author: BARNETTE, Judge.

text:
    TOM SLAY, INC. v. CONTINENTAL CASUALTY CO.
    No. 10406.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 9, 1976.
    Dileo & Myles, Lonny A. Myles, Hammond, for plaintiff-appellee.
    Talley, Anthony, Hughes & Knight, John W. Anthony, Bogalusa, for defendant-appellant.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

This is a suit for damages resulting from an accident in which a gravel truck and trailer were overturned after striking road repair equipment, specifically a roller, engaged in highway repair work. The trailer was damaged beyond repair. There was judgment for the plaintiff, for $3600 representing the value of the trailer destroyed less $400 salvage. In addition, plaintiff was awarded $12,000 for loss of profits from destruction of the truck and $466.05 for other special items of damage, a total of $16,066.05. From that judgment the defendants have appealed.

The issues are liability and quantum. We will address ourselves first to the issue of liability.

Early on the morning of September 11, 1973, a gravel trailer truck of 22 cubic yards capacity owned by the plaintiff, Tom Slay, Inc. and operated at the time by Ollie Robertson, was loaded at a gravel pit in Franklinton and then proceeded from Franklinton to Richardson (a relatively short distance, but not specifically stated in the testimony) from which point he proceeded in a westerly direction on Louisiana Highway 10 toward Areola.

At a point approximately a mile and a half west of Richardson in the direction of Areola the defendant, Southeastern Paving Company was engaged in road repairs described as patch work. The plaintiff, Tom Slay, Inc., was engaged in hauling gravel for Southeastern Paving Company at Amite, Louisiana. We assume from the testimony of plaintiff’s witness, Raymond Gaines, who said he was also hauling for Southeastern Paving Company and was taking his load to Amite, that Ollie Robertson was also hauling to Amite, and not to the job-site at which the accident occurred.

As the driver, Ollie Robertson, approached the point of accident he came over a hill which curves to the right to the place where the road was blocked by the machinery engaged in repairing the road surface. The estimate of distance from the curve to the rollers engaged in the road work varied according to who was testifying, from approximately 30 yards (90 feet) by plaintiff’s witness, Gaines, to 1000 feet by defendant’s witness, Lawrence A. Pecoraro. At one point Gaines testified that the distance from the point in the curve from which he could see the rollers was “about thirty yards.” At another point in his testimony he said there was a “spreader” down at the bridge (beyond the point of the accident) which he estimated to be 150 yards from the curve. He had stopped his truck where the rollers were at work in the roadway and estimated the distance from his truck to the spreader at 75 yards. This would place his truck 75 yards from the curve, rather than 30 yards.

Another witness for plaintiff, J. W. Morris, also a gravel truck driver, testified:

“A. When I got to the curve I could see anything.
“Q. All right. Then as you proceeded around the curve what did you see?
“A. Well, when I got around the curve I seen the road was filled with machinery and all.
“Q. Now how close to the machinery before you could see it ?
“A. I’d say about a hundred, a hundred fifty foot.
“Q. A hundred to a hundred and fifty feet from where you can see it, from the point where you were to where you could see the equipment?
“A. Yes, sir.”

The plaintiff’s truck driver, Ollie Robertson, was questioned on the point of distance and visability from the curve and said he did not know. He was asked how far he traveled after applying his brakes until his truck came to a stop. He hedged on this question and said he did not know. When pressed for an estimate, he related the distance to a point in the court room, which the trial judge interjected to be approximately 60 feet.

On the other hand, defendant’s witness, Pecoraro, testified that the distance from the curve to the road machinery was about 1000 feet. When pressed for an estimate of distance from the curve to the bridge he also said “about a thousand feet.” According to plaintiff’s witness, Gaines, the bridge was 75 yards (225 feet) beyond the road machinery. This would place the road machinery about 875 feet from the curve.

The State Police officer, Clarence Wagner, who made an investigation of the accident identified a skid mark from the application of brakes running back from the over-turned truck 1000 feet. This distance he estimated from stepping it off.

We cannot reconcile these varied estimates to establish a distance in feet or yards, but we are of the opinion that the evidence clearly shows that Robertson had ample distance in which to stop his truck after the obstruction came into view when he came over the hill and around the curve. It is significant, we think, that Gaines, driving a gravel truck a few minutes ahead of Robertson, negotiated the hill and curve and brought his truck to a stop before reaching the road machinery. Gaines said he stopped 15 feet from the roller and put on his emergency flasher lights. Morris said he came up three or four minutes behind Robertson and had no trouble in bringing his truck to a stop.

There is a contradiction of testimony whether a flagman was on duty to stop approaching traffic and whether there was a warning sign posted some distance ahead to warn motorists of “Flagman ahead, 500 feet” or words to that effect.

Allen Hayes, an employee of Southeastern Paving Company was very positive in his testimony that he personally put out a sign warning of a flagman ahead about 500 feet east of where Mr. Pecoraro was flagging traffic near the crest of the hill.

Mr. Wagner, the investigating officer, testified that he saw the sign warning of a flagman ahead.

Allen Hayes testified that Pecoraro was flagging traffic immediately before the accident. He said he was operating one of the three rollers, the one in the middle. Jesse LaFountain was operating the one which was nearest the on-coming truck. Hayes was standing on his roller and saw Robertson coming at a speed which he estimated at 50 miles per hour. He shouted a warning to LaFountain and when he determined which way the truck was going he jumped off the opposite side and “took to the ditch.” He said he did not notice skid marks.

This witness was very positive that Pe-coraro was flagging traffic at the top of the hill; that he could clearly see him and that the distance was about 500 feet.

Jesse LaFountain operator of the roller which was struck also testified that Pecor-aro was flagging traffic about 500 feet behind him in the middle of the road and that he had on a “State jacket.” He also said he saw the warning sign which was placed about 500 feet east of the flagman; having seen it on his way up to where his roller was parked. He proceeded on his roller, passing the flagman, saying: “about thirty seconds or a minute, two minutes, something like that, I don’t exactly know”— before the accident. He was in the right hand lane going down the hill and switched over at the bottom to park his roller. Robertson’s truck “sideswiped” LaFountain’s roller and overturned in the ditch on the right (north) side of the road. This witness was moving in the same direction from which the truck was approaching and did not see it until it struck his roller and went in the ditch.

Lawrence A. Pecoraro, a retired State Police Officer was employed by Southeastern as a flagman. He testified that he was at his post of duty by 7:00 A.M. (the accident happened about 7:30 A.M.) and that he was wearing the traditional orange colored vest provided for that purpose. He testified that the “flagman ahead” warning sign was placed about 250 feet east of where he was standing. He said he had stopped a pickup truck and two gravel trucks, one he described as a “bobtail” truck. This is the description Gaines gave of the truck he was driving. Pecora-ro further testified that he saw Robertson approaching from the east; that he was about 600 feet from the accident scene “standing in the middle of the road” at the top of the hill and “ * * * saw this other truck [Robertson] coming and I tried to flag him.” He described it as a red truck-tractor and trailer loaded with gravel “coming up that hill, coming towards me.” He said he tried to flag him and “Well, when I saw he wasn’t going to stop, I took out for the woods.”

In contradiction of these witnesses the plaintiff’s witnesses, Gaines, Morris and Robertson, all testified that they saw no signs (except Gaines testified to seeing a low shoulder warning sign) and that there was no flagman to warn approaching motorists. Gaines further testified that the flagman, Pecoraro, came from “down by the spreader” and came “up in the curve” after the accident and “remarked that he hadn’t went to work yet.” Pecoraro denied making any such statement.

Gaines testified that he was stopped at the work site about 15 feet from the rollers with his 12 yard “bobtail” truck. He described the accident as follows:

“Ollie come around that curve and that’s when he wrecked. I mean, he come around me and when he come around me the roller was about, I’d say, oh, twenty foot ahead of me and when he come around me he come around my truck and in between me and the roller. The trailer wheels hit the roller on the left side and it throwed him back around into the roller that was in front of that one and the steering axle hit him and it cut it short back across the road and he turned over.”

He said he then got out of his truck and went back up the road to flag another of his trucks which he knew was following close behind.

The plaintiff’s witnesses also denied seeing the skid mark which the State Trooper identified, but we are convinced that the skid mark was there. In the first place the investigating officer was under a duty to examine the scene for evidentiary signs, whereas the other witnesses were not and probably paid no attention to such. Furthermore, when Robertson was asked if his brakes held he answered: “They held. Burning. Almost burnt the tire off.” This strongly corroborates the statement of the Trooper that a skid mark was made by a sliding tire and that the brakes were defective, apparently holding only on one side.

We do not have the benefit of the reasons for judgment of the trial judge and we have no way of knowing on what basis of fact he found judgment for the plaintiff. Evidently he found negligence on the part of the defendant and no contributory negligence on the part of plaintiff’s driver, Ollie Robertson. We do not know if his judgment is based on credibility of witnesses. We do not know if he found as a fact that the defendant had set up a hazardous condition and failed to post a warning sign or a flagman or both. We do not know what, if any, credence he gave to the testimony of the disinterested State Trooper who was quite positive about the skid mark which he stepped off and estimated to be about 1000 feet extending back from the overturned truck. If he found this to be a fact, we do not know what significance he attached to it. We do not know what circumstances were controlling in finding Robertson free from contributory negligence.

We make specific reference to all these unanswered material issues of fact for the reason that we are fully aware of the manifest error rule which gives great weight to the fact findings of the trial judge and restricts the appellate court in reversal. It is difficult for us to point to a specific manifest error of fact finding if we do not know what facts were found by the trial judge. For this reason we have discussed fully all the issues of fact which we think are material in support of our conclusion.

