author: WATSON, Judge.

text:
    George HODGES, et al. v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, et al.
    No. 6855.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Rehearing Denied June 6, 1979.

      Hopkins & Little, Winfield E. Little, Jr., Sulphur, for defendant-appellant, U.S.F. & G.
    John W. King, Baton Rouge, for defendant-appellant, Dept, of Highways.
    Stephen R. Streete, Lake Charles, for defendant-appellant, Calcasieu Parish Police Jury.
    Baggett, McCall, Singleton & Ranier, William B. Baggett, Lake Charles, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

George Hodges, plaintiff, instituted this suit against the State of Louisiana, Department of Highways, and the Calcasieu Parish Police Jury. His wife, Billie Hodges, was also named as plaintiff, but she is not a party at interest and her claim will not be further considered. By amending petition, United States Fidelity and Guaranty Company, a public liability insurer of the Calca-sieu Parish Police Jury, was named as an additional defendant.

Hodges was severely injured in a vehicular collision which occurred at the intersection of Louisiana Highway 27, a state highway, and the Dave Dugas Road, a parish road, on May 15, 1976. He was proceeding east in his pickup on Dugas Road when he collided with an El Camino pulling a boat, which was being driven north on La. 27 by James Sudduth.

Hodges’ petition alleges that his accident and resulting damages occurred through the joint negligence of the highway department and the police jury in failing to properly sign the extremely hazardous intersection. For traffic approaching from the west on Dugas Road, as Hodges was, the only control was a stop sign placed on the left side of the road. Hodges has retrograde amnesia, but the theory of his case is that, because of the placement of the sign and the failure to otherwise warn of the intersection, he did not stop and crashed into the El Camino.

The respective defendants denied liability and plaintiff requested trial by jury. His claims, as against USF&G, were tried to a jury. His claims against the State of Louisiana and the Calcasieu Parish Police Jury were tried by the trial judge. The jury found both the highway department and the police jury negligent, found Hodges not to be contributorily negligent, and fixed his damages at $900,000. The trial judge found the highway department and the police jury negligent, found Hodges not to be contribu-torily negligent, and fixed his damages at $746,862.25.

A rule was brought by plaintiff to reconcile the quantum verdicts (plaintiff wanted all verdicts fixed at $900,000), but the rule was denied and dismissed by the trial court.

A formal judgment was signed in favor of plaintiff and against the state and parish in the amount of $746,862.25, and against USF&G in the amount of $501,000. The verdict against the insurer was reduced to the amount of its policy limits, and there is no indication of any objection to this having been done.

All defendants have appealed urging that the triers of fact erred in finding the highway department and the police jury negligent and erred further in failing to find Hodges contributorily negligent. Defendants also contend that the award of damages is excessive. Plaintiff has answered the appeal asking that the judgment be modified to increase the damages to $900,-000.

Therefore, the issues before this court on appeal are: (1) negligence of the parish; (2) negligence of the state; (3) contributory negligence of Hodges; and (4) quantum of damages.

NEGLIGENCE OF THE PARISH

In considering the first issue, it must be remembered that Hodges, immediately pri- or to the collision, was traveling on a parish road, and that the accident , occurred where the parish road crossed a state highway. Therefore, the first consideration is what duty is owed by the parish to those who use the parish roads. The Louisiana Supreme Court, in Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La., 1975) has said that:

“The duty owed is to exercise reasonable care to keep these public ways in such condition that travelers who are prudent and ordinarily careful will not be exposed to injury, day or night.” 323 So.2d 432.

While the parish police jury is not the insurer of travelers on parish roads, “. . .it must keep these ways reasonably safe . . .” 323 So.2d 432.

There is no question, in the present case, that the parish was aware of the situation at the intersection. A police juror-elect, Samuel E. Bares, appeared before the road and bridge committee of the Calcasieu Parish Police Jury on February 23, 1976, called attention to the dangerous condition of the intersection and requested that a traffic light be installed. (TR. 715). Among others, the assistant parish engineer, Authur L. Darnsteadt, Jr., who was in charge of the sign program of the police jury, was present at the meeting.

On March 3, 1976, the Calcasieu Parish Police Jury passed a resolution calling on the state to rectify the unsafe condition at the intersection. The parish engineer, Rodney M. Vincent, admitted under cross examination that between February 23, and May 15, 1976, (the date of the accident) the parish did nothing to alleviate the problem other than to pass the resolution. (TR. 999). Mr. Vincent admitted knowing that, under the procedures of the State Highway Department, it would take time to obtain state action and admitted that signs could have been posted by the parish, if not on the state right of way, then on the parish right of way which would have been 51 feet from the center line of La. 27. There is no question the parish could have posted “stop ahead” and “reduce speed” signs on Dave Dugas Road.

The facts establish a violation of the parish’s duty to motorists on Dugas Road and in particular to the plaintiff, George Hodges. The failure of the parish to warn motorists, in some manner, of the intersection was a substantial cause in fact of the accident. The trial court and the jury did not err in holding that negligence on the part of the parish was established.

NEGLIGENCE OF THE STATE

As long ago as 1967, a state engineer recommended that an island be constructed on the right side of Dugas Road at the intersection of La. 27 to accommodate a stop sign on the right. (See testimony of Richard M. Flanagan, District Traffic Engineer, TR. 984).

It is clear that the state knew the sign was on the left and that the intersection was hazardous.

In response to the resolution of the police jury, a study of the intersection had been conducted on May 12, 1976, and a recommendation was made on May 28, 1976, that a flashing beacon light be put in. (TR. 488). Also, the State Highway Department had a collision report which indicated that the intersection was one of the six most hazardous in a six parish area and the second most dangerous in Calcasieu Parish. The report reflected that, in slightly less than four years, there had been nineteen accidents at the corner of La. 27 and Dugas Road. (TR. 496).

The local sign superintendent of the State Highway Department admitted that he knew and had known for several years that the sign was on the left side. (TR. 670, 677).

The district engineer of the State Highway Department, Olivier Broussard, III, testified that, to his knowledge, there had been signs on both the right and the left at the intersection in the 1950’s, but that he does not know when the sign on the right disappeared.

The Uniform Traffic Control Devices Manual (P-8), which has been adopted by the Louisiana Department of Highways, mandates placement of a stop sign as follows:

“Where only one stop sign, STOP or YIELD, is used, it shall be on the right-hand side of the traffic lane to which it applies.” (P-8, page 35).

