text:
    John R. BOURG, Sr., et ux. v. Louis T. REDDEN et al. Raymond J. MARTINEZ, Sr., et al. v. Louis T. REDDEN et al.
    Nos. 11553 and 11554.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

      John L. Avant, Baton Rouge, of counsel, for plaintiffs-appellees, John R. Bourg, Sr., and Mildred Martinez Bourg, et al.
    Patrick A. Juneau, Jr., Lafayette, Kenneth E. Barnette, Baton Rouge, of counsel, for defendants-appellants, Louis T. Redden, d/b/a Redden’s Dirt Pit, Lester Blount and Western World Ins. Co.
    Joseph E. Juban, Baton Rouge, of counsel, for defendants, Henry George Scalan, Jr., Z. C. Dunaway, Edward C. Howard, Ford Verma, J. B. Frye, Jr., John Bou-dreaux, Sam Culotta and E. Drew McKin-nis.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

These consolidated tort cases arise from a motorcycle accident. Defendants have appealed the trial court’s finding of liability and the award of damages.

The issues on appeal are:

1. defendants’ negligence;

2. contributory negligence of the injured and the decedent; and

3. quantum.

We amend and affirm.

Mr. Louis Redden, one of the defendants, operated a dirt pit. To minimize damage from vandals, Mr. Redden and an employee, Lester Blount, also a defendant, placed “No Trespassing” signs along the access road. The signs were visible to persons traversing the access road, but were uniformly disregarded by the general public. Hunters, sightseers and motorcyclists, the injured and the decedent, among others, regularly entered the property and used the area for recreational purposes.

Mr. Redden instructed Mr. Blount to erect a steel cable across the access road at night and on weekends, to prevent vandals from going back to the dirt pit area. On the day of the accident, Mr. Blount erected the cable across the road, attaching it to trees along the side of the road with metal clamps.

Later, three brothers, Raymond, David and Steven Martinez, and a cousin, Ronnie Bourg, were riding their motorcycles along the road toward the dirt pit. The two motorcycles with two occupants each hit the stretched cable; all four boys were thrown from their bikes. The three Martinez boys were injured and Ronnie Bourg was killed.

The trial court found defendants liable. Mr. and Mrs. Bourg were awarded $38,-000.00 each, plus special damages. Raymond Martinez was awarded $15,000.00 in general damages and Steve and David Martinez were awarded $2,000.00 each. Mr. Martinez was given judgment for the special damages he incurred.

NEGLIGENCE OF DEFENDANTS

Both parties have argued the question of the legal status of the plaintiffs at time of the accident.

The traditional approach in this state is that a lesser duty is owed to trespassers than to licensees or invitees. However, in Cates v. Beauregard Electric Cooperative, Inc., La., 328 So.2d 367 (1976), the court said “We find the common law classification of invitee-licensee-trespasser to be of little help in applying C.C. 2315.” The court cited with approval a ruling from the California Supreme Court, which said in part:

“The proper test to be applied . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff’s status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.”

We must decide, then, whether defendants’ activities were reasonable under the particular facts before us. Shelton v. Aetna Casualty and Surety Company, La., 334 So.2d 406 (1976). We agree with the trial court that the defendants’ activities were not reasonable in view of the probability of harm to others. Both Mr. Redden and Mr. Blount were aware that motorcycle riders used the dirt road regularly. Both had seen people on motorcycles in the area on several occasions. Nonetheless, on Mr. Redden’s order, Mr. Blount erected a steel cable across the only access road. Under the circumstances, we believe such a device constituted a trap.

There was considerable discrepancy as to whether the cable was “flagged.” Mr. Blount testified that he did flag the cable; other witnesses said they saw no evidence of any flags. The trial judge determined that there were no flags, and we cannot disagree.

The erection of the cable without flags in an area known to be extensively traveled by motorcyclists was a breach of duty. The trial court correctly found the defendants guilty of negligence.

CONTRIBUTORY NEGLIGENCE

Defendants argue that recovery is barred by contributory negligence in that the boys were travelling at an excessive rate of speed, and at least one of the boys had seen the cable coiled by a tree shortly before the accident.

The surviving boys estimated their speed at between 35 and 45 miles per hour. There is no evidence to contradict this or to show that this was excessive under the conditions. Further, there is no proof that a lesser'speed would have averted the accident and consequences.

That one of the boys saw the cable coiled by a tree shortly before the accident did not place him on notice that it might be used as a barrier at a later time.

The affirmative defense of contributory negligence is without merit.

QUANTUM

Plaintiffs have answered the defendants’ appeal asking for an increase in the awards to Mr. and Mrs. Bourg for the death of their son. While we may have awarded a different amount, we cannot say that the lower court abused its discretion. LSA-C.C. Article 1934(3); Coco v. Winston Industries, Inc., La., 341 So.2d 332 (1976).

Defendants complain that the lower court erred in awarding $2,000.00 to Steven Martinez. In its oral reasons for judgment the court seems to have made an award for the mental suffering which Steven endured in seeing his cousin killed. Damages cannot be recovered for mental anguish resulting from injury or death to another person. McKey v. Dow Chemical Company, Inc., 295 So.2d 516 (1st Cir. 1974); Hickman v. Parish of East Baton Rouge, 314 So.2d 486 (1st Cir. 1975), writ refused, La., 318 So.2d 59.

The evidence on Steven’s injuries is sparse. He was treated at the emergency room, but evidently released and sent home. The diagnosis was cervical strain. There was no further testimony by Steven or anyone else concerning his injuries. We do not believe sufficient proof has been presented to justify an award in excess of $1,000.00. For the above reasons, the judgment of the trial court is amended to reduce the award for Steven Martinez from $2,000.00 to $1,000.00. In all other respects, the judgment is affirmed. Defendants are cast with all costs of these proceedings.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Lester V. QUINE, Jr. v. IDEAL CEMENT COMPANY.
    No. 11556.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Writ Refused Jan. 11, 1978.

      Warren L. Mengis, Baton Rouge, of counsel, for plaintiff-appellant, Lester V. Quine, Jr.
    Gerald L. Walter, Jr., Baton Rouge, of counsel, for defendant-appellee, Ideal Cement Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This action to recover workmen’s compensation benefits for total and permanent disability was dismissed. Plaintiff has appealed.

The issues are:

(1) Has this claim prescribed or been per-empted under L.S.A.-R.S. 23:1209?
(2) Was there an accident and injury within the meaning of L.S.A.-R.S. 23:1021(1) and (6)?

We affirm.

Plaintiff, a long-time employee of defendant, operated dry kilns that generated a high level of noise. In 1970, the plaintiff started complaining of hearing problems. He sought treatment without success. On May 22, 1974, plaintiff was unable to continue his work. On May 7, 1975 he filed this action.

L.S.A.-R.S. 23:1209 provides that a claim for compensation is timely if brought within one year from the date of the accident or within one year from the time the injury develops. However, any claim not filed within two years from the date of the accident is perempted. The burden of proving prescription or peremption is on the party pleading it. This is applicable to workmen’s compensation actions. Randol v. Lawrence, 205 So.2d 113, (2nd Cir., 1967) writs refused, 251 La. 930, 207 So.2d 538.

When the disability is the result of a continuous exposure over an extended period of time, rather than of a single specific accident or occurrence, the date from which prescription or peremption should run is the date of termination of employment. Burns v. W. H. Patterson Construction Company, 310 So.2d 675 (1st Cir. 1975). Thus since plaintiff filed suit within one year of discontinuance of work, his claim has not been barred by the one year prescription or peremption.

The determination of the two year peremption period is based solely on the date of the accident. Again, the exceptor must bear the burden of proving the date of the accident. See Randol, supra. Considering the vagueness of the evidence presented, we cannot say that the Trial Judge was manifestly erroneous in overruling this plea. Canter v. Koehring Company, La., 283 So.2d 716 (1973).

In order for plaintiff to recover workmen’s compensation benefits he must prove he received “ . . . personal injury by accident arising out of and in the course and scope of his employment . . . ”, L.S.A.-R.S. 23:1031. We quote from L.S.A.R.S. 23:1021(1) and (6) for the definitions of “accident” and “personal injury”:

“(1) ‘Accident’ means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.”
******
“(6) ‘Injury’ and ‘Personal Injuries’ include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.”

In Parks v. Insurance Company of North America, La., 340 So.2d 276 (1976), the Supreme Court interpreted these definitions:

“ . . . When the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown, the statutory requirements for an accidental injury are present. Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972); Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1968). More particularly, we have recognized that the fact that a condition may commonly be referred to as an illness or disease does not thereby preclude its classification as an accident. Jennings v. Louisiana Southern Life Insurance Co., 290 So.2d 811 (La.1974).
******
“ . . . It is only necessary that the accidental injury be caused or precipitated by the usual and customary actions, exertion, or other factors directly connected with the employment. Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975).”

However, plaintiff still bears the burden of proving a connection between the condition causing the disability and factors related to his employment. See Parks, supra.

The diagnosis of the doctors was that the plaintiff’s loss of hearing was due to Meni-ere’s disease, for which, according to the doctors, there is no known cause. In fact, the medical experts could not conclusively say that there was a possibility that noise trauma could have been a precipitating factor in plaintiff’s developing Meniere’s disease. The lower court found that plaintiff had failed to carry his required burden to prove the employment was the cause of the disability. Prim v. City of Shreveport, La., 297 So.2d 421 (1974); and Chatelain v. American Can Company, 344 So.2d 1180 (4th Cir., 1977). We cannot disagree.

Plaintiff argues that the high noise level aggravated the hearing loss. As stated in Prim v. City of Shreveport, supra, the plaintiff must show more than a possibility that the disability was caused by or aggravated by the employment. The courts are not to speculate when there are causes of equal probability. There is evidence in the record that, dating back a number of years, there was a reduction in plaintiff’s exposure to the noise trauma by use of ear muffs. There is sufficient evidence to support the Trial Judge’s finding of no aggravation; we should not substitute our own conclusions unless there is manifest error. Canter v. Koehring Company, supra.

The judgment appealed from is affirmed. Plaintiff is cast for all costs of this appeal.

