitled to recover the sum of $100.00, representing the deductible portion of his collision insurance, and medical expenses resulting from treatments by Dr. Guillot in the sum of $575.00; Dr. Vogel in the sum of $115.-00; and Dr. C. M. Nice, Jr., (for X-rays) in the sum of $30.00. Additionally, we assign expert fees to Drs. Guillot and Vogel in the sum of $150.00 each, to be taxed as costs.

For the foregoing reasons, the judgment of the trial court is hereby reversed and is now ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Eddie Pitts, and against defendants, Ethel H. Lenz and The Hanover Insurance Company, jointly, severally and in solido in the full sum of $7,743.23 with interest thereon from date of judicial demand until paid. Costs, including experts’ fees in the total sum of $300.00, are to be paid by defendants.

REVERSED.

LEMMON, Judge

(concurring).

The trial court obviously discredited the testimony of plaintiff and his witness. Even if this evidence is disregarded, defendant nevertheless failed to carry her burden of proving contributory negligence.

The law of physics belies defendant’s contention that plaintiff’s car was a block away when she started across the street. No other physical evidence suggests unreasonable speed or lack of control. At best defendant proved plaintiff was exceeding the speed limit slightly, but not enough so that plaintiff could have avoided the accident if he had been traveling within the limit. Any substandard conduct in this regard was thus not a legal cause of the accident.


author: LEMMON, Judge.

text:
    LUSK SHIPPING COMPANY, INC. v. INTERNATIONAL TRADE MART et al.
    No. 7165.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearing Denied July 29, 1976.

      Montgomery, Barnett, Brown & Read, Richard B. Montgomery, Jr., and Wood Brown, III, New Orleans, for plaintiff-ap-pellee.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Edward P. Lobman, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

The sole issue in this appeal is whether the evidence supports the amount of the judgment awarded plaintiff for damages to computer equipment sustained because of an overhead water leak in the office leased from defendants.

During the evening of October 13, 1971, water leaked from the ceiling of plaintiff’s computer room onto plaintiff’s equipment. Determining that the computers had to be replaced, plaintiff immediately secured temporary replacement machines and eventually purchased new equipment. This suit is for the value of the replaced computers and the cost of programming the new system, in addition to the cost of miscellaneous supplies and equipment.

Prior to trial defendants admitted liability for plaintiff’s reasonable damages and limited the issue to the extent of those damages, if any. In effect, defendants principally questioned the reasonableness of replacing the computers, contending the equipment was only slightly damaged and easily repairable and disputing plaintiff’s contention that the water damaged equipment was worthless for its intended use.

Plaintiff was in the international freight forwarding business, representing exporters in preparing documents for transportation of products from the factory to the final destination. The business, complex because of problems in language, financing, interpretations of customs law, and cargo specifications for securing of proper rates, required extraordinary accuracy in preparing the shipping documents, which were actually made by the computers. Since plaintiff’s principal customers shipped very expensive heavy equipment and industrial chemicals to South American countries which imposed virtually confiscatory fines for erroneous shipping documents (even for innocent error), absolute accuracy in document preparation was essential to plaintiff’s business existence.

Plaintiff had purchased two Model 5610 computers with auxiliary equipment from Singer Business Machines in January, 1971 and had placed the equipment on line in June or July. During the interim plaintiff’s employees were trained to create and use the system and thereafter prepared computer cards and created massive storage of data for use at a given time with a given function. The employees also verified the reliability of the system by running parallels which were processed manually. During the time that the system was in operation, no inaccurate documentation occurred, although Singer was frequently called upon to service the equipment for mechanical problems.

On the morning the leak was discovered, a Singer serviceman inspected the equipment but did not disassemble the machines or test them in any manner. While he did not take the panels off, he did slide the drawer out, exposing the panels, and observed “water in there dripping”.

Singer’s regional assistant manager opined, from the serviceman’s description, that it was not possible to remove all of the dampness and moisture from the electronic components and that once the water was in the equipment for that length of time, “the damage has been done”. He specifically denied that the electronic components could withstand the heat necessary to remove moisture, although he admitted that most of the mechanical parts of the typewriter could possibly have been salvaged by action immediately after exposure to the water. He also conceded that the equipment possibly could have been reconditioned and placed back in service, but that many problems would be expected, ranging from mechanical problems to printout errors. In the event of reconditioning, Singer would have warranted parts and labor, but would not have guaranteed performance.