Counsel for the department of highways correctly maintains that: (1) the duty of the department is only to see that the highways are reasonably safe for persons exercising ordinary care; (2) that the department is not the insurer of travelers on the highways; and (3) that the department is liable only when (a) the hazardous condition was patently or obviously dangerous to a reasonably careful and prudent driver and (b) the department had notice of the defect. See, for example, Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974), writ denied, La., 303 So.2d 182. In the present case, the question of notice requires no discussion. The highway was not reasonably safe and the condition was obviously dangerous. The maintenance of the sign on the wrong side of the road was in violation of the department’s own manual. The accident history at the site indicates a very hazardous situation. The study by the department’s own employees (see testimony of Clement Ray Fontenot, Engineering Aide, and Richard M. Flanagan, District Traffic Engineer) resulted in a recommendation that a flashing beacon be installed to rectify the hazardous condition.

The department urges that the trial court and jury erred, as a matter of law, in holding the department responsible for maintenance of a stop sign where a parish road intersects a state highway, citing Fontenot, Ind. v. State, etc., 346 So.2d 849 (La.App. 1 Cir. 1977), writ denied, La., 349 So.2d 1270. It is argued that, under the provisions of LSA-R.S. 32:235(B), the parish is responsible for placing traffic signs on highways under its jurisdiction. The evidence is that the sign erected on the left-hand side at the intersection was put up by the state; it had initials of state employees on the back. (TR. 684). The testimony of the witnesses, Flanagan, Vincent and Darn-steadt, indicate that, at all intersections of state highways and parish roads in Calca-sieu Parish, the department of highways has undertaken the responsibility of erecting stop signs. The engineer and assistant engineer for Calcasieu Parish indicated that they operated under the assumption that the state would require permission to be granted before the parish could erect signs on the state right of way at an intersection. Where the state undertakes the job of signing an intersection, it must do so properly with due care for the traveling public. Therefore, we respectfully disagree with the analysis by our brothers of the First Circuit in Fontenot, supra.

There was no error in finding that the state was negligent.

CONTRIBUTORY NEGLIGENCE

The defendants argue that Hodges was guilty of contributory negligence in failing to see: (1) the stop sign; (2) the intersection; and (3) traffic on Highway 27. Presumably, these same arguments were made to the trial court and the jury. The record indicates that Hodges may not have seen the stop sign because it was on the left instead of on the right where it is normally expected to be. According to a witness on behalf of plaintiff, Dr. John E. Baerwald, an expert transportation and traffic engineer on the faculty of the University of Illinois, the traffic intersection in question was “Very dangerous.” (TR. 917). . This expert’s testimony was that “driving expectancy” or unconscious habit makes a driver look for a traffic control device in a familiar place; hence, the importance of uniform placement, since a driver is much less likely to see a stop sign on the wrong side of the road.

As to not recognizing the intersection, the pictures in the record reflect that, due to the physical situation at the corner, the intersection is not readily recognizable and it is not apparent that La. 27 is a favored road. Dr. Baerwald confirmed that a driver on Dugas Road could not be sure he was approaching a paved roadway, much less an important intersection. (TR. 930).

As to the suggestion that Hodges should have seen vehicles in the intersection prior to the accident, there was general testimony about traffic on La. 27, but the record does not indicate that there was traffic which should have been readily observed by a motorist in Hodges’ position.

There was also testimony by one witness that Hodges was leaning over his steering wheel and by another that Hodges was slumped over the wheel. One of these witnesses said that Hodges may even have been asleep, although he could not be certain. The burden of convincing the triers of fact on the issue of contributory negligence rested with the defendants and they failed to convince either the trial court or the jury in this instance. We cannot say that there was manifest error or that the trial court and jury were clearly wrong in concluding that Hodges was not contributo-rily negligent.

CONCLUSION

In discussing the issue of contributory negligence, defendants suggest that a corollary issue involves “proximate cause.” We believe that the inquiry would be whether the alleged substandard conduct (the negligence) of the state and parish was a cause in fact of the accident. All of the facts of the accident must be considered to answer this question. The principal features are that the stop sign was on the wrong side of the road and that the state and parish failed to erect any warning signs or electric flashers to identify the hazardous intersection. Apparently, Hodges did not slow or stop for the intersection. As counsel for plaintiff suggests, the well-established rule of law is that a person is presumed to have acted with due care for his own safety. The obvious conclusion is that Hodges did not see the misplaced sign and had no other warning. Therefore, the acts and omissions of the state and parish constitute the cause in fact of the accident.

QUANTUM

George Hodges was a 53 year old electrician at the time of the accident. He had earned $16,225 in 1975, the year before the accident. His injuries were well summarized by Dr. Harry Starr, a neurosurgeon of Beaumont, who said that when he first saw Hodges on June 24, 1976, some six weeks after the accident, he was a severely and critically ill patient. His injuries were listed as follows: a severe concussion or “knockout” of the brain and severe contusions or bruising of the brain, particularly the brain stem; facial injuries with numerous cuts; a neck injury (subluxation between the fifth and sixth cervical vertebrae); fractures of both shoulder blades; fracture of ribs; contusion and bruising of the lungs; a severe injury to the right armpit which tore the main artery and vein; injury to both shoulders with an acromio-clavicular separation on the left; and lesser bruises and contusions on the rest of the body.

According to Dr. Walter P. Ledet, Jr., a general and vascular surgeon who saw Hodges in the emergency room immediately after the accident, Hodges was unconscious and in critical condition. Among other injuries, Dr. Ledet noted that the right arm had almost pulled off and that, following the five or six operative procedures before Hodges was transferred to Beaumont, the plaintiff suffered post-operative pneumoni-tis, a urinary tract infection and pleursy in the right lung.

It is uncertain how long Hodges was unconscious; he was described by Dr. Starr as being “semi-conscious” on June 24. His consciousness improved during his lengthy stay in the hospital. He was hospitalized until August 17, 1976, or slightly more than three months. Dr. Starr stated his opinion that Hodges has permanent residuals from the accident which disable him from doing the work of an electrician or any type of gainful employment requiring physical effort. As a result of his brain injury, Hodges developed “bulbar” or “pseudobulbar” palsy which manifests itself in bulging eyes; partial paralysis of the tongue, lips, and throat which causes difficulty in swallowing or coughing and which also causes slurred and explosive speech, as well as uncontrolled emotionality.