AFFIRMED.


text:
    Moses MACK v. UNITED STATES FIDELITY AND GUARANTY COMPANY et al.
    No. 11559.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Michael W. McKay, Baton Rouge, of counsel for plaintiff-appellant Moses Mack.
    Robert D. Hoover, Baton Rouge, of counsel for defendants-appellees United States Fidelity & Guaranty Co., et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff seeks workmen’s compensation benefits for disability resulting from back injuries, allegedly sustained during the course and scope of his employment. He has appealed from a judgment of dismissal.

The issue is whether an alleged incident of May 17,1976, caused plaintiff’s disability.

We affirm.

Moses Mack injured his back in 1972 and re-injured it in 1975. Dr. Dean Moore and Dr. James A. Poche, orthopedic surgeons, diagnosed his condition as a possible herniated disc and recommended a myelogram to confirm the need for surgery. Mr. Mack refused the myelogram and surgery until after the alleged accident in May.

In February, 1976, Moses Mack compromised his claims, past and future, for workmen’s compensation which arose out of the 1972 and 1975 accidents.

After the October accident plaintiff worked off and on until May 20, 1976. He claims that on May 17, while reaching for and pulling a fuel line under a truck, he suffered the herniated disc which resulted in the requirement for surgical removal and fusion of the disc.

The evidence is contradictory and casts some doubt on the May 17, 1976 incident, but the lower court evidently resolved that doubt in plaintiff’s favor. However, the medical testimony indicates that the most probable cause of the injury was the October injury. In fact, Mr. Mack himself thought so little of the May incident that he failed to mention it to his employer or to Dr. Poche. Since there are facts to support the lower court’s finding that plaintiff’s condition was caused by the October accident, this court should not reverse without finding it manifestly erroneous. Canter v. Koehring Company, La., 283 So.2d 716 (1973).

The lower court found, also, that the May incident, if any, did not cause an aggravation of the already disabling injury. The plaintiff bears the burden of proving this relationship. Prim v. City of Shreveport, La., 297 So.2d 421 (1974). We cannot say the court was wrong.

For these reasons, the judgment is affirmed. Plaintiff is cast for all costs of this appeal.

AFFIRMED.


author: CHIASSON, Judge. COVINGTON, Judge,

text:
    Lorraine Rouff CHRISTEN v. BOARD OF TRUSTEES, LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM, et al.
    No. 11560.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

      C. Cyril Broussard, New Orleans, of counsel for plaintiff-appellant Lorraine Rouff Christen.
    Carlos G. Spaht, Baton Rouge, of counsel for defendants-appellees Bd. of Trustees, La. State Emp. Retirement System et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

The petitioner, Lorraine Rouff Christen, appeals from a judgment of the district court signed March 8, 1977, recalling and vacating the alternative writ of mandamus issued on February 9, 1977, directed to the Board of Trustees, Louisiana State Employees’ Retirement- System, and dismissing her suit at her costs. The suit was to compel the Board to pay the petitioner survivor’s benefits allegedly due her as a surviving spouse without minor child of a deceased member of the system. We affirm.

The facts in this matter are not in dispute. The petitioner’s husband, Carlyle Christen, began working for the State of Louisiana, Louisiana Division of Employment Security, on November 21, 1966, and died of a heart attack while still so employed on April 14, 1976, survived by his widow, the petitioner, but no minor children. At the time of his death, Mr. Christen had been married to petitioner for almost 25 years. At the time of his death, Mr. Christen had been employed for a period of 9 years, 4 months and 23 days and had accumulated sick leave and annual leave (764.1056 hours, sick leave; 709.6056, annual leave) which if both can be added to his period of employment, will exceed ten years.

Believing herself to be eligible to receive such survivor’s benefits, the petitioner filed on June 9,1976, an application and supporting documents with the Board of Trustees of the Louisiana State Employees’ Retirement System. The application was personally presented to the Board, and a hearing was granted to the petitioner. Prior to reaching its decision, the Board sought an opinion from the Attorney General. On July 16, 1976, the Attorney General rendered his opinion, Opinion No. 76-838, and ruled that sick leave and annual leave could not be used for the purpose of establishing minimum eligibility, interpreting the provision to mean that an employee must have already achieved minimum eligibility in order to be credited with sick and annual leave.

Pursuant to the Attorney General’s Opinion, the Board, at its meeting held on August 11, 1976, disapproved the use of sick and annual leave to make up the minimum “creditable service” for eligibility for survivor’s benefits, and found the petitioner ineligible to receive such benefits.

After the Board’s decision, the Attorney General’s Office reversed and recalled its original opinion; on January 12, 1977, the Attorney General issued Opinion No. 77-70, and now ruled that both unused sick leave arid accumulated annual leave could be “converted into ‘creditable service’ ” in order to establish “minimum eligibility for survivor’s benefits.”

When the Board declined to reconsider her application, the petitioner brought this suit on February 9, 1977, seeking a writ of mandamus to compel the Board to pay her survivor’s benefits. On March 4, 1977, a hearing on the writ of mandamus was held, and the district judge rendered judgment upholding the ruling of the Board, with assigned reasons for his judgment. Judgment was then signed on March 8, 1977, decreeing that the writ of mandamus be recalled and vacated, and the petitioner’s suit dismissed. On March 15,1977, the petitioner perfected a devolutive appeal to this Court.

The law in question, the Louisiana Employees’ Retirement Act, LSA-R.S. 42:541 et seq., provides that in order for a widow, without minor children, to enjoy survivor’s benefits, her husband must have had “at least ten years of creditable service” at his death. See LSA-R.S. 42:605.

Then, the pivotal issue for us to decide is what constitutes “creditable service” as used in Section 605 of the Louisiana Employees’ Retirement Act.

As this Court said in Groves v. Board of Trustees, Teachers’ Retirement System, 324 So.2d 587, 594 (La.App. 1 Cir. 1976), writ denied, La., 326 So.2d 378, 380:

“ . . (L)egislation providing pension systems must be liberally construed in favor of the intended beneficiaries. Maillet v. Board of Trustees, Teachers’ Retirement System, 248 La. 964, 183 So.2d 321; Miller v. City of Shreveport, La.App., 90 So.2d 565.”

Petitioner contends that during membership service an employee is allowed to establish a credit for annual and sick leave, according to a prescribed formula contained in LSA-R.S. 42:563. Further, that this credit can be tacked to “membership service” to arrive at “creditable service” of the member at the time of termination.

The legislature, by Act 135 of 1972, comprehensively amended and reenacted the State Employees’ Retirement System, Chapter 10, LSA-R.S. 42:541 et seq.

Section 543 of the Act gives the following definitions:

“(9) ‘Creditable service’ means prior service plus membership service for which credit is allowable as provided in this Chapter. .
“(18) ‘Membership service’ means service after July 1,1947 as an employee while a member of the system. .
“(22) ‘Prior service’ means service rendered prior to July 1, 1947, for which credit is allowed. .
“(33) ‘Vested right’ means when a member obtains retirement eligibility as to age and service in accordance with this Chapter.”

Section 556 provides for termination of membership in the system, as follows:

“Membership in this system ceases when a member withdraws his accumulated contributions, or when a member withdraws from active service with a retirement allowance, or when a member dies.”

Section 563 deals with the use of annual and sick leave as follows:

“A. All accumulated annual leave for which payment cannot be made in accordance with law and all unused sick leave accumulated at the time of retirement shall be credited to the member on the following basis:
“There shall be no limit to the amount of unused sick and annual leave that a member may convert to retirement credit on the basis of the above formula. .
“C. When extending credit for unused leave, fractional days of one-half or more shall be granted as one day and less than one-half day shall be disregarded. A member retiring out of state service shall not be allowed to use unused sick and annual leave to extend service credit unless he had a vested right thereto at the time he terminated his state service. Additional membership service for unused sick and annual leave shall not be used in computation of average compensation.” (Underlining added)

This latter section, relied upon by petitioner, and Section 543(33) allows “retirement credit” to a member, but specifically prohibits the use of unused sick and annual leave by the member to extend his “service credit” unless he had obtained “retirement eligibility” as to age and service at the time of termination.

Contrary to petitioner’s contention, this does not make retirement eligibility a condition precedent for entitlement to surviv- or’s benefits, it only makes retirement eligibility a condition precedent for the use of unused sick and annual leave in determining “creditable service” which, itself, is the criteria for survivor’s benefits.

Under Section 605, the surviving spouse is entitled to benefits only if “the deceased member . . . had at least ten years of creditable service . .

After careful review of Chapter 10, LSA-R.S. 42:541 et seq., we find no specific statutory provision that allows unused sick and annual leave to be used in the computation of “creditable service” as defined by LSA-R.S. 42:543(9).

Petitioner next contends that LSA-R.S. 42:421(B) mandates that when an “ . employee dies . . . before retirement, leaving a surviving spouse or dependents, or both, who are entitled to benefits from said system, his unused accumulated annual leave . . . shall be added to his membership service . .

The entire sentence from Section 421(B) from which petitioner quotes the above referred to phrases, reads as follows:

“. . . When an employee covered by this subsection retires, or whenever any such employee dies while still a member of any retirement system to which the state contributes in whole or in part and before retirement, leaving a surviving spouse or dependent or both who are entitled to benefits from said system, his unused accumulated annual leave in excess of the amount for which payment is received, as above provided, shall be added to his membership service in the same manner and to the same extent as if the employee had continued in state service until after the date on which average compensation, as defined by the law pertaining to any retirement system covered herein, is determined.” (Underlining added)

It is noticed first that this provision is contained in Chapter 8 and not in Chapter 10 which is the Louisiana Employees’ Retirement Act and that the use of unused accumulated annual leave is limited to the determination of “average compensation.”

“Average compensation” is defined in Section 543(5) as being the average annual earned compensation of a state employee for the thirty-six highest months of successive employment. Therefore, creditable service, meaning prior service plus membership service for which credit is allowable as provided in this Chapter (Chapter 10), would not include unused accumulated annual leave allowed by Section 421 (Chapter 8) to be used in the calculation of average compensation. Average compensation has not been and is not now an issue in this case.

