author: STOKER, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. James E. BRANNON, Defendant-Appellee.
    No. 5963.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.

      William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Edward A. Michel, Bryan Miller by Bryan Miller, Baton Rouge, for plaintiff-appellant.
    Asa Allen Skinner and Roy Tuck by Asa Allen Skinner, Leesville, for defendant-ap-pellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   STOKER, Judge.

Plaintiff Louisiana Department of Highways appeals in this expropriation matter seeking a reduction of the trial court award to defendant-landowners of the sum of $50,675.00. Plaintiff appellant also alleges that defendant-appellees are not entitled to the award of the $600.00 expert appraiser’s fee awarded to them by the trial court. This case involves the expropriation of 4.891 acres of land in Vernon Parish for highway improvement purposes under the “quick taking” statute, LSA-R.S. 48:441-460. The State deposited $22,657.00 in the registry of the court on the day of the taking, May 21, 1970, which was withdrawn by the landowner, James E. Brannon.

The landowner filed an answer to the expropriation suit and prayed for the fixing of an award of $66,600.00 with interest and costs.

The property taken was used for residential and commercial purposes. Severance damages are not involved.

The trial court gave written reasons for judgment on September 15, 1976. The value of the land taken at the time of the taking was fixed at $37,800.00. The value of the improvements was fixed at $12,-875.00. The total award was $50,675.00 and defendant-appellee’s expert appraiser’s fee was fixed at $600.00.

The appellees do not complain of the award. The appellant Department of Highways does not contest the award for improvements of $12,875.00. The only assignments of error are the value placed on the land taken and the award of the expert appraiser’s fee.

FACTS

The expropriated property is located on the west side of Highway 171 (the Shreveport-Lake Charles Highway) a little over five miles south of Leesville, Louisiana. It is located opposite the highway or road leading into Fort Polk. It has a frontage of 378 feet on the west side of the highway by an average depth of 450 feet but is quite irregular in shape. Of the 4.891 acres, a total of 4.714 acres (parcel 2-8) was taken in full ownership and 0.171 acres (Parcel 2-8-D-l) was taken as a permanent servitude of drainage. However, the appraisers and the trial court considered that the taking of the servitude amounted to a full taking for practical purposes and full value was assigned to it. A schematic drawing of the property is attached as Figure 1 to show the shape of the parcels and their relationship to the highway and entrance to Fort Polk. This sketch is based on plaintiff’s exhibit 3 introduced into evidence. As will be noted the highway leading into Fort Polk joins U.S. Highway 171 on the east forming a “Y” junction and runs in a southeasterly-northwesterly direction.

Until the taking the property had a combined use as residential and commercial. The commercial use consisted of an automobile repair shop, service station and used car lot. The highest and best use of the property is as rural residential and highway commercial.

VALUE OF THE LAND TAKEN

At the trial of the case one appraiser testified for each side. Mr. Normand Terry testified as an expert for the State and Mr. Leonard H. Thomas testified for the landowners. The appraisals perts were as follows: of these two ex-

Normand Terry (State):
Value of improvements $12,875.00
9.782.00 Value of land
Total taking $22,657.00
Leonard H. Thomas (landowners):
Value of improvements $28,800.00
Value of land 37,800.00
Total taking $66,600.00

It will be noted that the trial court accepted the lower appraisal for the improvements and the higher appraisal for the land. The issue on this appeal is whether the value of the land should be fixed at $9,782.00 or at $37,800.00. We find that the record adequately supports the trial court’s fixing of the value of $37,800.00 and affirm.

Plaintiff-appellant avers that the trial court erred in numerous respects in fixing the value of the land. One of the main contentions is that the landowner’s appraiser used only one comparable and relied on two sales made after the taking. Both appraisers considered sales made after the taking, but both testified that such sales were considered for comparative purposes only, that is, as a check on the before taking sales used as comparables. Mr. Terry considered four land sales he deemed as comparable which were made in 1964 and 1969. He adjusted the per acre sales prices upward. The testimony of the two appraisers is summarized as follows:

Normand Terry’s Comnarahles
Estimated value
No. A ores Sale date May 21.1970
2 1.653 1964 $2,700.00 per acre
3 3.857 1964 $3,250.00 per acre
11 2.75 1964 $2,650.00 per acre
28 8 (net) 1969 $ 562.00 per acre
Sales considered by Normand Terry after taking IMav 21.19701
A 1.451 acres 1- 5-71 $3,583.74 per acre >
15.743 acres 11-16-70 $1,397.45 per acre Cd
.954 12- 7-70 $8,385.00 per acre O
1.449 8-18-70 $3,458.00 per acre O
T.ennard H. Thomas’ Comparable
No. Aerea Sale date Unit Price per aere
1 .85 8-21-69 $5,880.00
Salea considered by Leonard H. Thomas after taking ÍMav 21. 1970)
2 .958 acres 11-17-70 $8,350.00 per acre
3 .615 acres 6-18-70 $5,200.00 per acre

■ Sale C considered by Terry appears to be the same sale considered by Thomas as Number 2 which was from Esben F. Sheridan to Robert Kite. Terry computed this sale at $8,385.00 per acre and Thomas computed it at $8,350.00 per acre.

On the basis of his considerations Mr. Terry placed a value of $2,000.00 per acre on the land taken in the instant case. He valued the 4.891 acres at $9,782.00. The landowner’s appraiser valued the land at $37,800.00 based on a per acre value of $7,728.00. In its written reasons for judgment the trial court reviewed the compara-bles used by the appraisers and the post-taking sales referred to by them, together with other factors to be discussed below and summed up as follows:

The comparable used by the appraiser for the landowner together with the Rogers-to-Department of Highways sale appear to be more reasonably applicable to the present (time of taking) value than those comparables used by Mr. Terry.
After having reviewed the various com-parables used by both the Department’s appraiser and that of the landowners, this court is of the opinion that the landowners’ appraiser’s determination of value of the land is more reasonable and factually applicable to the assessment of land value than that of the Department’s.
On the other hand, it is the opinion of the court that the department’s appraiser’s evaluation of the improvements is more realistic and acceptable than that of the appraiser for the landowner.

From the foregoing comments we conclude that the trial court made a fair and independent evaluation of the testimony of the appraisers, and his conclusions are supported by the record. Both appraisers gave as their opinion testimony, what must be abundantly evident, that there is no such thing as an exact comparable. However, the gist or thrust of the Department’s argument in brief and oral argument is that appraisals, using comparables, are subject to some process of computerization resulting in exact calculations of value. To make the result in this case come out in the State’s favor, it would also be necessary as a predicate that the conclusions and opinion of the State’s appraiser be adopted. Despite the fact that the landowners’ appraiser used only one comparable, we do not regard that as necessarily invalidating his opinion. Moreover, Mr. Terry’s compara-bles, consisting of four sales, occurred several years prior to the taking, and it was necessary for him to adjust his figures considerably.

Courts are not bound by appraisals. Expert opinions are not ordinarily conclusive and are generally regarded as advisory in character. State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972). The testimony of experts, based upon comparable sales (as the appraisers deem them comparable) are but aids to the court. The judge has the responsibility of fixing the proper compensation and the testimony of expert appraisers is for his assistance only. State, Department of Highways v. Anselmo, 301 So.2d 915 (La.App., 4th Cir., 1974), writ refused 304 So.2d 671 (La.1974).

THE COLLINS-TO-ROGERS-TO-DEPARTMENT SALE

The Department bitterly complains of the action of the trial court in considering what the trial court referred to as the Rogers-to-Department of Highways sale. The property referred to lies just south of the property of appellees and is shown in Figure 1 as Parcels 2-4 and 2-5. Parcel 2-5 is 141.97 feet south. This property formed a part of Mr. Terry’s comparable number 28 which he stated was eight acres net usable land. He fixed a value on this property of $562.00 per acre. Mr. Terry’s comparable 28, considered as eight usable acres, was based on a sale of 20 acres by Richard W. Collins to Henry Cain Rogers on October 30,1969. At the trial it was brought out that the heirs of Rogers had conveyed Parcels 2-4 and 2-5 to the Department on May 18, 1970, just three days before the date of taking, and that Mr. Terry had appraised the property for the Department in connection with the acquisition. Over objections, the trial court permitted the landowners to introduce in evidence a copy of the instrument of sale dated May 18, 1970, which conveyed the Rogers property to the Department. After the case was closed the trial court, on its own motion, ordered that Mr. Terry be required to give further testimony by deposition concerning this comparable 28 and details concerning his appraisal of the Rogers-to-Department sale of Parcel 2-5.

The two parcels in question were sold for $10,872.00. Mr. Terry testified in the course of the trial that he had made the appraisal but could not recall the figure at which he had appraised it. He stated that he understood that the State had paid approximately $10,000.00 for it. There were no improvements on the land but the Department objected to the introduction of the sale on the ground that the recited consideration was not only for the land, but was for any severance damages suffered as a result of the conveyance. It was urged that the bare sale could not disclose what was paid for the land itself.

Mr. Terry testified in his deposition that in the end he concluded he should disregard the sale of Collins to Rogers on the ground that the recited price was inexplicable. Nevertheless he included it in his appraisal report (P-8) as his Comparable 28.

We do not believe that either of the sales involving this property (Collins to Rogers or Rogers to Department) should be considered as indicators of the value of the property taken. On the other hand, certain facts concerning this land could properly be considered by the trial judge. Mr. Terry appraised Parcel 2-5 alone as having a value of $10,000.00. The trial court could properly have considered this appraisal in judging the credibility of Mr. Terry. In view of the fact that Mr. Terry appraised Parcel 2-5 at much higher figure than that at which he appraised the Brannon property, (Parcel 2-8) the trial court was justified in concluding that the opinion expressed by Mr. Terry should be rejected and that of Mr. Thomas should be accepted.

