text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. ADVANCE ENTERPRISES, INC., Defendant-Appellee.
    No. 12913.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.

      D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Robert L. Ledoux, Johnie E. Branch, Jr., and Bernard L. Malone, Jr., Baton Rouge, Frugé & Vid-rine by Jack C. Frugé, Sr., Ville Platte, for plaintiff-appellant.
    Baker, Culpepper & Brunson, by Herman A. Castete, Jonesboro, for defendant-appellee.
    Before PRICE, HALL, and JONES, JJ.
   JONES, Judge.

The State of Louisiana, Department of Highways, (hereafter, Department), expropriated a strip of land owned by Advance Enterprises, Inc. along U.S. Highway 167, known as the Jonesboro-Hodge Highway. The Department took 4,704 sq. ft., a srtip 9 to 11 feet in width along the front of the property of the 175,000 sq. ft. belonging to defendant. The property had been developed as a shopping center, the only one of its kind in the area.

The trial court awarded $2 per square foot for the property taken. In addition, the lower court found that, because of the loss of area that otherwise could have been used in the future for expansion of an inadequate parking area, the defendant suffered severance damages of $25,-000. The court also awarded a total of $12,785.79 for expert witness fees.

The Department appealed, alleging that the trial court erred (1) in finding that the subject tract had a value of $2 per square foot as commercial property at the time of the taking rather than a value of 800 per sq. ft.; (2) in awarding any severance damages; and (3) in awarding an excessive amount of expert witness fees.

VALUE OF THE PROPERTY TAKEN

The rectangular strip taken by the Department is on the west side of the major highway running through Jackson Parish. Of the total land area of about 175,000 sq. ft., approximately 54,939 sq. ft. is in building area.

Using comparables, the Department’s appraisers, Dan Carlock and L. J. Roy, valued the property at 800 and 950 per square foot, respectively. Both made a downward adjustment of the value of this tract with respect to the comparables, because of the size of defendant’s property. They made upward adjustments of their comparables for elapsed time since the transfer of those comparables.

Also using comparable sales, but applying upward adjustment factors for such as location, time and utility, defendant’s four appraisers concluded the property was worth $1.50, $2, $2.50, $2.50 per square foot respectively.

The testimony of defendant’s appraisers indicated that the downward adjustment by the state’s appraisers because of the size of the subject tract was improper. The improvement of the entire tract and the attractiveness of the commercial area to a wider variety of people were cited as reasons for discounting the State’s appraisal methods. ,

Our review of all the evidence leads us to the conclusion that there was no abuse of discretion by the trial court in valuing the property taken at $2 per square foot.

SEVERANCE DAMAGES

The trial court awarded the sum of $25,000 as severance damages to the remainder for the reason that by virtue of the taking, the remainder was deprived of 4700 square feet of area which would have been available for use as parking area to service the existing building area on the remainder.

The record indicates that defendant’s shopping center was initially developed approximately 10 years prior to the taking, and consisted of a total area of 174,-972 sq. ft. The shopping center was located in the town of Hodge very near a large paper mill industrial complex in a Ward of Jackson Parish where the great majority of the people of that parish reside.

At the time immediately preceding the taking there was 54,939 square feet of building area in the center and approximately 120,033 square feet in the remaining portion of the center, all of which was hard-surfaced and used for parking, with the exception of 4,704 square feet which was involved in this taking.

Defendant’s four appraisers all expressed the opinion that all well-developed shopping centers, including defendant’s shopping center, need a ratio of three square feet of parking area to each one square foot of building area in order to provide ample parking during times of maximum use. They refer to these periods as peak periods.

The record reflects that the initial development of this center commenced in 1964 with it being developed at that time to the extent of 46,739 square feet of building area, leaving 128,133 square feet (including the 4,700 square feet involved in this taking) available for parking which meant that the shopping center was only short approximately 14% of the ideal available parking area of 140,217 square feet, or a ratio of three square feet of parking area to one square foot of building space.

Two of the most substantial tenants of the center were A & P Grocery and Beall’s Department Store. Both tenants found that their building area was inadequate for their business purposes, no doubt due to a very successful operation. Therefore, in 1973 defendant constructed an additional 5,000 square feet of building area for Beall’s above the 7,500 originally acquired, and constructed additional building area for A & P of 3,200 square feet above the 10,300 originally acquired. Following these additions the available area in the shopping center for parking, including the area involved in the taking, was approximately 36% deficient of the ideal 3 to 1 square foot ratio of parking area to building space.

Following the taking in this expropriation, the available area for parking space was diminished by an additional 4% resulting in a 40% deficiency in the ideal ratio of 3 square feet parking to each 1 square foot of building space.

The evidence reflects that the A & P Grocery in the center commenced its weekly sales on Wednesday of each week, combining it with the double green stamp incentive, and that the paper mill complex in the area paid their employees on Thursday of each week. On these days at peak times the parking area would fill to capacity and it was often necessary to drive through the center several times and wait for someone to move before a potential customer could find a parking space. There was evidence that the failure of the center to develop the 4,700 sq. ft. involved in this taking, into a parking area available to its customers, was due to mismanagement. It is further apparent the undeveloped remainder of this shopping center which had an inadequate parking ratio would have at some point been developed to provide the additional 15 or 16 parking spaces available in the property had it not been removed from availability by expropriation. It is pointed out that the additional building area provided to Beall’s and A & P had occurred in 1973 and this taking occurred the following year.

It is further apparent that not only the lessees but the owners who had override provisions in at least two of their leases wherein they received as additional rent a certain per cent of the tenant’s gross income after it reached a certain volume (it was established that the volume of Morgan & Lindsay and Beall’s reached a point where they were paying rent under the override provision of their leases), could suffer loss of income due to the lack of available parking spaces during peak periods on Wednesday and Thursday of each week. The record further fully reflects that there was no additional area available to the shopping center for parking space expansion.

In the testimony of defendant’s four appraisers will be found their allowance of severance damages due to loss of available area for parking expansion because of the taking of 4,700 sq. ft. as follows:

(1)D. V. Willet, Sr. considered that there had been a loss of 4.3% of available area for parking space by virtue of the taking and correlated this percentage of loss of parking to severance damage by multiplying the percentage times his evaluation of the center in the amount of $750,-000 and concluded with severance damage of $32,250 which he adjusted downward $7,000 to cover his value of the property taken to $25,250 which he then further adjusted downward an additional $7,000 to cover cost of constructing parking area on the property taken, which construction costs he itemized as being $2,500 for excavation and construction of a retainer wall required because of a difference in the grade Of the existing parking area and the area taken, plus $4,500 for the paving.

(2) Hab Monsur arrived at severance damage to the remainder because of the fact that the taking deprived the remainder of 4% of the total available area for parking space by multiplying 4% times his evaluation of the shopping center after reducing same for depreciation of the improvements and making a further reduction for the value of the property taken which evaluation at this point amounted to $731,597, and when multiplied by 4% indicated a diminution in the value of the remainder in the amount of $29,263.90.

(3) O. L. Jordan computed severance damage to the remainder based upon loss of parking area by taking 5% of his depreciated value of the center’s improvements which amounted to $890,858, resulting in a severance damage figure for loss of parking area in the sum of $44,543.

(4) H. L. Bass computed severance damage to the remainder for the loss of parking area due to taking on 5% of his evaluation of the entire shopping center reduced by depreciation, and further reduced by his evaluation of the property taken, resulting in an evaluation after the taking of $1,299,146. Therefore, his severance damage for loss of parking was computed to be $64,369.33.

The two Department appraisers were of the opinion that the remainder suffered no severance damages whatsoever as a result of the taking.

A review of the qualifications of the Department’s appraisers indicate that neither of them had the amount of experience possessed by defendant’s appraisers in connection with the development, management and evaluation of shopping centers.