Fortunately for the plaintiff, his requirements for future medical treatment are not substantial, although he has increased susceptibility to respiratory complications. Dr. Starr expressed the opinion that it is doubtful that the palsy and plaintiff’s right arm, which is weak as a result of the accident, will ever improve further. (TR. 626). Other residuals include atrophy of the right hand, numbness in both hands, lack of balance in walking and inability to raise arms above the shoulders.

According to P-49, the plaintiff’s medical bills totaled $36,893.25.

The jury awarded $900,000 to the plaintiff; the trial court fixed damages at $746,862.25. The award of $900,000 against USF&G was reduced to $501,000 because of its policy limits. The effective amount of the judgment is that awarded by the trial court because the jury tried only the direct action against the insurer and its award exceeded the policy limits. Since there has been a reduction to the amount of the policy limit of USF&G, there is no occasion for this court to consider the differential between the judge’s award and the jury’s award. In other words, there is no valid jury award against the insurer (which was the only defendant whose case the jury was trying) in an amount over the USF&G policy limit.

After considering the permanent and devastating injuries suffered by George Hodges, his pain and suffering, his loss of wages, past and future, and his medical expenses, we eertainly cannot say that the amount awarded is excessive. We affirm the judgment of $746,862.25 against the State of Louisiana and Calcasieu Parish as well as the judgment against USF&G of $501,000. As to plaintiff’s answer urging that the judgment be increased to $900,000, we cannot say that the amount fixed is inadequate, and it is denied.

For the reasons assigned, the judgment of the trial court is affirmed and the costs of the appeal are taxed against the Parish of Calcasieu, USF&G and the State of Louisiana.

AFFIRMED.

      . Now the Department of Transportation and Development.

      . See USF&G policy, P-7, at TR. 406. The limits are $500,000 for bodily injury; the additional $1,000 is property damage to Hodges’ pickup truck.

      . Throughout the trial the parish officials as well as the state engineers, seemed to believe the stop signs were the business of the state, despite the provisions of LSA-R.S. 32:235 B. (as found in Act 273 of 1968, in effect on date of accident), as follows:
      “Local municipal and parish authorities in their respective jurisdictions shall place and maintain such traffic control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this Chapter, regulations of the department and director of public safety adopted pursuant hereto, and local traffic ordinances adopted pursuant to the authority granted by R.S. 32:41 and 32:42. All such traffic control devices hereafter erected shall conform to the department’s manual or specifications. If any such device hereafter erected by a political subdivision of this state fails to conform to the manual or specifications, payment of any funds allocated to said political subdivisions of this state shall be withheld, by the department of highways until such time as the standards established by the department are complied with.”
      Compare the interpretation of this statute by the Court of Appeal, First Circuit, in Fontenot, lnd. v. State, etc., 346 So.2d 849, writ denied, La., 349 So.2d 1270, discussed supra.

      . The beacon was authorized June 16, 1976, and installed November 4, 1976.


source: Caselaw Access Project

license: Public Domain

text:
    John Keith LAMM, Plaintiff-Appellee, v. The BOARD OF COMMISSIONERS FOR VERMILION HOSPITAL SERVICE DISTRICT NO. 1, Defendant-Appellant.
    No. 6911.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Rehearing Denied June 6, 1979.
    Cooper & Sonnier by Silas B. Cooper, Jr., Abbeville, for defendant-appellant.
    Edwards, Stefanski & Barousse, Nolan J. Edwards, Crowley, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

In this proceeding, John Keith Lamm has sued for reinstatement as administrator of the Abrom Kaplan Memorial Hospital and for back pay with interest. The defendant, Board of Commissioners for Vermilion Hospital Service District No. 1, is the governing authority of the Kaplan Hospital. The Board has appealed from a judgment sustaining a motion for summary judgment by Lamm. This court is called upon to determine: (1) whether there is any genuine issue as to material fact; and (2) if not, whether Lamm is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

The trial court, in reasons assigned for granting the summary judgment, succinctly and accurately portrayed the circumstances leading up to the lawsuit:

“The factual circumstances concerning plaintiff’s dismissal are generally agreed to be as follows: On January 23, 1978, the Board of Commissioners for Vermilion Parish Hospital Service District No. 1 (hereinafter referred to as the ‘Board’) voted three to two to dismiss John Keith Lamm. The item relative to the firing was not on the formal agenda, no public hearing was held, and Lamm was not afforded an opportunity to address the Board. On February 2, 1978, the Vermilion Parish Police Jury officially called a public hearing relative to the dismissal for February 6, 1978. Notice of this hearing was received by plaintiff on this same day. On February 3, 1978, Lamm received a letter concerning his possible termination along with a list of 21 charges of misconduct from the Board.” “A public hearing was held on February 6, 1978. The Board voted to rescind the motion made on January 23 that Lamm be fired and the latter was given full pay to the date of the hearing. The 21 charges were read to Lamm and he responded thereto. The Board deliberated and subsequently voted three to two in favor of dismissal. Shortly thereafter, plaintiff filed the instant suit seeking reinstatement and back salary from the date of the hearing.” (TR. 271).

In granting the summary judgment, the trial court found that there was no genuine issue as to material fact, a point we will address below, and stated the following reasons for holding that plaintiff was entitled to a judgment as a matter of law:

“Firstly, the court is of the opinion that the Louisiana Administrative Procedure Act, LSA-R.S. 49:951, et seq., is not applicable in the instant case since a ‘parish’ board is involved.”
“Pretermitting any discussion of procedural due process, the court finds that plaintiff’s dismissal on February 6, 1978 was improper under the by-laws of Abrom Kaplan Memorial Hospital. Article IX, Section 4 of the by-laws concerning the procedures involved in the dismissal of the administrator reads as follows:
‘When the Board of Commissioners believes the services of the Administrator are not satisfactory, it shall give him official warning and a reasonable opportunity to correct the indicated deficiency. In the event the governing Board believes it has cause to terminate the services of the Administrator, it should give him an opportunity for a hearing with assistance as he, the Administrator, deems necessary. On termination of the Administrator’s services, it seems advisable by the Administrator in the interest of the public to make a statement, due regard shall be given to the interests of the hospital and the Administrator.’ ” “Thus, the termination of an administrator requires an official warning and a reasonable opportunity to correct any deficiency noted by the Board. This procedure was not followed in the present case.”
“Recognizing that their actions on January 23rd were improper, the Board correctly set a hearing, gave plaintiff official warning (in the nature of the letter and attached charges) and rescinded the former motion of dismissal. However, the Board did rot allow Lamm a reasonable opportunity to correct the alleged deficiencies after he received an official warning. Stan Hardee, Chairman of the Board of Commissioners of Vermilion Parish Hospital Service District No. 1, does state in an affidavit that prior to February 3, 1978, he and other members of the Board, on numerous occasions, informed plaintiff of his deficiencies and that he was either unable or unwilling to correct them. However, these informal warnings were not sufficient under the procedures outlined in the by-laws.” (TR. 272).