We point out that this irreconcilable conflict of testimony on material issues of fact is a conflict of positive or affirmative versus negative testimony. One set of witnesses were positive that a flagman was on duty. Others said they did not see him. One set of witnesses were positive that a warning sign was placed on the highway. The others said they did not see it. The State Trooper was positive about the skid mark, other witnesses said they did not see it.

When there are witnesses of equal credibility in direct contradiction on a fact question, the positive or affirmative testimony will be given preponderance over that which is negative. Staehle v. Leopold, 107 La. 399, 31 So. 882 (1902); Story v. Hope Insurance Company, 37 La.Ann. 254, at p. 258 (1885); Guesnard v. Executors of Bird, 33 La.Ann. 796, at p. 800 (1881); Sholar v. U. S. Fire Insurance Company, 261 So.2d 327 (La.App. 1st Cir. 1972); Jamison v. Reese Variety Stores, Inc., 203 So.2d 859 (La.App. 2nd Cir. 1967).

On the issue of the flagman, we are convinced that one was present at the job site. Whether or not he momentarily left his post of duty and hence was not seen by plaintiff’s witnesses, we do not need to speculate, for we are further convinced that there was a warning sign posted at a proper distance to warn plaintiff’s driver of construction ahead. This alone was sufficient to warn him to bring his truck under control and be prepared to stop.

We are convinced from the testimony of the State Trooper and the statement of Robertson that his brakes held and he “almost burnt the tire off” that a skid mark was made as the Trooper described. This clearly indicates defective brakes.

The plaintiff has failed, in our opinion, to establish negligence on the part of the defendant by a preponderance of the evidence. Furthermore, the evidence preponderates against the plaintiff on the issue of Robertson’s negligence. In our opinion he was negligent in that he did not heed the warning sign and approached the work area too fast under hazardous conditions which should have been obvious to him. We find that he had sufficient distance in which to stop after completing the turn if he had been keeping a proper look out with his truck under control. We find that he was operating a truck with defective brakes which contributed to the truck’s going out of control. His negligence, in any event, is a bar to plaintiff’s recovery of damages.

As stated above, we do not know upon what facts the trial judge based his judgment for the plaintiff, but whatever his reasons, we are compelled to hold his conclusion of fact was manifestly erroneous.

We, therefore, need not discuss the issue of quantum.

The judgment appealed is reversed and there is now judgment in favor of the defendants and against the plaintiff, Tom Slay, Incorporated, rejecting its demands and dismissing its suit at its cost.

Reversed.

      . Suit was filed initially against Continental Casualty Company as insurer of Southeastern Paving Company. An amended petition was filed joining Southeastern Paving Company as a defendant.


source: Caselaw Access Project

author: YELVERTON, Judge. YELVERTON, Judge

license: Public Domain

text:
    Rufus W. ASHLEY v. NISSAN MOTOR CORP. IN U. S. A. et al.
    No. 10235.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Dec. 19, 1975.

      Ralph Brewer, Baton Rouge, for appellant.
    J. Walter Ward, Jr., New Orleans, for Nissan Motor Corp., Tokio Marine, Nissan Fire & Marine Ins. and Yasuda Fire & Marine.
    Boris F. Navratil, Baton Rouge, for defendants-appellees Diamond Motors and Continental Ins.
    Neil H. Mixon, Jr., Baton Rouge, for defendant-appellee Diamond Motors.
    Richard B. Nevils, Baton Rouge, for defendants-appellees Michael Brown and Early American Ins. Co.
    Before LANDRY, BLANCHE and YELVERTON, JJ.
   YELVERTON, Judge.

Plaintiff, Rufus Ashley, was seriously injured as a result of a single car accident which occurred on June 11, 1972, on a rural highway in East Feliciana Parish, Louisiana. Plaintiff was a passenger in a 1972 Datsun automobile owned and driven by his friend, Michael W. Brown, one of the defendants in the present action. Also named defendants in this action were Nissan Motor Corporation in U.S.A., herein referred to as “Nissan”, and its liability insurers, Tokio Marine & Fire Insurance Co., Ltd., Nissan Fire & Marine Insurance Co., Ltd., and Yasuda Fire & Marine Insurance Co., Ltd.; Diamond Motors, Inc., herein referred to as “Diamond”, and its liability insurer, Continental Insurance Company; and Early American Insurance Company, the liability insurer of Michael W. Brown.

The accident happened at approximately 11:00 o’clock p. m. on a two-laned blacktopped highway which was wet from rain. The defendant, Michael W. Brown, was in the process of giving the plaintiff a ride to Baton Rouge from a party which they both had attended. For reasons which were disputed in the lawsuit, Brown lost control of the automobile which left the road and turned over several times before coming to rest. Ashley was thrown from the car and sustained a broken back which left him paralyzed from his waist down.

Brown had bought the Datsun new from Diamond, an authorized Datsun dealer located in Baton Rouge, Louisiana, on April 12, 1972, just two months prior to the accident. Ashley’s suit against Brown was based upon his negligent driving. His suit against Diamond, the seller, and Nissan, the manufacturer, was based upon the allegation that a defect in the automobile caused the accident. In particular, he claimed that the vehicle was defective in that the right rear wheel cylinder was frozen or seized and that the brakes failed in the accident as a result of that defect.

The case was tried to a jury. After the trial the jury apparently decided that the accident was due entirely to the negligence of Brown and not to any defect which existed in the automobile for which either of the other two defendants was responsible. Consequently, judgment was rendered only against Brown, and plaintiff’s suit against Diamond and Nissan and their respective insurers was dismissed.

On this appeal plaintiff seeks to overturn the dismissal of his suit as against Diamond and Nissan. Among the assignment of errors are numerous allegations of error committed by the trial judge in the conduct of the trial. We affirm the verdict of the jury and find no error by the trial judge. We will now discuss each issue raised by the assignment of errors.

I. Evidence of Prior Convictions to Test Credibility

Appellant first complains that it was error to refuse to grant his “motion for a protective order” filed early in the trial designed to prevent the defendants from making inquiry into any prior convictions of plaintiff or any of his witnesses, other than convictions involving “dishonesty”. The trial judge applied the rule that impeachment by conviction for previous crimes is permissible as affecting the credibility of a witness. He refused to limit the application of the rule to felony or misdemeanors involving dishonesty. The trial judge was correct in so ruling.

In Middleton v. Consolidated Underwriters, 185 So.2d 307 (1st Cir., 1966) this court when confronted with a similar situation in a personal injury suit said:

“In every case involving testimonial evidence, the trier of fact, in this case, the jury, is faced with the question whether to believe the testimony of any given witness, or differently phrased, is faced with the task of assessing the credibility of the witness. One of the material factors bearing on the issue of credibility is the character of the witness for truthfulness, and one of the main functions of the cross-examination is to afford an opportunity to elicit answers which will impeach the truthfulness or credibility of the opponent’s witnesses. We therefore believe that prior conviction of a crime and the nature of the crime may be inquired into for impeachment purposes on cross-examination.”

The Third Circuit in the case of Fusilier v. Employer’s Insurance Company of Wausau, 235 So.2d 618 (La.App., 3rd Cir., 1970), citing Middleton, allowed the impeachment of a witness in a civil case by showing his convictions for several offenses including reckless driving.

We have found no authority in Louisiana indicating the cross-examiner’s right to inquire into prior convictions is limited to convictions involving dishonesty. The following observation is made by Professor George W. Pugh in his book, Louisiana Evidence Law, at Page 116:

“But, according to recent Louisiana Supreme Court decisions, any conviction including misdemeanors, regardless of the remoteness in time of the conviction, and whether the conviction directly bears upon the witness’' veracity, may be the subject of this inquiry.”

II. Denial of Plaintiffs Motion for Production

The next complaint of error addresses itself to the refusal of the trial judge to grant a motion to produce documents filed four days prior to trial. The documents sought were distribution agreements, franchise agreements, owner’s manuals and owner’s service manuals respecting the parties to the suit and the Datsun automobile involved. Although the trial judge refused to grant a motion to produce filed only four days prior to trial, he did grant a subpoena duces tecum on the morning of trial returnable two days thereafter. The responses to the subpoena duces tecum apparently satisfied plaintiff since nearly all of the requested documentation was provided and no objection was made to the adequacy of the response at the time.

The trial judge did not abuse his discretion in refusing to grant the motion to produce. LSA-C.C.P. art. 1492, which provides for production of documents, is located in that portion of the Code dealing with “Depositions and Discovery” (Book 2, Chapter 3) and accordingly deals with pre-trial discovery of evidence. Article 1354 of the Code sets forth the means (“subpoena dttces tecum”) whereby documents may be produced during trial. The trial judge was entirely correct in his ruling. Furthermore, plaintiff was not prejudiced by the ruling.

III. Variotts "Procedural” Errors

A number of procedural errors were alleged to have been committed by the trial judge in the conduct of the trial itself. We find no abuse of discretion in any of the rulings which we will now briefly discuss.

ITEM 1. Evidence taken out of turn.

The trial judge did not err in permitting the interruption of the presentation of plaintiff’s case by permitting certain evidence to be produced out of turn by the defendants. What was involved was the introduction of a hospital record and a police report which required simply that the custodians of those records identify by brief testimony that these were the subpoenaed documents. This was permitted in order for these custodians to make production of the subpoenaed documents and give their brief testimony and then return to their places of employment. This is usual and customary and does not constitute an interruption of such proportions as to amount to an abuse of the trial judge’s discretion.

ITEM 2. Unapproved release of plaintiff’s witnesses.