The trial court cites State, Dept. of Hwys. v. Denham Springs Development Co., Inc., 307 So.2d 304 (La.1975) as authority for its award of severance damage herein to the remainder based on the loss of the available IS parking spaces. This case involves a shopping center located in the city of Denham Springs, Louisiana, which lost 42 parking spaces as a result of a highway improvement program requiring expropriation of a portion of the shopping center. The decision reflects that prior to expropriation there was available for additional development 8,322 sq. ft. of building area with sufficient undeveloped remainder being available to provide the additional building area with a parking ratio of 3 to 1. As a result of the taking, there was only available for additional building area 2,648 sq. ft. provided that the 3 to 1 ratio parking area to building area was to be maintained. Defendant’s appraisers testified that this ratio was essential to the proper conduct of a successful shopping operation. One of defendant’s appraisers considered the shopping center had a diminution of value due to the loss of 5,674 sq. ft. of available building area in the amount of 10% of its value (value being his appraised value of the shopping center before the taking reduced by his evaluation of that part taken) or $65,313. The other defendant appraiser concluded defendant would sustain a loss of income due to lack of availability of said area for construction of $89,480 in rent over a 10 year period which, when reduced to its present value by the trial court, amounted to'$64,220, which the Supreme Court pointed out was a figure comparable to that severance damage arrived at by the first defendant appraiser, and affirmed the trial court’s award of $64,220 as severance damages. The Supreme Court recognized the necessity of maintaining. the 3 t0 1 ratio in parking space t0 building area, and was convinced that de-feridant had adequately proven severance damages when he was deprived of the opportunity for a fully potential development of his shopping center due to the deprival of the parking area as a result of the taking. The court therein expressed the law to be as follows:

Severance damages are ordinarily calculated as the difference between the market value of the, remaining property immediately before and immediately after the taking. State, through Department of Highways v. Hoyt, 284 So.2d 763 (La.1973). The burden of proving alleged severance damages to the remainder of property involved in an expropriation proceeding rests upon the owner who must establish such damages with legal certainty by a preponderance of evidence. State, Department of Highways v. Levy, 242 La. 259, 136 So.2d 35 (1961); Texas Pipe Line Co. v. Barbe, 229 La. 191, 85 So.2d 260 (1956); Central Louisiana Electric Company v. Dunbar, 183 So.2d 111 (La.App.1966). The informed and reasoned opinion of experts, corroborated by the facts in the record, may adequately prove a severance-damage loss especially where accepted by the trier of fact. Louisiana Power & Light Co. v. Churchill Farms, Inc., 292 So.2d 183 (La.1974); State, Department of Highways v. Hoyt, 284 So.2d 763 (La.1973); State, Department of Highways v. Garrick, 260 La. 340, 256 So.2d 111 (1972); State, Department of Highways v. DeRouen, 256 La. 947, 240 So.2d 717 (1970). Appropriately we stated in the Churchill Farms case that there is no artificial formula by which alone such damages must be proved.

Id. p. 307

There is no difference between the diminution of value to a shopping center because of inability to develop same due to loss of available area to develop parking as in State, Department of Highways v. Denham Springs, supra, than the diminution of value to an over-developed center, as in the instant case, 'because in both cases the remainder has directly sustained damage due to taking.

Here, defendant’s shopping center has been over-developed, prior to the taking by the construction of building area to such an extent that the parking ratio was less than 2 square feet per 1 square foot of building area. One expert testified the ratio was 1.8 square feet available for parking to 1 square feet of building area. The taking in this case of 4% of the area in the center not developed to buildings, has in fact deprived defendant of the opportunity to improve its over-crowded parking situation by the addition of IS parking spaces.

The plaintiff relies heavily in its brief on the recent Supreme Court decision of State, Department of Highways v. Ross Continental Motor Lodge, Inc., 328 So.2d 883 (La.1976) wherein the court refused to award severance damage for defendant’s alleged loss of 8.1 parking spaces from his motel, cafe and lounge. This case is not applicable to the Advance Enterprises, Inc. case for the reason that the court in State, Department of Highways v. Ross, supra, found that there was no showing there would ever be a shortage of parking spaces at defendant’s place of business even assuming that the parking spaces had been reduced by 8.1 as a result of the taking, and for the further reason that the defendant in Ross had ample land available to the rear of his establishment for construction of additional parking spaces.

Our Supreme Court in the decision of Louisiana Power & Light Co. v. Churchill Farms, Inc., 292 So.2d 183 (La.1974) approved defendant’s experts’ determination of severance damage based upon 10% of the value of adjacent strips of property to the area taken for the purpose of constructing huge high voltage transmission systems across highly valuable property otherwise suitable for residential subdivision development. In approving the experts’ estimation of diminution of value to the remainder, the court recognized the law to be as follows:

The severance damages of the (1) type are adequately proved by a preponderance of the evidence. The informed and reasoned opinion of experts, corroborated by the facts in the record, may adequately prove a severance-damage loss, especially where accepted by the trier of fact. State, Department of Highways v. Hoyt, 284 So.2d 763 (La.Sup.Ct.1973); State, Department of Highways v. Garrick, 260 La. 340, 256 So. 111 (1972); State, Department of Highways v. DeRouen, 256 La. 947, 240 So.2d 717 (1970). The landowner is constitutionally entitled to recover damages proved to have been caused by the taking, and there is no artificial formula by which alone such damages must be proved, such as only by comparable sales. State, Department of Highways v. Crow, 286 So.2d 353 (La.Sup.Ct.1973); State, Department of Highways v. Blair, 285 So.2d 212 (La.Sup.Ct.1973). Id. p. 185.

The opinion of defendant’s experts as to severance damages to the remainder because of loss of available area for expansion of parking area based upon a percentage of their respective evaluations of the after taking value of the center, are well reasoned and further corroborated by facts in the record (successful shopping center, grossly inadequate parking ratio, no other available area for expansion, and crowded parking conditions at peak times). All have recognized that the loss of available area to add some additional 15 parking spaces has diminished the value of the remainder by various sums as set forth in a resume of their testimony on this point elsewhere in this opinion.

There was an attempt by defendant to claim severance damage resulting from changes in traffic patterns of U.S. Highway 167 as a result of the Highway Improvement Program and also an attempt to claim severance damages, on the contention that as a result of the taking, there had been a technical breach of the mortgage contract providing financing for the shopping center that could be grounds for the'mortgagee’s invoking an acceleration clause. A review of the evidence reveals that there is insufficient proof of reduction of market value of the remaining property to support an award of severance damages on either of these grounds and the trial court did not give either of them any consideration in its reasons for judgment for the severance damage award therein.

The trial court, in concluding the remainder sustained damages of $25,000, failed to make any reduction for expense the owner would necessarily have incurred in constructing parking area on the part taken, which was as much as 10 feet above grade at some points from the existing parking area, and one of defendant’s witnesses testified that excavation and construction of a retainer wall would be necessary for development of this 4,700 sq. ft. into parking area, and expressed the opinion that the total cost would be $7,000 which would cover the expense of excavation, construction of retainer wall, and paving. We therefore reduce the award of the trial court for severance damages from $25,000 to $18,000 in order to make this adjustment for the cost of constructing the parking area.

We find that subject to the reduction set forth above, the trial judge’s findings of severance damages to the remainder for loss of the area which would have been available for development of additional parking, does not reflect an abuse of his discretion and we approve it.

EXPERT WITNESS FEES

The district court awarded expert witness fees as follows:

Lav elle Nunn $ 231.04
Darrel V. Willet, Sr. 3,725.00
Markley Huey 1,279.75
Hab Monsur 2,950.00
O. L. Jordan 2,200.00
H. L. Bass 2,400.00
Total.... $12,785.79

The Department contends the expert witness fees awarded are excessive.

Defendant argues the present case is different from the previous cases before this court in which we have consistently reduced awards for expert witnesses because the issues are more complex requiring more time and the experts more precisely described the services rendered and time involved. It is apparent from the record that a good portion of the time expended by these experts was devoted to the determination of severance damages, a substantial portion of which we have disallowed. Defendant’s experts are not entitled to compensation for this time.