ISSUE OF FACT

Counsel for the Board argues that there is an issue of fact concerning whether an “official warning” was given to Lamm. We do not share counsel’s appreciation of the question. There is no dispute, as we read the pleadings, affidavits and other materials in the record that Lamm was, from time to time, the recipient of complaints by individual members of the Board, as contended by the affidavit of Stan Hardee, Board Chairman. Likewise, there is no dispute that the Board never gave Lamm an “official warning” and a reasonable opportunity to correct the deficiencies. It is true that he was given a list of complaints on February 3, 1978, and that a hearing was held as to these on February 6, 1978, but there is no indication, as correctly concluded by the trial court, that Lamm was given any opportunity to correct these deficiencies, as required by the hospital by-laws. Counsel for the Board urged that the individual members of the Board, in complaining to Lamm of his inadequacies, met the requirements of the by-laws. However, we believe that, by definition, an “official warning”, would require formal action by the Board rather than informal action by its individual members.

No Louisiana cases have been cited on this point and we have found none, but it is obvious that action by individual members of a board does not constitute “official” action. As a Tennessee court observed long ago: “It is too well settled to need authority that separate individual action on the part of the members of a municipal board, even though all might concur, is not an official action, and does not bind the municipality.” Burkett v. City of Athens, 59 S.W. 667 at 668 (Tenn., 1900). Therefore, we agree with the trial court that there is no genuine issue as to material fact.

JUDGMENT AS A MATTER OF LAW

The provisions of the Hospital District By-Laws in Art. IX, § 4, clearly provide for the procedure to be followed in the dismissal of the administrator. This court is not called on to decide whether these procedures are wise, fair or proper since the Board itself apparently adopted them at some point in the past. Having specifically provided for the procedure to be followed, the Board cannot, now, follow some other procedure. Therefore, we conclude, as did the trial judge, that plaintiff is entitled to a summary judgment ordering his reinstatement to his former position as administrator and is further entitled to be paid his salary, with interest, from February 6,1978.

The judgment of the trial court is affirmed and costs of these proceedings are taxed against the appellant.

AFFIRMED.


author: CUTRER, Judge.

text:
    John Millard BOOTHE et ux., Plaintiffs-Appellees, v. DEPARTMENT OF PUBLIC WORKS et al., Defendants-Appellants.
    No. 6915.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Rehearing Denied June 6, 1979.

      Hudson, Potts & Bernstein, W. Craig Henry, Monroe, for defendants-appellants.
    Reeves & Owens, Jack F. Owens, Jr., Harrisonburg, for plaintiffs-appellees.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CUTRER, Judge.

The plaintiffs, John Millard Boothe and Mable Boothe, bring this suit for damages arising out of the construction of a navigation project which allegedly inundated a portion of the plaintiffs’ land and obstructed the use of a passageway by the plaintiffs which led to a public road. The defendants in the case were Louisiana Departmeiit of Public Works, the Corps of Engineers, and the Catahoula Parish Police Jury.

This suit arose as a result of the construction of the Ouachita-Black River Navigation Project authorized by the United States Congress in the River and Harbor Act of 1960. The purpose of the construction was to promote navigation on the Oua-chita and Black Rivers by providing a navigational channel at least 9 feet deep and 100 feet wide at all points. In order to fulfill this purpose, the Jonesville Dam and Lock combination was constructed and placed in operation on March 28, 1972. The installation of this facility created what is commonly referred to as the “Jonesville Pool”, which extends upstream approximately 170 miles to Columbia, Louisiana. As a result of the construction of the Jones-ville Pool, the water level maintains a minimum elevation of 34 feet mean sea level at all times.

The plaintiffs’ farm is located on the west side of Rawson Creek, which creek empties into the Jonesville Pool at the Ouachita River. Before the construction, Rawson Creek had an elevation of 21.5 feet mean sea level. This creek for something less than 48% of the year would remain at a low tide, affording the plaintiffs an opportunity to cross the creek in front of their home in order to reach a parish road near the east bank, which parish road led to a state road in the near vicinity. It was stipulated that the creek was impassable for something more than 52% of the year due to the high river state that naturally occurred during the winter and spring months. During the times that Rawson Creek was impassable, the plaintiffs would reach their property by traveling on a road owned and maintained principally by International Paper Company. To get to the state highway from the plaintiffs’ home, this route required a travel of 9.3 miles, whereas by crossing the “ford” the plaintiffs were able to reach State Highway La. 124 by traveling less than a mile. After the construction of the Jones-ville Dam and Lock combination, the water level remained at such a height that the partial use of the “ford” by the plaintiffs across Rawson Creek was cut off entirely. The plaintiffs were then relegated to the use of the International Paper Company road to reach their property from Highway 124 or if they crossed Rawson Creek it would have to be by boat.

After trial on the merits, the trial court, in written reasons, awarded the plaintiffs the sum of $28,000.00. From this judgment the Department of Public Works appealed.

The appellant first contends that the plaintiffs had no legal right to cross Raw-son Creek at the “ford” in order to reach their property and thus no damages could be awarded for any loss thereof. The appellant further contends that the trial court committed manifest error in awarding damages in the sum of $28,000.00.