Singer’s district manager, in testifying as to value, stated that equipment damaged by water or fire has no trade-in value and that the company had no use for the machine’s separate salvageable parts, since the machines were sold only as units.

Plaintiff’s executive vice-president inspected the room with defendants’ building manager on the morning the leak was discovered. Plaintiff’s officer testified that water was still leaking from the ceiling “falling right on the machine”, that 75% of the ceiling was leaking, and that since the floor was totally covered with water, the building manager would not allow anyone in the office until the Singer serviceman removed the danger of electrical shock. He stated that the Singer serviceman opened the machine and pointed out water to him, and he concurred with the observations related by the serviceman in earlier trial testimony. Defendants’ building manager did not take the stand to rebut this testimony as to the condition of the room and equipment on that morning.

Defendants presented a consulting electrical engineer who had examined the equipment 19 days after the casualty and after the equipment had been moved into another room. The engineer testified that he did not find any moisture, corrosion or other evidence that water had entered the machines, stating there were only a few slight stains on the tops of the cabinets. He did observe dust in the interior of the machines. He further observed that only a few square feet of ceiling evidenced water damage. Photographs of the ceiling and the exterior and interior of the machines supported this testimony. He summarized the only defects observable as some sloppy solder joints and some relays out of socket.

The engineer and the electronic technician who accompanied him testified further that computers exposed to water could be disassembled and cleaned and that the electronic components could be dried out, although neither had ever baked the components of a Singer computer.

The presence and extent of water in the room and inside the equipment on the morning the casualty was discovered is an issue of fact, which was resolved by the trial judge in plaintiff’s favor. The testimony on this point of plaintiff’s officer and of the Singer serviceman was not specifically denied by defendants’ building manager, who was then present, and was only inferentially denied by the testimony and photographs of defendants’ experts, who were not there until 19 days later. We conclude that the trial judge’s resolution was supported by the record.

Once the factual dispute as to the extent of water invasion is thus resolved, the basic dispute remaining is whether electronic components exposed in this manner can be relied upon after repair to the degree of accuracy required by plaintiff.

Plaintiff’s officer testified that Singer originally guaranteed the mathematical functions of the equipment, but did not warrant against mechanical failure beyond the period of express warranty, during which time Singer had furnished labor and materials to correct mechanical problems. As to the computer’s mathematical functions before the casualty, he stated that “if it is given a wrong answer it will stop functioning before it would give you the wrong information.”

This testimony, together with the testimony of Singer’s serviceman and regional assistant manager that moisture could not be removed from Singer’s electronic components, supports the trial judge’s apparent finding that the equipment could not be repaired so as to insure the degree of accuracy required in plaintiff’s business. We find no manifest error in the trial judge’s rejection of the squarely opposite opinion testimony given by defendants’ experts, who were no more or less qualified than the experts presented by plaintiff and who had never repaired Singer computers.

When Singer was not willing to stand behind the electronic functions of water damaged equipment, plaintiff reasonably concluded that the equipment had to be replaced, since equipment of questionable accuracy was of no value in plaintiff’s operation. Singer would not take the water damaged computers in trade, and plaintiff thus realized no salvage value.

It would be unreasonable for a court to require a tort victim to run the business risk of using equipment of questionable accuracy, against the advice of the manufacturer, in order to reduce the damages due by the tortfeasor. If plaintiff had done so and sustained a shipping fine greater than the value of the computers, defendants could have contended in a subsequent suit for damages that plaintiff was unreasonable in taking this risk against the manufacturer’s advice.

Furthermore, the equipment was not shown to be salvageable for other purposes, plaintiff’s evidence being that Singer considered the equipment worthless and defendants’ evidence being that minor repairs would make the equipment useful for any purpose. Defendants offered no suggestion of a salvage market for water damaged computers, and their defense depended entirely on their contention that the computers were repairable.

We conclude that plaintiff proved the constructive destruction of the equipment, which after the casualty was worthless for its intended use. The substantial salvage value urged by defendants (as a corrollary of the theory that the computers were repairable) can be realized by defendants’ sale for salvage, without risk to plaintiff’s business operations.