Considering the evidence as to the services rendered by the expert witnesses, the value of the property taken, our refusal to consider a substantial portion of their severance damage determination, and the amounts allowed for expert witness fees in similar cases recently before this court, we disallow the fee for the photographer and fix the expert witness fees as follows:

Darrel V. Willet, Sr. $1,000
Markley Huey 500
Hab Monsur 1,000
O. L. Jordan 1,000
H. L. Bass 1,000

DECREE

For the foregoing reasons, the judgment of the district court is amended to reduce the amount awarded defendant from $34,-408 to $27,408 and to fix the expert witness fees as set forth above. As amended, the judgment of the district court is affirmed.

Amended, and as amended, affirmed.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Robert H. NICHOLSON et ux., Plaintiffs-Appellants, v. CASUALTY RECIPROCAL EXCHANGE et al., Defendants-Appellees.
    No. 12912.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    Hal V. Lyons, Shreveport, for plaintiffs-appellants.
    Bodenheimer, Jones, Klotz & Simmons, by G. M. Bodenheimer, Jr., Shreveport, for defendants-appellees Casualty Reciprocal Exchange, et al.
    Lunn Irion, Switzer, Johnson & Salley, by Harry A. Johnson, Jr., Shreveport, for defendant-appellee State Farm Mutual Automobile Ins. Companies.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Plaintiffs, Robert H. Nicholson, and wife, Stella R. Nicholson, have appealed from the trial court judgment rejecting their demands against their liability insurer, State Farm Mutual Automobile Insurance Company, for uninsured motorist benefits.

The case was submitted to the trial court by agreement on the following stipulation of fact:

Mrs. Nicholson sustained personal injuries amounting to $15,000 in an automobile collision caused by the negligence of William S. Dockery who was insured for liability in the sum of $5,000 by Casualty Reciprocal Exchange. At the time of the accident, plaintiffs also carried two policies of insurance with State Farm each providing for uninsured motorist coverage in the amount of $5,000.

Subsequent to the filing of suit by plaintiffs against the two foregoing insurers, Casualty Reciprocal Exchange answered admitting liability and deposited the sum of $5,513.43 into the registry of the court representing the limits of its liability under its policy for personal injuries and property damages plus accrued interest.

State Farm also answered and admitted the injuries of Mrs. Nicholson exceed the liability coverage of Dockery and deposited the sum of $5,085.58 in the registry of the court representing the amount of the uninsured motorist coverage, plus accrued interest, under one of the two policies issued by it to plaintiffs.

Plaintiffs withdrew both of the sums deposited and reserved the right to litigate as against State Farm whether they are entitled to recover the sum of $5,000 provided as uninsured motorist coverage under the second policy issued by it to plaintiff.

State Farm contends it has fulfilled its responsibility to plaintiffs for uninsured motorist coverage by depositing into the registry of the court the sum of $5,000 due under one of its policies with plaintiffs. The thrust of its defense is that upon payment of the one uninsured motorist benefit to plaintiffs, State Farm became entitled to the funds deposited by the liability insurer of Dockery under the subro-gation provisions of its contract of insurance with plaintiffs. Since these funds have also been withdrawn by plaintiffs, State Farm contends it has been deprived of the enforcement of its subrogation right against Dockery or his insurer and therefore it should be relieved of paying to plaintiffs an equivalent sum under the second policy of uninsured motorist coverage.

Plaintiffs, to the contrary, contend that as it has been stipulated that Mrs. Nicholson has personal injuries amounting to $15,000, she is entitled to retain the $5,000 paid by Dockery’s insurance and to also be entitled to collect under the uninsured motorist provisions providing $5,000 coverage under both policies issued to plaintiffs by State Farm.

The trial court decided in favor of State Farm and limited plaintiffs’ award against this defendant to the sum of $5,000 which was discharged by the previous deposit of this amount in the registry of the court. Other aspects of the judgment involving the liability of Dockery to plaintiffs and third party demands made by State Farm against Dockery and his insurer are not at issue on this appeal and for simplicity are not set forth herein.

The sole question for review is whether the enforcement of the subrogation provision of the uninsured motorist provision of the State Farm policy by allowing it to receive credit for the amount received by Mrs. Nicholson from the insurer of the tortfeasor, unlawfully deprives her of an additional amount of uninsured motorist coverage for which a premium was paid under the second policy issued to plaintiffs by State Farm. Plaintiffs contend that to deprive them of the full amount of uninsured motorist coverage contracted for with State Farm by enforcement of the subrogation clause is contrary to the public policy and intent expressed in the uninsured motorist statute.

In support of their position, plaintiffs cite and rely on the decisions in Hebert v. Green, 311 So.2d 223 (La.1975); Barbin v. United States Fidelity & Guaranty Co., 315 So.2d 754 (La.1975); Ardoin v. Bordelon, 284 So.2d 117 (La.App. 3rd Cir. 1973); Andrews v. Johnson, 324 So.2d 465 (La.App. 3rd Cir. 1975); Raggio v. Volkswagen Insurance Company, 327 So.2d 505 (La.App. 3rd Cir. 1976).

We have examined the foregoing cases and do not find a sufficient analogy to the circumstances presented to support plaintiffs’, argument.

The accident out of which this litigation arose occurred on February 1, 1974, prior to the effective date of the 1974 amendment to the uninsured motorist statute which changed the definition of an under-insured vehicle to be one on which the coverage is less than the amount of damages suffered by an insured. Therefore, the statute in effect at the time of the accident (the 1972 amendment) provided an uninsured motorist was a driver who was un-derinsured by having less liability insurance than the injured driver had provided uninsured motorist coverage for himself.

The plaintiffs had provided themselves with a total of $10,000 uninsured motorist coverage for any one person. The negligent driver, Dockery, was insured for the sum of $5,000 for personal injury to any one person. He was therefore underin-sured in so far as plaintiff, Stella Nicholson, was concerned to the extent of $5,000. Payment of this amount by State Farm has given Mrs. Nicholson the full protection which the contracts of insurance and the uninsured motorist statute require.

To reach any other result would necessitate a complete disregard of the contractual provisions of the insurance contract between the parties which provided:

“PART IV — PROTECTION AGAINST UNINSURED MOTORIST
* * * * * *
“Trust Agreement. In the event of payment to any person under this Part:
(a) the company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made ;
(b) such person shall hold in trust for the benefit of the company all rights of recovery which he shall have against such other person or organization because of the damages which are the subject of the claim made under this Part;
(c) such person shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights;”

This result is also in accord with LSA-R.S. 22:1406(D)(4) of the subject statute which provides for subrogation as follows:

In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.

Nor do we find the enforcement of the suborgation provision to be in conflict with any of the prior reported cases interpreting this statute. We therefore conclude the trial court was correct in upholding the position of State Farm.

In accord with the foregoing, the judgment appealed is affirmed at appellants’ costs.


author: HALL, Judge.

text:
    Clayton W. POSEY, Individually and as Administrator of the Estate of his minor son, Kenneth Posey, Plaintiff-Appellee, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellant.
    No. 12911.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.

      Cook, Clark, Egan, Yancey & King by Benjamin C. King, Shreveport, for defendant, third-party plaintiff appellant, Commercial Union Ins. Co.
    Alex Rubenstein, Shreveport, for defendant, third-party appellant, Ronald Palmer.
    Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff, Clayton W. Posey, individually and as administrator of the estate of his minor son, Kenneth Posey, sued defendant, Commercial Union Insurance Company, Posey’s uninsured motorist insurer, for damages arising out of an accident which occurred February 27, 1974, in which Kenneth Posey was injured when struck by a motorcycle driven by Ronald Palmer who was uninsured. Commercial Union filed a third party petition naming Ronald Palmer as third party defendant seeking to recover from Palmer any amounts it might have to pay plaintiff under its uninsured motorist coverage.

After trial, the district court rendered judgment in plaintiff’s favor against the insurance company in the total amount of $15,264.90, being $2,764.90 for medical expenses incurred and $12,500 for Kenneth’s pain and suffering arising out of the personal injuries suffered in the accident. Judgment was further rendered in favor of the insurance company over and against third party defendant Ronald Palmer in the same amount. Both Commercial Union and Ronald Palmer appealed.