As we approach the first issue as to whether the plaintiffs’ had a legal right to use the “ford” across the creek, we must first point out that the trial court, in its reasons for judgment, stated that this proceeding was a tort action and the trial court treated the cause as such. This conclusion of the trial court was error. This is not a tort action but one of appropriation. The Department of Public Works did not file expropriation proceedings on the property owned by the plaintiffs. In this situation, where one’s property is taken or damaged by a public body without expropriation proceedings, the owners of such property are still entitled to redress. Reymond v. Department of Highways, 255 La. 425, 231 So.2d 375 (1970); La.Const.1974, Art. 1, § 4. The taking of such property without the proper exercise of eminent domain, however, is not a tort but an appropriation. Department of Highways v. Mouledous, 199 So.2d 185 (La.App. 3rd Cir. 1967), writ denied 250 La. 934, 199 So.2d 927 (1967).

As to the plaintiffs’ legal right to use the “ford” across the creek, the trial court, in its reasons for judgment, stated that the plaintiffs and their ancestors in title had used the “ford” for many years before the construction of the project. On this basis the trial court awarded damages. Apparently the trial court was of the impression that the right to use the “ford” had been acquired by prescription. It is undisputed that Mr. George Sargent owns the east side or the east bank of the creek at the location of the “ford.” The trial court was in error in its conclusion that the plaintiffs had acquired by prescription a servitude of passage across the property of George Sargent. The right of passage is a discontinuous servitude. LSA-C.C. Art. 727. This type of servitude can only be established by title. LSA-C.C. Art. 766.

Having concluded that the right of passage across the creek and to the gravel road leading to the state highway could not be acquired by prescription, we have to examine the record to determine if the “ford” had become a part of a public road under the provisions of LSA-R.S. 48:491. LSA-R.S. 48:491 reads as follows:

“All roads or streets in this state that are opened, laid out or appointed by virtue of any act of the legislature or by virtue of an order of any parish governing authority in any parish, or any municipal governing authority in any municipality, or which have been or are hereafter kept up, maintained or worked for a period of three years by authority of any parish governing authority in its parish or by authority of any municipal governing authority in its municipality shall be public roads or streets as the case may be. Also all roads or streets made on the front of their respective tracts of lands by individuals when the lands have their front on any of the rivers or bayous within this state shall be public roads when located outside of municipalities and shall be public streets when located inside of municipalities.”

As previously stated, George Sargent owned the land on the east side of Rawson Creek. His home was situated near the creek. There is evidence by a member of the Police Jury and an employee of the Police Jury that a gravel road was maintained by the Police Jury of Catahoula Parish down to the home of George Sargent. Neither the testimony nor the pictures introduced into evidence support the contention that there was maintenance down the sloping banks and across the creek. Furthermore, it was stipulated that the creek was impassable for at least 52% of the year. It is inconceivable that the bank and the “ford” could be maintained by the Police Jury to such an extent that it would enable the “ford” to become part of a public road within the provisions of LSA-R.S. 48:491. Mr. George Sargent testified that he allowed the Boothe family to cross his property and the “ford” but did not consider the crossing a public passageway. Under these circumstances, no legal rights to the passageway were ever acquired by the plaintiffs, either by prescription or under the provisions of LSA-R.S. 48:491; thus damages as the result of the loss of any use thereof cannot be awarded.

This is not a situation where complete ingress and egress was cut off by the construction of the project. The plaintiffs have, in the past, used, for more than 52% of the time, the International Paper Company route to their property. When a person’s land is condemned, only reasonable ingress and egress is required. State Department of Highways v. Beauregard Development Company, Inc., 279 So.2d 787 (La.App. 3rd Cir. 1973), writ denied 281 So.2d 759 (La.1973). Since reasonable means of access to plaintiffs’ land existed after the appropriation, the State is under no duty to afford the plaintiffs any other access route.

Our next issue for decision is the amount of damages to be awarded. The court, in its reasons for judgment, awarded a lump sum of $28,000.

The plaintiffs contend the loss of the use of the “ford” during the summer and fall of each year causes them to travel further to get to a public road and thus the production of soybeans is more expensive. Also, they contend that they were damaged by virtue of the fact that when they sold their timber, four years after the taking, the buyer would have paid more money for the timber had he been able to use the “ford.”

The only person who testified as to the value of the land that became inundated and also the damages that were apparently awarded by the court was Mr. Charlie McCain, an expert appraiser. He was of the opinion that the plaintiffs had suffered $18,200 for “consequential damages.” He arrived at this damage figure by calculating what he thought was the difference in the value of the timber that was sold and to be sold, which timber had to be transported over the International Paper Company circuitous route rather than across the “ford” to the nearby state highway. He concluded that the value of the timber loss in the 1976 sale and for future sales was $15,800. The additional expense of soybean production was figured at $2,400. He stated that the “consequential damage” figure of $18,200 did not include any “inconvenience.” Mr. McCain testified that 9.18 acres of the plaintiffs’ property had been inundated by virtue of the construction of the project. He placed a value of $3,200 on this 9.18 acres so appropriated. This appraiser estimated the plaintiffs’ total loss to be $21,-400.00, including the value of the land taken. The trial court’s award of $28,000.00 must have included some “inconvenience damage.”

Having concluded that the plaintiffs had no legal right to the passageway, the trial court was in error in awarding damages for the appropriation thereof. The plaintiffs, however, would be entitled to an award for the value of the land that was inundated, $3,200.00. Thus the award of the trial court will be reduced to the value of the property inundated, $3,200.00.

For the reasons assigned, the judgment of the trial court is amended by reducing the award to the sum of $3,200.00. It is affirmed in all other respects. Defendant to pay the costs of this appeal.

AMENDED AND AFFIRMED.

      . By stipulation the Catahoula Parish Police Jury and the Corps of Engineers were dismissed. The judgment signed in this matter, however, does not reflect this stipulated dismissal.

      . The new amendments to the servitude articles adopted by Act 514 of 1977 became effective January 1, 1978. These amendments are not retroactive as to discontinuous servitudes. See comments under the new Art. 740.


text:
    Gerald L. ROMERO, Plaintiff-Appellant, v. TOWN OF WELSH, Louisiana, Defendant-Appellee.
    No. 6928.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Rehearing Denied June 6, 1979.

      Charles L. Bull, Jr., Welsh, for plaintiff-appellant.
    Stockwell, Sievert, Viccellio, Clements & Shaddock by John S. Bradford, Lake Charles, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

Plaintiff, Gerald L. Romero, appeals from a judgment dismissing this suit for damages resulting from the backup of sewage into his home. Plaintiff contends that the defendant, Town of Welsh, was negligent in its operation and control of the sewage system; that the doctrine of res ipsa loqui-tur applies, since the evidence suggests defendant’s negligence as the most plausible explanation of the accident; and, alternatively, that the Town of Welsh is strictly liable for any damages resulting from overflow of sewage.