ADVERSE PRESUMPTIONS APPLIED AGAINST THE DEPARTMENT OF HIGHWAYS

The appellant urges that the trial court erred in applying certain adverse presumptions against it. Appellant charges that the trial court unwarrantedly assumed that the Department and its appraiser withheld information from the court. In the trial court’s written reasons for judgment the following appears:

Prior to the taking the Department had this property appraised by two appraisers, Mr. Normand Terry, who testified in court on its behalf, and by Mr. Darrel V. Willet. Mr. Willet was not called as a witness and no explanation was forthcoming from the Department as to why he did not appear as a witness.
* * * * * *
The court has been denied the benefit of the testimony of the other appraiser for the Department . . . There is an adverse inference to be drawn from the failure to produce the other Department appraiser. See State of Louisiana, Department of Highways v. Willet, 322 So.2d 383 [La.App.].
* $ * ‡ ‡ #
Furthermore, it appears there was a conscious effort on the part of the Department and the appraiser, Mr. Terry, to withhold from the Court the particularly pertinent testimony about a sale of certain property (Henry Cain Rogers sale) to the Department prior to the subject taking. The court had the benefit of this transaction only after ordering the testimony to be taken of Mr. Terry subsequent to the trial hereof.

After a careful reading of the testimony, we are unable to agree that the evidence convincingly discloses that Mr. Willet actually made an appraisal of the Brannon property for the Department. Beyond being present when Mr. Terry inspected the property, we do not know what role Mr. Willet played. Therefore, we do not feel that on this point there is any evidence in the record upon which an adverse presumption could be applied.

As to comments of the trial court regarding the failure of Mr. Terry to testify at the trial concerning his appraisal of Parcel 2-5 prior to the issue being raised by the landowner, we cannot say these comments were unwarranted. However, we consider them immaterial in view of our holding concerning the trial court’s justification in judging the credibility of Mr. Terry on the basis of his appraisal of Parcel 2-5 in relation to his evaluation of the Brannon property.

FAILURE OF THE TRIAL COURT TO RECOGNIZE THE PROBATIVE VALUE OF ONE OF ITS OWN JUDGMENTS

The appellant, Department of Highways, complains of the refusal of the trial court to recognize the probative value of one of its own judgments and the failure to admit the judgment and reasons for judgment supporting it into evidence. In this regard, the trial court erred. Prior judicial decisions of the value of expropriated property are good evidence of the value of similar property in subsequent expropriation proceedings. State, Department of Highways v. Romano, 316 So.2d 129 (La. App., 1st Cir., 1975); State, Department of Highways v. Alien, 243 So.2d 337 (La.App., 4th Cir., 1971) writ refused, 258 La. 245, 245 So.2d 716 (1971) and State, Department of Highways v. James, 226 So.2d 535 (La.App., 4th Cir., 1969). Such decisions are not controlling but may be considered along with other competent evidence adduced. Consequently, the prior judgment should have been admitted into evidence along with the reasons for judgment. However, we do not find that this error should change the result reached by the trial court under the circumstances of this case.

The judgment in question and the written reasons for judgment were permitted to become a part of the record by the trial court under an offer of proof. Although the trial court did not recognize the probative value of these items, we fail to find that they have any probative weight. In perusing the reasons for judgment, we are unable to relate the findings in the proffered reasons for judgment to the facts of this case. The record does not indicate that any testimony was offered for the purpose of relating the reasons given in the prior case to the property under consideration in this case. Therefore, the error of the trial court in refusing to admit the proffer judgment and reasons for judgment is immaterial inasmuch as we assume that the trial judge would not have been any more enlightened by them than we have been.

FAILURE OF APPELLEE’S APPRAISER TO APPRAISE SUBJECT PROPERTY AS OF THE DATE OF THE TAKING

Appellant has urged that the testimony of Leonard H. Thomas and his opinion is without validity because he valued the property as of October 14,1970, rather than the date of the taking which was May 21, 1970. This is certainly correct insofar as the record is concerned. Appellees readily concede that Mr. Thomas' appraisal report indicates the appraisal was made as of October 14,1970. Mr. Thomas admitted in his testimony that his report uses that date. Appellees urge however, that there should be no doubt that Mr. Thomas intended to declare that his appraisal applied to the date of taking rather than October 14,1970.

Appellee’s assertion is supported by the record. In the transmittal letter addressed to Mr. James E. Brannon, appearing at the beginning of Mr. Thomas’ appraisal report, he opens by stating: “Pursuant to your request of October 14, 1970, I have thoroughly examined your property He concludes by stating: “It is my honest opinion that the market value of the subject property as of October 14, 1970 was: $66,000.00.” However, the appraisal report contains pictures of the subject property and its improvements taken in November of 1970, and on the page containing photograph number 1 a general explanation appears, which we quote as follows:

**Explanation: Pictures shown were taken in November of 1970. Property was expropriated in May of 1970. Had been vacated since that time with no care, upkeep or maintenance.

This cautionary statement referring to all the pictures clearly indicate that Mr. Thomas was familiar with the date of taking, May 21,1970, and that his appraisal applied to that date. We see no merit to appellants’ contention that Mr. Thomas’ appraisal did not reflect his opinion as of the date of taking despite the official statement at the beginning of his report. We regard the use of the date October 14, 1970, as an inadvertent error in which Mr. Thomas erred in referring to the date he was requested to make an appraisal rather than the date of taking.

Although appellant is technically correct in regard to this particular point, it is without substantial import. The error is not so grave as to affect the essential validity or worth of the appraiser’s opinion.

BURDEN OF PROOF

Appellant makes the general assertion that the trial court erred by misplacing the burden of proof in this case concerning the proving of the value of the expropriated property. We find the appellees have carried their burden of proving the value of the expropriated property. Under our findings in this case, the trial court’s acceptance of the appraisal of the land by Mr. Thomas rest upon his opinion based on one comparable sale which occurred prior to the taking. We find no error in this inasmuch as we have found that the trial court was warranted in rejecting the opinion of the Department’s appraiser.

EXPERT WITNESS FEE

In view of our affirmance of the trial court’s award of compensation for the land taken based on the appraisal and opinion of the landowners’ appraiser, the award of an expert witness fee was in order. Appellants do not complain of the amount which was $600.00. As we appreciate the error appellant alleges was committed, it was in awarding any expert witness fee. This is grounded on the position that Mr. Thomas found only one comparable and it should not have been considered as valid. Mr. Thomas testified that he had made an extensive search for comparables but rejected all but the one comparable he presented. In addition, he found the two post-taking sales which he used to confirm his impression. We regard the fee as having been earned and the amount is certainly reasonable.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal which may be legally assessed against the State of Louisiana are to be paid by the State.

AFFIRMED.

      . Defendant, James E. Brannon died during the pendency of this matter and was survived by a wife, Emily Sumler Brannon, and one son, Jerry Wayne Brannon, who are substituted as parties defendant and are the appellees in this appeal.

      . This represented a sale from Richard W. Collins to Henry Cain Rogers, discussed later in this opinion. Mr. Terry gave later testimony in which he stated he disregarded this sale as a comparable.

      . These sales were as follows:
      A. Marie Pitre Quinn to Wiley C. Edleman
      B. Fred Switzer to James H. Hollenbek
      C. Esben F. Sheridan to Robert Kite
      D. Sherman Enterprises, Inc. to Bonanza
      Mobile Homes of Vernon Parish, Inc.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    SAM’S DIESEL REPAIR SERVICE, INC., Plaintiff-Appellant, v. William E. DAVIS, Defendant-Appellee.
    No. 6072.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Robert F. Fadaol, Gretna, for plaintiff-appellant.
    Gerald J. Arceneaux and Calvin Tyler, Baton Rouge, for defendant-appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Sam’s Diesel Repair Service, Inc., has appealed from a trial court judgment dismissing its suit, which claimed damages of $1300 for the total deterioration in value of a certain “Attex Swamp Buggy”. The deterioraton allegedly resulted from defendant, William E. Davis, refusing to surrender the swamp buggy to Sam’s.

Sam’s sold Davis the Attex swamp buggy at its place of business in Opelousas around November 2, 1970. Davis filed a redhibito-ry action. Judgment was rendered November 26, 1973, ordering rescission of the sale and refund to Davis of the purchase price, $1300. The judgment was paid on May 24, 1974, by a check for $1,473, which included interest but not court costs. The court costs were still unpaid at the time of this second trial. Prior to the time the judgment was paid, Davis had the buggy transported back to Opelousas from Baton Rouge by Audrey Matthews. It was partially dismantled because of repair work attempted at Anchor Marine in Baton Rouge before the rescission of the sale. Anchor Marine has an authorized repair service for Attex swamp buggies. Davis testified that Anchor Marine would not repair the buggy because it was not a new unit and not in warranty, although sold to Davis as new. Anchor Marine wanted $500 to put the buggy in running condition and Davis declined to pay, tendering the buggy to Sam’s as returned to him by Anchor Marine. After Sam’s refusal to accept the buggy in Opel-ousas, Davis kept it in Baton Rouge until January of 1975, when it was placed in storage with Ivan E. Carter. Davis testified that he had never used the buggy after its initial breakdown and had purchased a substitute vehicle. Carter said that it had been stored with him in Baton Rouge from January 4, 1975, until this trial on September 30, 1976, or 635 days, for which the charge was $1 a day. Davis reconvened for these charges, but the trial court dismissed the reconvention without prejudice, leaving this dispute to be settled between Sam’s and Carter. No appeal has been taken from this portion of the judgment, which is now final.