Since the trial judge’s award of $50,461.09 was not itemized, we must review the claim item by item. In brief plaintiff asserted the following damages had been proved at trial:

Value of computer and auxiliary equipment $33,950.00
Carpets 114.69
Books and supplies 550.00
Replacement and verification of 10,400 tapes and cards $ 9,048.00
Costs of rebuilding, etc. 6,798.40
Salaries of two operators 10,039.91 25,886,31
Total $60,501.00

The two computers had an expected service life of seven to ten years and had been in use for four months. Plaintiff had paid $15,250.00 for each computer in April, 1971, but conceded that the price had dropped to $12,990.00 when the damage occurred in October. Using the lower figure and adding the $2,735.00 cost of auxiliary equipment for each computer and the overall charge of $2,500.00 for Singer’s assistance in coding, instructing and documenting the computers, we conclude the record supports an award of $33,950.00 for that portion of the claim.

The expense of $114.69 for replacing the carpets was supported by the evidence. However, no evidence was offered as to the claim of $550.00 for books and supplies, and this portion of the claim should have been denied.

The next item was replacement and verification of 10,400 tapes and cards at 87 cents each, or $9,048.00. Plaintiff’s officer admitted that 300 to 500 cards for the Caterpillar account and another 600 tapes attached to the bulletin board were not damaged. We therefore subtract $870.00 (for 1,000 cards) from $9,048.00 and allow $8,178.00 for this item.

The next item was the cost of rebuilding, design form controls, sequential stations procedure, implementation training and parallel runs. The original claim was $9,712.00, calculated on the basis of 800 hours at $12.14 per hour. Plaintiff’s officer admitted at trial that approximately 240 hours involved training which had already been accomplished when the equipment was originally installed, and he reduced the claim to $6,798.40. An award in that amount was supported by the record.

The final element of the claim was $10,039.91 for the salary of two operators who physically recreated the file. This item was apparently denied by the trial judge. Possibly the trial judge reasoned these operators were on regular salary and thus this item was not a non-recurring expense attributable to the casualty. In any event plaintiff did not seek modification of the judgment which denied this item.

For these reasons, the judgment of the trial court is amended to decrease the award to $49,041.09. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED

      . Plaintiff’s executive vice-president, over a period of seven years, designed and created the layouts for direct functions, which were then given to the programmer (Singer) for coding.

      . The difference between the total amount claimed to be proved ($60,601.00) and this particular item of the claim ($10,039.91) was $60,461.09, the exact amount of the judgment. This indicates the trial judge disallowed this particular item,.


author: REDMANN, Judge.

text:
    Ann Mitchell, wife of/and Ryan F. UHLICH v. MEDALLION REALTY, INC., et al.
    No. 7246.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 1976.
    Rehearing Denied July 29, 1976.

      Louis R. Koerner, Jr., Koerner & Babst, New Orleans, for plaintiffs-appellants.
    Lucas J. Giordano, Mmahat, Gagliano, Duffy & Giordano, Metairie, Bernard J. Capella, New Orleans, for defendants-ap-pellees.
    Before REDMANN, MORIAL and BEER, JJ.
   REDMANN, Judge.

This case depends heavily on its multifaceted facts. Our trial brother’s evaluation of those facts is apparently not different from ours. But he ruled, in effect, that a real estate broker has no legal obligation to would-be purchasers for whom he agreed to look for a vacant lot abutting a levee in a specified location, not even when representing to them that he has found such a lot for them. What occurred was that, after agreeing to look for such a lot for plaintiffs, the agent found one and obtained an agreement to sell it for $11,300 (roughly the then market value) to a longtime friend who dabbled in real estate. The agent then immediately persuaded plaintiffs to pay $14,800 for it. The agent did not reveal (but misrepresented, testify plaintiffs and a disinterested third party) the circumstances. Plaintiffs learned at their act of sale (making plaintiff husband look “distraught,” the notary thrice testified) that their vendor had acquired the lot that very day. Believing themselves victimized, they sued the agent and his employer for the difference between the $11,-300 and $14,800 prices, for incidental expenses, and for damages for mental anguish.

The trial judge dismissed the suit, reasoning that plaintiffs “have a rather strict burden of proving fraud . . .” and failed to carry that burden. Plaintiffs appeal. We reverse.