Defendant asserts that the plaintiff has failed to carry his burden of proving negligence and denies the application of res ipsa loquitur, claiming that this doctrine is unavailable without some indicia of negligence. Additionally, the Town of Welsh claims that plaintiff may not recover under a theory of strict liability because plaintiff assumed the risk of the accident.

FACTS

The Town of Welsh owns, operates and maintains a sewage disposal system serving the town and the surrounding area. Defendant asserts that the system was properly constructed and is maintained in accord with recognized standards. The system utilizes a gravitational flow to transport sewage to the disposal plant located at the lowest point of the network. The system is not water tight. It is designed to accommodate some natural seepage when there is excessive rainfall. The network has a projected capacity of 500,000 gallons per minute without producing any backlog or stoppage of the natural flow.

On November 19, 1976, plaintiff was advised by his son that the bottom floor of his two story home was covered with sewage entering through the first floor commodes and drains. Plaintiff subsequently found approximately one inch of sewage on the bottom floor of his home. A relief valve installed by the previous homeowner on plaintiff’s property allowed overflowing sewage from the main system to bypass the home and enter a specially designed drainage canal. This valve had been closed by an unknown party. After plaintiff opened the valve, the flow of sewage into his home was alleviated. Romero then informed the Welsh officials of the incident.

Bobby Louviere, the municipal maintenance supervisor, examined the manhole covers of the main sewage system to determine if any blockage had occurred. There had been a heavy rainfall and the main line was full, but Louviere reported that the sewage was flowing. Later investigation revealed that 440,000 gallons per minute had passed through the system at that time. Louviere detected that the sewage in plaintiff’s line was flowing from the direction of the main sewage system. Although Louvi-ere examined the main sewage line for blockage, he did not examine the secondary line to which plaintiff’s system was connected. This intermediary line was part of the municipal system and collected sewage from plaintiff’s home and deposited it in the central sewer further down the line. This secondary channel was necessitated by the fact that plaintiff’s home was built approximately sixteen inches below the level of the nearest manhole cover on the main sewage canal. Although Louviere did not examine plaintiff’s line for blockage, Romero’s system had recently been cleared and serviced by defendant and found free from any debris which would prevent the flow of sewage into the municipality’s system.

According to the plaintiff, sewage had backed up into his lines on previous occasions. His home was the next lowest point of the sewage system after the municipal disposal plant. There was testimony that, when an overload occurred at the plant, the sewage might back up towards plaintiff’s home. Apparently, the relief valve had been installed to prevent this possibility. The valve was not constructed nor maintained by defendant, but appears to have been a safety measure undertaken solely for the benefit of plaintiff’s predecessor in title. The record does not establish whether plaintiff had any knowledge of previous difficulties in association with the sewage system on his property nor is it apparent that defendant was cognizant of these difficulties.

Based upon the above facts, the trial court concluded that plaintiff was not entitled to recovery because he had purchased a home which he knew was in a low lying area and subject to sewage problems and that he had failed to take adequate precautions to insure that the relief valve remained open. The trial court found that the defendant was not negligent in its maintenance, operation and control of the local sewer system and therefore not liable to plaintiff.

LIABILITY

When a municipality or governing body undertakes the responsibility of constructing drains and sewers, it has a duty to provide for the adequate disposal of accumulated water and sewage. Chandler v. City of Shreveport, 169 La. 52, 124 So. 143 (1929). See LSA-C.C. art. 660. In the case of Urban Land Co. v. City of Shreveport, 182 La. 978, 162 So. 747 (1935), the doctrine of res ipsa loquitur was applied to infer negligence on the part of a municipality where sewage had backed up into plaintiff’s home. The Court reasoned that the accident would not have occurred had those responsible for the system’s management and control exercised proper care. More recent jurisprudence has based responsibility on strict liability under LSA-C.C. art. 667. Hamilton v. City of Shreveport, 180 So.2d 30 (La.App. 2 Cir. 1965), writ denied, 248 La. 700, 181 So.2d 399 (1966); Sharon v. Connecticut Fire Insurance Company, 270 So.2d 900 (La.App. 1 Cir. 1972), writ denied, 275 So.2d 788 (La., 1973); Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905 (La., 1973); Carr v. City of Baton Rouge, 314 So.2d 527 (La.App. 1 Cir. 1975), writ denied, 318 So.2d 53 (La., 1975); and LaCroix v. Travelers Indemnity Company, 333 So.2d 724 (La.App. 2 Cir. 1976), writ denied, 338 So.2d 112 (La., 1976).

In the recent case of Falgout v. St. Charles Sewerage Dist. No. 3, 351 So.2d 206 (La.App. 4 Cir. 1977), writ denied, 353 So.2d 1047 (La., 1977), plaintiff sued for damages resulting from sewerage backup. The evidence revealed that plaintiff’s sewage connection was below grade which caused overflow into her home when excessive water accumulated within the system. The court stated:

“[W]e conclude that the liability of a municipality or a sewerage district, where damages have been sustained as a result of the backup of sewage into a property owner’s home, is based upon the absolute liability set forth in LSA-C.C. art. 667.” 351 So.2d 209.

This court also concludes from the jurisprudence that a municipality is held to strict liability for any damage incurred by a property owner due to the overflow of sewage into a home or business established from a municipally owned and operated sewer system. Although there is no indication of negligence by the defendant in its maintenance of the sewer system, the record clearly establishes that the plaintiff was damaged by a backup of sewage from defendant’s system and liability attaches.