Davis’ attorney advised the attorney for Sam’s by letter dated June 7,1974, that the swamp buggy could be picked up at Davis’ place of business on Choctaw Drive in Baton Rouge. Davis said that the swamp buggy was there until January of 1975 when he closed his business and placed the vehicle with Carter. In June of 1974, Blake Fontenot was going to Baton Rouge to get parts for Sam’s and was asked to stop by Davis’ house to pick up the swamp buggy. Fontenot went to the Davis residence on Chippewa Street but there was no answer at the house. A second trip to Chippewa Street was made in July of 1974. Again, Mr. Davis was not there, but he had not been contacted before either trip.

Davis testified that in June of 1974 he was in Ocshner Clinic in New Orleans and in July he was probably at his shop. Davis denied ever having refused to turn over the swamp buggy and said the only time he was told that someone was coming to pick it up, he waited two hours at his home but no one came.

The only real issue on appeal is whether Sam’s is entitled to damages because the buggy was not tendered in the same condition it was when purchased.

The trial court correctly found that Davis has never refused to surrender the swamp buggy; that he made a good faith attempt to deliver it in Opelousas; and that the condition of the buggy at that time resulted from its original defects. The trial court relied on a strong analogy to LSA-C.C. art. 2532 in concluding that Sam’s Diesel Service was not justified in refusing to accept the buggy. LSA-C.C. art. 2532 states:

“If the thing affected with the vices has perished through the badness of its quality, the seller must sustain the loss.”

This article is pertinent, since the condition of the buggy at the time Davis tendered it to Sam’s resulted from defects existing at the time of the sale. The trial court stated that the subsequent failure of Sam’s to obtain the swamp buggy resulted merely from misunderstanding since Sam’s employees attempted to pick it up at Davis’ residence on Chippewa when they had been advised that it could be picked up at his place of business on Choctaw. We agree.

The attorney for Sam’s contends that his client is entitled to be returned to the status quo, which requires compensation for depreciation of the swamp buggy, citing Dougherty v. Petrere, 240 La. 287, 123 So.2d 60 (1960) and other cases stating that redhibition is not available when property cannot be returned to the seller in substantially the same condition as it was when sold. However, we are not dealing with an action in redhibition since that was granted nearly four years ago. In Dougherty, the Louisiana Supreme Court found that the one seeking redhibition had made tender of the defective article and was not responsible for its deteriorated condition at the time of trial. That is exactly the case here. There is no evidence that Davis used the swamp buggy or in any way profited from its possession after the sale. His testimony was that it had been an inconvenience to him and that he purchased another vehicle. Tender was made, redhibition was ordered, and the subsequent deterioration of the swamp buggy is due as much to laches on the part of Sam’s as to any fault on the part of Davis.

For the foregoing reasons, the judgment of the trial court herein is affirmed at the cost of plaintiff-appellant, Sam’s Diesel Repair Service, Inc.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 6073.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Plauché, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for plaintiff-appellant.
    Stockwell, Sievert, Viccellio, Clements & Shaddock by Fred H. Sievert, Jr., Lake Charles, Clanton & Johnson by John W. Johnson, Eunice, Knight & Knight by Herschel N. Knight, Jennings, for defendants-appellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

This suit arose out of an automobile accident which occurred November 16, 1969, between Calvin C. Mire, the tortfeasor (now deceased) and Euna Rougeau Janice, who was severely injured in the accident and subsequently died of those injuries. Louisiana Farm Bureau Mutual Insurance Company, the plaintiff herein, paid $5,000.00 to the heirs of Euna Janice under the medical payments provisions of a liability policy issued to her.

State Farm Mutual Automobile Insurance Company had issued a liability policy of insurance to Clifford Mire covering the operation of his automobile which was being operated at the time of the accident by his minor son, Calvin, with Clifford’s permission. Plaintiff, being aware of this coverage, informed State Farm of plaintiff’s subrogation rights in regard to the $5,000.00 it had paid to the Janice heirs. State Farm proceeded to pay its entire limit of liability ($10,000.00) to the heirs of Mrs. Janice. Mrs. Janice had incurred $20,000.00 in medical expenses. Clifford Mire paid an additional $11,595.00, and a full release of both State Farm and Clifford Mire was granted.

Plaintiff then brought this action to recover its $5,000.00 under its right of subro-gation, alleging in its petition that its rights had been “ignored” by State Farm. Also made defendants were Clifford Mire, individually and as administrator of the estate of his minor son, Calvin C. Mire, and the succession of Euna Rougeau Janice, through its executor John Ray Rougeau.

On an exception of no cause of action filed by defendant State Farm simultaneously with a motion for summary judgment, the trial court overruled the exception of no cause of action but granted the motion for summary judgment and dismissed plaintiff’s suit. Plaintiff has appealed. We affirm.

The Louisiana Code of Civil Procedure, Articles 966 and 967, the summary judgment provisions, were amended in 1966. The reason for these amendments are given in the official comment immediately following Article 966:

“. . . The amendments of these two articles were adopted to: (1) permit the trial judge to consider answers to interrogatories when deciding the motion for summary judgment; and (2) require the adverse party against whom a motion for summary judgment had been taken to file counter-affidavits, and not permit him to rely on the bare allegations of his pleading.”

Under that Article, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

Thus, Article 967 additionally provides in part:

“. . . When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

Plaintiff alleged in his petition, and suggests in brief that his rights have been “ignored” by defendant in the compromise settlement with the Janice heirs. Defendant cites Richard v. Southern Farm Bureau Casualty Insurance Company, 254 La. 429, 223 So.2d 858 (1969) as the controlling law and the answer to plaintiff’s allegations. We agree. Richard held that:

“. . . Where there are multiple claims arising out of one accident, the liability insurer, in good faith, may enter into reasonable compromise settlements with and may pay some of the claimants, even though such payments may reduce or completely exhaust the insurance fund originally available to pay all claims, so that the remaining claimants have little or no recourse against the insurer . . ”

As suggested in Richard, this is because compromises and settlements are highly favored in the law, and promote judicial efficiency. Also, although concursus proceedings are available, there is no reason to conclude that they are any more equitable than settlements.

We feel that Richard is controlling, and that there are only two prerequisites under the law to the validity of the instant settlement: (1) Was it reasonable? and (2) Was it made in good faith?

Plaintiff does not question the reasonableness of the settlement, but it does argue in brief that the elements of good faith and reasonableness are subjective elements, the required resolution of which precludes the granting of a motion for summary judgment. We agree this would be true had plaintiff raised those issues through his pleadings and affidavit. However, we feel plaintiff has failed to “set forth specific facts showing that there is a genuine issue for trial.” Code of Civil Procedure Article 967, supra. Although we recognize that our method of pleading does not require exactitude in the wording of an allegation, a mere allegation that plaintiff’s rights have been ignored does not amount to an allegation of bad faith on the part of defendant. Richard, in effect, allows an insurer the option of “ignoring” some claimants (subject to good faith and reasonableness of the settlement). Plaintiff, when confronted with the motion for summary judgment, may not, under the amended article, rest on his laurels. Here, it only presented one supporting affidavit which contained no allegation of bad faith. Therefore we feel the granting of the motion was proper, because plaintiff raised no genuine issues as to material fact. As a matter of law (see Richard, supra) mover is entitled to judgment.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs to be assessed against plaintiff-appellant.

AFFIRMED.


text:
    Ernest SOILEAU, Plaintiff-Appellant, v. BITUMINOUS CASUALTY CORPORATION, Defendant-Appellee.
    No. 6074.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Guillory, McGee & Mayeux by John C. Fontenot, Eunice, for plaintiff-appellant.
    Plauché, Smith, Hebert & Nieset by Andrew L. Plauché, Jr., Lake Charles, for defendant-appellee.
    Before HOOD, DOMENGEAUX, and WATSON, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation suit brought by plaintiff, Ernest Soileau, against his employer’s insurer, Bituminous Casualty Corporation. Plaintiff’s employer was Davidson-Louisiana, Inc. Trial was held and the district judge ruled in favor of defendant finding that plaintiff failed to prove a workmen’s compensation accident, and dismissed all of plaintiff’s claims at his cost. Plaintiff has appealed. We affirm the holding of the district judge.

On March 29, 1976, plaintiff and two coworkers were unloading a railroad box car of lumber onto the bed of a trailer truck owned by Davidson-Louisiana in Jennings, Louisiana. Plaintiff claims that while he was attempting to bind down the lumber on the right front side of the trailer, plaintiff slipped and fell onto the road, injuring his lower back. He reported his accident later that afternoon to his employer.

The trial court in his reasons for judgment stated the following:

“. . . The Court also has listened to the testimony, particularly of this plaintiff, as supported by the numerous exhibits that have been filed here. The man has a long history of back ailments for which he has collected a number of settlements; Workman’s Compensation, and otherwise. And there is hardly one iota of truth so far as this Court can determine [in the accident claim] . .”

It is well settled that a plaintiff in a workmen’s compensation case has the burden of proof and is required to establish his claim as in other civil cases.

The testimony of the plaintiff alone may be sufficient to prove the occurrence of an accident if it is plausible, consistent, and is supported by other circumstances appearing from the record. Where plaintiff’s testimony is the sole evidence, it must-be clear and convincing. Alfred v. Travelers Insurance Company, 322 So.2d 872 (La.App. 3rd Cir. 1975).