Petitioner further contends that “entitled” above refers to the marital status of the surviving spouse and the age of the minor dependent child and that it has nothing to do with the retirement qualifications of the deceased member.

We are of the opinion that “entitled” refers to all the qualifications provided by statute, including the required number of years of creditable service.

The legislature had to determine the minimum years of service required for eligibility in the system, and unfortunately, no matter what period of time is used, there will always be those who will just barely miss eligibility. Our sympathies, like those of the trial judge, are with petitioner herein, but we find the statutes unambiguous and are therefore bound by the specific provisions thereof.

For these reasons the judgment of the trial court is affirmed.

AFFIRMED.

COVINGTON, Judge,

dissenting:

I respectfully dissent.

I believe that Section 605 of the Retirement Act (LSA-R.S. 42:605) must be interpreted in reference to the statute as a whole. The survivor’s benefit (claimed by the petitioner herein) is an integral thread woven into the cost-benefit fabric of the retirement system for state employees, not just some fancy new pocket stitched on a pair of old blue jeans as an ornamental afterthought. Considering Section 605 in this fashion can but lead me to the conclusion that both unused sick leave and accumulated annual leave are credits allowable to a member employee under this Act, which credits are convertible into membership service, or added to actual service for the purpose of achieving eligibility for survivor’s benefits. I am convinced that the Legislature did not intend “creditable service” to mean that the only service that counts is “active service.” In my view, Mrs. Christen is entitled to count the accumulated annual leave and unused sick leave of her husband, amounting to eight months and IIV2 days (or, 1473.7112 hours), and to convert this time into “creditable service” totalling 10 years, 1 month and 4V2 days, which of course makes the petitioner eligible to receive survivor’s benefits.

I would, accordingly, reverse the judgment of the trial court dismissing the petitioner’s suit, and render judgment in favor of the petitioner making the writ of mandamus issued in this suit peremptory and ordering the defendant to pay to the petitioner the survivor’s benefits to which she is entitled.

      . See Swift v. State, 342 So.2d 191, 196 (La.,1977), holding that there must be liberal construction of pension statutes and that ambi-guides must be resolved in favor of the intended beneficiaries.


author: LEMMON, Judge.

text:
    Paul S. GRAFFEO v. CITY OF NEW ORLEANS and Civil Service Commission of the City of New Orleans.
    No. 8846.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 18, 1977.

      William M. Detweiler, New Orleans, for plaintiffs-appellants.
    Many, Lo Coco & Dwyer, Ralph D. Dwyer, Jr., New Orleans, for defendants-appellees.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   LEMMON, Judge.

Plaintiffs, four sergeants in the New Orleans Police Department, filed this suit seeking to require that their names be placed on the promotional register of policemen eligible for promotion to the rank of lieutenant. The trial court dismissed the suit, and plaintiffs appealed.

In the trial court plaintiffs’ two-pronged attack on their exclusion from the register was based on assertions that (1) the Civil Service examination which they failed by one point was outdated and irrelevant to the position for which it was used as a test, and (2) the selection of the critical (passing) score was arbitrary and discriminatory. The issue in this court is the sufficiency of plaintiff’s proof of these assertions.

On March 22,1975 approximately 130 applicants were given the written examination, which was announced to be weighted 60% of the total score. During the protest period immediately after the test a large number of protests were filed, both as to individual questions and as to the test material as a whole. Two of the 150 questions were eliminated and two more were re-keyed, and the candidates were graded on their answers to 148 questions. In early May the Chief of the Recruitment Division and his staff met, examined the test results, and set the critical score at 116 after discussing relevant factors. Because of litigation unrelated to this suit, the scores were not promulgated until October, 1975. Plaintiffs, each of whom had scored 115 on the examination, then filed this suit.

Content of the Examination

The announcement of the Civil Service examination contained the following statement:

“A written test, weighted 60%, designed to measure the candidate’s knowledge of police procedures and practices, laws, municipal administration, community problems, government and related subjects. This test may also include parts designed to indicate the candidate’s intelligence, judgment, educational level and relationships with the public, the employer and fellow employees.”

Plaintiffs complain that they prepared for the examination by studying Department training keys and recent judicial decisions relating to law enforcement and that the test was taken entirely from a book of sample questions which was designed for candidates preparing for Civil Service testing in the general area of Police Science Advancement and which contained some terminology not normally used in this metropolitan area.

The purpose of the examination was to assist in selecting the most qualified men for the promotion by determining the candidates’ level of intelligence, judgment, experience and knowledge of police science. There is evidence that some terms unfamiliar in this locality were used (since the book was prepared for nation-wide distribution), and perhaps the questions should have been revised to employ terms locally used. Also the sociologically oriented test might arguably be considered “better” if input from the Police Department had been sought in order to orient the questions more practically to the qualifications of the particular job. However, this is an area in which courts should be slow to intrude, in the absence of arbitrariness or discrimination. Here, there was no showing that the test was not suitable to achieve the purpose for which it was administered, and more importantly there was no showing of a conflict between the book from which the testing materials were extracted and the Department training keys or other materials normally used by the applicants in studying for the examination.

We conclude plaintiffs failed to prove the examination fell below the requirements for promotion only after certification “under a general system based on merit, efficiency, fitness, and length of service”. La.Const.1974, Art. 10, §§ 7, 17.

Arbitrariness and Discrimination in Setting the Critical Score

Plaintiffs contend that the setting of the critical score was arbitrary and discriminatory. They point out that the median was 112, that plaintiffs scored above the median, and that there were logical breaks in the curve but not at the 116 score.

The setting of the critical score in this case was not controlled by Commission rules or fixed standards, but involved the exercise of judgment and discretion. The decision cannot be considered arbitrary unless the setting was made without reasons or reference to relevant considerations. Arbitrariness is the absence of a rational basis. Bicknell v. United States, 422 F.2d 1055 (5th Cir. 1970).

John Belsom, the Chief of the Recruitment Division, testified that he and his staff not only considered the median and the frequency distribution, but also weighed other factors bearing on the desirable number to be placed on the register, such as the number of existing vacancies, the estimated number of additional vacancies expected to occur within the period of time the list was to remain in effect, the likelihood that vacancies would be filled, and the fact that a large percentage of candidates on the preceding register had not been promoted when that register expired.

Ten vacancies existed at the time of the examination, and Belsom stated he expected about 20 more during the effective period of the register. Although previous registers had customarily been kept in effect for the entire three-year maximum period prescribed by law, the Superintendent of Police had requested that this register be limited to two years. And on the last register containing 49 names, over half had not been promoted when the register expired in three years. (There were only four vacancies when that register was promulgated, but the record does not show how many vacancies were anticipated during the life of the register).

Belsom further testified that he kept a running tally of vacancies in the police and fire departments, that he was periodically furnished with current information on strengths and expected retirements, and that he was aware of the Superintendent’s practice of allowing vacancies to remain open in order to generate money for overtime pay. He also pointed out that every person placed on the register had to be examined by a citizen interview board, a practical consideration suggesting thoughtful limitation of the number placed on the register. He decided, based on all of these considerations and on the frequency distribution, to cut below the score of 116, leaving 40 candidates to be placed on the register.

We do not deem this decision to be arbitrary, since there were many valid factors considered in reaching the decision. Furthermore, the critical score of 116 does not appear out of line when the frequency distribution is considered in the light of these factors, and we conclude there is no showing of an abuse of discretion.

As to discrimination, plaintiff Graffeo immediately after the examination directed a letter of protest to the Director of Civil Service, complaining of the materials used to compose the examination, the irrelevancy of the questions drawn from the source text, and the misleading information in the announcement. He testified that, after the test results were promulgated, Belsom stated he was “very familiar” with Graffeo’s letter and would not promote Graffeo if it were his decision. Belsom denied making such a statement.

Graffeo’s case as to discrimination (and the cases of the other three plaintiffs who failed, if the crucial score was set at 116 purposefully to eliminate Graffeo) is based primarily on circumstantial evidence. The circumstances — that Graffeo’s letter inferentially criticized Belsom, who was supervisor of the person that composed the test; that Belsom had access to the answer sheets containing the names and scores of each candidate; and that Belsom made the decision to cut off the passing grades just above Graffeo’s score — raise the inference of discrimination. However, these circumstances do not show that, more probably than not, discrimination actually occurred. Moreover, while the statement alleged by Graffeo to have been made by Belsom might tip the preponderance, Belsom denied the statement, and we must assume the trial judge resolved this conflict against Graffeo. And we further assume that the judge accepted Belsom’s testimony that he did not see any individual answer sheets before setting the crucial score.

We conclude that plaintiffs have failed to establish discrimination.

The judgment is affirmed.

AFFIRMED.

      . The remaining 40% weight of the total score was based on experience and a personal interview. However, only those who attained the minimum raw score on the written test were eligible for the register, and a candidate’s total score (which determined his rank on the register) was determined by adding the weighted score on the written test to the weighted score based on experience rating.

        . The job-relatedness requirement of the federal cases cited by plaintiffs involves the burden of proof on the defendant to show that testing or eligibility requirements are job-related, a burden which is imposed only after a prima facie showing of racial discrimination.

      . The frequency distribution in the area of the critical score was as follows:
      Score Number Score Number
      120 5 115 5
      119 4 114 4
      118 0 113 8
      117 7 112 10
      116 9 111 3
      Thus, as expert testimony established, there is no statistical reason for setting the critical score at 116, and under normal classroom procedures the passing score would be lower. However, since there was a reasonable desire to limit the size of the register to the number needed to fill expected vacancies, normal classroom procedures were not controlling.

      . While “arbitrary” is defined either as based on individual judgment or discretion or as determined by whim or caprice, only the latter is prohibited in the exercise of administrative functions.

      . Proof, whether by direct or circumstantial evidence, is sufficient to constitute a preponderance when the proof, taken as a whole, shows that the fact or causation sought to be proved is more probable than not. Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972); Hanover Ins. Co. v. Jacobson-Young, Inc., 294 So.2d 564 (La.App. 4th Cir. 1974).