Two State Troopers called as witnesses for the plaintiff unaccountably left early on the first day of trial, and for that reason, the proceedings had to be recessed at 4:00 o’clock in the afternoon. Nothing in the record shows who released the witnesses. It was apparently a misunderstanding. Nothing in the record suggests any error on the part of the trial judge in handling the situation that required an early recess. His explanation to the jury more than amply protected the plaintiff from any conceivable adverse effect of stopping early on the first day. He said: “Nobody is to blame for this afternoon, and nobody is to be condemned for our quitting early today, and I am sure you don’t mind that.”

ITEM 3. Motion pictures of plaintiff

The trial court refused to allow a showing to the jury of color motion pictures of the plaintiff. Plaintiff’s stated purpose for the showing of these films was to depict his life while confined in Veteran’s Administration Hospital in Memphis, Tennessee. After viewing the motion pictures, the trial judge denied plaintiff’s request on the grounds that such evidence would only be cumulative and would add no additional value to the still photographs already in evidence. There were fourteen still photographs already in evidence showing essentially what the motion pictures showed.

A determination of whether motion pictures are admissible into evidence is largely within the discretion of the trial court. Carvell v. Winn, 154 So.2d 788 (La.App., 3rd Cir., 1963); Luquette v. Bouillion, 184 So.2d 766 (La.App., 3rd Cir., 1966). One of the plaintiff’s medical experts, Dr. David Schienberg, identified the photographs as accurately depicting the condition of the plaintiff while in the hospital. The additional evidence of motion pictures would have cumulated evidence already before the jury. The trial judge was evidently of the opinion that the sympathy effect of the additional evidence would outweigh its probative value. This ruling was not an abuse of his discretion.

ITEM 4. The Ronald Johnston testimony.

Likewise, the refusal to allow plaintiff to question his private investigator, Ronald Johnston, who had visited plaintiff in the hospital shortly before trial, was not an abuse of trial court discretion. Johnston was a private investigator who had been hired by plaintiff’s counsel to assist him with the preparation of his case. He took the hospital photographs of Ashley that were introduced into evidence. Counsel for plaintiff proposed to have Johnston testify concerning a visit with Ashley shortly before trial. The trial court refused to allow such questioning, not only on the grounds that it would be cumulative, but also because it would require the witness to give an expert opinion. Insofar as his testimony would have supplied verbal description of what was shown on the photographs, it was not needed. Any testimony going beyond that point would have been opinion or hearsay testimony and was properly excluded on those grounds.

ITEM S. Expert witnesses.

There were several other allegations of trial court error having to do with the competency of expert witnesses to testify and the questioning of these witnesses. The determination of who shall testify as an expert is a matter within the sound discretion of the trial judge. State Department of Highways v. Huson, 166 So.2d 3 (La.App., 2nd Cir., 1964); Carvell v. Winn, 154 So.2d 788 (La.App., 3rd Cir., 1963); Hargis v. Travelers Indemnity Company, 248 So.2d 613 (La.App., 3rd Cir., 1971). Experience alone is enough to qualify a man as an expert. Shaw v. New Orleans Public Service, 188 So. 187 (Orl.La.App., 1939). We find no error in the trial court’s rulings recognizing as experts the witnesses whose expertise plaintiff questions. We find no support in the record for plaintiff’s allegation that he was not allowed to ask leading questions of these experts.

ITEM 6. Cross-examination of Mrs. Jinks.

Mrs. Jinks, former wife of plaintiff, Ashley, testified on behalf of the plaintiff. Her testimony tended to show that plaintiff was a good provider. On cross-examination, defendants were permitted to use a petition for separation filed by Mrs. Jinks against her former husband in the family court in East Baton Rouge Parish in which the allegation was made that Ashley was not a good provider. This was offered to impeach the testimony of Mrs. Jinks. Plaintiff complains that it was error on the part of the trial judge to permit the use of this petition on the cross-examination for the reason that the petition was not personally verified by Mrs. Jinks.

In our civil procedure a petition is not required to be verified by the party filing it. Declarations made therein amount to full proof against the party. LSA-C.C. art. 2291. Such declaration may be used for impeachment purposes. Succession of Bates, 227 So.2d 19 (La.App., 2nd Cir., 1969). The trial court’s permission for the use of the separation petition against Mrs. Jinks for impeachment purposes was correct.

ITEM 7. Alleged misconduct of juror.

Plaintiff asks us to find that the trial court was in error in failing to grant a new trial based on the alleged misconduct of a juror. It is contended that an official of Diamond, one of the defendants, was seen conversing with one of the jurors during a recess. The record is totally silent on this subject. We do not know what transpired. In his brief, plaintiff tells us that there was an intimate conversation between the official of one of the defendants and one of the jurors, and that the official was apprehended by the bailiff and brought before the court. We are told by the defendants that the official was questioned about such an alleged event by the court and that the court having determined that the conversation was innocuous, admonished the official to avoid all contact with the jurors thereafter, and nothing more came of the issue. Without additional facts before this court, it cannot be held that this alleged irregularity or misconduct resulted in any prejudice to the plaintiff. Viator v. Gilbert, 206 So.2d 106 (La.App., 4th Cir., 1968).

ITEM 8. Interruption of closing arguments.

Plaintiff’s counsel was interrupted during his closing argument by an objection that he was improperly making reference to a book not in evidence. Plaintiff urges that this interruption resulted in prejudice to his client and that the court should have “dressed down” defense counsel.

Counsel for plaintiff was in fact making direct references to a book which had earlier been ruled inadmissible. He made several such references before an objection was made. The objection was good. The trial judge, however, minimized whatever embarrassment or disadvantage an unfavorable ruling on the objection at that juncture might have caused counsel for plaintiff, by simply advising him to: “Go on to something else.” There was nothing erroneous about the trial judge’s conduct in this instance.

IV. Failure to Inform the Jury of Limits of Various Applicable Insurance Policies

There were five insurers involved, one insuring Diamond, three insuring Nissan, and one insuring Brown. Counsel for plaintiff requested that the jury be informed of the policy limits in each case. The trial judge denied the request, ruling that it was improper to acquaint the jury with the amount of coverage involved.

The majority of the court conclude that the trial court was correct. The basis for this conclusion that a jury should not be informed of the policy limits where liability insurance is involved in a tort action is that this would violate the established jurisprudence that a defendant’s ability to pay damages is not a proper subject of inquiry where the purpose is to show his affluence or wealth.’ Hartman v. Aschaffenburg, 12 So.2d 282 (La.App., 4th Cir., 1943); Winzer v. Lewis, 251 So.2d 650 (La.App., 2nd Cir., 1971). A defendant’s ability to pay is a proper subject of inquiry to determine a defendant’s lack of ability to respond in judgment, if he is impecunious. Tabb v. Norred, 277 So.2d 223 (La.App., 3rd Cir., 1973) and Williams v. Garner, 268 So.2d 56 (La.App., 1st Cir., 1972). This is a just and practical rule. On the other hand, allowing evidence of a defendant’s affluence or wealth to justify a greater award, is unjust. To allow policy limits to go before the jury would undoubtedly lead to the rule that a defendant’s ability to pay may be inquired into by plaintiff for all purposes, since there is no logical basis for admitting the amount of insurance coverage and refusing to disclose an individual defendant’s financial status.

VI. Informing Counsel Concerning Proposed Jury Instructions

Counsel for plaintiff filed written requests for eighteen special jury instructions. We have studied these special requested charges and compared them to the actual charges given to the jury by the trial court, and it is apparent that all eighteen were substantially incorporated into the actual charges. Nevertheless, counsel for plaintiff assigns as error the failure of the trial judge to inform him prior to closing argument of his disposition of the requested charges.

LSA-C.C.P. art. 1793 provides as follows :

“At the close of the evidence or at an earlier time during the trial as the court reasonably directs, a party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury.
“A party may not "assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objections out of the hearing of the jury.”

It is apparent that the literal requirements of Section 1793 were not complied with. The court did not inform counsel of its proposed action upon the requests prior to the arguments. However, counsel did not request the information but embarked upon his argument without making such a request.

There is no Louisiana case dealing with the specific provisions of Article 1793 on which plaintiff’s counsel bases this assignment of error. However, the same language is contained in Rule 51, Federal Rules of Civil Procedure, which is the source of Article 1793. The Federal courts have held that the provisions of Rule 51, FRCP which requires:

“ . . . that counsel be informed by the judge of his proposed action on requests to charge prior to their arguments to the jury, was intended neither as a trap for the judge nor as an indispensable ritual for all cases but as a means for the guidance of counsel in shaping their arguments when such information is needed for their guidance. Consequently, when counsel embark upon their summations without any request for such information, the trial judge may usually infer that they envisage no need for such information and treat the requirement as waived.”

Finkle v. N. Y., N. H., and H Railroad Company, 26 F.R.D. 9 (U.S.D.C.C.Connecticut, 1960).

The second paragraph of LSA-C.C.P. art. 1793 provides that a party may not assign as error the failure to give a requested instruction unless he objects to said failure before the jury retires. In this instance, plaintiff did request instructions timely and the trial court failed to inform him prior to argument that the requested special instructions could not be given. Plaintiff did not request the court to pass on his request for special instructions and did not object to the failure of the court to inform as to whether the instructions would be given. Therefore, under the unequivocal terms of Article 1793, plaintiff may not assign error in this regard.