In the instant case it is apparent that the trial judge simply did not believe the plaintiff’s testimony, which contained numerous inconsistencies. Plaintiff had no other witnesses to the accident since his co-workers were on the other side of the truck from him. Neither did he present any corroborating evidence to support his story. The rule of appellate review in Canter v. Koehring Company, 283 So.2d 716 (La.1973) dictates that we must give great weight to the district judge’s fact conclusions, especially where credibility is concerned. A review of the record satisfies us that the trial judge’s conclusions are well supported.

As was stated in White v. Freeport Chemical Company, 319 So.2d 563, 565 (La. App. 4th Cir. 1975):

“While the courts construe procedural rules liberally in favor of workmen’s compensation claimants, they do not relax the burden of proof, placed equally on such claimants and on claimants in other civil matters, that they must prove their cases by a preponderance of the evidence. Consequently, the testimony as a whole must show more probably than not that an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fall if the evidence shows only the possibility of an accident or leaves it to speculation or conjecture.”

For the above and foregoing reasons the decision of the district judge is affirmed, and costs are assessed against plaintiff-appellant.

AFFIRMED.

      . Appellee, Bituminous, filed a motion to remand to enable it to traverse the order of the district judge allowing appellant to proceed with this appeal in forma pauperis, however this motion has now been withdrawn by appel-lee.

      . The trial judge also mentioned plaintiffs numerous workmen’s compensation claims. Professor Wex Malone commented in his Louisiana Workmen’s Compensation Law and Practice :

      “A good wage earner with a family is not likely to trump up a compensation claim. On the other hand, the ‘professional litigant’ with several past compensation claims is likely to be treated accordingly.”


author: WATSON, Judge. DOMENGEAUX, Judge,

text:
    Harry M. BUSHNELL v. Linda Cheek BUSHNELL.
    No. 6081.
    Court of Appeal of Louisiana, 3rd Circuit.
    Aug. 9, 1977.
    Walter M. Hunter, Jr., Alexandria, for defendant-appellant.
    Gravel, Roy & Burnes, by Dan E. Melic-har, Alexandria, for plaintiff-appellant.
    Antoon & Dalrymple, by Joseph T. Dal-rymple, Alexandria, for plaintiff-defendant-in reconvention-appellant.
    Holt, Wagner & Lee, by Richard E. Lee, Pineville, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

The trial court removed Allison Nikole “Niki” Bushnell, age two-and-a-half, from the custody of her father, Harry M. Bushnell, and returned the child to her mother, Linda Cheek Bushnell, now Mrs. Leo No-land, in a rule proceeding. Because the father had been awarded Niki’s custody at the prior divorce hearing and because the trial judge found no deleterious circumstances in her custodial situation with him, Harry Bushnell has appealed.

The chronology of events relative to the marriage and the child are as follows:

February 12,1972: Harry and Linda married.
March 20,1974: Niki born.
February 6,1975: Parents separated (Niki was about 11 months old).
April 8,1975: Custody, alimony and child support granted Linda.
June 11,1975: Harry granted legal separation on abandonment; Linda given custody.
September 2,1976: Linda petitioned for divorce; Harry reconvened asking custody; accused Linda of adultery with one Noland.
November 2,1976: Judgment granting Linda divorce, but changing custody to Harry.
November 5,1976: Linda married Leo Noland.
December 13, 1976: Rule filed by Linda for return of Niki’s custody.
January 17,1977: Judgment returning permanent custody to Linda.

The reasons for judgment assigned by the trial court in returning custody to the mother by the judgment of January 17, 1977, establish the posture of the case on appeal. In part, the trial court said:

“Considering the above testimony the Court finds that the mother has married Mr. Noland and lived a decent and moral life since this marriage. She is willing and able to provide Niki with a good home. The testimony fails to establish that Niki is suffering from any of the emotional problems urged by the mother and denied by the father. The Court further finds that the home provided by Mr. Bushnell is in no way deleterious.” (TR.50)
* * * * *
“Perhaps it is better to consider the underlying reasons for all of these principles as guide posts in determining what should be the prevailing consideration, the best interest of the child. This Court intends to take that approach. This Court will apply the reasoning behind these principles to the above facts including the age and sex of the child, the period of care by the mother before the custody change, the conduct of the mother requiring the change, the subsequent rehabilitation of the mother, the trauma to a child of this age when separated from its mother, the period of time the child was with the father, the good home provided by the father and the undesirable effect of removing the child from the home to which she may have now become accustomed, in order to determine the prevailing issue — the welfare of the child. In so doing the Court [is] unable to find that there is sufficient evidence to overcome the presumption in favor of the mother. Stated another way, under these facts, this child should still have a psychological reliance on her mother which is stronger than her reliance on any other person. It follows that it is in her best interest to be with her mother.” (TR.51-52)

On appeal, counsel for Harry Bushnell urges strenuously that, since the trial court found no deleterious conditions in Niki’s custody with Harry and relied entirely on the presumption of the mother’s paramount right to custody, the judgment changing custody is erroneous as a matter of law.

After reviewing the record, we find that these arguments are persuasive but not conclusive.

The paramount issue in this case, the trial court correctly held, is the welfare of the child.

Appellant couches his argument that the trial court erred principally on the old “double burden” rule established in Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955) which was to the effect that a person seeking change of custody must prove that (1) the circumstances under which the child is living are deleterious to its welfare and (2) the applicant for a change in custody can provide a better environment. Under this rigid and inflexible approach to custody matters, a person seeking change of custody had no hope unless it could be first established that there were bad circumstances in the child’s custodial situation. In our view, the double burden rule has been abandoned in favor of the approach that the courts must seek, above all else, the welfare of the child. Compare Bourque v. Leger, 322 So.2d 784 (La.App. 3 Cir. 1975). See also Hilliard v. Richard, 291 So.2d 875 (La.App. 3 Cir. 1974) and Cramer v. Mowery, 346 So.2d 331 (La.App. 4 Cir. 1977).

In the case of Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) the Supreme Court laid out four legal principles to be considered in appellate review of custody cases which may be summarized as follows:

(1) The paramount consideration is the welfare of the child.
(2) Generally, the welfare of the child is served by granting custody to the mother, especially a child of tender years.
(3) When the trial court has made a considered decree of permanent custody in light of principles one and two the party seeking to change the custody bears a heavy burden.
(4) On appeal, the trial judge’s decision in custody matters is entitled to great weight.

In reviewing the trial court’s decision to return the custody of Niki to her mother, as measured by the four Fulco principles, we make the following observations:

Principle 1 — Welfare of the Child

The trial court stated that its primary concern was the welfare of the child and it is very difficult to argue successfully against the idea that a 2V2 year old female child, who has been in the custody of her mother all her life except for two months and fifteen days, should be with her mother. In the present case, expert testimony to this effect was given by Dr. Ronald Pryer, chief psychologist at Central Louisiana State Hospital, who had not examined or tested Niki, but gave testimony based upon hypothetical questions.

Principle 2 — Mother’s Presumption

The present case fits precisely; a child of tender years should be placed with the mother.

Principle 3 — Considered Decree

As noted above, we do not believe the so-called “double burden” still prevails in Louisiana as a rigid and inflexible rule. In the present case, the trial court apparently concluded (and if he did not do so, the record establishes) that the mother met the burden of proving that the child should not be left with the father. How “heavy” a burden the applicant for a change in custody must carry will vary from case to case. We do not hold that a child’s custodial circumstances and the length of time in a home are totally irrelevant. Obviously, a court would be reluctant to change the custody of a happy child who has been in one parent’s home for three or four years. But returning a child to her mother after only a brief time with the father does not require the showing of deleterious circumstances other than that of being deprived of the mother’s care and companionship which she had known most of her life.

It is true that the trial court here did not find anything deleterious in the environment furnished the child by her father. The principles of Fulco are not prescribed as absolute and this rule, in our opinion, must bow to the first and second principles in this particular case.

Principle 4 — Discretion of the Trial Court

This court on review of custody cases gives great weight to the conclusions of the trial judge. The trial court did not err in the instant case.

Thus, the return of Niki to the custody of her mother meets three of the principles established by Fulco. The third principle, involving the heavy burden, must bow to the others. In matters so difficult of determination as child custody, rigid and inflexible rules can serve only to defeat the ends of justice and do not serve the welfare of children.

The judgment of the trial court is affirmed for the reasons stated.

Costs are taxed against appellant.

AFFIRMED.

DOMENGEAUX, Judge,

dissenting.

This appeal arose from a rule to show cause why custody of two and one-half year old Niki Bushnell should not be returned to her mother, Linda Cheek Bushnell. The custody previously had been permanently awarded to the father, Harry M. Bushnell, in connection with the divorce awarded to the mother on the basis of living separate and apart for one year and sixty days from the time of legal separation. The trial judge made the change of custody to the mother after a two day trial on the rule. I would reverse that decision and order that custody be returned to the father.

FACTS

Harry and Linda Bushnell were married on February 12, 1972, in Rapides Parish. On March 20, 1974, Allison Nikole (Niki) Bushnell was born. Harry Bushnell filed suit for a legal separation on the grounds of abandonment on February 20, 1975, and was awarded the separation. He agreed to the award of custody of Niki to the mother.

After a year and sixty days from the judgment of separation Linda Bushnell filed suit for divorce. She was awarded the divorce, but on a rule to show cause why custody should not be granted to him, Harry Bushnell was awarded permanent custody of the child. Although the rule was uncontested by the mother, the father presented evidence that his former wife had been living with a man for some four months in the presence of the child without the benefit of marriage. He argued that this immoral conduct was severely detrimental to the child’s well-being. The mother subsequently married her lover, and brought this rule some three months after the judgment of divorce was rendered. The father too has remarried.