      . In attacking the critical score, plaintiffs also asserted that Belsom should have anticipated more vacancies because of a new retirement system. However, there was no evidence as to when the system was adopted or when the fact of more numerous vacancies became apparent. On October, 1976, 17 months after the critical score was set, Graffeo did inform Belsom that there were more vacancies then expected and requested more names to be added to the register. Belsom agreed to do so, but was informed such a procedure did not meet legal requirements. While we do not consider the legality, Belsom’s willingness to add plaintiffs’ names also militates against a finding of discrimination.


text:
    Irwin L. MAGRI, Jr. v. CITY OF NEW ORLEANS and New Orleans Police Department.
    No. 9069.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 19, 1977.
    Sanford Krasnoff, New Orleans, for plaintiff-appellant.
    Philip S. Brooks, City Atty., and Michael A. Starks, Asst. City Atty., for defendant-appellee.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   ON MOTION TO DISMISS

LEMMON, Judge.

On August 13, 1974 plaintiff appealed his dismissal from the New Orleans Police Department to the Civil Service Commission, the appeal bearing Docket No. 748. After the appointing authority filed exceptions of lis pendens, the Commission ruled that plaintiff has a right to a hearing before the Commission, but stayed the proceeding while another suit by plaintiff was pending in federal court. Plaintiff filed a “partial appeal” to this court, complaining only of the stay order.

On June 18, 1975 plaintiff and the appointing authority executed a compromise agreement, in which plaintiff agreed, in consideration for certain promises made by the appointing authority, to dismiss his appeal pending before the Commission bearing Docket No. 748. On the same day a joint motion to dismiss the appeal was presented to the Commission, and the Commission thereafter accepted the motion and dismissed the appeal with prejudice. The “partial appeal” to this court was also dismissed on joint motion.

On June 8, 1977 plaintiff presented the Commission with a motion to reinstate his appeal on the grounds that the appointing authority “failed to live up to the compromise agreement”. The Commission denied the motion. Plaintiff then filed the present appeal, and the appointing authority moved to dismiss the appeal.

The appointing authority points out that plaintiff’s recourse is to enforce the compromise, an action over which the Commission has no jurisdiction. Plaintiff argues he is not seeking to enforce the compromise, but that argument begs the question of whether any other relief remains available.

Compromises have, between the parties, a force equal to the authority of things adjudged. C.C. art. 3078, 3556(31). Therefore, plaintiff’s complaints regarding his dismissal by the appointing authority has been finally adjudged, and the Civil Service Commission has no power and authority to grant plaintiff relief as to this complaint, absent a declaration of nullity of the compromise.

The appeal is dismissed.

APPEAL DISMISSED.


text:
    Errol J. MARTIN, Sr. v. PARISH OF JEFFERSON et al.
    No. 8717.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 20, 1977.
    Rehearing Denied Nov. 10, 1977.

      Darryl J. Tschirn, John M. Robin, Metair-ie, for plaintiff-appellant.
    J. Wayne Anderson, Metairie, Eugene G. Taggart, New Orleans, for defendants-ap-pellees.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   ON MOTION TO DISMISS

Appellee, Louisiana Power & Light Company, filed a motion to dismiss the appeal of plaintiff-appellant, Errol J. Martin, Sr., because of untimely filing of appeal bond based on the following facts:

June 9, 1976 — Judgment signed in favor of plaintiff against defendants Julian Wenn and Fireman’s Fund Insurance Co., dismissing suit against defendant Louisiana Power & Light Company.
June 15, 1976 — Denial of motion of new trial of Wenn and Fireman’s.
July 14, 1976 — Suspensive appeal and bond filed by Fireman’s.
September 9, 1976 — Wenn granted devol-utive appeal and bond of $1,500.00 filed September 10, 1976.
September 9, 1976 — Plaintiff granted de-volutive appeal, bond of $1,500.00 not filed until September 20, 1976.
October 15, 1976 — Order of dismissal of plaintiff’s suit against Wenn and Fireman’s because of compromise, reserving plaintiff’s rights against Louisiana Power & Light Company.

Appellee points out that C.C.P. art. 2087 (before its 1976 amendment) requires both devolutive appeal taken and bond furnished within 90 days of expiration of delay for new trial application or of new trial denial. Although the appeal was timely taken, the bond was filed too late, and the jurisdiction of this court did not timely attach. C.C.P. art. 2088; Orrell v. Southern Farm Bureau Casualty Insurance Co., 248 La. 576, 180 So.2d 710 (1965); Wright v. Mark C. Smith & Sons, 283 So.2d 85 (La.1973).

The appellant contends that the appeal filed by the defendant, Fireman’s Fund Insurance Co., was perfected and gave this court jurisdiction to hear the appeal. He relies upon the jurisprudence of this state to the effect that only one appeal bond is required for multiple appellants from a single judgment. Vienne v. Chalona, 203 La. 450, 14 So.2d 54 (La.1943); Hernandez v. Ethyl Corporation, 83 So.2d 150 (La.App. 1st Cir. 1955); Succession of Abraham, 136 So.2d 471 (La.App. 3rd Cir. 1962).

In the case of Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir. 1976), we had occasion to consider the problems of multiple appeals based on only one bond. In discussing the jurisprudence as contended by appellant, we stated:

“We agree with that broad jurisprudential rule, but only when the required bond for suspensive appeal actually furnishes security for all appellants and, perhaps, when the required bond for devolu-tive appeal in fact affords security for all costs due by all appellants, i. e., when the appellee in either a suspensive or devolu-tive appeal is afforded the full required appeal security. (Emphasis ours.)
“[2] Here, the only security furnished is the bond filed by Schnell, Carbo and Rockwood Insurance. That bond binds its surety only for those three appellants; the bond does not mention Bourg. Thus, as to both the money judgment and costs, the appellee is without recourse against the surety insofar as Bourg is concerned.3 Under these circumstances, the rule relied on by Bourg has no application. Accordingly, we dismiss his appeal.” (Footnote 3. omitted.)

In the case of Brown v. Drennan, 347 So.2d 955 (La.App. 4th Cir. 1977), we held, based upon the emphasized dicta in Borne, that a devolutive appeal bond timely posted by an appealing intervenor afforded security for all costs due, including an appealing plaintiff who filed untimely appeal bond. We found that the record was prepared and filed in this court on the strength of inter-venor’s bond and that the late-filed bond of plaintiff was as a practical matter an unnecessary duplication of the bond already furnished. If this is a correct application of law, then plaintiff’s appeal must be maintained here. Although the record here was not filed on the strength of the timely filed appeal bond, nevertheless that bond was in effect until after appellant’s bond was filed, and thus appellee was afforded continuous protection.

However, the holding in Brown is contrary to the holding in Borne. We note that in Borne the timely appellants obtained a suspensive appeal, and that appellant Bourg timely filed for both suspensive and devolutive appeal but failed to furnish any bond. A suspensive appeal bond carries security not only for the performance of the judgment but also for the payment of all appellate costs. C.C.P. Article 2124. Accordingly under the theory of Brown the devolutive appeal should have been maintained. Instead it was dismissed and there now exists a conflict between two of our decisions. Additionally, we note a conflict with our decision in Littleton v. B & R Construction Company, 266 So.2d 560 (La.App. 4th Cir. 1972), wherein we dismissed an appeal.

We hold that our application of the law in Brown v. Drennan is erroneous and is overruled. The controlling principles here are those stated by the Supreme Court of Louisiana in the case of Wright v. Mark C. Smith & Sons, supra. Although recent legislative changes in our Code of Civil Procedure would tend to support to some degree the view of the court in the Brown case, the controlling law for this case is that stated in the Wright case: that the appeal bond is an increment of jurisdiction in the appellate courts, whose jurisdiction over a case is not attached until the timely filing of the appeal bond, and that an appeal must be taken and the bond filed within the time fixed by law to prevent a judgment from becoming final. The controlling issue is not one of affording security to the appellee, but the finality and definitiveness of the judgment after lapse of the appropriate appeal time. In this case the judgment against the plaintiff had become final before plaintiff filed his appeal bond and no jurisdiction over his appeal ever attached to this court.

The motion to dismiss the appeal is maintained and the appeal of Errol J. Martin, Sr. is dismissed at his costs.

APPEAL DISMISSED.

      . In accordance with this Court’s internal rule, the question of overruling our prior decision has been submitted to the Court en banc. The overruling has been approved by six judges, more than a majority of this Court, with Judges Gulotta and Schott dissenting.


author: CHIASSON, Judge.

text:
    Allimire MIRHOSSEINY v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College et al.
    No. 11530.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 24, 1977.
    Rehearing Denied Nov. 21, 1977.

      A. Clay Pierce, Jr., Baton Rouge, for plaintiff-appellant, Allimire Mirhosseiny.
    W. Shelby McKenzie, Baton Rouge, for defendant-appellee The Board of Supervisors of Louisiana State University.
    Donald T. W. Phelps, Baton Rouge, for defendant-appellee Mrs. Grace K. Cooney and St. Paul Fife and Marine Ins. Co.
    Aubrey L. Moore, Baton Rouge, for defendant-appellee American Home Products Corp.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is a devolutive appeal by Allimire Mirhosseiny, plaintiff-appellant, of a judgment rejecting his claim for tort damages against the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (Board of Supervisors), Mrs. Grace K. Cooney, St. Paul Fire and Marine Insurance Company, and American Home Products Corporation, defendants-ap-pellees, resulting from an intramuscular injection he received in the right buttock at the Louisiana University Student Infirmary on November 1, 1973. Plaintiff, a 23 year old foreign student, was enrolled at Louisiana State University. The injection was the third in a series of monthly injections of Bicillin L-A (a long-lasting antibiotic drug) prescribed by his Iranian physician and administered by Mrs. Grace K. Cooney, a nurse at the facility. Soon after the injection the plaintiff returned to the infirmary with intense pain in his right leg. He was treated immediately, but required hospitalization at the infirmary for several weeks. There, he was treated by Doctors Addis and Luikart and later he was seen by Doctors Levert and Kline both of whom are neurologists.

The defendants have not taken an appeal nor have they filed an answer to plaintiff’s appeal.