Defendant contends that plaintiff assumed the risk of this accident by failing to keep the relief valve on his property open after purchasing a home in a low lying area. Assumption of the risk is a valid defense to an action founded upon strict liability. Wunstell v. Crochet, 325 So.2d 727 (La.App. 4 Cir. 1976). However, plaintiff must have known and understood the risk which he incurred and have freely and voluntarily undertaken it. Wilson v. Voss, 361 So.2d 312 (La.App. 1 Cir. 1978), writ denied, 363 So.2d 214 (La., 1978); Guillotte v. Houston General Ins. Co., 368 So.2d 1026 (La., 1979). Knowledge is a mainstay of this defense, and this element must be established by a preponderance of the evidence. Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La., 1976). Equally as important is the requirement that plaintiff’s action be intended to operate as a consent to relieve the defendant of all duty owed by him to the plaintiff. Laney v. Stubbs, 217 So.2d 468 (La.App. 1 Cir. 1968), writ issued, 253 La. 867, 220 So.2d 455 (1969), affirmed, 255 La. 84, 229 So.2d 708 (1969). Where there is no evidence that plaintiff intended to afford this type of consent to the defendant, the doctrine of assumption of the risk is inapplicable.

Under the facts presented here, assumption of the risk does not apply. The plaintiff undertook no activity which could be construed as a voluntary effort to relieve the defendant of liability. The relief valve was closed by some unknown person without the authority or consent of the plaintiff. Clearly, such action does not constitute the “voluntary assumption of a known risk.” Nor was it ever established that plaintiff had a definite knowledge of any risk of that type when he purchased the home. Merely because plaintiff lived in a low lying area gave him no cause to expect that the city sewerage system was inadequate to properly service his residence. Likewise, contributory negligence has not been established even if contributory negligence were a defense to strict liability. See Joubert v. State, Through State Park, Etc., 345 So.2d 220 (La.App. 3 Cir. 1977).

DAMAGES

Plaintiff contends that he is entitled to receive $12,530.24 for property damage, mental anguish, inconvenience and discomfort resulting from the sewage backup. Plaintiff testified that it was necessary to replace the entire downstairs carpet at a cost of $2,058.90. The old carpet had become waterlogged and had retained a pronounced odor from the sewage. Defendant offered no evidence to controvert the accuracy of plaintiff’s computation. When property is damaged by the legal fault of another, the objective in awarding damages is to restore the property as nearly as possible to the state it was in immediately preceding the damage. Coleman v. Victor, 326 So.2d 344 (La., 1976). In previous cases where the plaintiff has sought recovery of damages for carpet ruined by overflowing sewage, the courts have allowed recovery of the replacement cost of the damaged carpet. LaCroix, supra; Barbay v. Parish of East Baton Rouge, 343 So.2d 235 (La.App. 1 Cir. 1977), writ denied, 345 So.2d 62. Plaintiff is entitled to recover $2,058.90 in damages, the replacement cost of his carpet.

Mr. Romero also seeks recovery for damages to linoleum and tile flooring located within the home as well as damage to walls and baseboards covered by the sewage. However, plaintiff failed to introduce any evidence to support recovery for these items. None of the flooring or baseboards have been replaced and plaintiff’s allegations are founded solely upon his personal estimates of what it would cost to restore these items to their proper condition. Similarly, plaintiff’s claims for loss of wages, cost of cleaning and reimbursement of cleaning supplies is without any evidentiary support. For this reason, plaintiff’s claims are denied as to his recovery for these items.

Finally, plaintiff asserts that he is entitled to recover damages stemming from his mental anguish, inconvenience and discomfort and loss of use of his home occasioned by defendant’s liability. Damages for mental anguish due to the backup of sewage into a home are recoverable. In Falgout, supra, the court awarded $7,500 for plaintiff’s mental anguish from sewerage overflow. In Barbay, supra, $2,500 was awarded for mental anguish where the sewage backup produced an overwhelming lingering stench. In this case, the odor remained for at least two weeks; plaintiff and his family were consequently prevented from using any of the downstairs of the house during this period. All testimony considered, this court finds that an award of $2,500 is sufficient to compensate plaintiff for his mental anguish and the inconvenience resulting from the backup of sewage into his home.

Accordingly, the judgment appealed from is reversed and set aside. It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Gerald L. Romero, and against defendant, the Town of Welsh, Louisiana, in the amount of $4,558.90 with legal interest to run from date of judicial demand. All costs are assessed against the defendant, Town of Welsh, Louisiana.

REVERSED AND RENDERED.

      . LSA-C.C. 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.”

      . LSA-C.C. 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.”


author: DOUCET, Judge.

text:
    The PEOPLES BANK AND TRUST COMPANY, NATCHITOCHES, Louisiana, Plaintiff-Appellee, v. Lonnette C. HARPER, d/b/a Harper’s Steak House, et al., Defendant-Appellant.
    No. 6944.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.

      Watson, Murchison, Crews, Arthur & Cockern by R. Raymond Arthur, Natchi-toches, for defendant-appellant.
    Gravel, Roy & Burnes, Robert L. Royer, Alexandria, Whitehead & McCoy, Natchi-toches, James D. Kirk, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

The Peoples Bank & Trust Company, Natchitoches, Louisiana, instituted this suit against Lonnette C. Harper and Leonard F. Harper to obtain payment on a promissory note with a face amount of $8,425.08, dated January 11, 1977 and signed by Lonnette C. Harper. Progressive Savings & Loan Association was joined as a defendant on the theory that it was also liable to the bank for having wrongfully violated a security interest that the bank had acquired in connection with the note. The Harpers did not appear at the trial of this matter and a default judgment was rendered against them for $6,900.77, the remainder due on the note, on August 2,1977. They have not appealed. After the trial on the merits, a judgment was rendered against Progressive Savings & Loan Association for the same amount. From that judgment, it has appealed.

The issue before this court is whether or not Progressive Savings & Loan Association did in fact violate a valid security interest held by the bank in connection with the note such that it is liable to the bank.

The facts are not in dispute. On January 11, 1977, Lonnette C. Harper obtained a loan with a principal amount of $7,000.00 from the Peoples Bank & Trust Company and in conjunction therewith agreed to convey a security interest in a savings certificate issued by Progressive Savings & Loan Association. The certificate, worth in excess of $10,000.00 at that time, was owned by Mrs. Harper and her three children, Karen, Carlton and David Golden, and had been issued in all of their names. Mrs. Harper did not have the certificate in her possession at the time that the loan was made, however, the president of the bank with whom she dealt, Walter C. Jones, testified that some unsuccessful efforts were made to obtain possession of the certificate at a later time, as it was his usual practice in such cases to retain possession of the certificate until the loan was repaid.