At trial the mother urged that her child had been emotionally damaged by their separation. Doctor Pryer, a psychologist who, as the majority has pointed out, did not examine or test the child, said that in general it is in the best interest of a child to be with its mother.

The majority quoted the trial judge in part, but I find it helpful to set out a more complete quotation of his reasons:

“Considering the above testimony the Court finds that the mother has married Mr. Noland and lived a decent and moral life since this marriage. She is willing and able to provide Niki with a good home. The testimony fails to establish that Niki is suffering from any of the emotional problems urged by the mother and denied by the father. The Court further finds that the home provided by Mr. Bushnell is in no way deleterious. However, Dr. Pryer testified that the mere separation of child from a mother can be harmful. This is recognized in the second principle set forth in Fulco which establishes the rule that it is generally in the best interest of the child to grant custody to the mother, especially where they are of tender age. This general rule has often been referred to as a presumption which exists in the favor of the mother. If the mother is to prevail here she must do so solely on a basis of this general rule or presumption. However, this rule is based upon sound reasons as is explained by Dr. Pryer.
Considering the above findings, what disposition does the law require? The uncertainties raised by apparently conflicting holdings in the appellate decisions will not be discussed herein. The learned counsel for the parties involved in these proceedings will surely discuss these problems in their appellate briefs in the event of appeal as thoroughly as they argued them to this Court. Many questions can be asked. Is there now a ‘double burden’ placed upon a person who seeks to change a ‘considered’ custody award? Must there be a showing that custody is ‘deleterious’ before it can be changed? What is the ‘heavy burden’ referred to in Fulco? Is the general rule or presumption that the child is better off with the mother sufficient to satisfy both sides of the ‘double burden’ or the ‘heavy burden’? . . . Perhaps it is better to consider the underlying reasons for all of these principles as guide posts in determining what should be the prevailing consideration, the best interest of the child. This Court intends to take that approach. This Court will apply the reasoning behind these principles to the above facts including the age and sex of the child, the period of care by the mother before the custody change, the conduct of the mother requiring the change, the subsequent rehabilitation of the mother, the trauma to a child of this age when separated from its mother, the period of time the child was with .the father, the good home provided by the father and the undesirable effect of removing the child from the home to which she may have now become accustomed, in order to determine the prevailing issue — the welfare of the child. In so doing the Court is unable to find that there is sufficient evidence to overcome the presumption in favor of the mother. Stated another way, under these facts, this child should still have a psychological reliance on her mother which is stronger than her reliance on any other person. It follows that it is in her best interest to be with her mother.
Lastly, it must be stated that this decision is based upon what this Court feels is shown or presumed to be in the best interest of the child. If significant weight should have been given to the prior custody award to the father, he may have prevailed. . . .” [My emphasis].

In the ease of Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955), our Supreme Court held that:

“. . . it is incumbent upon the party requesting the modification to prove that the conditions under which the children are living are detrimental to their interests and further that the applicant can and will provide a good home and better environment if given their custody.”

This has become well known as the “double-burden” rule in change of custody cases.

The Supreme Court later expounded upon the rules applicable in custody cases in Ful-co v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). Justice Tate as the organ of the court set out four general propositions:

“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958) and jurisprudence therein cited; see also Moosa v. Abdalla, 248 La. 344, 178 So.2d 273.
(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958); Boatner v. Boatner, 235 La. 1, 102 So.2d 472 (1958); Tullier v. Tullier, 140 So.2d 916 (La.App.1962) (citing numerous decisions of this court to such effect).
(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952); Nugent v. Nugent, 232 So.2d 521 (La.App.1970) (citing numerous court of appeal decisions to such effect).
(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Salley v. Salley, 238 La. 691, 116 So.2d 296 (1959); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952).”

It should be noted at the outset that Fulco proposition number 3 deals exclusively with change of custody cases, and cites Decker v. Landry, supra, with approval.

The Third Circuit Court of Appeal had an opportunity to apply the principles of Fulco in the case of Hilliard v. Richard, 291 So.2d 875 (La.App. 3rd Cir. 1974). In that case the father had been granted “temporary” custody of the children after the divorce. Upon a rule to show cause the mother was awarded permanent custody. The Court of Appeal affirmed with this comment:

“It is true the mother has failed to show that a continuation of custody in the father will be deleterious. But our understanding of Estes is that all four of the quoted principles need not be followed inflexibly in every case. The trial judge has the discretion to use these four principles as general guidelines.”

This court again applied Fulco principles in Bourque v. Leger, 322 So.2d 784, 786 (La.App. 3rd Cir. 1975). The court made this comment in affirming the change of custody from father to mother.

“The principal argument made in behalf of Mr. Leger on this appeal is that the trial court erred in failing to apply the old ‘double burden of proof’ rule, a harsh, mechanical jurisprudential rule which developed as the result of some language used in Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955). See King v. King, 245 So.2d 560 (La.App. 3rd Cir. 1971); Siggio v. Siggio, 217 So.2d 673 (La.App. 3rd Cir. 1969); Cenac v. Power, 211 So.2d 408 (La.App. 1st Cir. 1968); Overstreet v. Overstreet, 244 So.2d 313 (La.App. 4th Cir. 1971), and Emery v. Emery, 223 So.2d 680 (La.App. 4th Cir. 1969).
Our Supreme Court, however, in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), discarded the so called ‘double burden of proof rule, and instead the court set out clear and understandable guidelines which are to be followed in determining to whom custody of children should be awarded, whether the case involves the initial awarding of custody or the transfer of custody from one person to another.”

The Supreme Court refused writs on the case. See also Southern v. Southern, 308 So.2d 424 (La.App. 3rd Cir. 1975).

The First Circuit Court of Appeal has made frequent reference to the Decker double burden rule since Fulco was decided, and has done so with approval. See Poole v. Poole, 270 So.2d 215 (La.App. 1st Cir. 1972), 273 So.2d 295, writs refused March 1, 1973; Gulino v. Gulino, 303 So.2d 299 (La. App. 1st. Cir. 1974); Jordan v. Jordan, 294 So.2d 261 (La.App. 1st Cir. 1974), 296 So.2d 835, writ refused July 1, 1974; Finn v. Finn, 335 So.2d 523 (La.App. 1st Cir. 1976); Brummett v. Hudson, 338 So.2d 124 (La. App. 1st Cir. 1976); Stevens v. Stevens, 340 So.2d 584 (La.App. 1st Cir. 1976); Lemons v. Lemons, 325 So.2d 734 (La.App. 1st Cir. 1976); and Partin v. Partin, 339 So.2d 450 (La.App. 1st Cir. 1976).

Likewise, the Second Circuit Court of Appeal continues to recognize the double-burden rule. Lagrone v. Lagrone, 311 So.2d 290 (La.App. 2nd Cir. 1975), 313 So.2d 839, writ refused June 20, 1975. DeCelle v. DeCelle, 313 So.2d 634 (La.App. 2nd Cir. 1975).

Most recently in Monsour v. Monsour, 339 So.2d 488 (La.App. 2nd Cir. 1976), the Second Circuit addressed the issue of a change in custody. The trial judge had refused a change in custody from mother to father. The Court of Appeal reversed, finding the conduct of the mother (who lived with her paramour) detrimental to the child, and that the father could provide the child with a lovely home. Although the court did not cite Decker or Fulco, we feel its holding was an application of the “double-burden rule” or “heavy burden rule”, whatever be the name.

The Supreme Court granted writs in Monsour and reinstated the trial court’s decision, Monsour v. Monsour, (Supreme Court # 59,100, Handed Down June 20,1977), 347 So.2d 203 (La.1977). It cited Fulco and particularly the heavy burden rule, but did not further clarify that proposition. The primary concern of the Court was that the reform of the mother by her marriage to the paramour indicated the environment she could provide for her son was not so deleterious as to justify a change in custody.

That case is clearly distinguishable from the instant case, because here the mother did not have the initial award of custody as did the mother in Monsour. Here the mother is seeking the change of custody and is carrying the heavy burden of proof, not the father, as was the case in Monsour. Also, although the fact situations of Mons-our and our ease are similar, the mother in Monsour relentlessly strove to maintain the control and custody of her son. Here, for whatever reason, the mother relinquished control over her daughter without even making an appearance or contesting the rule at all. I feel this indicates that the mother eared less for her child than for her own free lifestyle.

As can be seen by the trial judge’s reasons in the instant case, confusion reigns in regard to the burden of proof in change of custody cases. This confusion has existed for quite some time among both lawyers and judges. I submit that Fulco did not overrule the Decker rule, and that this court has erred in saying that it did.

The third proposition in Fulco, as above noted, cited Decker with approval. However, the rule in Fulco does not exactly restate the Decker rule. Instead it imposed upon the party seeking a change in custody a “heavy burden” of proof. The Monsour case, the most recent pronouncement on the subject, fails to clarify that burden, which is a pressing need of our courts. That clarification can only issue from our Supreme Court and I urge the court to clear up the confusion now in existence.

I feel that the burden imposed by Decker is not without purpose or logic. Not only is the party seeking change required to prove the child is in an environment detrimental to him, the party must also prove the environment he can provide is better. This effectively prevents children from being bounced back and forth from parent to parent, like so many tennis balls, when the parents are equally equipped to care for the children.