At trial there was no dispute between the parties that plaintiff’s disability resulted from the hypodermic injection, nor was there any dispute that the bicillin was an irritant to the sciatic nerve.

Appellant’s first argument is that the doctrine of res ipsa loquitur should have been applied by the Trial Court under the circumstances of this case.

It is well established in the Louisiana jurisprudence that the maxim, res ipsa loquitur, is properly applied when the accident is of a kind that does not ordinarily occur in the absence of negligence; the injury was caused by an agency or instrumentality within the control of the defendant; and evidence as to the cause of the accident is more readily available to the defendant.

“. . . the maxim means only that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that the rule rests for its justification upon the common experience that accidents from such causes do not commonly occur in the absence of negligence; and that it is the lack of direct evidence indicating negligence on the part of the defendant as the responsible human cause of a particular accident which actually furnishes the occasion and necessity for invoking the rule in its strict and distinctive sense. .
All that is meant by res ipsa loquitur is ‘that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to some omission of the defendant’s duty.’ ” Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389, 391 (1957). Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).

From the medical expert testimony in the record it appears that the type of injury suffered by plaintiff in this case could have been caused by injecting bicillin directly into the sciatic nerve or by injecting the bicillin around or on the sciatic nerve, both of which would involve a deviation from the standard of care in such cases. A third possibility assumes an injection conforming with the standard of care and having the bicillin “filter” to the sciatic nerve thus causing the injury.

The standard of care in the Baton Rouge community applicable to “shot nurses” for buttock injections is that the injection be given in the upper outside quadrant and at a ninety degree angle to the surface of the skin.

There was also direct evidence introduced as to the location of the point of injection and as to the angle of penetration.

From the foregoing, it is apparent that the Trial Judge had sufficient direct evidence presented to preclude the application of res ipsa loquitur in this case. Larkin v. State Farm Mutual Automobile Ins. Co., supra. Further, there was testimony by the medical experts that, though infrequent, this type of injury can occur even in the absence of any negligence.

Plaintiff’s last specification of error is that the Trial Court erred in rendering judgment in favor of all defendants. In its reasons for judgment the Trial Judge found:

“The plaintiff was a very frail, thin, emaciated individual. It was shown that a person of his build and physique is more prone to suffer this type injury than a well nourished supple individual. It was more or less agreed between the medical experts that there was no direct hit of the sciatic nerve, but that undoubtedly the medicine (bicillin) infiltrated through the muscle planes and enveloped or at least reached the nerve and caused the resulting injury and disability. Had the nerve been hit, a direct blow by the needle, the fact would have been instantly reported by plaintiff.
“ * * * In view of the plaintiff’s physique, the testimony of Doctors Addis, Kline and Luikart as to what more likely occurred that (sic) not, the positive finding of Dr. Addis and the testimony of Mrs. Cooney, this court find (sic) that the plaintiff has not sustained his burden of proof that Mrs. Cooney was negligent in the administration of the bicillin, or that she violated the two-fold standard of care.”

In a deposition taken of Dr. David G. Kline, a neurosurgeon, he stated that, particularly with the sciatic nerve, some patients who fit the description of plaintiff’s physique may experience a delayed onset of this difficulty due to the medication being deposited in an anatomical plane leading to the nerve allowing it to bathe the nerve over a period of time extending from minutes to hours. That evidence was supported by Dr. C. Bryan Luikart, Jr. who stated in his deposition that filtration to the nerve is possible even at a distance from the point of injection. Even plaintiff’s expert neurologist, Dr. Sam L. Levert, Jr., testified that the filtration idea was logical and that it is a theory only in that no one has ever actually seen it occur, and that its reasonableness is supported by the many instances in which persons feel no pain until the passage of one, five or ten minutes or as much as an hour or longer after the administration of an injection.

There was testimony by Dr. Barrelle N. Addis that the site of the injection was located in the upper outside quadrant of the buttock. Mrs. Cooney also testified that she administered the injection in the upper outside quadrant at a ninety degree angle which testimony was accepted by the Trial Judge.

We find that the record amply supports the conclusions and the judgment of the Trial Court.

The evidence in the record establishes that there was nothing wrong with the bicillin and the judgment in favor of American Home Products Corporation, manufacturer of the bicillin, is correct.

For these reasons, the judgment of the Trial Court is affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. C. F. BREAUX INVESTMENT COMPANY, INC. (two cases).
    Nos. 11538, 11539.
    Court of Appeal of Louisiana, First Circuit".
    Oct. 24, 1977.
    Rehearing Denied Nov. 21, 1977.

      Johnie E. Branch, Jr., Charles A. O’Brien, III, Baton Rouge, for plaintiff and appellant.
    Maurice P. Mathieu, Houma, for defendant and appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, the Department of Highways, State of Louisiana, appeals a judgment rendered in two consolidated cases which awarded.defendant-appellee, C. F. Breaux Investment Company, Inc., $179,-367.00 less $55,161.00 already paid into the registry of the court, together with legal interest on the balance. The sum awarded was in compensation for land expropriated for state highway use and for severance damages to the remainder of defendant’s property. Expert witness fee was fixed at $2,500.00 and taxed as costs to the State. The defendant has neither appealed nor answered the appeal.

In suit number 11,538 the State offered $14,922.00 for the land and improvement consisting of a concrete street and in suit number 11,539 the State offered $40,239.00 for the land. No offer for damages in either suit was made by the State. The offers were refused by the defendant and the State deposited those sums in the registry of the court.

On May 8, 1975, the State expropriated two parcels of defendant’s land for the construction of the new Bayou Dularge Bridge and relocation of La. 315 in the City of Houma, Terrebonne Parish, Louisiana. The total area of defendant’s unimproved property consisted of 36.603 acres in the form of a triangle. One side was bounded by the Houma Golf Club and the other side is bounded by a residential subdivision, both of which sides join to form the front of the property on U.S. 90, with a width, including a servitude of passage, of fifty feet. The subject tract consists of approximately ten clear acres of high ground, and the remainder is somewhat lower and wooded. The part taken by the State was 4.991 acres and was that part of the tract which bordered along the Houma Golf Club. The taking separated the remaining 31.612 acres from the said golf club with a four-lane highway and approaches to a high level bridge.

The trial court accepted the values as found by defendant’s expert, Mr. L. X. La-mulle, and fixed compensation for the tract taken, in the written reasons, at $77,809.00 and allowed $101,588.00 as severance damages to the remainder of defendant’s property, for a total of $179,397.00. The judgment, however, was in the total amount of $179,367.00.

The State contends that the trial judge was manifestly erroneous:

(1) In accepting Mr. L. X. Lamulle’s testimony in full;
(2) In failing to consider the cost to fill the property in or to bring up its elevation;
(3) In finding that the part taken had a higher value than the average value of the whole tract;
(4) In finding that the remainder of the property had been damaged;
(5) In finding that the remaining property received no special benefits by the addition of 1400 feet of frontage.

In expropriation cases, the property owner is to be compensated at the market value of the property taken according to its highest and best use. State, Through Department of Highways v. Hoyt, 284 So.2d 763 (La.1973); State, Department of Highways v. Romano, 343 So.2d 222 (La.App. 1st Cir. 1977); State, Department of Highways v. Baton Rouge Realty Company, Ltd., 339 So.2d 1317 (La.App. 1st Cir. 1976). Further, in ascertaining the market value, much discretion is given to the trial judge in weighing the testimony of experts, and his finding of value based on such evidence will not be disturbed unless clearly erroneous. State, Department of Highways v. Lirocchi, 329 So.2d 803 (La.App. 1st Cir. 1976), writ refused. State, Department of Highways v. Browning, 315 So.2d 784 (La.App. 1st Cir. 1975).

The basic contention of the State is that part of the subject property has been placed in the Special Flood Area by the Department of Housing and Urban Development, and that, for flood insurance purposes, the slab of a home must be at an elevation of plus five feet.

The grade elevation maps show that the front portion of the property is at an elevation of plus ten (as high as any area in Terrebonne Parish) and gradually slopes to the rear. Half of the property is at an elevation of at least plus five and, the rear portion of the property has elevations ranging from plus one to plus four and one-half.

The State, therefore, added as a cost of development the amount necessary for hauling fill to elevate the whole of the property to plus six feet, the alleged minimum slab grade.

The State’s appraisers had originally made an appraisement of the value of the property taken at anywhere from $7,500.00 to $9,000.00 plus per acre. However, at the trial the appraisers updated their appraisals taking into consideration the amount of fill that would be necessary to raise the property to a level of six feet and concluded that the value of the property was only $1,470.00 per acre.

The property is within the City limits of Houma and is zoned residential.

There is evidence in the record that Ter-rebonne Parish does not have an ordinance establishing a minimum slab grade; that subdivisions are still being developed in the Special Flood Hazard Area in Terrebonne and Lafourche Parishes; that under the latest F.I.A. ruling, only the concrete slab of the home should be at plus five, the rest of the lot can be lower and the streets even lower for drainage purposes; that by cutting of streets and grading the higher elevation toward the lower areas, which is generally done in this locale,-there would be no prohibitive costs involved in bringing all of the property to a sufficient grade level; that if fill is required at all, it would be a minimum amount to raise the very small total areas which have to meet certain elevation requirements; that most of the elevations in Ellendale Subdivision, which has homes in the price range of $100,000.00 to $500,000.00, were between zero and plus two; and that the subject property was more valuable than Ellendale because of its superior location.

Mr. Lamulle testified that the highest and best use of the property adjacent to the golf course was for luxury type homes. The remainder would have been middle to upper middle class luxury type homes by virtue of developing the part along the golf course. Though all of the property is residential there is evidence to support the trial judge’s finding that the part taken, paralleling the golf course, had a higher value than the average value of the whole tract.

Mr. Lamulle used as raw average compa-rables undeveloped tracts lying within the city limits in close proximity to the subject property and made adjustments for size, location, frontage and utilities to adjust the comparables to the subject property. He valued the part taken at $13,987.00 per acre and the remaining at $9,000.00 per acre before the taking. He arrived at the same value by use of the subdivision developmental analysis method.