VII. Jury Instructions Relating to Product Liability

The next assignment of error has to do with the exact language of the jury charges pertaining to the liability of the manufacturer to the public. In framing these charges, the trial judge obviously relied upon the decisions of Weber v. Fidelity & Casualty Ins. Co. of New York, 259 La. 599, 250 So.2d 754 and Meche v. Farmer’s Drier and Storage Co., 193 So.2d 807 (La.App., 3rd Cir., 1967).

As to the liability of the manufacturer, the trial court gave the following instructions :

“A manufacturer of a product which involved a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an «injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused as a result of that defect.
“A manufacturer of a product which involved the risk of injury to the user to (sic) another by reason of a defect in design or manufacture is liable only when the injured party is without fault, and second, the manufacturer might reasonably have anticipated the injury, and third, the injury is a direct and proximate cause of the defect.
“A plaintiff asserting the liability of a manufacturer for injuries allegedly caused by said manufacturer’s defective product, must prove that the product was defective or unreasonably dangerous to normal use and that his injuries were caused by reason of that defect.”

The only error ascribed to these instructions is that they fail to refer to “warranty” by name. We find no error in the above instructions. They correctly reflect the substance of the decisions in Meche and Weber. We fail to see how the addition or deletion of a reference to the term “warranty” could have further enlightened the jury as to the applicable law.

VIII. Exhibits in Jury Room

After the jury commenced its deliberations, it sent out word asking for some of the documents that had been introduced. At this point plaintiff made the request that all- of the exhibits be sent to the jury room. The trial court denied that request, sending in only those documents- specifically requested by the jury. This is alleged to have been error on the part of the trial court.

We conclude that this was not error. LSA-C.C.P. art. 1794 declares that the jury “ . . . may take with them any object or document received in evidence which requires a physical examination to enable them to arrive at a just conclusion.” There is no suggestion in the quoted language that it is mandatory that all exhibits be physically placed in the jury room, as plaintiff contends. Its language suggests the opposite. Also, for comparison purposes and as indicative of the legislative intent, Code of Criminal Procedure Article 793, .states specifically that:

“Upon the request of a juror and in the discretion of the court, the jury may take with it or haye sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.” (emphasis supplied)

It was not error for the trial court to refuse to order that all exhibits- in the case be put in the jury room.

IX. Manifest Error — Jury Verdict

The next contention is that the jury committed manifest error because there was no reasonable evidentiary basis for the decision by the trial jury to dismiss the suit as to the manufacturer.

Our duty on appellate review requires us to affirm unless the decision on the facts was manifestly erroneous. In reviewing the decision of the trial jury we follow this guideline as expressed in Canter v. Koehring Company, 283 So.2d 716 (La., 1973):

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

The record presents conflicting testimony and questions of fact only. The specific fact question on which the liability of the manufacturer turned was whether or not on June 11, 1972, there was any defect in the right rear wheel cylinder of the Datsun and whether such a defect, if any, contributed to the happening of the accident. There was testimony by two expert mechanics that they road tested the automobile after it had been repaired following the June, 1972, accident, and that they found no defects in the brakes at that time. Another expert mechanic testified on behalf of the plaintiff that he first saw the Datsun automobile in October of 1972, months after the accident and after the repairs resulting from the accident, and that then there was a defect in the right rear wheel cylinder. This was the conflicting testimony on which the jury had to make its decision of fact.

We find no manifest error in the result reached by the trial jury.

Plaintiff makes the similar complaint that there was no reasonable eviden-tiary basis for the decision by the trial jury to dismiss the suit as to the retailer, Diamond. Without detailing the testimony, it is sufficient to merely state that on reviewing the entire record in this case we conclude that the plaintiff failed to prove that a defect existed in the Datsun automobile at the time it was sold by Diamond.

X. The Award.

The last issue raised by plaintiff on this appeal is that the trial jury abused its great discretion in awarding him only $36,000.

Plaintiff was only 26 years old when he suffered this accident which rendered him permanently a paraplegic. If there were some way we could justifiably increase this obviously low award, we would do it. It is apparent that the jury also struggled with the problem. Having found liability on the part of Brown and exonerating Nissan and Diamond, the jury knew that only one insurer, Early American Insurance Company, was left in the picture. The jury may have suspected low limits. We have no way of knowing this. The limitation of liability of Early American was only $5,000. Brown testified from the witness stand as to his occupation and means and ability to respond to any judgment rendered against him. The case of Tabb v. Norred, 277 So.2d 223 (La.App., 3rd Cir., 1973) and Williams v. Garner, 268 So.2d 56 (La.App., 1st Cir., 1972) state the principle that the trier of fact can and should consider the impecuniousness of the defendant in making an award, and the impecuniousness of Brown was apparently taken into consideration by the jury in this case.

Considering all the circumstances of this case, the “much discretion” protection afforded the jury concerning the amount of the award requires us to affirm.

The judgment is affirmed, all costs to be paid by plaintiff-appellant.

Affirmed.

YELVERTON, Judge

(concurring in part and dissenting in part).

I concur with my colleagues in affirming the judgment of the jury but I disagree with the part of the opinion which deals with “IV. Failure to Inform the Jury of Limits of Various Applicable Insurance Policies”. I concur in the result, because I believe that the failure of the trial judge to inform the jury of the policy limits was not prejudicial error but I disagree, and therefore dissent, from the majority’s declaration that trial courts should as a matter of law conceal from the jury the policy limits of an insurance defendant before it.

It is my opinion that where either party requests it, the jury ought to be informed of the amount of insurance. In a direct action state such as ours the insurance contract itself is admissible in evidence as the very basis of jurisdiction. Since the existence of insurance coverage is before the jury, there is no reason why a candid revelation of the policy limits ought not likewise to be made so as to completely reveal the interest of the insurer in the outcome of the case.

I do not agree with the majority that there is a danger such a rule will lead to permitting a plaintiff to show an individual defendant’s ability to pay. An insurance company’s policy does not reflect its ability to pay, only the limits of its liability to pay. On the other hand, the amount of the policy will in many cases directly affect the established right of an impecunious individual defendant to interpose his inability to pay. How can he effectively establish his impecuniousness in a low insurance, high damage situation, when he cannot show the amount of his coverage ?

The fear that “insurance verdicts” will result from knowledge of the policy limits has no greater foundation in fact than the fear that “insurance verdicts” will result from the knowledge that insurance exists. If in fact there are verdicts high or low in direct proportion to the amount of insurance, it seems to make no sense at all to turn a jury loose on its deductive skills alone to guide it as to the amount of insurance in a case. The erroneous “insurance verdict” may thus be compounded by the further and possibly even graver error of misjudging the amount of insurance. I think it makes better sense to simply be as truthful to the jury as we expect them to be with us. I think it is better, where the parties request it, to be candid with the jury and tell them exactly what each insurer provides, then combine with that a cautionary instruction that the amount of insurance should not be considered in assessing the award, and that a plaintiff is entitled only to such an award as will reasonably and fairly compensate him for the injuries and damages sustained.

For these reasons I concur in the result reached by the jury and affirmed by us; I disagree with the majority only with ré-spect to informing a jury of the policy limits. It is my opinion that the jury should be informed of the limits of liability of every insurance defendant where any party requests it.


author: LANDRY, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Raymond B. COLBY (Colby Inn, Inc., Substituted).
    No. 10382.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 25, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 1C, 1970.

      A. William Mysing, Jr., and Marian M. Livaudais, Covington, for appellant.
    William W. Irwin, Jr., Johnie Branch, Jr., Asst. Gen. Counsel, Highway Dept., Baton Rouge, and Alvin J. Liska, Asst. Gen. Counsel, New Orleans, D. Ross Banister, Gen. Counsel, Jerry F. Davis, Asst. Gen. Counsel, New Orleans, for appellee.
    Before LANDRY, BLANCHE and BAILES, JJ.
   LANDRY, Judge.

Substituted defendant, Colby Inn, Inc. (Owner), appeals from a trial court award of $26,593.00 for the total taking of a 3.559 acre tract belonging to Owner, which property was expropriated by plaintiff (Department), for improvement of U. S. 190, St. Tammany Parish. Owner complains that the amount awarded is inadequate. Owner also urges that the trial court erred in rejecting Owner’s claim for expert witness (surveyor’s) fees incurred in the preparation of certain maps and plats allegedly essential to the presentation of Owner’s case. We amend the judgment to increase the award for the land taken. We affirm that portion of the decree which rejected Owner’s claim for the expert witness fees mentioned.

In addition, Owner contends the trial court erred in: allowing the Department to present its case in chief on rebuttal; basing its conclusions as to land value on a report of one of the Department’s experts, which report was not introduced in evidence ; and accepting conclusions of a Department expert, as to land value, which conclusions are contrary to law and ignore established pertinent facts.

The Department urges affirmation of the judgment rendered. Alternatively, the Department requests a remand to permit introduction of further evidence of land value. The Department also suggests the trial procedure followed was proper considering that in an expropriation proceeding the landowner bears the burden of establishing land values in excess of the Department’s deposit. Lastly, the Department contends Owner has waived its right to complain of the trial court’s alleged consideration of improper evidence because Owner failed to apply for a new trial as required by LSA-C.C.P. art. 1972.

On June 17, 1971, the Department proceeded pursuant to LSA-R.S. 48:441 et seq. (the quick taking statute), to expropriate subject tract by depositing $12,457.00 into the registry of the Court, and naming Raymond B. Colby as defendant-owner. An order of expropriation ensued on June 22, 1971. The matter remained dormant until May 21, 1973, when Colby excepted on the ground he was not the owner and had not been record owner of subject tract since August 21, 1970, approximately 10 months prior to the filing date herein. The Department amended its petition to name Colby Inn, Inc. as owner and obtained a supplemental expropriation order on June 25, 1973.