The issues presented on appeal are as follows:

(1) The negligence of Ronald Palmer;
(2) The contributory negligence of Kenneth Posey;
(3) Whether the uninsured motorist coverage extended to the vehicle operated by Palmer, the argument of no coverage being based upon a claim that the vehicle was not a highway vehicle as defined by the policy;
(4) Whether there should be a stacking of three uninsured motorist coverages under Posey’s policy in light of the fact that he only owned two motor vehicles at the time of the accident; and
(5) Whether the damages awarded are excessive taking into consideration the injuries sustained, the policy limits involved, and the financial condition of the third party defendant.

Negligence of Ronald Palmer and Contributory Negligence of Kenneth Posey.

Kenneth Posey, who was 15 years of age, and Ronald Palmer, who was 20 years of age, and several other youths were playing in an open field known as the tank farm, which had recently been graded. Their activities included the operation of the Palmer motorcycle in the field. Young Posey decided to go home and began walking across the field away from the point where Palmer and his motorcycle were located. After Posey had walked some distance away, Palmer decided to give Posey a ride home or at least to the edge of the field. Palmer cranked up the motorcycle and proceeded toward Posey at a speed of approximately 25 miles per hour, having shifted into third gear. His intention was to pass by Posey, stop, and offer Posey a ride to the edge of the field. Palmer began to slow down when he got to within about 25 feet of Posey and had slowed to approximately 15 miles per hour when Posey turned around and faced the approaching Palmer, the motorcycle being about 10 to 15 feet away from Posey at that time. Posey then jumped from side to side several times. The motorcycle, sliding in the loose dirt, collided with Posey, resulting in Posey sustaining a broken arm and leg.

The insurance company and Palmer take the position that Palmer could have successfully passed by Posey and stopped except for the fact that Posey playfully jumped directly into his path of travel. Plaintiff takes the position that Posey engaged in the jumping maneuvers when he became afraid or panicked after observing the motorcycle approaching him at a rapid rate of speed causing him to believe he was going to be struck by it if he did not move one way or the other and that he made an error in judgment in jumping into the path of the vehicle.

The insurance company and Palmer argue the cause of the accident was the negligence of Posey in jumping in front of the motorcycle, creating a sudden emergency, and that Palmer was free of negligence and under the sudden emergency doctrine cannot be held to the exercise of his best judgment in trying to avoid the accident. Plaintiff argues the cause of the accident was the negligence of Palmer and also relies on the sudden emergency doctrine, contending that the sudden emergency was created by Palmer’s actions in driving toward Posey at a high rate of speed, excusing Posey’s action in jumping in front of the motorcycle in an effort to avoid being struck.

Our conclusion, in accord with the trial judge, is that Ronald Palmer was negligent in driving his motorcycle to within 25 feet of Posey at a speed of 25 miles per hour with the motorcycle being steered by Palmer directly at Posey or at least so close to Posey that he became concerned that he was going to be struck by the vehicle. Palmer did not have the motorcycle under proper control as he could not and did not stop it before colliding with Posey while in a slide on the loose dirt.

Palmer is not entitled to the protection of the sudden emergency doctrine because the emergency was created by his own negligent conduct in operating the motorcycle at an excessive rate of speed in the immediate proximity of young Posey. See Dane v. Canal Insurance Company, 240 La. 1038, 126 So.2d 355 (1960) and Fulmer v. United States Fidelity & Guaranty Co., 5 So.2d 923 (La.App. 2d Cir. 1941).

On the other hand, the sudden emergency doctrine is applicable to the actions of Posey because he did not contribute to the creation of the emergency. Posey did not know of Palmer’s intent to stop and give him a ride to the edge of the field. When he turned around he saw the motorcycle approaching in close proximity at a rapid rate of speed. His becoming afraid and taking evasive action was a reasonable reaction to the emergency with which he was confronted. The fact that he made an incorrect decision or erroneous judgment as to which way to jump cannot be considered negligence on his part so as to bar his right to recover. Fulmer v. United States Fidelity & Guaranty Co., supra.

Coverage Under the Uninsured Motorist Insurance

The defendant insurance company, joined by the third party defendant, contend that the uninsured motorist provisions of the insurance contract between Posey and Commercial Union did not extend coverage to an accident arising out of the operation of the type of vehicle involved in this accident. They contend that the motorcycle was a trail bike not suitable for use on the highways and that the policy provides coverage only for accidents arising out of the operation of a “highway vehicle” and excludes vehicles used principally off of public roads.

The uninsured motorist endorsement to the insurance policy provides that:

“The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; . . ’’

The policy defines “highway vehicle” as meaning:

‘ . . .a land motor vehicle or' trailer other than
(a) a farm type tractor or other equipment designed for use principally off public roads, while not upon public roads, . . . ”

The vehicle involved in the accident was a 1971 Yamaha 175 Moto-Cross motorcycle. At the time Palmer bought it a month or so prior to the accident, it had a 1972 license plate and a title. At the time of the accident it did not have a speedometer but had a tachometer. It had no brake light, taillight or turn singles. It did not have a current state inspection sticker. The policeman who investigated the accident described it as a “trail bike”. Palmer testified he had driven it on the highway only once and pushed it from his home to the open field where the accident happened.

The policy defines highway vehicle as any land motor vehicle other than certain excluded types of equipment or vehicles. A motorcycle is clearly a land motor vehicle and unless this particular motorcycle comes within the specific exclusion of “other equipment designed for use principally off public roads, while not upon public roads”, the accident caused by its use is covered by the policy.

The motorcycle involved in this accident was not “designed” for use principally off public roads. It originally had 'been licensed and titled and contained usual road equipment. Its current condition of not being legally usable on the public roads was not because of design or modification of design but was because of deterioration and lack of maintenance of its on-the-road features. Also, a motorcycle cannot be regarded as “other equipment’’ such as a farm type tractor specifically excluded in the same exclusionary paragraph. We conclude, therefore, that the motorcycle involved in this accident is included within the express definition of uninsured highway vehicle contained in the policy provisions and that the policy extends coverage to the accident out of which plaintiff’s damages arose in this case.

Although not necessary to a decision of the coverage issue in this case, it should be noted that LSA-R.S. 22:1406D (l)(a) requires automobile liability insurance policies to provide coverage for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured “motor vehicles” because of bodily injury. Any definition or provision in an uninsured motorist insurance policy which would exclude an ordinary motorcycle, even though deteriorated and lacking some legally required highway features, from coverage would be in derogation of the statute and void, as such a motorcycle is without question a “motor vehicle.” See Thibodeaux v. St. Paul Mercury Insurance Company, 242 So.2d 112 (La.App. 3rd Cir. 1970) writ refused 257 La. 622, 243 So.2d 533 (1971) and Thomas v. Nelson, 295 So.2d 847 (La.App. 1st Cir. 1974).

Appellants have cited several out-of-state cases in which certain motor vehicles or equipment have been held to fall within exclusionary clauses similar to or identical with the clause involved in this case. Beck v. Unigard Insurance Company, 531 P,2d 907 (Or.S.Ct.1975), (standard passenger car modified as a stock racing car); Walcott v. Hawkeye-Security Insurance Company, 189 Neb. 161, 201 N.W.2d 817 (1972), (automobile modified as a stock car racer); Kansas Farm Bureau Insurance Company v. Cool, 205 Kan. 567, 471 P.2d 352 (1970), (dune buggy). Each of these cases is distinguishable from the instant case either because of the nature of the design or modified design of the vehicle involved or 'by the more limited provisions of the statutes requiring uninsured motorist coverage in those states.