Severance damages were determined by taking the difference between the fair market value of the property immediately before the taking and the value of the remainder after the taking. Mr. Lamulle used the same methods to obtain the value of the remainder after the taking and determined that value to be $5,000.00 per acre. The difference, $4,000.00, times the remaining acreage, 31.612, equals $126,-448.00. However, because the owner was compensated for the part taken at a higher than average value, the difference times the acreage totaled $24,890.00, which was subtracted from $126,448.00 to arrive at severance damages in the amount of $101,-558.00. According to Mr. Lamulle, the reduced value of the remainder was due to several various reasons, among which was the design that was necessary of the lots afterwards, the influence of the elevated bridge structure adjacent to the remainder property, the loss of frontage on the golf course, and the adverse effect of the four-lane highway on the desirability of the property for residential use, thus reducing the highest and best use of the remainder property to more modest type of residence. The highway is a major thoroughfare with curbing on each side. Access to the highway would have to be applied for and approved by the Highway Department. Contrary to what the State argues, this is not “a mirror image of the existing tracts across the golf course” because of the difference in the highway construction and access thereto.

The State next contends that the new highway would specially benefit the remainder in the amount of $600,000.00 by adding 1400 feet of frontage and changing the character of the remainder to commercial property. There is ample evidence in the record to support a finding that there was no “reasonable possibility” of a zoning change.

While each side attacks the methods and comparables used by the other to arrive at a value of the property and severance damages, the record in this case justifies the trial court’s acceptance of the valuation placed upon the property by defendant’s expert.

We find no manifest error committed by the trial court and therefore affirm its judgment.

AFFIRMED.


author: MARVIN, Judge.

text:
    FORD MOTOR CREDIT COMPANY, Plaintiff-Appellant, v. W. W. HOGG, Defendant-Appellee.
    No. 13353.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.

      Pipes & Pipes by W. F. Pipes, Jr., Monroe, for plaintiff-appellant.
    McKeithen, Burns & Lewellyan by Paul Wilkins, Columbia, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

FMCC appeals from a judgment dissolving a writ of sequestration and awarding Hogg damages and attorney’s fees for the wrongful seizure of Hogg’s Ford automobile.

In its petition filed March 8, 1977, FMCC alleged that the monthly mortgage installment payments on the automobile for January and February, 1977, were not paid and that it elected to mature Hogg’s note in its entirety. On appeal, FMCC contends that the lower court erred in finding that the mortgage installment payments were current and alternatively, that the awards made by the lower court were grossly excessive and not justified by the evidence. We find the record supports these factual findings below and affirm.

The contention as to whether or not the installment account was current arises out of two payments made to FMCC by Hogg. The first payment was Hogg’s check for the August, 1976 installment. The second payment was a money order purchased by Hogg on February 14, 1977, and mailed to FMCC.

Hogg financed the credit purchase of two vehicles with FMCC, a Mercury Monarch, on which the monthly installment was $154, and a 1975 LTD Ford, on which the monthly installment was $139. Written on the face of the August check were the words “note on 1975 LTD.” Mrs. Hogg forwarded with the check a letter informing FMCC that the payment (coupon receipt) book containing the specific account number had been lost and requested a replacement book. FMCC’s records show the request was “processed” on August 27. The purchase contract, however, made no reference to, and did not require, a coupon accompanying the monthly payment. The August payment was applied by FMCC to the Mercury Monarch account.

The law is settled that the debtor has the right or privilege of designating or imputing to which of several debts with one creditor a particular payment is to be applied and the creditor is not privileged to make the imputation unless the debtor fails to make it. C.C. Arts. 2163, 2166. See Madison Lumber Co. v. Helm, 202 La. 1061, 13 So.2d 349 (1943), and Hammond Wholesale Implement Co. v. Hunt, 125 So.2d 696 (La.App. 1st Cir. 1960).

An FMCC representative testified he had discussed with Mrs. Hogg, after the imputation of the August check to the Mercury account, that it would take at least two weeks for the FMCC Data Processing Center in Michigan to correct the erroneous imputation. He suggested to Mrs. Hogg that she make the “adjustment” (as he called it) when she sent in the next monthly installment. This witness also testified that monthly payments from installment purchase customers in a five-state area go to a lockbox bank at a post office number in Houston, Texas. There, data from the coupon and an IBM card goes into a computer and the application of payment to the particular account is made. This computer is connected to FMCC’s central computer in Michigan. The issue is whether the creditor erroneously imputed payment to the Mercury. This issue cannot be decided on the basis of what reasonable computers would do or would have done under the circumstances, but on the basis of the traditional test of reasonable men and reasonable minds. The lower court did not,err in concluding the debtor made a sufficient imputation of the August, 1976, payment to the 1975 LTD Ford account and that the creditor’s imputation to the Mercury was erroneous.

The second payment bearing on the question of whether the account was current was a money order dated February 14, 1977, and mailed to FMCC at its Lubbock, Texas, 'address as FMCC directed. The factual issue was whether this money order was timely mailed to or received by FMCC before it filed suit on the alleged delinquent installment contract. This issue was resolved by the lower court against FMCC, whose representative admitted that FMCC received the money order in Lubbock sometime after February 23, 1977. We find no error in the lower court’s determination that the installment account was not delinquent as alleged since it was customary for the debtor to send payments through the mail to the address or addresses as FMCC directed from time to time.

The lower court awarded $600 in damages and $350 in attorney’s fees. While FMCC complains the awards are excessive, Hogg, in answer to the appeal, seeks to have the awards increased. Under the circumstances, we find each award to be within the range of discretion legally afforded the lower court.

At appellant’s cost, judgment is

AFFIRMED.


author: JONES, Judge.

text:
    Andrew COLE et al., Plaintiffs-Appellees, v. Joe MOTT et al., Defendants-Appellants.
    No. 13370.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.

      Cotton, Bolton, Roberts & Hoychick by W. D. Cotton, John Hoychick, Jr., Rayville, for defendants-appellants.
    William R. Coenen, Jr., Rayville, for plaintiffs-appellees.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiffs seek damages for loss of their soybean crops due to flooding on July 8, 1975, allegedly caused by defendant’s levees which obstructed plaintiffs’ natural drain. Plaintiffs also seek an injunction ordering the removal of the levees obstructing the natural drain, or alternatively, ordering defendants to provide drainage through the levee system. The trial court awarded plaintiffs judgment for damages to their crops, but denied the injunctive relief. Expert witness fees of $600 were awarded plaintiffs. Defendant appeals and plaintiffs answer. We grant injunctive relief and, as modified, affirm.

To facilitate an understanding of the issues presented, we include a rough sketch of the lands involved.

The farm land is located in Richland Parish, a short distance east of Lafourche Canal which provides drainage for the area. The Morris tract, a flat woodsland area, is the estate through which waters from east flow before reaching Lafourche Canal. The natural drainage for the Hill and Craighead properties is east to west over the Mott land, then across Morris to Lafourche, and for the Cole property north into Mott, then west to Lafourche. The Mott property is lower in elevation and the servient estate to the dominant Cole, Hill and Craighead estates, all of which are higher in elevation. Plaintiffs have engaged in no activity which increased the defendant’s natural drainage burden.

The farmers who leased Mott’s land in 1973 made a poor bean crop because of water draining on the Mott tract from higher surrounding farms while plaintiffs’ lands suffered little, if any, water damage and had a substantial bean yield. In 1974 defendant built levees two feet high along his north, south and east borders in order to use his lands for growing rice. During the summer of 1974, plaintiffs’ crop on acreage adjacent to defendant’s levees suffered flood damage. Defendant paid plaintiffs for these crop losses due to flooding caused by defendant’s levees impeding natural drainage from plaintiffs’ properties. In 1974, following settlement of plaintiffs’ damage claim, defendant constructed ditches adjacent to and outside his levees in an effort to provide substitute drainage for the water that flowed direct upon defendant’s property prior to the construction of the levees.

In June, 1975, plaintiffs’ crops received damage due to back water from Lafourche Canal which overflowed because of heavy rains in the area. Plaintiffs replanted soybeans in late June after the waters receded within the banks of the canal. On July 8th plaintiffs received a three to four inch rain. The water from this rain would normally have drained from plaintiffs’ farms within a one day period; however, because of drainage obstruction created by defendant’s levees, it remained ponded for three to four days on approximately 18 acres of plaintiffs’ young soybeans adjacent to defendant’s east and south levees. At this time Lafourche Canal was within its banks and no water backed up from Lafourche through the Morris estate to plaintiffs’ lands. The flooding problem was due solely to defendant’s obstruction of natural drain. Plaintiffs’ beans located on the flooded acreage were destroyed.

The issues on appeal are (1) the correctness of the trial judge’s finding that.the flooding was caused by defendant’s levees obstructing the natural drainage; (2) are plaintiffs entitled to injunctive relief? and (3) was the amount fixed for expert witness fees proper?

LSA-C.C. Art. 660 provides for a servitude of natural drain due by the servient or lower estate to the dominant or higher estate by which the lower estate must receive waters naturally flowing from the superior estate. The servient and dominant estates owe each other reciprocal obligations, the servient, not to obstruct or hinder natural drainage from the superior estate and the dominant not to increase the burden of drainage.

Defendant’s principal assignment of error is the failure of the trial judge to accept the testimony of eleven witnesses called by defendant to establish the damages were caused by backwater created by an excessive rain on July 8, 1975, and were unrelated to defendant’s levees. Although the trial court’s findings of fact are entitled to great weight on appeal, we are required to independently review and evaluate the law and facts presented. Canter v. Koehring Company, 283 So.2d 716 (La.1973). The trial court found defendant’s estate owed plaintiffs’ estates a servitude of drainage and on July 8, 1975, following a three or four inch rain, plaintiffs’ soybean crops were damaged because of defendant’s levees impeded the natural drainage and his substitute ditches were inadequate to properly drain the plaintiffs’ lands.

A careful review of the testimony of each witness, including defendant’s eleven witnesses, establishes the correctness of the trial court’s conclusion. The testimony of plaintiffs’ witnesses was logical, supported by sound reasons, and corroborated by facts and circumstances. Where the trial court’s conclusions are in conflict with the testimony of defendant’s witnesses, we found justification in the record for the trial court to disregard this testimony.