Subject tract is an irregularly shaped parcel of land. It is the remainder of a larger tract taken by the Department from Alcide Apken in 1965, for construction of a diamond design interchange then contemplated for the intersection of U. S. 1-12 and U. S. 190, St. Tammany Parish. The taking from Apken left subject tract in the southeast quadrant of the diamond design interchange. The northern boundary abutted the southern boundary of proposed I-12 for a distance of 1,306 feet, and would have been separated from said right of way by an access control fence. The western boundary of subject tract abutted the eastern extremity of U. S. 190 right of way, on which it fronted for a total distance of 142 feet, but from which it would have been separated by an access control fence. The southern boundary abutted the northern limits of Ponchitowala Estates Subdivision. The eastern limit of the tract was a point at the intersection of the southern boundary thereof, the southern right of way boundary of 1-12 and the northern boundary of Ponchitowala Estates Subdivision. For most of its depth, the tract was 168 feet wide. Road access to the parcel would have been by a proposed service road paralleling U. S. 190 and extending approximately 450 feet northerly from Ponchitowala Drive (which intersects Highway 190), to the southwest corner of subject tract. Visual access to subject tract would have been complete along both 1-12 and 190. The tract would have been free of zoning or other restrictions. Access thereto would also have been provided by means of a dedicated but uncon-structed street extending through Ponchito-wala Estates Subdivision to the southern boundary of subject tract at a point approximately midway on the southern boundary.

The crucial issue is whether Owner is entitled to the enhanced value of the land resulting from the first taking which contemplated a diamond design interchange, subsequently changed to a modified cloverleaf design, which resulted in the present taking. The jurisprudence is established to the effect that the present taking was for a separate project, one not reasonably foreseeable as a modification or extension of the original plan; consequently owners are entitled to the enhanced values of their properties resulting from the initial expropriation. See State, Through Department of Highways v. St. Tammany Homestead Association, 304 So.2d 765 (La.App.1974).

Upon commencement of trial, counsel for Owner requested permission to submit its case first since the burden rests upon the landowner to establish values in excess of the amount deposited by the Department as alleged just compensation. The trial court ordered the Department to proceed first. The trial court then reminded counsel of an agreement to exchange appraisals at the beginning of trial. Owner’s counsel tendered copies of its appraisals. Counsel for the Department declined to present its appraisals, taking the position that it would present its evidence first.

The Department then produced two experts, Edward J. Deano, Jr. and Henry B. Breeding, Jr., both of whom, upon instruction from the Department, valued the property without benefit of the enhanced value resulting from the diamond design interchange originally contemplated.

Mr. Deano deemed the best and highest use of the land to be commercial. In keeping with the premise that no enhanced value resulted from the first taking, Deano used three comparables, all situated outside the proposed diamond interchange. In this manner, he determined the value of subject tract to be $4,000.00 per acre, or a total of $14,236.00.

Mr. Breeding found the front (western) 350 feet of the tract to be commercial. Using three comparables to value this portion, Breeding arrived at a value of $12,800.00 per acre or $15,360.00 for this part. The rear portion was deemed by Breeding to be residential with an indicated value of $2,000.00 per acre, or $2,718.00 for this portion. He thus arrived at a total value of $18,078.00 for the whole. Both Deano and Breeding indicated the nearest access to subject tract from Highway 190 was approximately one mile. This is clearly erroneous. Plats of the interchange introduced by Owner, hereinafter discussed, show that access to Highway 190 is gained by travel 450 feet along a service road to Ponchitowala Drive, which intersects Highway 190.

Owner called Frank J. Patecek as an expert appraiser. Mr. Patecek considered subject tract’s best and highest use to be commercial, as land adjoining the diamond interchange. Patecek stated he could find no true comparables, meaning no sales of land within the limits of the 1-12/190 interchange. For this reason, he utilized sales of lands situated within the interchange at I — 10 and Gause Road some distance away, at the outskirts of Slidell, Louisiana. Patecek valued subject land as enhanced by the taking for the diamond design interchange. Mr. Patecek noted the excellent location and adaptability of subject tract as a motel site adjacent to a diamond interchange. He pointed out that access to subject tract from Highway 190 was available by travel along a service road 450 feet to Ponchitowala Drive. He also noted the very fine visual access of subject tract to I — 10 along the entire 1300 foot northern boundary of subject property. The I-10-Gause Road interchange, where Patecek selected his comparables, is quite similar to the 1-12/190 interchange. Included among Patecek’s comparables are two motels and a truck stop. All of the comparables are situated behind control of access fences; none are first off locations; none have as good visual access to Gause Road as subject tract has to Highway 190. Patecek also noted that the traffic count on 190 at the 1-12 interchange was 12,200 daily during 1971, while the count on Gause Road was 1,020 for the same period. Patecek valued the property at 55 cents per square foot, or $85,226.50 for the whole.

Kermit Williams, testifying for Owner, considered subject tract’s best and highest use, abutting 1-12, to be highway commercial and particularly adapted to a motel site. Williams employed seven compara-bles in reaching his valuation. None were situated within the 1-12/190 interchange. However, all fronted directly on U. S. 190, within one and one-half miles to the south and three-quarters of a mile to the north of subject tract. None of the comparable tracts had visual access to 1-12. Williams made adjustments to compensate for subject tract’s lack of direct access to Highway 190. He employed a time adjustment factor of 1% per month in reaching his valuation. We note that transactions cited in support of this time adjustment factor amply support his conclusion in this respect. Mr. Williams concluded subject land was worth $23,325.00 per acre, or $83,014.00 for the whole.

Owner also produced Eddie J. Champagne, Surveyor, who identified a series of engineering drawings prepared by his firm under his personal supervision. These exhibits show in detail the location and relationship of subject property to the original diamond design interchange, and the subsequent change thereof to a modified cloverleaf design. They also reveal all relevant aspects of the property’s location in each instance and indicate the location, shape and size of all comparables utilized by Owner’s appraisers.

The trial court admitted these offerings subject to the Department’s objection, but refused to tax as costs Champagne’s fee for preparing the exhibits. The trial court concluded the exhibits were unnecessary and of no material aid in determining the question of value. Relying upon U. S. Constitution Amendments 5 and 14, and Louisiana Constitution 1921, Article I, Section 2, which provide for due process and compensation to owners for property taken for public purposes, Owner maintains he is entitled to recover Champagne’s fees, as well as all other expenses incurred herein, to make Owner whole.

No citation of authority is needed in support of the principle that expert witness fees incurred by an owner in defense of an expropriation proceeding brought against him are recoverable. As indicated by Owner, recovery of such fees are necessary in order to make the owner whole. However, such fees are not recoverable by an owner unless incurred in the presentation of evidence which aids the court in determining an issue or issues involved in the litigation. If the Owner presents evidence which proves to be of no probative value, he does so at his own expense. We are of the view that in assessing the probative value of such evidence, much discretion is vested in the trial court, whose decision in the matter will not be disturbed on appeal except in case of a manifest abuse thereof. In this instance, the trial court concluded that Champagne’s charts were unnecessary and of no assistance to the court. From the record we find no abuse of the trial court’s discretion in this regard.

After presentation of Owner’s case, the Department called Mr. Breeding in rebuttal. Owner objected to Breeding’s testimony concerning an alternative appraisal pursuant to which Breeding valued the land as enhanced by the original taking for a diamond design intersection. The testimony was offered by the Department in rebuttal of that by Owner’s experts concerning the enhanced value of the property. The Department contended in effect that if enhanced value was to be considered, the amount thereof testified by Owner’s experts was excessive.

Owner complains that the trial court improperly admitted this rebuttal evidence contending that such evidence should properly have been offered when the Department presented its case in chief. Owner also contends the rebuttal offered represents a complete reversal of the Department’s position in chief concerning the enhanced value question and was therefore improper rebuttal. In support of this contention, Owner cites and relies upon Joiner v. Gafford, 32 So.2d 756 (La.App.).

In further support of its position, Owner points out that on June 22, 1971, the Department deposited $12,451.00 into the registry of the court as compensation for the land taken. The deposit was based on the Department’s contention that no enhanced value was due from the original taking. The appraisal on which the deposit was made does not appear of record although it is conceded such an appraisal was in fact made. In presenting the Department’s case in chief, Breeding and Deano valued subject property without benefit of enhanced value from the prior taking. Deano’s appraisal exceeded the deposit by $1,800.00; Breeding’s appraisal was $5,700.00 higher than the deposit. The rebuttal appraisals of Deano and Breeding are dated June 27, 1974 and July 1, 1974, respectively. Trial of this matter was held October 9, 1974.

Owner argues that before trial, the Department was prepared to abandon its contention that compensation for land taken should not include enhanced value resulting from the former expropriation. Owner also argues that at this time, the Department was aware of the decision rendered by this court in State, Through Department of Highways v. Beatty, 288 So.2d 900 (La.App.), which decision settled the issue of whether the taking for a cloverleaf interchange for subject intersection was a second taking, and which decision became final when the Supreme Court refused writs therein on April 11, 1974. Owner points out that this same result was reached in State, Through Department of Highways v. Covington Interstate, Inc., 295 So.2d 828 (La.App.), and State, Through Department of Highways v. Wax, 295 So.2d 833 (La.App.), rendered September 19, 1974.

We find the testimony offered by the Department was proper rebuttal as held by the trial court. While it is true, the Department consistently argued no enhanced value was due as a result of the prior taking-, nevertheless, the Department was entitled to show on rebuttal, if it could, that the enhanced value attested by Owner’s experts was excessive. We find no inconsistency in this position. Joiner, above, relied upon by Owner, is factually inapposite.