“Stacking” of Coverages

The insurance policy involved in this case is a garage liability policy issued by Commercial Union to Clayton W. Posey d/b/a P & S Speedometer Service. It provides various types of coverages pertaining to the insured’s garage operations, including automobile liability insurance. The policy does not list any specific vehicles or number of vehicles for which liability insurance is afforded. The schedule of coverages and premiums attached to the policy shows under the column headed endorsements “UM (3 cars) G1679-2 $87.00.” Attached to the policy is an uninsured motorist insurance endorsement which contains the usual policy limit provision of $5,000 per person and $10,000 per accident.

Clayton Posey testified that at the time of the accident he owned two vehicles, a pickup truck and a family automobile. Although the evidence is not entirely clear, the implication of the evidence is that at the time the policy was issued Posey owned three vehicles, but disposed of one of them between the time the policy was issued and the time of the accident.

Plaintiff contends that under the jurisprudence he is entitled to “stack” three uninsured motorist coverages of $5,000 each, or a total of $15,000. The defendant insurance company contends plaintiff is entitled to “stack” only two uninsured motorist coverages because at the time of the accident the insured only owned two vehicles for which liability insurance was afforded.

The basis for “stacking” in Louisiana is the holding of our courts that LSA-R.S. 22:1460D requires that each policy of liability insurance issued must provide uninsured motorist coverage with limits of not less than $5,000/$10,000 with respect to each vehicle covered by the liability insurance. Graham v. American Casualty Co. of Reading, Pa., 261 La. 85, 259 So.2d 22 (1972); Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Crenwelge v. State Farm Mutual Automobile Ins. Co., 277 So.2d 155 (La.App. 3d Cir. 1973); Elledge v. Warren, 263 So.2d 912 (La.App. 3d Cir. 1972) writ refused 262 La. 1096, 266 So.2d 223; Wilkinson v. Fireman’s Fund Insurance Co., 298 So.2d 915 (La.App. 3d Cir. 1974), writ refused La., 302 So.2d 306, 308; Bourgeois v. Government Employees Insurance Co., 316 So.2d 804 (La.App. 1st Cir. 1975) writ refused La., 320 So.2d 914 (1975); Brister v. American Indemnity Company, 313 So.2d 335 (La.App. 1st Cir. 1975); and Barbin v. United States Fidelity & Guaranty Company, 315 So.2d 754 (La.1975).

Thus, where more than one liability policy is issued covering one vehicle, the limits of the uninsured motorist coverage required to be provided is the cumulative minimum ($5,000/$10,000) limits of the policies. Where one liability policy is issued covering more than one vehicle, the uninsured motorist coverage required to be provided is the cumulative minimum ($5,000/ $10,000) limits for each vehicle. Any provision in the policy purporting to limit the uninsured motorist coverage provided to less than the limits required as set forth above has been held invalid and of no effect.

The policy in the instant case differs from the family liability insurance policies which listed and identified specific vehicles such as were involved in the Wilkinson case in that the garage liability policy does not specify the number of vehicles covered nor identify the vehicles covered.

At the time the policy was issued the insured apparently owned three vehicles. The policy itself contains the notation “U/M (3 cars)” and the premium for uninsured motorist coverage was apparently calculated on the basis of three vehicles. The automobile provisions of the policy provide coverage for vehicles owned by the insured and, as interpreted by the courts, LSA-R.S. 22:1406D requires uninsured motorist coverage with minimum limits with respect to each covered vehicle. It must be concluded that at the time the policy was issued, the policy afforded, as required by the statute, uninsured motorist coverage with a cumulative limit of $15,000/$30,000.

At the time of the accident, the insured only owned two vehicles. Liability coverage was then afforded and in effect with respect to only two vehicles. It follows that the statute only required, at that point in time, uninsured motorist coverage with minimum limits with respect to the two vehicles, or cumulative limits of $10,000/ $20,000. The contractual $5,000/$10,000 limits provided in the policy are in derogation of the statute only to that extent.

Our holding is that the policy in question at the time of the accident afforded uninsured motorist coverage in the amount of $10,000 for injuries to one person. Stated otherwise, plaintiff is entitled to stack only two coverages for a total of $10,000. It follows that the judgment against the insurance company must be reduced to the amount of its coverage and the judgment against the third party defendant must be reduced to the amount which the insurance company is required to pay to the plaintiff.

Quantum

Kenneth Posey sustained a broken arm and a broken leg in the accident. He was required to undergo surgery under general anesthetic for the setting of both broken bones. His arm and his leg were in casts for a considerable period of time. At first he was unable to use crutches because of the broken arm and then was on crutches for a period of time. A basketball player, he missed an entire season. About a year after the accident he was required to have additional surgery for the removal of a metal plate and screws from his leg. The amount of $12,500 fixed as general damages by the trial judge was well within the range of his sound discretion.

Third party defendant complains that the trial court did not take into consideration his limited means in fixing the amount of damages. There is little evidence in the record of third party defendant’s financial condition. In any event, the circumstances and posture of this case do not justify a mitigation or reduction of the judgment in favor of the insurance company against the third party defendant under the insurance company’s subrogation rights.

For the reasons assigned, the judgment of the district court is amended to provide that the liability of Commercial Union Insurance Company shall not exceed the sum of $10,000. The judgment is further amended to reduce the amount of the judgment in favor of Commercial Union Insurance Company against third party defendant, Ronald Palmer, to the sum of $10,000. As amended the judgment of the district court is affirmed. Costs of the appeal are assessed to Commercial Union Insurance Company.

Amended, and as amended, affirmed.

      . The policy involved in this case was issued and the accident occurred prior to the 1974 and subsequent amendments to LSA-R.S. 22:1406. At all times pertinent to this suit LSA-R.S. 22:1406D(1) (a) read as follows:
      No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits described in the Motor Vehicle Safety Responsibility Law of Louisiana, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or under-insured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.


text:
    Sherry Sue TWINER, Plaintiff-Appellant, v. CANADIAN UNIVERSAL INSURANCE COMPANY, Defendant-Appellee.
    No. 12910.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.

      Ellis & Ellis by Carey J. Ellis, Jr., Ray-ville, for plaintiff-appellant.
    Hammett, Leake, Hammett, Hulse & Nelson by W. Paul Andersson, New Orleans, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff, Sherry Twiner, brought a direct action against her father’s liability insurer for personal injuries she sustained while riding as a guest passenger in a pickup truck being driven by her father on the Snake Ridge Road in Richland Parish. Plaintiff struck the dashboard of the truck, seriously injuring her right eye, when her father suddenly and forcefully applied his brakes in order to avoid striking a deer which ran out of an adjacent ditch onto the road in front of his truck. After trial, in comprehensive written reasons for judgment, the district court found plaintiff failed to prove her father was negligent. Judgment was rendered rejecting plaintiff’s demands and she appealed. We affirm the judgment of the district court.

At the time of the accident plaintiff and her father, Everett Twiner, were driving from their home to a grocery store. The weather was foggy and misting rain. Twiner was driving about 35 to 45 miles per hour. Plaintiff was bending over getting a rock out of her shoe and tying her shoelace and was not watching the road.

The essence of the testimony of plaintiff and her father was that he thought he saw what he described as a bulky object in the ditch on the right-hand side of the road. He took his foot off the accelerator and said something like “a deer — no”, indicating he first thought he might have seen a deer and then decided he did not. He put his foot back on the accelerator and then when he reached the point where he first thought he saw the object a deer darted out of the ditch into the path of the truck. He applied his brakes forcefully and avoided a collision with the deer which turned and ran back off the road. Plaintiff, who was raising up, was thrown into the dashboard.

On appeal, plaintiff urges the trial court erred in applying the sudden emergency doctrine in view of the fact that Twiner contributed to the creating of the emergency by failing to slow down after the initial sighting of the deer. Plaintiff further contends the trial court erred in failing to hold that it was negligence for Twiner not to slow down or stop after initially seeing the object, particularly in view of the fact that Twiner was aware that deer frequently crossed the road on which they were traveling.

The trial court carefully analyzed the testimony of plaintiff’s father and concluded that at the time the incident happened, Twiner was not sure what he had seen, if anything. The vague sighting was not sufficient to warn the driver, or a reasonable person in his position, of impending danger so as to require him, or a reasonable person in his position, to slow down or take precautionary measures. The trial court perceptively noted that the important thing is the situation that existed at the time of the happening, not how the participants might look back on the event at a later time.