This is not to ignore the maternal preference rule (proposition two of Fulco). That also is a well founded principle. But the maternal preference rule is not the primary consideration when a considered decree of custody has already been made. If that rule is to be equally balanced with the double burden rule, then proposition three of Fulco is meaningless. I submit that propositions one and two of Fulco are meant to be applied in initial custody suits, and proposition three applies in change of custody suits, exclusively. In Decker, the Supreme Court stated:

“ . . . it is well to point out that the many cases cited by counsel for appellant in support of the contention that the mother is to be preferred in contests involving the custody of children have no application to the situation presented in the matter at hand. This is not a case wherein the parents of the children are initially contesting the right of one over the other to custody. Here, permanent custody has already been awarded to the father by the judgment of separation conformably with the provisions of Article 157 of the Civil Code . . . ”

The instant case provides a good explanation for the above logic. The father requested custody by rule, and at the hearing evidence was presented to prove the mother’s adultery. The mother, who was served, did not even attend to contest the change of custody rule. It is understandable that the judge initially awarded custody to the father, when the mother, who could have taken great advantage of the maternal preference rule, did not even make an appearance.

This decision was a considered decree. I might note at this point that this was the first considered decree of custody. Although the mother had been awarded custody after the separation, it was an uncontested temporary award made as a matter of course. This was not a considered decree. The mother had not yet become involved in extra-marital activities. Under such conditions, the award of temporary custody to the mother is not usually challenged by the father.

When the circumstances changed and the mother began living with her lover, her husband understandably became alarmed for his daughter’s welfare. The trial judge awarded custody to the father only after sufficient evidence was presented to show the mother’s indiscreet living arrangements and its potential effect on the child. Then, when the mother requested custody, the heavy burden came into play. She should not have been allowed to use the maternal preference rule advantage that she carelessly rejected in the initial award.

In spite of the heavy burden which is incumbent upon the party seeking change to carry, the trial judge placed the burden of proof on the father, who was in custody of the child already! If all three of the Fulco propositions were to be used as only flexible guidelines in all cases, as the majority suggests, then an endless stream of custody challenges between parents would be the result.

The majority also claims that the heavy burden must necessarily vary from case to case. In reality, this means that no burden exists at all, and propositions one and two of Fulco control the decision exclusively.

This case is a perfect example. The trial judge found that not only was the father’s home not deleterious to the child, it was a very good home. No proof was offered that the mother could provide a better home. The trial judge’s award to the mother under these circumstances amounts to finding that she bears no burden of proof at all in connection with the requirement of proposition three of Fulco.

If the double-burden or heavy burden rule is to have any efficacy, the mother should at least have proved that the father was not providing well for his child.

Therefore, I would feel impelled to follow the double-burden or heavy burden rule as set forth in Decker v. Landry and as explained further in Fulco v. Fulco, and Estes v. Estes. It is not my purpose to quibble over semantics, but to follow the established principles as set out by our Supreme Court. While I hold no great brief for this rule, I feel the high court should clarify the so-called double-burden rule and the circumstances of its application.

I respectfully dissent.

      . Footnote by author. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (La.1971).

      . See also Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972) where Justice Tate applied these principles to a case where only temporary custody had been granted.

      . The author of this dissent has always adhered to the belief that Fulco v. Fulco did not overrule Decker v. Landry. See the opinions in Grimes v. Johnson, 323 So.2d 150 (La.App. 3rd Cir. 1975), in which writs were refused, and Swann v. Young, 311 So.2d 617 (La.App. 3rd Cir. 1975). In Swann, footnote 3 most explicitly stated:
      3. This writer, however, is of the firm opinion that the rule expressed in Decker v. Landry, supra, is still the law and that under the applicable circumstances we are constrained to follow it unless it is expressly changed by our Supreme Court.
      See also the concurrences in Hebert v. Mestayer, 251 So.2d 66 (La.App. 3rd Cir. 1971), and Simon v. Cobb, 300 So.2d 608 (La.App. 3rd Cir. 1974).

      .Although in some cases they found the rule not applicable.


author: HOOD, Judge.

text:
    Thelma TATUM, Plaintiff-Appellant, v. RIDGEWAY PROPERTIES et al., Defendants-Appellees.
    No. 6084.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Kenneth N. Simmons, of Davis & Simmons, Many, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley, by Harry A. Johnson, Jr., Hugh M. Stephens, Shreveport, for defendants-appel-lees.
    Watson, Murchison, Crews & Arthur, by William P. Crews, Jr., Natchitoches, for exception-appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   HOOD, Judge.

Plaintiffs, Dean I. Dauley and I. Boyd Ridgeway, instituted this suit against Mrs. Thelma Tatum, seeking to annul a default judgment which Mrs. Tatum previously-obtained against them. Judgment was rendered by the trial court in favor of plaintiffs, annulling and setting aside the default decree. Defendant, Mrs. Tatum, appealed. We affirm.

Plaintiffs contend that valid service of process was not made on them in the suit originally filed by Mrs. Tatum, that the trial court did not obtain jurisdiction over them, and that the default judgment rendered in that suit thus is null and void.

The issue presented is whether, in the earlier suit filed by Mrs. Tatum, service of process was made on Dauley and Ridgeway pursuant to the provisions of the Louisiana Long Arm Statute (LSA-R.S. 13:3201, et seq.).

LSA-R.S. 13:3204 and 3205, being parts of the Long Arm Statute which are applicable here, provide:

“§ 3204. Service of Process. A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff to the defendant by registered or certified mail, or actually delivered to the defendant by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general jurisdiction.
“Service of process so made has the same legal force and validity as personal service on the defendant in this state.” (Emphasis added).
“§ 3205. Default judgment; proof of service of process. No default judgment can be rendered against the defendant until thirty days after the filing in the record of the affidavit of the individual who either:
“(a) mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mails, to which shall be attached the return receipt of the defendant; or
“(b) actually delivered the process to the defendant, showing the date, place, and manner of delivery.” (Emphasis added).

Mrs. Tatum filed suit in January, 1976, seeking damages for personal injuries sustained by her when she slipped and fell on business premises being operated under the name of “Globe Discount City,” in Shreveport. She alleges that the owner-lessor of those premises was “Ridgeway Properties,” that Walgreen Company was the lessee, and that Travelers Insurance Company was the insurer of Walgreen. She instituted suit against Ridgeway Properties, Walgreen and Travelers. In her petition she described defendant, Ridgeway Properties, as follows:

“RIDGEWAY PROPERTIES, a foreign corporation domiciled in the State of Texas, with present mailing address of 812 East Marshall Street, Longview, Texas, 75601, said corporation doing business in the State of Louisiana;”

Actually, “Ridgeway Properties” is not a corporation. It is simply a trade name used by I. Boyd Ridgeway for some business enterprises in Texas. There is no corporate, partnership or legal entity of any kind known as Ridgeway Properties, and Mr. Ridgeway did not use that trade name in any of his business activities in Louisiana.

The property located in Shreveport, on which the accident occurred, was owned individually, and in indivisión, by plaintiffs Dauley and Ridgeway. Dauley had no interest in any of the business enterprises operated by Ridgeway in which he used the trade name “Ridgeway Properties,” and that trade name was not used in connection with the ownership or leasing of the Louisiana property.

Dauley and Ridgeway are both residents of the State of Texas. Mrs. Tatum is a resident of Sabine Parish, Louisiana. The damage suit which Mrs. Tatum instituted was filed in the Eleventh Judicial District Court, for Sabine Parish, Louisiana, and service of process of the original petition was made on defendant, “Ridgeway Properties,” by sending a certified copy of the citation and of the petition by certified mail to “Ridgeway Properties, 812 East Marshall Street, Longview, Texas, 75601.” A return receipt, showing delivery of the envelope containing those documents to the addressee, was signed in behalf of Ridgeway Properties by “John Jackson.”

The address of Ridgeway Properties, as shown in Mrs. Tatum’s petition, is the mailing address of the office of Mr. and Mrs. John Jackson. As an accommodation to Ridgeway, Mr. and Mrs. Jackson permitted him to use their mailing address for business purposes. When mail was delivered to their office, addressed to Ridgeway or to Ridgeway Properties, Mr. or Mrs. Jackson would see that it was delivered to Mr. Ridgeway. Consistent with that understanding or practice, the envelope which contained a certified copy of the citation and of the original petition in the Tatum suit was delivered to Mr. Ridgeway. The latter thereupon showed those documents to Dauley, or told him about them, since both of them jointly owned the Louisiana property, and he advised Walgreen and Travelers of the suit. He then filed the pleadings away, and he later turned them over to his attorney.

On February 12,1976, Mrs. Tatum filed a “First Amended Petition,” and on April 6, 1976, she filed a “Second Amended Petition.” The same three defendants were named in both of those amended petitions, and “Ridgeway Properties” was identified in both of those pleadings as a foreign corporation domiciled in the State of Texas, exactly as was alleged in the original petition. Dauley and Ridgeway were not named as defendants in either of those pleadings. Service of process of the First and Second Amended Petitions was made on Ridgeway Properties in each instance by mailing a certified copy of the citation and of the amended petition to “Ridgeway Properties,” at the above address in Long-view, Texas. The envelope containing those pleadings was received by Mr. or Mrs. Jackson, the envelope was handed to Mr. Ridgeway, he in turn showed the contents to Dauley, and thereafter Ridgeway filed the documents away.

A Third Amended Petition was filed by Mrs. Tatum on May 4, 1976, in which she named a total of seven defendants. The same three defendants, i. e. Ridgeway Properties, Walgreen and Travelers, were listed in this amended petition, and in addition thereto four other defendants were named, including:

“DEAN I. DAULEY, a non-resident of the State of Louisiana, with present mailing address of 105 North Carrier Parkway, Grand Prairie, Texas, 75050;
“I. BOYD RIDGEWAY, a non-resident of the State of Louisiana, with present mailing address of 812 East Marshall Street, Longview, Texas, 75601.”