Mr. Breeding’s rebuttal appraisal is of no probative value. In making this particular appraisal, Mr. Breeding employed two comparables. One was the purchase of subject property by the original defendant, Ray Colby, from Apken, on May 3, 1968, for the unit price of $7,025.00 per acre. The other was a transfer from Ap-ken to North Lake Properties, on October 29, 1971, indicating a unit price of $5,081.-00 per acre. The sale to North Lake occurred four months after the present taking. Breeding’s testimony virtually concedes the North Lake transaction was not a proper comparable since it postdated the taking. Moreover, our jurisprudence is settled to the effect that post expropriation sales are not considered as probative in determining market value of land at the time of expropriation. State, Through Department of Highways v. Christy, 283 So.2d 533 (La.App.).

We also find the use of subject tract as a comparable to be of no probative value under the circumstances of this case. The change from diamond design to modified cloverleaf design interchange was first announced in November,' 1968. The first attempt at expropriation herein was on June 22, 1971. It is conceded that subsequent to November, 1968, subject tract was effectively out of commerce and any sale thereof could not reflect its true market value, if it sold at all in the interim. However, the tract was in fact sold in the interim when, on August 20, 1970, Raymond Colby transferred the land to Colby Inn, Inc., for a recited consideration of $107,000.00. If the sale of subject tract were the proper criteria for fixing market value, it would appear the value has been established at $107,000.00. To allow a sale of property, made after its pending expropriation has become known, to fix its market value for condemnation purposes, would lead to results which are obviously to be avoided. Such a principle is in direct derogation of the well established rule that market value, for condemnation purposes, is that price paid as between a willing and informed buyer and a willing and informed seller, in the ordinary course of business, calculated upon the best and highest use of the land involved, State, Through Department of Highways v. Spillman, 276 So.2d 905 (La.App.).

Although Deano’s rebuttal appraisal report is found in the record transmitted from the district court, it was never introduced by the Department. Deano’s testimony on examination in chief makes no reference to this report other than the fact it had been made. Deano was not called by the Department on rebuttal. The record discloses that in fixing its award herein, the trial court relied primarily upon Deano’s report which was not offered in evidence. In this regard, the trial court erred. Items of evidence which are physically placed in the record of a cause, but which are not properly introduced and admitted in evidence by the trial court, may not be considered by any tribunal in deciding the merits of the case. Mackie Pine Products Co. v. Frederick, 148 La. 687, 87 So. 712.

We conclude the only credible evidence of record concerning the value of subject property is that of the experts, Pa-tecek and Williams. Their appraisals appear well reasoned and founded upon judicially sanctioned appraisal formulas and techniques. We are particularly impressed with Williams’ appraisal and adopt it as the measure of damages to be awarded in this instance.

Under the circumstances, we do not deem the Department entitled to a remand to further litigate the issue of enhanced value. The Department was well aware alleged enhanced value would be a prime issue herein, and had ample opportunity to offer evidence on this question. For reasons best known to itself, the Department chose the procedure hereinabove indicated. We note that it would avail the Department nothing to have Deano’s report properly introduced in evidence. Two of the three comparables Deano used in this appraisal are the same as the two utilized by Breeding, and which have been discussed above. Consideration of Deano’s report would not change the outcome of this action.

It is ordered, adjudged and decreed that the judgment of the trial court be and the same is hereby amended in that the award in favor of defendant Colby Inn, Inc. against plaintiff, State of Louisiana, Through the Department of Highways, be and the same is hereby increased to the sum of eighty-three thousand fourteen and No/100 ($83,014.00) dollars, subject to a credit of twelve thousand four hundred fifty-seven and No/100 ($12,457.00) dollars, together with interest on the sum of seventy-thousand five hundred fifty-seven and No/100 ($70,557.00) dollars from June 22, 1971, until paid.

It is further ordered, adjudged and decreed that the expert witness fees of Frank Patecek and Kermit Williams, appraisers, be and the same are hereby fixed at the sum of one thousand five hundred and No/100 ($1,500.00) dollars, each, and that the judgment rejecting expert witness’ fees for Eddie Champagne, surveyor, be and the same is hereby affirmed; the State of Louisiana, Through the Department of Highways, being cast for all costs taxable against it under the law.

Amended and rendered.


author: PICKETT, Judge:

text:
    Moses GRIMES v. RED BALL MOTOR FREIGHT, INC.
    No. 10430.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 16, 1976.

      Wm. H. Cooper, Jr., Baton Rouge, for appellant.
    Ralph Brewer, Baton Rouge, for appel-lee.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   PICKETT, Judge:

This is a workmen’s compensation suit. The plaintiff Moses Grimes sustained a back injury on September 8, 1973, and received compensation benefits and medical expenses through June 16, 1974. At that time, the defendant stopped payments, relying on the medical opinion of Dr. William L. Fisher that plaintiff was then asymptomatic and able to return to his usual and ordinary occupation.

The plaintiff was also examined and treated by Dr. James W. Lorio both during the period of admitted disability and also thereafter until shortly before the date of the trial, on January 15, 1975. He was of the opinion that, in view of the nature of plaintiff’s employment requirements of repeated heavy lifting, plaintiff was still disabled and Dr. Lorio advised that he not return to such work.

The Trial Judge stated the following:

“Thus the Court is faced with extreme divergence of medical opinion. However, it notes that Dr. Fisher has not seen the plaintiff since June 6, 1974, whereas Dr. Lorio has continued to treat him. Under the circumstances the Court accepts the evaluation of Dr. Lorio that the plaintiff is totally and permanently disabled.”

The Trial Judge denied the claim for statutory penalties and attorney’s fees, finding that the defendant had not been informed of any medical opinion contrary to that of Dr. Fisher, so that the discontinuance of payments was not arbitrary or unreasonable.

The defendant has appealed, primarily contending that the evidence is insufficient to support a finding of total and permanent disability. We find no manifest error in this respect and affirm. Plaintiff answered the appeal, asking for a review of the denial of penalties and attorney’s fees. We also affirm this ruling by the Trial Judge.

At the time of the accident, plaintiff was employed as a truck driver and dock checker at the rate of $6.31 per hour. He slipped and fell from a ledge onto a drum below. He apparently straddled the drum in the act of falling and sustained injuries to the lower back, groin, tailbone and genitalia. The evidence shows that his normal duties in the loading and unloading of trucks included repeated heavy lifting, (in-excess of thirty-five pounds.)

Plaintiff was hospitalized and underwent a myelogram on December 18, 1973. The results indicated a “questionable herniated intervertebral disc at the level of LS-S1 on the left.”

On February 6, 1974, Dr. Fisher, assisted by Dr. Lorio, performed a lumbar laminec-tomy, which both physicians termed successful. Both also termed the post-operative course successful. The “extreme divergence of medical opinion” arises at the end of this post-operative period, and then only as to the plaintiff’s ability to resume the duties he was formerly employed to perform. In essence, Dr. Fisher thought he could do so, but Dr. Lorio thought he could not safely do so, that is, without working in pain or risking aggravation or reinjury. (Dr. Lorio clearly stated that plaintiff was capable of gainful employment but not of.work of this nature.)

The defendant contends that Dr. Lorio’s opinion is founded only upon plaintiff’s subjective complaints, which in turn are suspect because of certain inconsistencies in plaintiff’s testimony as a whole. (The inconsistencies alleged involve the plaintiff’s description of the severity' and continuing nature of his pains, as compared with his testimony that he could do some housework, driving, fishing and other light work.)

We find, however, that the plaintiff’s employment and military history, as shown by the record, shows that he was anything but a malingerer or hypochondriac.

But even conceding the possibility of exaggeration of complaints, the Trial Judge obviously had no reservations about the plaintiff’s credibility. Moreover, these alleged inconsistencies do not bear on the ultimate question of disability as it relates to the particular job requirements. His testimony relative to the things he could still do would only be important if his former work involved similar stresses or exertions.

We hold that several well-established rules of workmen’s compensation law apply.

A person is considered disabled if he cannot thereafter compete with able-bodied men in the same job market. Carlisle v. Great American Ins. Co., La.App., 291 So.2d 449 (1974); Easterling v. Employers Liability Assur. Corp., La.App., 203 So.2d 852 (1967).

A person is not required to resume the same work if he must work in pain or with substantial risk of aggravating the injury. Taranto v. Kaiser Aluminum & Chemical Corp., La.App., 280 So.2d. 403 (1973); Montgomery v. Delta Concrete Products Co., Inc., La.App., 290 So.2d 769 (1974).

The ability to perform less strenuous work does not preclude a finding of disability to perform former duties. Miller v. Morton Intern., Inc., La.App., 260 So.2d 55 (1972).

If the employer has reason to believe that the disability has diminished, he may apply to the court for a modification of the judgment and further medical examinations. La.R.S. 23:1331; Montgomery v. Delta Concrete Products Co., Inc., supra.

Finally, we find that the defendant was justified in discontinuing payments, in reliance on Dr. Fisher’s opinion of June 16, 1974, and in the absence of any knowledge of a contrary medical opinion.

Accordingly, the judgment of the Trial Court is affirmed, at defendant-appellee’s costs.

Affirmed.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Evelyn Smith JAMES et al.
    No. 10151.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.

      Charles E. Pilcher and Johnie Branch, Jr., Asst. Gen. Counsel, Baton Rouge, for plaintiff-appellant.
    John Dale Powers and Robert A. Hawthorne, Jr., Baton Rouge, for defendants-appellees.
    Before SARTAIN, ELLIS, and BAR-NETTE, JJ.
   BARNETTE, Judge.