We conclude, as did the trial judge, that plaintiff failed to establish actionable negligence on the part of her father in failing to take precautionary measures after his first vague, uncertain, possible sighting of an object in the ditch on the side of the road. At the time the deer darted onto the road Twiner was traveling at a reasonable rate of speed and acted reasonably in suddenly applying his brakes at that point in order to avoid a collision with the deer.

Plaintiff cites numerous cases in which drivers have been found negligent in striking animals on the highway. The cases cited are distinguishable from the instant case on their particular facts.

For the reasons assigned, and for the reasons expressed in more detail in the district court’s written reasons for judgment, the judgment of that court is affirmed.

Affirmed.


text:
    Earl STUTTS et al., Plaintiffs-Appellants, v. Bill LYLES, Defendant-Appellee.
    No. 12908.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    Gahagan & Gahagan, by Marvin F. Ga-hagan, Natchitoches, for plaintiffs-appellants.
    Booth, Lockard, Jack, Pleasant & Lesage by Curtis W. Cary, Shreveport, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Plaintiffs, Earl and Leola Stutts,-brought this action against Bill Lyles to recover the cost of automobile repairs, medical expenses, and damages for personal injuries to Mrs. Stutts, arising out of the collision of their automobile with a cow on Highway 175 in DeSoto Parish.

The accident happened about four miles south of Mansfield just after dark on December 2, 1974. At this time, Earl Stutts was driving the family automobile accompanied by his wife who was seated in the right front seat. Plaintiffs allege that the driver of an oncoming vehicle failed to dim the headlights preventing them from seeing the black cow in their lane of traffic. As a result of striking the cow, plaintiffs’ vehicle was damaged and Mrs. Stutts suffered injury to her cervical spine.

Plaintiffs allege defendant, Bill Lyles, was the owner of the cow and that he was at fault in causing the collision by allowing the animal to run loose on a highway which is subject to the stock law statute and in failing to take proper precautions to keep the cow in a fenced area.

The trial court concluded plaintiffs failed to prove the defendant, Lyles, owned the subject cow and rendered judgment dismissing plaintiffs’ demands.

We affirm for the reasons given hereafter.

The evidence showed the cow to be a large Black Angus breed without any brand or other identifying markings.

The only basis for attributing ownership to defendant was information given to an investigating deputy sheriff by a resident near the scene of the accident that the cow belonged to “Mr. Lyles”.

' This evidence was fully rebutted by the other evidence presented on trial of the case which clearly showed that defendant, Bill Lyles, had no cattle pastured within ten miles of the accident scene and that he did not own any cattle of this breed. It was also established that all cattle belonging to him were branded prior to being placed in a pasture.

It is apparent that the person who gave the opinion that the cow belonged to defendant was mistakenly thinking of defendant’s grown son, William Henry Lyles, who rented a pasture adjacent to the accident scene. There is also testimony showing there are other parties who maintain Black Angus cattle in pastures in the immediate vicinity of the accident.

It is elemental that the plaintiff is required to prove by a preponderance of the evidence the ownership of the animal which caused the injury before he may recover under the provisions of Louisiana Civil Code Article 2321.

Plaintiffs argue on this appeal that the jurisprudence indicates that in suits against owners of animals, the burden of proof required by a plaintiff is not as great as in other actions for damages. The recent cases on which counsel relies for this proposition involve solely the responsibility of the owner to exculpate himself from fault once the ownership has been established and in no way indicate the burden of proof relating to ownership has been relaxed.

We find the record in this instance to clearly sustain the trial court’s finding that the animal did not belong to defendant and accordingly the judgment appealed from is affirmed at appellants’ costs.


author: BOLIN, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. WESTPORT DEVELOPMENT COMPANY, INC., Defendant-Appellee.
    No. 12905.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.

      William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Bernard L. Malone, Jr. by Bernard L. Malone, Jr., Baton Rouge, for plaintiff-appellant.
    Hargrove, Guyton, Ramey & Barlow by Michael R. Mangham, Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

By this action the Department of Highways of the State of Louisiana expropriated property owned by defendant, Westport Development Company, Inc., in Caddo Parish, Louisiana. The property expropriated consisted of the taking in full ownership of two tracts of 9.258 and 7.675 acres, respectively, and the taking of a permanent drainage servitude over a .291 acre tract. The Department also took other tracts which are not at issue here.

Pursuant to Louisiana Revised Statutes 48:441 et seq., the Department paid $142,573 into the registry of court as just compensation for the taking of all the tracts. Following trial the lower court awarded $260,822.47 for the three tracts taken and $1,522,50 as severance damages for property located between two drainage servitudes. The court also awarded witness fees of $1,825.00 and $1,575.00 for defendant’s two appraisers. Plaintiff appeals and we affirm.

On appeal the Department assigns three errors: (1) the amount awarded as compensation for the taking is excessive; (2) no severance damages should have been awarded; and (3) the amount of expert witness fees is excessive.

Defendant, Westport, owned an irregular tract of land containing approximately 165 acres located at the Pines Road overpass over Interstate 20 on the west side of Shreveport. All the appraisers agreed this area of Shreveport was experiencing a growth in commercial, residential, and light industrial development.

The Pines Road bisects defendant’s property from north to south with approximately 76 acres lying on the east side of the road and approximately 90 acres lying on the west side. The property is bounded on the north by a frontage road running alongside 1-20 and is bounded on the south by West 70th Street. The Department took 9.258 acres from the 90 acre parcel and 7.675 acres from the 76 acre tract for the construction of a full interchange at 1-20 and Pines Road where there had previously been a normal highway overpass. The property taken is an irregular strip along the northern boundary of the property which faces 1-20 and the frontage road.

We address ourselves first to the issue of the correctness of the award for the property taken. The appraisers for plaintiff and defendant reached different conclusions as to value because they employed different techniques in appraising the property. The Department’s appraisers utilized what is known as the “average unit value” approach. Under this method the award for the land taken is based on the average unit value of the entire tract; that is, the award for the part taken should bear the same proportion to the value of the whole as the area taken bears to the total area of the entire tract.

The defendant’s appraisers used the “front and — rear land” method of evaluation. State, through Department of Highways v. Hoyt, 284 So.2d 763 (La.1973), explained this approach as follows:

“As summarized by the excellent treatise, Dakin and Klein, Eminent Domain in Louisiana, p. 173 (1970), our state’s jurisprudence holds: ‘ * * * the highest and best use of the land actually taken is to be considered in determining fair market value. When there is a partial taking and the land expropriated has a different highest and best use than the remainder of the landowner’s tract, it appears that the courts will value the land taken separately from the remainder on the basis of its own highest and best use and will not consider the value of the land taken in relation to the whole tract.’
“The landowner is thus to be awarded the actual market value of the particular portion of the property taken, -valued according to its highest and best use. He is not limited to its average per-acre value as a pro rata portion of the parent tract where the front portiomhas a different and higher best-use value.”

Based on adjusted comparable sales, the Department’s appraiser valued the entire tract at $9,000 per acre or 21^ per square foot. Using many of the same compara-bles but making different adjustments, the defendant’s appraisers valued the property taken at 35^ per square foot while admitting that 21^ per square foot for the entire tract of 165 acres was probably a correct valuation.

The two approaches used by the appraisers are both acceptable methods of valuing property. The goal in expropriation proceedings is to award just compensation to the owner for the taking of his property. The particular method of appraisal is only a means to achieve that end. In this case, we find the “front land — rear land” approach most nearly reflects the value of the property taken. The evidence shows conclusively that the front land taken, which has a highest and best use as commercial property, has a view to 1-20 and has access to the frontage road, is worth more than the rear land which has no view to 1-20, has' no access to the frontage road, and has a highest and best use in part as residential property.

Using the “front land—rear land” method, defendant’s appraisers placed a value of 35(£ per square foot on the part taken. We find the record amply supports such a value.