The record supports the trial judge’s findings of fact and his award of damages.

ARE PLAINTIFFS ENTITLED TO AN INJUNCTION?

The trial court based its refusal to enjoin defendant from obstructing the natural drain on the ground that plaintiffs could adequately be compensated in money for any future crop losses attributable to defendant’s levees.

The injunction has historically been recognized as a remedy available to assure the continued use of a servitude of drain over another’s land. Poole v. Guste, 261 La. 1110, 262 So.2d 339 (1972).

In Broussard v. Cormier, 154 La. 877, 98 So. 403 (1923) an injunction was issued requiring defendant to remove a levee obstructing a servitude of drain in order to facilitate the raising of rice on the dominant estate. In Brown v. Blankenship, 28 So.2d 496 (La.App., 2d Cir. 1946), silt, vegetation and debris obstructing a natural drain were ordered removed from the drainage bed located on the servient estate in order that cotton and alfalfa could be raised upon the dominant estate. In Cornett v. Hebert, 31 So.2d 446 (La.App., 1st Cir. 1947), an injunction was issued ordering the removal of a dam obstructing a servitude of drain to eliminate flooding which precluded the raising of Lespedesa and Dallas grass upon the dominant estate. In Poole obstructions to drainage preventing the water from flowing from the dominant estate to the servient estate were ordered removed to facilitate the growing of timber upon the dominant estate.

Defendant’s levees obstruct the natural drain and prevent plaintiffs from successfully raising soybeans or other crops on portions of their lands adjacent to the levees. The record reflects these levees have effectively destroyed plaintiffs’ soybean crops on approximately 18 acres immediately adjacent to levees for three consecutive years, 1974, 1975, and 1976. Plaintiffs are entitled to the natural drain under LSA-C.C. Art. 660 and defendant has no right to obstruct it. See also LSA-C.C. Art. 667 which provides that defendants have no right to use their land in such a manner as to deprive plaintiffs the liberty of enjoying their lands.

The court in Poole pointed out a dominant estate has never been relegated to compensatory damages, but rather the servitude of drain has always been enforced by injunction. The court in Poole refused to consider the possibility of permitting the servient estate to pay damages in lieu of removing the obstruction of drainage and recognized the right of the dominant estate to be free of the obstruction so the owner could use the property for his own purposes. We conclude the servient estate owes an absolute duty to the dominant estate to receive waters which naturally flow upon it, and the servient estate is not entitled upon the payment of damages to obstruct the natural drainage.

The trial court denied the injunction on the additional ground that plaintiffs were lessees rather than owners and for that reason did not have the right to enforce this servitude of drainage owed the dominant estate.

A lessee is entitled to the benefits to be derived from the use of the property for the purposes contemplated by the lease. The lessee of farm property by the very nature of the lease is entitled to the benefits and privileges inherent in the leased premises necessary and advantageous to the full production of the crop. The servitude of drain which the leased property enjoys over a servient estate is an important element of the agricultural productivity of the leased premises. The lessee who acquires from the owner the right to grow the crop upon the land also acquires the advantage of any servitude of drain owed the leased premises and the right to assure the availability of natural drain by injunction.

In Salter v. B. W. S. Corporation, Inc., 290 So.2d 821 (La.1974), a lessee was awarded an injunction against activity of an adjoining landowner which could damage the lessee’s water well. There is no distinction between the actions of an adjoining landowner in damaging a lessee’s water well in contravention of LSA-C.C. Art. 667 and in obstructing a lessee’s natural drain in contravention of LSA-C.C. Arts. 660 and 667. His activities in each case are subject to an injunction.

Plaintiffs as lessees are entitled to the injunctive remedy against defendant’s interference with the natural drain.

Plaintiffs contend the expert witness fee of $600 awarded for their expert was inadequate when considering the expert spent 30 hours in preparation, made several trips to the subject property, paid wages to his employees and testified two days at trial. The trial court has much discretion in setting an expert witness fee, after determining the degree of skill of the witness, the time spent in preparatory work, the extent and nature of the work performed, the time spent away from his job, along with the actual time spent in court. The trial judge did not abuse his discretion in determining the fee. Schamens v. Crow, 326 So.2d 621 (La.App., 2d Cir. 1976) and Succession of Moody, 306 So.2d 869 (La.App., 1st Cir. 1975).

There was evidence as to possible alternatives available to defendant to provide drainage to plaintiffs’ estate comparable to the drainage existing before construction of the levees without the total removal of the levees.

For the reasons assigned we order the trial court judgment amended to include the following injunction: Defendant is enjoined from obstructing plaintiffs’ natural drain and ordered to remove the levees located on the east and south sides of his property, or alternatively to provide a system of drainage for plaintiffs’ estates which will be comparable to the drainage available to plaintiffs’ property prior to the construction of the levees.

As amended, the trial court judgment is affirmed at defendant’s costs.

      . Art. 660.
      “It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.
      “The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.
      “The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.”

      . Art. 667.
      “Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”


text:
    Nick FULTZ v. Sally HARRIS et al.
    No. 49583.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Rehearing Denied Nov. 30, 1977.
    J. Harold Graham, Jr., Robert W. Lawrence, Crystal Springs, for appellant.
    Townsend, McWilliams & Holladay, Tommy M. McWilliams, Drew, for appellees.
    Before SMITH, P. J., BROOM and LEE, JJ., and MICHAEL D. SULLIVAN, C.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

AFFIRMED.


text:
    Vergie Baskett PEARSON, next friend v. James H. BASKETT et ux.
    No. 50034.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Rehearing Denied Nov. 30, 1977.
    Peter K. Smith, Quitman, William B. Sullivan, Laurel, for appellant.
    Self, Jordan & Jones, Daniel P. Self, Jr., Meridian, for appellees.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Jasper County; Osborn Guyton Idom, Chancellor.

AFFIRMED.


text:
    PRINGLE ASSOCIATED MORTGAGE CORPORATION v MERCURY AIR CONDITIONING COMPANY, INC., et al.
    No. 49493.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Rehearing Denied Nov. 30, 1977.
    Aultman, Pope, Aultman & Tyner, Thomas W. Tyner, Hattiesburg, for appellant.
    White & Morse, Richard P. Salloum, Graves, Riley & Meadows, Joseph R. Meadows, Richard B. Graves, Gulfport, for appel-lees.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Leland ROBINSON v. Helen ROBINSON.
    No. 49686.
    Supreme Court of Mississippi.
    Nov. 2, 1977.
    Rehearing Denied Nov. 30, 1977.
   Appeal from Chancery Court, Harrison County; William G. Hewes, Chancellor.

Sekul, Hornsby & Wallace, Thomas L. Wallace, Biloxi, for appellant.

Levi, Wilson & Denham, Earl L. Denham, Ocean Springs, for appellee.

Before PATTERSON, C. J., ROBERTSON and SUGG, JJ., and OSBORN GUY-TON IDOM, Commissioner.

AFFIRMED.


author: LEE, Justice, for the Court:

text:
    Nolan CLARK et al. v. Willie Mae CARTER et al.
    No. 49639.
    Supreme Court of Mississippi.
    Nov. 2, 1977.
    Rehearing Denied Nov. 30, 1977.
    Riddell & Dabbs, Tally D. Riddell, Quit-man, Heidelberg, Woodliff & Franks, Luther M. Thompson, Brunini, Grantham, Grower & Hewes, John M. Grower, Jackson, for appellants.
    Bacon & Smith, L. 0. Smith, Jr., Gerald, Brand, Watters, Cox & Hemleben, Martha W. Gerald, Jack W. Brand, Scott P.* Hemle-ben, Jackson, Hugh Craig Forshner, New Orleans, La., John M. Sims, Heidelberg, Robert H. McFarland, Bay Springs, for ap-pellees.
    Before SMITH, BROOM and LEE, JJ.
   LEE, Justice, for the Court:

Nolan Clark, et al., have appealed from an order of the Chancery Court of the First Judicial District of Jasper County, Mississippi, holding that an instrument designated “Mineral Right and Royalty Transfer” is a royalty transfer rather than a mineral deed.

The sole question involved is whether or not the instrument is a mineral deed or a royalty transfer. Numerous parties, including oil companies, were involved in the litigation. The oil companies obtained leases from all parties, and their interest in the case is to have the owners of the minerals and royalty determined in order to make proper disbursement of oil royalties. The case was tried on stipulations, exhibits and pleadings. The chancellor overruled demurrers and construed the instrument to be a conveyance of royalty rather than minerals.

The instrument involved is a Form R-101 “Mineral Right and Royalty Transfer,” [See Appendix] which has been used in Mississippi for a number of years. It is a printed form with blank spaces to be filed in, including a space for the description of the property. After the description, the following words were typed in the instrument:

“It is the intention of the grantors to convey by this instrument to the grantee, a transfer of all royalty owned by us to all minerals in, on, or under all land owned by us in Jasper County, Mississippi.”

The instrument was executed by Will Carter and Dollie Carter to W. T. Rowell, grantee, was witnessed by Mrs. Leroy Wells and Carter I. Arledge, and was acknowledged by Mrs. Grace B. Arledge, notary public. The date of the instrument is June 26,1944. On the same date, an oil, gas and mineral lease was executed by Will Carter and Dollie Carter to W. T. Rowell, lessee. It was also witnessed by Mrs. Leroy Wells and Carter I. Arledge, and acknowledged by Mrs. Grace B. Arledge. The inference is that the instruments were executed contemporaneously. They were recorded on July 14, 1944, the oil, gas and mineral lease being recorded four (4) minutes prior to the R-101 instrument, which indicates that they were received in the chancery clerk’s office simultaneously.

It is significant that Will Carter and Dollie Carter were Negroes, that Dollie Carter could neither read, write nor sign her name, and that Will Carter could not read or write, although he could sign his name. Obviously, they could not have prepared the instrument, and, therefore, the inference and presumption are strong that both instruments were prepared by the grantee, W. T. Rowell, and that the intention phrase set forth above was written into the R-101 instrument by Rowell.