Shortly after that Third Amended Petition was filed, Mrs. Tatum voluntarily dismissed her suit as to all defendants, except as to Ridgeway Properties, Dauley and Ridgeway. None of those defendants filed an answer, and in due course a default judgment was rendered in favor of Mrs. Tatum and against all three of those remaining defendants, in solido, for the sum of $41,812.71. Dauley and Ridgeway then instituted the instant suit, seeking to annul that default judgment.

In her Third Amended Petition, Mrs. Tatum prayed that “service and citation” of the original petition and of the three amended petitions be made on Dauley and Ridgeway, personally. The record shows that certified copies of the Original Petition, and of the First, Second and Third Amended Petitions, were mailed to Dauley and to Ridgeway. A factual issue is presented, however, as to whether a certified copy of a citation was ever mailed to them.

Dauley and Ridgeway contend in the instant suit that a certified copy of a citation was never mailed to or received by either of them. They take the position that the mailing of a citation is mandatory under LSA-R.S. 13:3204, that the trial court never acquired jurisdiction over them because of the failure to comply with the Long Arm Statute, and that the default judgment rendered by the court thus is null and void.

The trial judge found that a citation was never issued to Dauley or to Ridgeway, and that a certified copy of such a citation thus was never mailed to either of them. He concluded that citation is an essential element of the “process” required by LSA-R.S. 13:3201, et seq., and that the default judgment being attacked here is void because of the failure of plaintiff to include a certified copy of a citation with the pleadings which were mailed to both of those defendants.

Dauley and Ridgeway each testified that he received by mail certified copies of the original and the three amended petitions which had been filed by Mrs. Tatum. Each stated, however, that he has never received a copy of a citation issued to him in the suit filed by Mrs. Tatum.

The record contains the affidavit of Janice Tabor, executed on May 21,1976, stating that “she mailed a certified copy of the Original Petition, the First Amended Petition, the Second Amended Petition and the Third Amended Petition” to Ridgeway and to Dauley on May 4, 1976. The affidavit does not recite that she mailed a copy of a citation to either of those defendants.

Mrs. Geraldine Curtis, a Deputy Clerk of Court for Sabine Parish, handled the filing of the Third Amended Petition. She testified that she normally attaches a copy of the citation to a copy of the petition when it is filed, but that she does not remember whether she did that in this instance. She stated that she made entries on a filing card in the clerk’s office showing that in this case a charge of $18.00 was made on May 4,1976 for “Third Amended Petition & Copies,” and that a charge of $2.00 was made on that date for “Cit. & Copy.” The charge for issuing one citation is $2.00, and the fact that only one such charge was made indicates that only one citation was issued when the Third Amended Petition was filed. Seven defendants were named in that pleading, so seven citations were needed if every defendant was to be cited. Mrs. Curtis explained that the charge for additional citations could have been included in the $18.00 charge made on May 4, but that she could not say whether she prepared a citation, or a copy of a citation, for either Dauley or Ridgeway when the Third Amended Petition was filed.

The clerk’s filing card for this case shows that on April 6, when the Second Amended Petition was filed, a charge of $31.00 was made for “2nd Amended Pet., 5 cits, copies.” The clerk’s charge for copies varied according to the length of the pleadings. The Second and Third Amended Petitions, however, were the same length (three pages). There were only three defendants when the second amendment was filed, whereas there were seven defendants when the Third Amended Petition was filed. It seems to us that if seven citations were issued when the last amended petition was filed, the total charges would have been more, instead of less, than the $31.00 which was charged on April 6 when fewer copies and citations were required. The exp’enses incurred on May 4, however, totalled only $20.00. The entries made on the clerk’s records indicate, therefore, that a citation was not issued for each of the seven defendants named in the Third Amended Petition, contrary to the position taken by Mrs. Tatum.

The record does not contain the original or a copy of a citation issued to Dauley or to Ridgeway. The documents or pleadings which were mailed to those parties on May 4 were filed in evidence, but there are no citations attached to any of them. Dauley and Ridgeway testified that the papers which were filed in evidence were the same ones which were mailed to them, and that nothing had been removed from or added to those documents.

The trial judge concluded that a copy of a citation was not mailed either to Dauley or to Ridgeway, and his finding as to that fact is entitled to great weight.

We agree with the trial judge that citations were not issued to Dauley or to Ridge-way when the Third Amended Petition was filed on May 4, 1976, and that copies of citations thus were never mailed to them.

The word “shall” in LSA-R.S. 13:3204, which sets out methods of making service of process on non-resident defendants in some cases, means that the provisions of that section are mandatory. Ray v. South Central Bell Telephone Company, 315 So.2d 759 (La.1975); Bell v. Fiat Distributors, Inc., 333 So.2d 769 (La.App. 1 Cir. 1976); Boykin v. Lindenkranar, 252 So.2d 467 (La.App. 4 Cir. 1971).

We believe that in order for service of process to be valid under LSA-R.S. 13:3204 and 3205, a certified copy of the citation, as well as a copy of the petition, must be mailed or delivered to the defendant. Since a copy of a citation was not mailed to Dauley or Ridgeway in this instance, we conclude that Mrs. Tatum did not obtain valid service of process of those parties, and that the default judgment rendered in the original action is void.

Mrs. Tatum contends that even though valid service of process was not obtained on Dauley or Ridgeway when the Third Amended Petition was filed, the default judgment rendered in her favor nevertheless is valid as to Ridgeway. She points out that Ridgeway did business as “Ridgeway Properties,” that Ridgeway Properties was named as a defendant, that copies of the Original and of the First and Second amended petitions were mailed to Ridge-way Properties, and that a certified copy of a citation was attached to each such pleading. All of those documents eventually were handed or delivered to Ridgeway, and he thus was aware of the suit. It is argued that under those circumstances Ridgeway is “without a cause of action to annul this default judgment,” and that he is “estopped to deny the validity” of that decree. She relies on Thomas Organ Company v. Universal Music Company, 261 So.2d 323 (La. App. 1 Cir. 1972), to support that argument.

In Thomas Organ Company, supra, one of the defendants was a partnership. It was identified as such in the pleadings, and the names of the two partners were given. Service of Process had to be obtained by serving one of the partners, but both partners were non-residents. The First Circuit Court of Appeal held that service of process on one of the named partners could be obtained under the Louisiana Long Arm Statute. Our understanding of the facts is that proper pleadings (including a certified copy of the petition, the amended petition and a citation) were mailed to the non-resident partner by certified mail, and that the addressee refused to accept the letter. The court held that the service of process was valid under LSA-R.S. 13:3204, despite the fact that the defendant had refused to accept the pleadings which were mailed to him. No question was presented as to whether a citation must accompany the copy of the petition, but the court observed at least twice in its opinion that the sending by mail of “a certified copy of citation and petition ” is required by LSA-R.S. 13:3204.

We distinguish Thomas Organ Company from the instant suit because of the difference in facts and in the issues presented. In that case, unlike the circumstances here, the defendant was a partnership and judgment was sought against that legal entity. In the present suit, the original and amended petitions filed by Mrs. Tatum identified Ridgeway Properties as a foreign corporation domiciled in Texas. That named defendant, in fact, was not a corporation, and it was not a partnership or a legal entity of any kind. A valid judgment could not be obtained against it. The names of Dauley and I. Boyd Ridgeway are not mentioned in the original or in the First or Second amended petitions, and we feel that under those pleadings (that is, under the original and the First and Second amended petitions) Mrs. Tatum could not have obtained a personal judgment against either Dauley or Ridgeway, even if a citation and copies of the petitions had been mailed directly to those two individuals.

We reject the argument that Ridge-way is estopped from denying the validity of the default judgment. The fact that he did business as Ridgeway Properties, and was aware of the fact that suit had been filed against a defendant designated by that name and identified as a corporation, does not estop him from resisting the claim on the ground that he had not been properly served with process.

Our conclusion is that Mrs. Tatum failed to obtain valid service of process on Dauley or Ridgeway, and that the default judgment which was rendered against those parties is void. We find no error in the judgment rendered by the trial court.

The judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant, Mrs. Thelma Tatum.

AFFIRMED.


text:
    WM. T. BURTON INDUSTRIES, INC., Plaintiff-Appellee, v. Ellis BUSBY, Defendant-Appellant.
    No. 6088.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.

      Camp, Carmouche, Palmer, Carwile & Barsh, by Joseph A. Delafield, Lake Charles, for plaintiff-appellant.
    Roy B. Tuck, Jr., Leesville, for defendant-appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   HOOD, Judge.

This is a petitory action instituted by William T. Burton Industries, Inc., against Ellis Busby. Plaintiff seeks to be recognized as the owner of an 80-acre tract of land in Vernon Parish. Busby reconvened, claiming ownership by 30 years acquisitive prescription of 20 acres of the tract described in plaintiff’s petition. Judgment was rendered by the trial court recognizing Busby as the owner of 9.29 acres, and recognizing Burton as the owner of the remainder of the 80-acre tract claimed by it. Plaintiff Burton appealed. We affirm.

On this appeal, plaintiff does not question the correctness of the trial court judgment insofar as it recognizes defendant as the owner of a part of the subject property and recognizes Burton as the owner of the rest of it. Plaintiff contends, however, that the trial judge erred (1) in refusing to recuse himself from the trial of the ease; and (2) in allowing an expert witness fee of $380.00 for the land surveyor who testified at the trial, and in taxing that fee as costs.