The second issue relates to severance damages. Defendant’s appraisers admit the great portion of the remaining property did not suffer any severance damage. However, they contend a small parcel of property located between two permanent drainage servitudes has been damaged at 50% of its value. The parcel contains approximately 8700 square feet and varies in width from 14 feet to 40 feet. Defendant’s appraisers testified that possible uses of this parcel were severely limited because of its shape and size.

The Department argued there were no severance damages or, alternatively, the damage should be offset by the special benefits accruing to the property as a result of the construction of the interchange. The Department also contends the method used by defendant’s appraisers to determine severance damages was invalid since a complete “before and after” appraisal of the entire tract was not made.

We find no error in the method used by defendant’s appraisers in calculating the amount of severance damages. The method was a “before and after” appraisal since the only area to suffer any damage was the area between the two servitudes. Thus, the entire remainder was damaged only to the extent the parcel between the two drainage servitudes was damaged. We agree with the finding cf the trial court that the parcel suffered severance damage of 50% of its value.

State, Department of Highways v. Trippeer Realty Corp., 276 So.2d 315 (La.1973) stated the general principles regarding setoff of severance damages against special benefits:

“The expropriating authority is allowed to offset against severance damages any special benefits accruing to the remainder of the property. However, the authority has the burden of proving these special benefits. State v. Central Realty Co., 238 La. 965, 117 So.2d 261 (1960); Thomas & Warner v. City of New Orleans, 230 La. 1024, 89 So.2d 885 (1956).
“Special benefits are those which arise from the peculiar relationship of the land in question to the public improvement, which will result from the taking. La. Highway Commission v. Grey, 197 La. 942, 2 So.2d 654 (1941). Special benefits are to be distinguished from general benefits (for which there is no setoff against severance damages). A general benefit is one which arises merely from the fulfillment of the public object which justified the taking; there is no particular relationship between the remaining property and the public improvement. State v. Marks, 188 So.2d 653 (La.App. 4th Cir. 1966), Louisiana Highway Commission v. Grey, supra.

Here, the Department has not borne its burden of proving any special benefit nor has it attempted to prove the amount of any benefits. Any benefits arising from the construction of the interchange such as increased traffic or greater access to 1-20 is a general benefit to all the landowners in the vicinity and merely results from the “fulfillment of the public object which justified the taking.” State, Department of Highways v. Crow, 286 So.2d 353 (La.1973).

Last for consideration is the question of whether the expert witness fees were excessive. The lower court awarded fees of $1825 and $1575 for defendant’s two expert appraisers. The Department argues these fees are excessive and cites our decisions in State, Department of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886 (La.App. 2d Cir. 1975) and State, Department of Highways v. Whitman, 313 So.2d 918 (La.App.2d Cir. 1975) in support of its argument.

In assessing expert witness fees, each case must be decided on its own peculiar facts. In view of the expertise of the appraisers, the time spent on the appraisals, the difficulty of the appraisal, the amount involved in the award, and the degree to which the appraisals aid the -court in its decision, we find no error in the amount of expert witness fees as fixed by the trial court.

Accordingly, the judgment is affirmed. The appellant is cast with all costs which may be lawfully assessed against it.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. I. J. ALLEN et al., Defendants-Appellees.
    No. 12901.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Robert L. LeDoux, Johnie E. Branch, Jr., Baton Rouge, Jack C. Frugé, Sr. by Jack C. Frugé, Sr., Ville Platte, for plaintiff-appellant.
    Baker, Culpepper & Brunson by Herman A. Castete, Jonesboro, for defendants-ap-pellees.

      Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

The Department of Highways, State of Louisiana, appeals from an expropriation judgment in favor of I. J. and C. H. Allen fixing the quantity of land taken, its market value, and the fees of defendants’ expert witnesses. We amend the judgment by reducing the compensation award and the amount fixed as expert witness fees.

The taking of the subject land, which is located approximately 1.2 miles west of the corporate limits of Jonesboro, was necessitated by the widening of Louisiana Highway 4. The land actually taken is a narrow strip off the front portion of a larger tract beginning at the intersection of Highway 4 and a narrow dead-end blacktop roadway. It measures approximately 1000 feet along Highway 4. Determination of the depth of this narrow strip is necessary to a resolution of the controversy over the amount of footage taken. Severance damage is not an issue on appeal.

The Department of Highways specifies three basic errors in the lower court judgment: (1) the quantity of land was incorrectly calculated; (2) the amount awarded for just compensation was excessive; and (3) the fees fixed for the expert witnesses were excessive.

QUANTITY OF LAND TAKEN

The record establishes defendants acquired title to their land from the center line of the highway. However, in this proceeding they are only contending the point of beginning of their property should be the edge of the existing paved portion of the highway. The Department on the other hand contends the point of beginning should be from that portion of land used by the highway, including several feet on each side of the paved portion. The Highway Department offered no evidence establishing its right of way beyond the paved portion of the road.

We find the trial court correctly calculated the amount of land taken to be 43,237 square feet, representing that portion of defendants’ land lying between the edge of the pavement and the outer limits of the required new right of way. State of Louisiana, Department of Highways v. Shackelford, 331 So.2d 884 (La.App. 2d Cir. 1976).

VALUE OF PROPERTY TAKEN

Plaintiff offered the testimony of Maurice Chappuis and Gene N. Cope, appraisers. Both appraisers calculated the value of the part taken on the basis of the front land evaluation premise to a depth of 200 feet. Each was of the opinion that utilized in this manner the property’s highest and best use would be for country home sites or light commercial having a value of five or six cents per square foot.

Defendants offered the testimony of three appraisers, H. L. Bass, Hab Monsur, and O. L. Jordan. These witnesses likewise were of the opinion the property could best be utilized in 200-foot deep lots. Each appraiser valued the property differently but the conclusions were generally the same. They divided the land into two lots, each possessing approximately the same frontage on Highway 4, but assigned a higher value to the corner lot. All of defendants’ experts valued the property at approximately twenty-five cents per square foot except for that portion classified as a “corner lot”.

The trial judge in his written reasons for judgment found:

“No attempt will be made to divide the property into commercial and residential, however, it is of the opinion that the property does have some added value because of its accessibility from a road, other than Louisiana Highway 4, and its location.
“It has been concluded that the value of the subject property, at the time of the taking, was Thirty-three and one-third ($.331/3) Cents per square foot. . . .”

From our careful study of all the record, including the testimony of the experts, the documents and exhibits, we find the land taken has a fair market value of twenty-five cents per square foot. We find the weight of the evidence does not support the increased value placed on the “corner lot”. The narrow blacktop road which intersects Highway 4 to form the “corner lot” is not a traveled highway but to the contrary is a dead-end country road. The land expropriated is unimproved. We find the value of the property taken to be $10,809.25.

EXPERT WITNESS FEES

The trial judge fixed the fees of the expert witnesses used by defendants as follows:

H. L. Bass .... $ 1,200.00
Richard Crawford.. 280.00
Lavelle Nunn . 158.20
Hab Monsur . 1,200.00
O. L. Jordan .... 1,425.00
$ 4,263.20

We disallow the fee of the photographer, Lavelle Nunn. See Department of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886 (La.App.2d Cir. 1975), writ refused.

Taking into consideration the qualifications of the expert appraisers, the time consumed by each in preparation, his testimony, the value to the court of the testimony of each appraiser, whether the testimony was cumulative, and the amount of the total award, we fix the fees as follows:

H. L. Bass ... $ 700.00
Richard Crawford.. 280.00
Hab Monsur . 700.00
O. L. Jordan .... 700.00
$ 2,380.00

For the reasons assigned the judgment of the lower court is amended to reduce the amount awarded defendants from $14,410.89 to $10,809.25, subject to a credit of $770.00 previously deposited by the State of Louisiana through the Department of Highways, leaving a balance of $10,039.25. The judgment is further amended by reducing the total award for expert witness fees from $4,263.20 to $2,380.00, and as amended the judgment is affirmed.


author: GUIDRY, Judge.

text:
    J. R. TALLY, Plaintiff-Appellant, v. Charles LOVETTE et al., Defendants-Appellees.
    No. 5432.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.