Appellants rely upon the case of Ford v. Jones, 226 Miss. 716, 85 So.2d 215 (1956). In that case, Jones conveyed to Ford by Form R-101 an undivided one-fourth (Vi) of the minerals in certain lands. After the description the following words were written:

“It is the intention of grantors, by this instrument, to convey, and the intention of grantee to purchase an undivided ten (10) royalty acres under the above described lands.
It is understood and agreed that this land is now subject to an outstanding oil, gas and mineral lease and grantee waives the right to receive any part of the delayed drilling rentals provided in said lease.” 226 Miss, at 718-719, 85 So.2d at 216.

The chancery court held the instrument to be a royalty conveyance, but this Court construed it to be a conveyance of the minerals, stating that the provisions written after the description were not inconsistent with the printed provisions of the instrument. The Court said:

“The two intention clauses or sentences written into the instrument are entirely consistent with the foregoing provisions. The first recites that it is the intention of grantors and grantee to convey ‘ten royalty acres.’ Of course a deed to minerals in place carries along with it the royalty rights in the land, unless expressly excepted. Furthermore, the second intention sentence recites that the land is subject to an existing mineral lease, and that ‘grantee waives the right to receive any part of the delayed drilling rentals as provided in said lease.’ This provision would have been useless if the deed conveyed only a royalty interest. The grantee could waive rentals under an existing lease only if the nature of the deed in fact conveyed to him the rentals unless an exception of them was made. Moreover, the latter part of the instrument conveys expressly to the grantee the rentals under future leases.” 226 Miss. at 720-721, 85 So.2d at 217.

We distinguish Ford from the present case. In Ford there was no lease executed contemporaneously with the transfer instrument. Here, the oil, gas and mineral lease is pertinent to the intention of the parties. In Ford the circumstances surrounding the grantors and information as to who prepared the instrument are not indicated, while here, it is undisputed that the grantors were illiterate and unlearned and could not have prepared it. If the present R-101 instrument was intended to be a conveyance of minerals, the intent provision typed therein would become useless because the grantee would own all royalty by reason of owning the minerals. Furthermore, there would have been no reason to obtain and record the oil, gas and mineral lease since a mineral conveyance would vest the executive rights in Rowell.

In discussing the rules for construction of deeds or contracts, this Court said in Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 296 (1938):

“The rules for the construction of deeds or contracts are designed to ascertain and follow the actual or probable intention of the parties, and are: When the language of the deed or contract is clear, definite, explicit, harmonious in all its provisions, and free from ambiguity throughout, the court looks solely to the language used in the instrument itself, and will give effect to each and all its parts as written. When, however, the language falls short of the qualities above mentioned and resort must be had to extrinsic aid, the court will look to the subject matter embraced therein, to the particular situation of the parties who made the instrument, and to the general situation touching the subject matter, that is to say, to all the conditions surrounding the parties at the time of the execution of the instrument, and to what, as may be fairly assumed, they had in contemplation in respect to all such said surrounding conditions, giving weight also to the future developments thereinabout which were reasonably to be anticipated or expected by them; and when the parties have for some time proceeded with or under the deed or contract, a large measure, and sometimes a controlling measure, of regard will be given to the practical construction which the parties themselves have given it, this on the common sense proposition that actions generally speak even louder than words.” 183 Miss. at 608-609, 184 So. at 298-299.

See also Richardson v. Moore, 198 Miss. 741, 22 So.2d 494 (1945).

In Shepard v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 368 P.2d 19 (1962), the Supreme Court of Kansas was confronted with the problem of whether or not a certain instrument should be construed to be a royalty transfer or a mineral deed. The Court held that a contemporaneously executed mortgage may be considered for its evidentiary value in determining the intent of the parties and said:

“The clarity of the intent of the parties that the defendant reserved an interest in minerals in place is enhanced by the recital in the mortgage executed by the plaintiffs on March 29,1943. It is well settled that where two or more instruments are executed by the same parties contemporaneously or at different times in the course of the same transaction, and concern the same subject matter, they will be read and construed together so far as determining the respective interests of the parties, although they do not in terms refer to each other (MacLorinan v. Finley, 124 Kan. 637, 640, 261 P. 587; Skinner v. Skinner, 126 Kan. 601, 270 P. 594; Steele v. Nelson, 139 Kan. 559, 32 P.2d 253; Setchell v. Reed, 153 Kan. 818, 820, 113 P.2d 1050; 17 C.J.S. Contracts § 298, p. 714). While the special warranty deed was executed and delivered to plaintiffs on July 1, 1942, it was not recorded until April 28, 1943, the date the mortgage was recorded, and under the foregoing rule, the recital in the mortgage which defined the interest reserved by the defendant as an ‘undivided one-fourth nonparticipating mineral interest,’ may be considered for its evidentiary value in determining the intention of the parties.” 189 Kan. at 134, 368 P.2d at 26.

See also Doe v. Bernard, 15 Miss. (7 Sm. & M.) 319 (1846).

Although the terms of a contract generally are construed more strongly against the grantor or maker when they are vague and ambiguous, it is also an established principle of law that such terms are construed more strongly against the party preparing the instrument. In 2 Summers, Oil & Gas § 372, at 487-491 (1959), the rule is stated as follows:

“Another commonly applied rule of construction of written instruments, which is not peculiar to oil and gas leases, is that where there is uncertainty or ambiguity as to the intent or meaning of the writing it will be construed against the party preparing the instrument.”

In Stampley v. Gilbert, 332 So.2d 61 (Miss.1976), this Court stated:

“There is also the universal rule of construction that when the terms of a contract are vague or ambiguous, they are always construed more strongly against the party preparing it.” 332 So.2d at 63.

See also Globe Music Corp. v. Johnson, 226 Miss. 329, 84 So.2d 509 (1956); Love Petroleum Co. v. Atlantic Oil Producing Co., 169 Miss. 259, 152 So. 829 (1934); Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 739 (1916).

We have carefully considered the entire record, the conditions surrounding the parties at the time of the execution of the instrument, and the particular situation of the parties. We conclude that it was the intent of the parties that the R-101 instrument convey royalty interest and not mineral interest and that the Carters retained the mineral rights together with the right to execute oil, gas and mineral leases.

The judgment of the lower court, there-' fore, must be and is affirmed.

AFFIRMED.

PATTERSON, C. J., INZER, SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and BOWLING, JJ., concur.

APPENDIX

MINERAL RIGHT AND ROYALTY TRANSFER (To An Undivided Interest)

STATE OF MISSISSIPPI, COUNTY OF JASPER_

KNOW ALL MEN BY THESE PRESENTS: That Will Carter and wife Dolly Carter, of Vosburg, Jasper_County, State of Mississippi, hereinafter called grantor (whether one or more and referred to in the singular number and masculine gender), for and in consideration of the sum of Ten and No/100— and other valuable considerations paid Dollars ($10.00 ) ~ and other good and valuable considerations, paid by W. T. Rowell hereinafter called grantee, the receipt of which is hereby acknowledged, has granted, sold and conveyed and by these' presents does grant, sell and convey unto said grantee an undivided entire ( all ) interest in and to all of the oil, gas and other minerals of every kind and character in, on or under that certain tract or parcel of land situated in the County of Jasper , State of Mississippi, and described as follows:

The SE-1/4 of the NE-1/4 and the NE-1/4 of the SE-1/4, less Railroad Right of Way, also one (1) acre sold to the Bell Telephone Company, all in Section 1, Township 1 North, Range 13 East, First Judicial District, Jasper County, Mississippi.
It is the intention of the Grantors to convey by this instrument to the Grantee, a transfer of all Royalty owned by us to all minerals in, on or under all land owned by us in Jasper County, Mississippi.

TO HAVE AND TO HOLD the s£id undivided interest in all of the said oil, gas and other minerals in, on and under said land, together with all and singular the rights and appurtenances thereto in any wise belonging, with the right of ingress and egress, and possession at all times for the purpose of mining, drilling and operating for said minerals and the maintenance of facilities and means necessary or convenient for producing, treating and transporting such minerals and for housing and boarding employees, unto said grantee, his heirs, successors and assigns, forever; and grantor herein for himself and his heirs, executors and. administrators hereby agrees to warrant and forever defend all and singular the said interest in said minerals, unto the said grantee, his heirs, successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.

Grantee shall have the right at any time (but is not required) to redeem for Grantor by payment, any mortgages, taxes or other liens on the above described lands, in the event of default of payment by Grantor, and be subrogated to the rights of the holder thereof.

This conveyance is made subject to any valid and subsisting oil, gas or other mineral lease or leases on said land, including also any mineral lease, if any, heretofore made or being contemporaneously made from grantor to grantees; but, for the same consideration hereinabove mentioned, grantor has sold, transferred, assigned and conveyed and by these presents does sell, transfer-, assign and convey unto grantee, his heirs, successors and assigns, the same undivided interest (as the undivided interest hereinabove conveyed in the oil, gas and other minerals in said land) in all the riqhts, rentals, royalties and other benefits accruing or to accrue under said lease or leases from the above described land; to have and to hold unto grantee, his heirs, successors and assigns.

WITNESS the signature_ of the grantor s this 26th day of June_, 19' 44

Witnesses:

Mrs. LeRoy Wells_ Will Carter_

Carter I. Arledge_ Dolly her x mark Carter

STATE OF MISSISSIPPI, COUNTY OF Jasper_

This day personally appeared before me, the undersigned authority in and for the above styled jurisdiction, the within named Will Carter andhis wife, Dolly Carter_ who acknowledged that t he y signed and delivered the above and foregoing instrument on the day and year therein named as their free and voluntary act and deed.

Given under my hand and official seal, this the 26th day of June , A.D., 1944 .

Notarial Seal Mrs. Grace B. Arledge, Notary Public

Piled for record at 8:35- o'clock A. M., this 26th day of June , A.D., 19 44 and recorded in Book No~ 13 , Page 577 oñ I4th day of July A.D., 19 44 .

J. J. Denson_ Clerk

/s/ Addie Rene Lightsey_D.C.