This is an expropriation proceeding brought by the State of Louisiana, through the Department of Highways for the acquisition of 32.710 acres of unimproved land situated in West Baton Rouge Parish for right of way for Interstate Highway 10.The parcel of land required is part of a large tract owned by Evelyn Smith James, widow of Joseph James, and Louis Joseph James. It is situated approximately four or five miles west of the Interstate-10 Mississippi River bridge.

The right-of-way severs the James property leaving a portion south of the highway. The northern portion has access from a road referred to as Silvery Lane. This access was unchanged by the highway construction. The south portion which was not accessible before the taking is now served by a service road which is a part of the highway project. There is therefore no issue of severance damage and the only issue is the amount of just compensation for the 32.710 acres taken.

There is some conflict and confusion of testimony as to the total acreage in the James property. It is referred to as a 281.84 acre tract and there is reference to a certain 80 acre northern portion projecting from the main tract. The trial court judge in his “opinion” described it as follows :

“I might mention at this point that the expropriated property is located at the dead end, the western dead end of a lane or road called Silvery Lane; and while we are discussing the site, we might say that the property as shown on P-9 and other exhibits which are not necessary to elaborate upon at this point, is shaped on the northern portion thereof as a finger or a peninsula if water were involved. There’s no water, but there’s a finger of land which is comprised of eighty acres and then the land branches out below the eighty-acre tract to the east and to the west into a tract forming the main portion of the three hundred and twenty acre tract which are two hundred and forty acres. The taking for I — 10 comes into the bottom two hundred and forty acres below the eighty-acre site, and cuts across from east to west and does not touch the eighty-acre site at all. I mention ihis because the testimony and photographs introduced in this case show that the land expropriated falls into a heavily wooded area; whereas, the finger of land, the eighty-acre tract, is partially cleared and partially wooded.”

The Department deposited in the registry of the Court at the time of the taking, July 23, 1969, the sum of $9,885, being the appraised value of the portion taken, as compensation to the landowners.

The defendants answered, denying the adequacy of the compensation deposited and alleged that the fair market value was much in excess thereof. They prayed for judgment in the amount of $49,065.00 as compensation for the 32.710 acres taken and $72,000 in severance damages. Their demand for severance damage was later withdrawn with a stipulation that there was no severance damage to the remainder of their property.

There was judgment in favor of the defendant landowners for the exact amount prayed for, namely $49,065 ($1500 per acre) plus $100 for a fence, as just compensation. Expert witness fees totaling $2125 for defendants’ two expert witnesses were fixed by the court and taxed as cost. The Department of Highways has appealed.

The contract for the substructure of the Interstate-10 Mississippi River bridge was let on April 30, 1963 and for the superstructure on April 19, 1965. The bridge was completed and opened for traffic, September 23, 1968 and had been in use approximately 10 months when the subject property was taken. The question of enhancement of value of the property as a result of the construction of the Mississippi River bridge and what, if any, consideration should be given to that factor in the appraisal of the subject property and adjustments in the comparables used will be discussed more fully below.

A description of the general area and the subject property was given by the Department’s expert witness, George Platt, with his opinion of its highest and best use, as follows:

“A before and after appraisal was made. I have photographs here in color of the subject property. The neighborhood is approximately four miles west of Port Allen. It’s bounded on the north by Louisiana Highway 190 and on the east by Louisiana Highway 415. The land is principally used for farming, sugar cane and cattle. There are scattered homes which range from modest frame homes to new brick veneer homes. There are a few small mobile home parks in the general area and on Silvery Lane there are two mobile homes right there before you get to the property. The land is undeveloped. A drainage canal cuts through the tract north of I-10. A Gulf States Utilities servitude extends across the north remainder in an east-west direction and is a hundred feet wide.
“Topography and drainage can be described by saying the land is flat and slopes gradually to the south. The elevation on the north side is approximately eighteen feet and its slopes to fourteen feet on the south side of the property. Land within the taking was approximately fourteen to fifteen feet in elevation. Utilities in the immediate neighborhood which are available to adjoining property owners were electricity and natural gas.
“Before the taking, the subject property had no road frontage at all with the only access being to the tract by way of Silvery Lane, a gravel street which dead-ended at the east property line of the north remainder of the subject and also a north-south asphalt road which also dead-ended at the north remainder of the subject.
“The north remainder is approximately half open and half in thick woods. The open land is in high weeds and underbrush. The part taken and the south remainder is and was in woods. Railroad trackage is not present.
“* * * The land appears to be low in elevation, approximately fourteen to eighteen feet, most of the land being poorly drained forested soil. The land appears to be alluvium from the Mississippi River. The soil has some clay in it, the subject type of low back swamp or low woodland chiefly used for hardwoods and grazing. That’s the type of property it is.
“As I consider the subject site for its highest and best use estimate, I notice that the functional adequacy of this site as a farm appears to be affected by the following: the limited, amount of open land, possibly thirty acres of open land with the balance in low woodland which would make it maybe fifteen percent open and eighty-five percent in woods. The site has no road frontage at all before the taking. Drainage appears to be poor. The elevation is low, fourteen to eighteen feet. The hundred-foot Gulf States Utilities right-of-way is considered to be a nuisance to some extent, in my opinion. There are no improvements on the land other than barbed wire fencing. In my opinion, the highest and best use is agriculture land with grazing on the north and hardwood timber on the balance.”

The Department of Highways relied on two expert appraisers, namely, Chester A. Driggers and George Platt. The defendant landowners relied on one expert appraiser, namely, Thomas B. Dupree. Six other persons, experts in professional areas other than real estate appraisal, testified on the soil composition and its potential for use in cement manufacture, brick making, and as a source material for lightweight concrete aggregate. Two of these witnesses were industrial plant managers and executives and the other four were soil analysis experts and geological consultants and engineers.

The Department rested its case upon the testimony of its experts, Driggers and Platt which we still discuss in some detail below. The defendants then called as their first witness, Mr. Dupree, whose qualifications as a real estate appraiser were not disputed. Mr. Dupree from the outset sought to establish the theory of highest and best use of the subject property to be for “clay mining.” After testifying at length and in great detail in support of this theory and his income approach based thereon, he concluded by fixing the value of the subject property at $1650 per acre which he rounded off to $1500, the amount which defendants prayed for in their answer.

The trial of the case was continued to be resumed on the second following day. When Mr. Dupree was then called back to continue his testimony he had what he termed a “supplementary appraisal” based on the market data approach by using the comparable sales method of determining market value. He concluded that the highest and best use of the property in question was for residential subdivision development and on this basis fixed its value at $1500 per acre. Counsel for the Highway Department strenuously objected to this witness’ adoption of two highest and best use theories. Further objection was made to defendants’ switch to the market data approach by the use of comparable sales, based on defendants’ answer to interrogatories that it had not considered the use of comparable sales to any great extent and made no disclosure of them at the pretrial conference, thus leading plaintiff to believe they would rely on their clay mining theory. Over this objection Dupree’s testimony on the residential subdivision development theory was admitted and was ultimately accepted by the trial judge and made the sole basis of his judgment.

The trial judge totally rejected the clay mining theory as the best and highest use of the subject property. His judgment in this respect is correct. It is supported by clear and convincing testimony that the clay is not suitable for lightweight aggregate ; was not needed for cement manufacture and there was no market for it for that purpose. The companies using such material had ample reserves for many years into the future. Furthermore, clay of that character is distributed throughout a wide area and possesses no unique commercial value. For contrast see: Lafayette Airport Commission v. Roy, 265 So.2d 459 at page 492 (La.App. 3d Cir. 1972), writs refused, 263 La. 1159, 266 So.2d 444 and 262 La. 1160, 266 So.2d 444 (1972).

The plaintiff’s witness, Driggers, found the highest and best use for the part taken to be agricultural. He did however find the front portion, being approximately 80 acres, which had access to Silvery Lane to have a “potential” value “for subdivision use.” This potential he discounted as speculative and competitive with more suitable land available nearer to developed areas. He made a clear distinction in character between the front and rear portions of the property based on accessibility, clearing, type of soil, drainage and elevation and did not find the rear portion, including the part taken, to have the speculative subdivision potential which he attributed to the northern 80 acres. In this respect his opinion differs from that of Mr. Dupree who found the entire tract to have “potential subdivision development” value. The other expert, Platt, for reasons quoted above found the highest and best use to be agricultural with grazing on the north and hardwood timber on the rear portion.

All three experts used comparables with adjustments to arrive at a (per acre) unit value as of the date of the taking. The property in question, especially the portion taken was isolated, inaccessible and unimproved and no truly comparable sales were found. Most of the comparables used were either some distance from the subject property, or very small parcels such as two homesites on Silvery Lane or large improved estates with special advantages such as plantation improvements, cultivation and major road and railway access, thus requiring much adjustment for comparable use.

Plaintiff’s expert appraiser, Driggers, used five comparables from which, after making many adjustments arrived at the figure of $300 per acre for the 32.710 acres expropriated. We are impressed with the personal physical inspection and extensive and detailed study which he put into his appraisal. In our opinion he demonstrated an impressive expertise in regard to the subject. Among the comparables used by him were two sales of homesites on Silvery Lane near the northern 80 acres of the James property. The sales were in November, 1966, two acres each, to a father and son-in-law for homesites. The unit price (per acre) was $1425. This Mr. Driggers adjusted to $1000 per acre for comparable use, since they were small tracts.