This case was tried on January 5, 1977, before Honorable Ted R. Broyles, one of the judges of the Thirtieth Judicial District. After it was called for trial, but before evidence was produced, counsel for plaintiff made an oral motion in open court that Judge Broyles recuse himself, stating that the motion was based on the judge’s “prior involvement in other matters with Burton Industries and in order to possibly avoid any appearance of bias.” Judge Broyles denied that motion, assigning as reasons for doing so that the motion was not made in writing, and that it was not filed prior to trial or hearing.

No evidence was introduced to support the motion to recuse. We gather from the record and from the arguments of counsel, however, that prior to the date of trial all orders were signed and all judicial determinations in this case were made by Honorable Stuart S. Kay, a judge of the Thirtieth Judicial District. Judge Kay died before the case came up for trial, and he was succeeded by Judge Broyles, before whom the case eventually was tried. '

Prior to the time Judge Broyles assumed his judicial office, he served as attorney for a party, presumably the defendant, in a similar suit which had been instituted by W. T. Burton Industries, Inc. The record does not show when Judge Broyles assumed his present office, or when he served as attorney in the other case, what the status of that case was when the instant suit came up for trial, whether that suit and the present one are related in any way, or whether the judge has any interest in the present suit. There is nothing in the record or in the evidence produced at the trial of the instant suit, so far as we are able to determine, which tends to connect it with any other case.

In denying the motion to recuse, Judge Broyles stated: “Of course, I was the attorney in one other matter, I assume that’s what you’re referring to, Mr. Clarkson, the Morrison case. . . . But as far as I know, this is — uh, no property is connected or anything else, is that correct?” He observed that under LSA-C.C.P. art. 154 a motion to recuse must be filed “prior to trial or hearing, unless the party discovers the facts constituting the ground for recu-sation thereafter,” and that “the motion which was made in this case was made orally, made even after a pre-trial conference, as the record will indicate.”

Article 151 of the Louisiana Code of Civil Procedure, which sets out the grounds for recusing a judge, provides in part that:

“Art. 151. Grounds. A judge of any court, trial or appellate, may be recused when he:
“(1) Is a material witness in the cause;
“(2) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
“(3) Has performed a judicial act in the cause in another court;
“(4) Is the spouse of a party, or of an attorney employed in the cause; or is related to a party, or to the spouse of a party, within the fourth degree; or is related to an attorney employed in the cause, or to the spouse of the attorney, within the second degree; or
“(5) Is interested in the cause.”

LSA-C.C.P. art. 154 sets out the procedures for recusation. It provides:

“Art. 154. Procedure for recusation. A party desiring to recuse a judge of a district court shall file a written motion therefor assigning the ground for recusation. This motion shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for re-cusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge ad hoc, as provided in Articles 155 and 156, for a hearing.”

Plaintiff does not allege any of the first four grounds for recusation set out in Article 151. It alleges only the fifth ground, that is that the trial judge “is interested in the cause,” and it claims that for that reason plaintiff is entitled to have the judgment appealed from reversed and the case remanded with instructions for the trial judge to recuse himself, all pursuant to the provisions of LSA-C.C.P. art. 151(5). It also argues that even if no grounds for recusation exist under LSA-C.C.P. art. 151, the trial judge nevertheless should have recused himself in order “to avoid any appearance of bias and impartiality,” as provided in Canon 2 of the Louisiana Code of Judicial Conduct.

Burton argues that a valid ground for recusation was set out in the oral motion made by counsel early in the trial, and that in view of that motion it was incumbent upon the trial judge either to recuse himself or at least to refer the motion to another judge for a hearing as provided in LSA-C. C.P. art. 154.

We have decided that the oral motion made by plaintiff did not set forth “a valid ground for recusation,” as required by LSA-C.C.P. art. 154. The only ground stated in the oral motion was that it was based on the judge’s “prior involvement in other matters with Burton Industries and in order to possibly avoid any appearance of bias.” In our opinion those allegations are too vague and indefinite to constitute a valid ground for recusation.

Since the oral motion made by plaintiff did not set forth a valid ground for recusation, there was no need for the trial judge to refer the motion to another judge for a hearing. LSA-C.C.P. art. 154; Roy v. Roy, 285 So.2d 867 (La.App. 4 Cir. 1973).

Although the motion to recuse does not allege a valid ground for recusation, we nevertheless have considered all of the facts which are shown in the record or which may be inferred from the arguments of counsel, and we have concluded that those facts do not warrant a holding that the trial judge erred in refusing to recuse himself.

The burden of proof rests on plaintiff in the instant suit to establish facts and circumstances which will justify a conclusion, or at least an inference, that the trial judge is interested in the cause. The law does not prescribe a test which should be applied in determining whether the trial judge has such an interest. Each case must be examined on its own facts, therefore, to determine whether there should be a recu-sation. State, Department of Highways v. McDonald, 329 So.2d 898 (La.App. 2 Cir. 1976).

In the instant suit plaintiff concedes that the trial judge acted fairly and impartially. It stated in its brief that “Burton has no basis for contending and does not contend that the trial court acted unfairly or with partiality.”

The fact that the trial judge, while in private practice before assuming his judicial office, handled a similar but entirely separate ease against one of the parties to the instant suit does not make the judge “interested in the cause.” See State, Department of Highways v. McDonald, supra; McNeill v. Continental Casualty Company, 244 So.2d 693 (La.App. 4 Cir. 1971); Ray v. Bird & Son, Inc., 323 So.2d 904 (La.App. 2 Cir. 1975).

There is no merit to plaintiff’s argument that the refusal of the trial judge to recuse himself in this case gives the appearance of bias and impartiality. Even if the action of the trial judge should be considered as giving the appearance of impropriety, that circumstance alone will not ordinarily constitute a ground upon which a litigant could demand recusation.

We conclude that plaintiff failed to establish that Judge Broyles is interested in the cause. The trial judge did not err, therefore, in refusing to recuse himself in this case.

We turn now to the question of whether error was committed in the awarding of an expert witness fee.

Mr. Charles C. Wise, a registered land surveyor, testified in behalf of defendant Busby. Prior to the trial, Wise surveyed the property and prepared two plats of his surveys. He then testified at the trial as to his findings and as to the results of those surveys. Both of the plats prepared by him were introduced in evidence, and they provide the only means by which the property belonging to each party could be identified and described. Wise also testified that he charged Busby $180.00 for making the surveys, and that his usual charge for appearing in court was $200.00 per day.

The trial judge fixed expert fees for Wise in the amount of $380.00. The fees were assessed as costs and Burton was condemned to pay all costs.

Plaintiff contends primarily that the trial judge erred in allowing any expert witness fees at all for Wise, and alternatively, it contends that the amount allowed for such fees is excessive.

LSA-R.S. 13:3666 provides:

“ § 3666. Compensation of expert witnesses.
“A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive ’ additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
“B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
“(1) from the testimony adduced upon the trial of the cause, the court shall determine the amount thereof and include same or,
“(2) by rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause. As amended Acts 1960, No. 114, § 1.”

Burton takes the position that additional compensation is due only when an expert witness has been called to give opinion testimony. It contends that in the instant suit Wise testified merely that he had made a survey and prepared a plat. He was not called upon to express an opinion on any issue. Plaintiff argues that under those circumstances, the trial court erred in allowing an expert witness fee for his testimony.

The surveys made by Wise, and the plats which he prepared of those surveys, show the 9.29-acre tract of land which is actually at issue here. The plats give the exact location of the land with reference to section lines and existing fences. Those plats and the testimony of the surveyor show the purposes for which each part of the subject property has been or is being used, how much of it has been enclosed, and they give an accurate description of the property. The tract in dispute is irregular in shape, and it is not likely that the boundaries of that tract could have been located accurately by a layman.

Wise was tendered as an expert surveyor at the trial, and plaintiff accepted him as such. He made a scientific or professional examination of the property, and he stated the results of that examination, all within the meaning of LSA-R.S. 13:3666. He obtained the information which he conveyed to the court by the exercise of his professional training and skill, and as a result of the preparatory work he performed prior to the trial. This is a title suit, and it is essential to a proper disposition of it that an accurate description of the property be obtained. We think such a description could not have been provided by a layman. Under those circumstances we find that the trial court was authorized and justified in fixing an expert witness fee for the surveyor. See Joseph v. Netherton Company, 136 So.2d 556 (La.App. 3 Cir. 1962); Wappler v. Braucht, 209 So.2d 603 (La.App. 2 Cir. 1968); State, Department of Highways v. William T. Burton Industries, Inc., 219 So.2d 837 (La.App. 3 Cir. 1969); McKowen v. McCraine, 244 So.2d 45 (La. App. 1 Cir. 1971); Prampin v. Southern Chemical Works, 65 So.2d 672 (La.App.Orl. 1953).

Plaintiff complains about the amount which was awarded as the expert witness fee of the surveyor

The fixing of expert witness fees lies within the sound discretion of the trial court, and his judgment as to the amounts of those fees will not be disturbed unless there has been an abuse of that discretion. Williams v. Harvey, 328 So.2d 901 (La.App. 4 Cir. 1976); Polites v. Millers Mutual Fire Insurance Company of Texas, 267 So.2d 214 (La.App. 4 Cir. 1972).

The amount fixed as the fee of the land surveyor in this instance appears to us to be high. We have concluded, however, that it is within the realm of the discretion of the trial court, and we thus will not disturb his judgment in that respect. We find no error in taxing the expert witness fees as costs. LSA-R.S. 13:3666, subd. B; LSA-C.C.P. arts. 1920 and 2164; Joseph v. Netherton Company, supra; Wappler v. Braucht, supra; McKowen v. McCraine, supra.

Our ultimate conclusion is that the judgment rendered by the trial court is correct.

The judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.