Facts

Plaintiff husband and wife in 1971 wanted a vacant lot abutting Lake Pontchartrain’s levee. The wife first found such lots on a map of the then-undeveloped Palm Vista subdivision at Kenner. She found herself unable to reach the lots by automobile; “the [drainage] canal [was] as far as I could go.” Looking then in newspaper classified advertisements, she found and responded by telephone to defendant Medallion Realty’s advertising of certain Palm Vista lots. Dunbar Laplace of Medallion informed her that those lots were not levee lots, but he said he would look for a levee lot for her, although they were “scarce.” On October 30, 1971, plaintiffs met with Laplace at Medallion to reassert their willingness and ability to buy a levee lot, and to ask Laplace and Medallion to find a lot for them.

Between March and November 1971 there were sales of nine levee lots in Palm Vista. All lots were undeveloped, 75 feet front by 142 to 148 feet deep, and all in our lot’s square. Laplace himself was the real estate agent on seven of these nine earlier sales. Two lots of Laplace’s seven are not precisely priceable because sold as part of a group including five non-levee lots. The individual levee lots Laplace sold included four at $10,000 each (on March 22, May 4, July 1 and August 20) and one at $10,800 — the last sale being October 22, 1971, eight days before plaintiffs went to Medallion’s office to confer with Laplace. There were also two sales in this period on which Laplace was apparently not an agent: on May 5 one lot sold for $11,500 and on November 4 one sold for $7,000.

On November 5, Laplace persuaded plaintiffs to offer $14,800 for their lot — a lot which Laplace’s friend Vincent Danna bought through Laplace at the same time, from a seller represented by a broker with 47 years of experience (though no other experience in this small subdivision), for only $11,30o. Thus, on November 3 when he advised plaintiffs he had found a lot for them at $14,800, and on November 5 when he advised plaintiffs to sign the $14,800 offer, Laplace knew both that he had found the lot, available from a broker-represented owner, for only $11,300 ($10,-000 net), and also that he, Laplace, had handled four other sales at $10,000 in the previous few months and one sale at $10,-800 just two weeks earlier.

(As a further indicator of the lots’ market value and of the Laplace-Danna relationship, we note that on November 17 or 19 Laplace as agent procured an agreement to sell to Danna yet another levee lot in the same square for $11,000. That lot was also sold through Laplace, for $14,900, about a week later, to a Tennessee resident: the same Tennesseean whom Laplace mentioned to plaintiffs in October as another would-be purchaser for whom Laplace was looking for a levee lot.)

Interpreting the facts most favorably towards Laplace, one might conclude that Laplace had (as he and Danna testified) also been looking for Palm Vista levee lots for long-time friend Danna; that, naturally enough, he preferred his friend and earlier prospect by offering the lot first to Danna, who accepted, intending the lot for his own purposes; that Danna, on being informed he might make a quick profit, agreed to sell. Even so, Laplace must be held to have breached his obligations towards plaintiff, and the breach to have damaged plaintiffs.

The fundamental Louisiana law is that a broker is the agent of both parties: “The broker or intermediary is he who is employed to negotiate a matter between two parties, and who, for that reason, is considered as the mandatary of both.” C.C. 3016. “The obligations of a broker are similar to those of an ordinary mandatary, with this difference, that his engagement is double, and requires that he should observe the same fidelity towards all parties, and not favor one more than another.” C.C. 3017. “Brokers are . . ., as other agents, answerable for fraud or faults.” C.C. 3018.

We first observe that a real estate agent’s agreement to “look for” a reasonably defined lot for a prospective purchaser is not a selfless gratuity. The agent works for a commission on any ultimate purchase, and the prospective purchaser who enlists the agent’s professional aid impliedly promises that the agent shall be paid his usual commission if the agent finds a suitable lot which the purchaser buys. (That the custom is for the seller to pay the commission does not alter either the agent’s working for commission or the “employing” purchaser’s implied obligation that commission shall be paid. The custom of splitting commission when each of buyer and seller has his own agent concedes the truism that the buyer is as indispensable to the sale as is the seller.)

Thus it is error to conclude that the prospective purchaser’s conditional obligation to the agent is no obligation and that therefore (for lack of cause, C.C. 1.893) the agent has no obligation to the purchaser. The agent’s obligation to “look” is difficult to quantify (and therefore to enforce): but it is an obligation. Our bargain was more than “if you find a lot, I will see that you are paid a commission.” Our agent was asked and agreed to look for a lot. Plaintiffs had themselves been looking, knew looking was necessary, and decided upon dealing with a professional so that he would look for them; and defendants agreed to look.