The defendants’ appraiser, Dupree, also used these two sales as comparables and adjusted them upward to $1567 per acre. He acknowledged on cross examination that the northern 80 acres of the James property (that nearest these two compara-bles) was more valuable than the southern portion (from which the land in question was expropriated) but nevertheless he gave a $1500 per acre appraisal to the whole of the James property.

In addition to these two comparables, Dupree used eight others, one of which was rejected because it was subsequent to the date of expropriation of the subject property. All of the other comparables used by him required major adjustments because of special advantages of location, size, accessibility, industrial and plantation development and highway frontage.

Plaintiff’s expert, Platt, used four comparable sales and after making adjustments arrived at an appraisal of $350 per acre for the subject property. His comparables, like those of the other two experts, were not truly comparable but referred to by Mr. Platt as “satisfactory index sales.” Each of the properties used as comparables by this witness had special advantages, such as open land, sugar cane cultivation, major highway or railroad frontage or both, and advantageous location and re-qired much adjustment for use as compa-rables.

The trial court judge evidently had difficulty as we do in relating the compa-rables used by all the experts to the subject property because of the major adjustments which their special features required and their great dissimilarity to the subject property. Perhaps for this reason he gave prime consideration to the two comparables used by both Mr. Driggers and Mr. Du-pree, namely, the two 2 acre homesite sales on Silvery Lane. We think both the appraiser, Dupree, and the trial judge were in obvious error in relying on these two sales to give equal value to the south portion of the James property as they did to the north 80 acres with which these two sales might more nearly approach comparability. The opinion of Mr. Driggers on this difference in value is much more logical and reasonable. We find no evidence or reason to give the same acreage value to the portion of the James property expropriated as that on the north which has access from Silvery Lane.

Furthermore, we think less weight should be given to the opinion of Mr. Du-pree who hastily assembled ten comparable sales for his “supplementary appraisal” in the one day recess of the trial. He did not and could not give the extensive study to the comparables used as was given by the other two experts. He was a resident of Shreveport and had never before appraised property in West Baton Rouge Parish, whereas, the other two experts had had extensive experience in the appraisal of property in that area. Furthermore he came to court prepared in detail to defend his “clay mining” and income approach theory and changed to the market data approach during the course of the trial.

The opinions of all experts in expropriation proceedings, having equal qualifications and having reached conclusions based on equally relevant evidence and founded on well supported logical reasoning, should be given equal consideration by the courts. Lafayette Airport Commission v. Roy, supra; Parish of East Baton Rouge v. S & H Heating Company, Inc., 216 So.2d 360 (La.App. 1st Cir. 1968).

Among the factors which the court should consider in determining the relative weight to be given the opinions of experts, especially when they are at such wide divergence as here, are their familiarity with the property expropriated and the area in which it is located; the thoroughness of their study; and the soundness of the reasons given in support of their estimates. Lafayette Airport Commission v. Roy, supra, 265 So.2d at page 472, and citations there given; State Through Department of Highways v. Thurman, 231 So.2d 692 (La.App. 1st Cir. 1970); State Through Department of Highways v. Singletary, 185 So.2d 642 (La.App. 1st Cir. 1966); State Through Department of Highways v. Adams, 184 So.2d 744 (La.App. 2d Cir. 1966).

Applying this test to the testimony of the three expert appraisers in this case, it was manifest error for the trial court to disregard the opinions of experts Driggers and Platt and to rely solely upon the opinion of the expert Dupree. Of the three experts who testified, he was least familiar with the subject property and the entire area. He devoted the least time (one day) to the study of the comparables and he had not personally inspected any of the property except the portion expropriated and thus did not possess the personal knowledge which the other appraisers had upon which to base a reasonable and logical comparison of values.

This consideration is all the more important in situations, as here, where there are no true comparable sales to be found in the area of the subject property. In such situations the court may rely on the testimony of experts who have dealt extensively with sales and purchases of lands in the area. Their opinions may be relied on to establish value. State, Department of Highways v. Gielen, 184 So.2d 737 (La.App. 3d Cir. 1966).

An additional reason not to follow the opinion of Mr. Dupree, which the trial court did in manifest error, is that his “supplemental appraisal” based on his theory of highest and best use being potential residential subdivision development is entirely without support. Mr. Dupree admitted that none of the comparables used by him were subdivision properties. He did not know of any plans the defendants had for future subdivision development. He was unfamiliar with local ordinances regarding subdivisions. He did not know the distance to the nearest subdivision. He did not know when the last subdivision was opened in West Baton Rouge Parish, nor how many there are in the area. He did not know the demand for subdivisions in the area, but thought the demand for acreage for “future use of subdivision apparently is very good in West Baton Rouge Parish,” but could not name anyone contemplating such an investment. He speculated that such a development of the subject oroperty might be expected in ten years. The subject property is not near any other subdivision and until the highway was constructed the entire southern portion of the James property was without means of access.

In Recreation and Park Commission v. Drago, 247 So.2d 908 (La.App. 1st Cir. 1971), writ refused, 259 La. 749, 252 So.2d 452 (1971), this Court said:

“The cases are legion which hold that in the order to ascribe a certain purpose as constituting the highest and best use to which property being condemned may be put, it must be shown that such use is ‘reasonably prospective’; ‘reasonably possible’; ‘reasonably probable’; or ‘reasonably certain.’ This potential use must be reasonably prospective and removed from the realm of guesswork, speculation and conjecture. See State Through the Department of Highways v. Brooks, La.App., 152 So.2d 637 (1963) and Central La. Elec. Co. v. Harang, La.App., 131 So.2d 398 (1961), and many other kindred cases.”

See also State, Department of Highways v. Talbot, 200 So.2d 97 (La.App. 1st Cir. 1967), writ refused, 251 La. 49, 202 So.2d 658 (1967). In that case this court cited with approval and quoted from Central Louisiana Electric Co. v. Harang, 131 So.2d 398 (La.App. 1st Cir. 1961) as follows:

“It is common knowledge that any tract of land wheresoever situated may be physically divided into residential plots or lots and subdivided irrespective of the demand for such property. However, potential subdivision use, to serve as the basis for establishing market value in an expropriation proceeding, must be shown to be reasonably prospective, as distinguished from remotely prospective, so as to remove said potential use or classification from the realm of guesswork, speculation and conjecture. If such potential future use is shown within the reasonably near future the owner is entitled to compensation on the basis of best and highest use for subdivision purposes even though the property affected be not in use for such purpose at the time of taking. However, if the potential (as, indeed, there is a potential in every case no matter how remote) is so indefinite or remote as to be predicated solely upon speculation and conjecture, it may not serve as the criteria of market value. (Emphasis added)
“Thus has been held in Plaquemines Parish School Board v. Miller, supra [222 La. 584, 63 So.2d 6], that while the fact that a piece of property may at some time become valuable for residential subdivision purposes may be taken into consideration in determining its market value in expropriation proceedings, to classify its best and highest use as subdivision purposes, it should be made to appear that there is logical expectation it mqy be so developed in the reasonably near future. It was therein further held that the mere possibility of future subdivision use is too speculative.” 131 So.2d at p.401.

The use of the subject property for subdivision development is exceedingly remote, highly improbable and not reasonably prospective. It is at best in the realm of sheer speculation. We will therefore reject Mr. Dupree’s appraisal based on this unfounded theory of highest and best use.

All of the comparable sales used by the three experts were dated after the Interstate Highway 10 Bridge was either under construction or completed. All the witnesses agree that the bridge had a marked influence on all the property in the area, even that some distance from the highway. Whatever influence it had was reflected in the sales used as comparables. To what extent defendants’ witness Mr. Dupree might have considered this influence on the subject property is not of material significance since we have rejected his opinion for other reasons. It is not necessary therefore to discuss this issue about which there was much argment in the Court below and in briefs filed in this Court.

The defendants have failed to discharge the burden of proof which the law imposes upon the landowner to establish the value of the property taken by convincing proof. “Such proof must be positive and certain and cannot rest upon mere speculation.” State, Department of Highways v. Shelton, 192 So.2d 161 (La.App. 2d Cir. 1966), writ refused, 250 La. 16, 193 So.2d 528 (1967); State, Department of Highways v. Bassemier, 203 So.2d 881 (La.App. 1st Cir. 1967) and numerous cases these cited; State, Department of Highways v. Jacques, 197 So.2d 414 (La.App. 4th Cir. 1967); LSA-R.S. 48:453. This statute before amendment by Act 30, Ex. Sess. of 1974 provided:

“In either case [value or damage] the defendant has the burden of proving his claim.”

The 1974 amendment deleted this provision, but the act provided that the provisions of the act “shall not affect any action, suit, or proceeding” filed prior to January 1, 1975. Therefore the provision of the act above quoted applies to this suit.

The defendants have failed to discharge that burden of proof and we must therefore determine the just compensation from the testimony of plaintiff’s experts.

Mr. Driggers found the highest and best use of the part taken to be agricultural, but made a distinction in value between the north and south portions. The front or north portion he found to have a “speculative” potential for subdivision uses but not so for the part taken which he termed agricultural. Mr. Platt found the highest and best use for the whole property to be agriculture and grazing and for the part taken, timber growing.

There is practically no difference in their opinions of highest and best use and their appraisals vary only to the extent of $50 per acre. We will therefore accept the higher of the two, namely that of Mr. Platt and render judgment accordingly. Mr. Platt also made an allowance of $100 for the fence taken. This will be included in the judgment.

For these reasons the judgment appealed is amended by reducing the award of compensation for the land and fence taken from $49,165.00 to $11,549.00 with credit given for $9,885.00 deposited in the registry of the Court. In all other respects the judgment is affirmed.

Amended and Affirmed.