      McHale & Bufkin, by Louis D. Bufkin and Ronald A. Rossitto, Lake Charles, for plaintiff-appellant.
    Stockwell, Sievert & Viccellio, by Fred H. Sievert, Jr., Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff instituted this action for injuries and damages he allegedly sustained on August 12, 1968 through the fault and negligence of the defendants, Charles Lovette, Owen L. Hampton, Cities Service Oil Company, Homer White Construction Company, a Mr. Turpin, Floyd Thompson, Procon, Inc., and the insurer of the latter, Fidelity & Casualty Company of New York, and all of Procon’s executive officers, directors, stockholders, and supervisors. Service of process was never had on Mr. Turpin or any of the executive officers, directors, stockholders or supervisors or Procon, Inc. except those principally made defendants. Defendants, Procon, Tnc., Cities Service Oil Company, Charles Lovette, Owen L. Hampton and Homer White Construction Company were all dismissed from this suit.

Floyd Thompson and Fidelity & Casualty Company of New York moved for summary judgment urging dismissal on the ground that the plaintiff’s right to proceed has prescribed under the provisions of R. C.C. Article 3536 and LSA-R.S. 9:5801. The district court rendered judgment maintaining the motion for summary judgment and dismissed plaintiff’s suit at his costs. Plaintiff appeals.

Suit was originally filed by plaintiff, J. R. Tally, on the same cause of action as that asserted in this suit, in the United States District Court for the Western District of Louisiana. The federal suit was filed on August 12, 1969, against all defendants named hereinabove, excepting the executive officers, directors, stockholders, and supervisors of Procon, Inc., Mr. Turpin and Floyd Thompson. Floyd Thompson was later joined in that suit. ' Service of citation in this federal action was not commenced until August 18, 1969. Subsequent to the filing of that suit the defendants excepted to the jurisdiction of the federal district court. On March Sth, 1975, over five years later, the federal district court rendered judgment in favor of all the defendants and dismissed the suit for want of jurisdiction. No appeal was taken from that judgment which has now become final. The instant matter was filed in state court on February 20, 1975, a few days prior to dismissal of the federal court suit.

Plaintiff contends that the filing of suit in the federal district court interrupted prescription, therefore this suit, commenced prior to dismissal of the federal court action although some six years following the accident, was timely. R.C.C. Article 3536, LSA-R.S. 9:5801.

Clearly prescription may be interrupted either by the timely filing of a suit in a court of competent jurisdiction, whether filed in a state or federal court, or by service of process upon the defendant within the prescriptive period even though the suit is filed in a court of incompetent jurisdiction. Conkling v. Louisiana Power & Light Co., 166 So.2d 68 (La.App. 4th Cir. 1964); Venterella v. Pace, 180 So.2d 240 (La.App. 4th Cir. 1965); writ refused 248 La. 796, 182 So.2d 73, cert. den. 385 U.S. 819, 87 S.Ct. 42, 17 L.Ed.2d 57; Hazel v. Allstate Insurance Company, 240 So.2d 431 (La.App. 3rd Cir. 1970). R.S. 9:5801. R.C.C. Article 3536.

The jurisprudence has further set forth that when a state or federal court has dismissed an action for lack of jurisdiction that court can not be considered “a court of competent jurisdiction”, and only service of process on the defendant, and not the filing of the suit, will interrupt prescription. In speaking to this issue the coui;t in Venterella, supra, pgs. 242, 243, stated:

"The issue before us hinges on interpretation of the phrase ‘a court of competent jurisdiction’ as it is used in the statutes quoted above. If the United States District Court where the action was originally filed was a court of competent jurisdiction, then prescription was interrupted under provisions of LSA-R.S. 9:5801 when the suit was filed on December 23, 1959, four days before prescription had run. However, if the federal court was not ’of competent jurisdiction’, resort must be had to LSA-C.C. art. 3518, and interruption would not have occurred since the defendants were not cited until after December 27, 1959.
We think both the plain meaning of the statutory language and the jurisprudence of our courts emphatically support the trial judge’s conclusion that the federal court was not a court of competent jurisdiction and that plaintiffs’ cause of action prescribed.
In construing statutes we are constrained to give the words used therein their ordinary, usual signification. State v. Robertson, 241 La. 249, 128 So.2d 646 (1961), State v. Mack, 224 La. 886, 71 So.2d 315 (1954), Charles Lob’s Sons v. Karnofsky, 177 La. 229, 148 So. 34 (1933), 82 C.7.S. Statutes § 329b. Under this requirement, it is difficult to see how a court which has dismissed an action for lack of jurisdiction can be considered ‘a court of competent jurisdiction’.
Specifically in point of the issue before us are three cases recently decided in this state, Conkling v. Louisiana Power & Light Co., 166 So.2d 68 (La.App. 4th Cir. 1964); Sansone v. Louisiana Power & Light Co., 164 So.2d 151 (La.App. 1st Cir. 1964); and Knight v. Louisiana Power & Light Co., 160 So.2d 832 (La.App. 4th Cir. 1964). All three cases contained the same basic problem. Suits were brought in United States District Courts in Louisiana, alleging jurisdiction based on diversity of citizenship, on actions ex delicto against a foreign corporation which had its principal place of business in Louisiana. The actions were filed within a year of the alleged torts, but in each case service of the citations was not effected until the one-year period had run. After the suits were dismissed in the federal courts for lack of jurisdiction, the plaintiffs filed their actions in Louisiana state courts. In each case, pleas of prescription were upheld and judgments entered in favor of the defendants. The judgments were all affirmed by the respective Courts of Appeal, and writs of certiorari and review were denied in all three cases by the Supreme Court."

In the instant matter, the federal district court, wherein plaintiff originally filed his action, dismissed the plaintiff’s suit for lack of jurisdiction. That being so, plaintiff’s suit was filed in a court of incompetent jurisdiction and only service of process on the defendant, and not the filing of that suit, would interrupt the running of prescription. R.S. 9:5801 and cases cited herein. Plaintiff’s suit in federal court was filed on August 12, 1969 on the last day of the one year prescriptive period, citation on the defendants was not commenced until August 18, 1969. Obviously, service of process on the defendants did not interrupt prescription of the plaintiff’s action, prescription having already expired on August 13, 1969, some five days prior to the commencement of service of process.

The plaintiff has indicated that he is in accord with thq above cited law, i.e., R.S. 9:5801 but contends that the federal district court had diversity jurisdiction was therefore a court of competent jurisdiction and the mere filing of suit interrupted prescription. In essence the plaintiff is attempting to collaterally attack the judgment rendered by the federal district court, a judgment that has not become final.

A federal district court, although a court of limited jurisdiction, has the power to decide as to its own jurisdiction and its decision as to its jurisdiction has the same effect and conclusiveness as its decision on any other matter. 21 C.J.S. § 115; 20 Am.Jur.2d Sec. 92. It is further established that a decision of a lower federal court is not subject to collateral attack unless shown to be secured by fraud, or the judgment is in irreconcilable conflict with facts otherwise disclosed by the record of the proceedings. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329; 49 C.J.S. § 427 et seq.; 46 Am.Jur.2d Sec. 621 et seq.

As aforestated the plaintiff alleges in brief that there was diversity of jurisdiction in his prior federal court suit and that that court erred in maintaining the defendants’ claim of lack of jurisdiction. The plaintiff has cited no authority which would permit this court to disregard the judgment of the federal district court, nor has he produced a scintilla of evidence to show that the judgment of the federal court was secured through fraud, or that the facts as disclosed in the record of that proceeding are in irreconcilable conflict with the judgment. Accordingly, we find that the plaintiff’s action, which was filed in state court on February 20, 1975 has prescribed.

For the foregoing reasons the judgment appealed from is affirmed, all costs of this appeal to be borne by the plaintiff-appellant.

AFFIRMED.