More important, in reporting successful completion of his mission to look, Laplace had the obligation of good faith, C.C. 1901, and fidelity towards plaintiffs, C.C. 3017, which required him to advise them that, while he had indeed found the lot, he had obtained an agreement to purchase it in favor of Danna for a price approximately the same as that several similar lots had brought in recent months, and that it was Danna, the new purchaser, who was willing to sell the lot to plaintiffs, at a profit. In our judgment, a reasonably informed reasonable buyer would not have agreed to pay the extra $3,500 Danna was asking. And, had Danna kept that lot, it is more probable than not that plaintiffs— instead of Danna again — would have bought the next lot that Laplace found, at only $11,000.

Laplace’s failure to perform with good faith and fidelity thus deprived plaintiffs of the opportunity to await another lot — a lot that would have cost them only $11,000. We conclude, however, that plaintiffs’ damage is not their cost over that $11,000 next sale, but their cost over market price. The best evidence of market is the $11,300 sale to Danna, in which seller and buyer were represented by independent real estate agents. Plaintiffs’ damage was thus $3,500.

Plaintiffs’ demand for the incidental expenses of sale is rejected. Those costs would have been incurred in any event; they were not caused by any breach of contract.

Plaintiffs’ demand for damages for mental anguish is also rejected, as not allowable for breach of contract (other than contract for “the gratification of some intellectual enjoyment,” C.C. 1934(3)); Meador v. Toyota of Jefferson, Inc., La. 1976, 332 So.2d 433.

The judgment is reversed; there is judgment for plaintiffs against defendants Dunbar G. Laplace, Jr. and Medallion Realty, Inc. for $3,500 with interest from judicial demand (as prayed) and all costs.

      . Suggestive of the possibility that Laplace could have had plaintiffs’ November 5 offer to purchase in hand before presenting to the then owner his friend Danna’s offer to purchase dated November 3 but valid through November 5 is the then owner’s real estate broker Hirsch’s testimony. After testifying of his client’s insistence on netting $10,000, and of advising Laplace of this irreducible net when Laplace “contacted” him, Hirsch was asked “Do you recall or does the record show the date upon which he first talked to you?” Hirsch answered “It would not only show but I can tell you the dates in chronological order; 3, 4, 5. On November 4, Mr. Dunbar Laplace came into my office and received the information [of requiring $10,000 net] . . . and that was the way his offer showed up the next day.” [Emphasis added.] If this testimony is accurate, Laplace presented Danna’s “November 3” offer to Hirsch on November 5, the same day Laplace obtained plaintiffs’ offer.

      . Laplace testified that he had been looking for a levee lot for Danna since March of 1971, when Danna declined to buy a group of seven Palm Vista lots including two- at the levee. This testimony, however, is inconsistent with Laplace’s having brokered agreements to sell individual levee lots on April 14, May 20 and September 7, 1971.

      . Danna testified that he bought to use for a home but decided to sell because he learned that streets and utilities would not soon be available. This testimony is inconsistent with his purchase through Laplace of another levee lot in the same square two weeks later. Although he explained that the second lot was within the boundary of the city of Kenner (promising, he thought, faster development at that lot) Danna also sold that second lot a week later at a $3,900 profit to Laplace’s prospective purchaser from Tennessee.

      . Laplace recognized this basic obligation of good faith and fidelity when he informed plaintiffs initially that he was also looking for levee lots for other persons. A conflict of interest can arise if, e. g., an agent can find but one lot of a type for which he has two customers (or finds two at different prices) ; thus the disclosure to the second customer that the agent has already agreed to look for such a lot for the first customer is a most obvious obligation of the agent, a breach of which would deprive the second customer of the opportunity to choose another agent, who could act immediately in behalf of the second customer.
      Such a conflict of interest is analogous to that in Latter & Blum, Inc. v. Ocean Drilling & Expl. Co., La.App.1973, 272 So.2d 53, writ refused, La., 275 So.2d 784 and Robert N. Samuels, Inc. v. Michaels, La.App.1975, 315 So.2d 63. In each of those cases a broker was refused commission because of breach of duty towards one client attributable to performance of duty towards another client.

      . Later sales for higher prices (May 11, 1972, $16,500; February 28, 1973, $17,250; June 1, 1973, $19,000; June 22, 1973, $18,000), ■whatever their explanation, do not affect market value as of November, 1971.