In addition to the promissory note, Mrs. Harper signed a document, prepared by the bank, and styled “ASSIGNMENT OF SAYINGS/TIME DEPOSIT ACCOUNT.”1 The following day, January 12, 1977, the bank sent this instrument to the Savings & Loan. Naomi R. Terrell, its Secretary-Treasurer, signed an acknowledgment at the bottom of the instrument, stating that the signature on it compared correctly with the one in its files, that the then present balance was $10,048.03, and that the assignment had been properly recorded in its records. In addition to executing the acknowledgment, Ms. Terrell made a notation on the account card for account number 3352(14), which read:

“1/12/77 Pledged to Peoples Bank & Trust Co.” The savings and loan then retained a copy of the instrument and returned the original to the bank.

On February 1, 1977, Mrs. Harper and her children made a withdrawal from the savings and loan by presenting the savings certificate and following the procedure prescribed by the institution. According to the testimony of Mr. James H. Cobb, president of the savings and loan, a withdrawal cannot be made without presenting the savings certificate. There were subsequent withdrawals made in the same manner. The last one was made on April 11,1977, leaving a balance of $1,043.08, which the bank sequestered in connection with this suit.

It is the contention of the savings and loan that the bank had attempted to secure a pledge of the savings certificate but that the pledge was not perfected because of the bank’s failure to obtain possession of it. The bank, on the other hand, concedes that there was never a valid pledge, but maintains that there was a valid assignment, sufficient to secure an interest in the funds in the account, and that the savings and loan violated that interest by allowing the withdrawals to be made without its knowledge and consent.

La.C.C. arts. 2642 and 2643 govern the assignment of incorporeal rights.

ASSIGNMENT OF SAVINGS/TIME DEPOSIT ACCOUNT

“Article 2642. In the transfer of credits, rights or claims to a third person, the delivery takes place between the trans-ferrer and the transferree by the giving of the title.”
“Article 2643. The transferee is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place.
The transferee may nevertheless become possessed by the acceptance of the transfer by the debtor in an authentic act.”

No particular form is required for the notice spoken of in the latter article. Strudwick Funeral Home v. Liberty Ind. Life Ins. Co., 176 So. 679 (La.App. Orl. Cir. 1937); Rosenblath v. Rice, 73 So.2d 812 (La.App. 2nd Cir. 1954); In re Pan American Life Insurance Company, 88 So.2d 410 (La.App. 2nd Cir. 1956).

In Scott v. Corkern, 231 La. 368, 91 So.2d 569 (1956), our Supreme Court said the following:

“The contracts of pledge and assignment are entirely different and produce varied legal results. Assignment or transfer of credits and other incorporeal rights is a species of sale and is treated as such in our Civil Code, being found in Chapter 12 of Title VII (“Of Sale”). Article 2642 of the Civil Code provides that delivery of an assignment takes place as between transferrer and transferee by the giving of title. Accordingly, a vesting of title in the transferee is essential to an assignment. See Strudwick Funeral Home v. Liberty Ind. Life Ins. Co., La.App., 176 So. 679 and authorities there cited.”
“On the other hand, a pledge is another sort of contract, having characteristics completely diverse to those of an assignment. It is dealt with under a separate title (Title XX) of our Code and is essentially a contract of security, being defined in Article 3133 as ‘a contract by which one debtor gives something to his creditor as a security for his debt’. This is the antithesis of an assignment (in which title passes) for, in the contract of pledge, the debtor retains the title of the thing which he places, either actually or constructively, in the hands of his creditor as security for the payment of the debt. See Article 3166 of the Civil Code. Hence, it is impossible to have an assignment and a pledge of the same thing at the same time.”

It is implicit from the above language that the granting of those rights accorded a pledgee under the law does not comprise a “giving of the title” within the meaning of Article 2642 of our Civil Code. That reasoning is harmonious with statements found in all of the cases which discuss the notice requirement of Article 2643 to the effect that while no particular form of notice is required, it is essential that the debtor be informed that his former creditor has divested himself of all rights to the thing assigned. See, for example, Strudwick Funeral Home v. Liberty Ind. Life Ins. Co., supra; Rosenblath v. Rice, supra.

A careful examination of the instrument in this case shows that the rights granted by it were no greater than those granted to a pledgee under Civil Code Article 3157. The bank had no right to the funds until after the loan matured and was not otherwise paid. The bank errs in its assertion that it “owned” the funds held by the savings and loan. The eases it cites do not support such a contention.

In all of the cases cited by counsel for the bank, there was a transfer of the right to receive funds in full ownership as they accrued, until such time as the indebtedness was paid. In Dauzat v. Simmesport State Bank, 167 So.2d 681 (La.App. 3rd Cir. 1964), payments due under a construction contract were assigned, giving the assignee a present right to receive the funds and apply them to the indebtedness. Bossier Bank & Trust Company v. Natchitoches Development Company, Inc., 272 So.2d 731 (La.App. 3rd Cir. 1973), dealt with an assignment under the Louisiana Assignment of Accounts Receivable Act, LSA-R.S. 9:3101, et seq., special legislation, designed to regulate a particular type of assignment, which is not applicable here.

With due respect to the learned trial judge, we believe that he erred in finding that an assignment was made under these circumstances, and must, therefore, reverse.

Furthermore, even if our conclusions as to the applicable law were otherwise, we would, nevertheless, be constrained to reverse. After carefully examining the testimony in the record before us, we believe that contrary to its assertions after the fact, what the bank intended to create in this situation was a pledge. The bank’s president testified that he normally retains possession of the savings certificates in cases such as this one and that he, in fact, attempted to obtain possession of the certificate in this case.

The testimony of all of the witnesses acquainted with the customary secured lending practices in the Natchitoches area shows that transactions such as the instant one are ordinarily in the form of pledges and understood to be such. It is apparent from the notation made by Mrs. Terrell on the account card that the savings and loan considered the instrument evidence of a pledge of the savings certificate.

The use of the word “assignment” does not mandate a finding that the the instrument was an assignment and not a pledge. In Naquin v. The American Bank of Luling, 347 So.2d 332 (La.App. 4th Cir. 1977), the court concluded that despite the use of the word “assignment” the conveyance of rights to a savings account was a pledge.

In light of these circumstances, we believe that the bank attempted to perfect a pledge but did not do so, because it did not have the requisite possession of the pledged property. La.Civil Code Article 3152.

For the above reasons, the judgment of the district court, ordering defendant-appellant, Progressive Savings & Loan Association to pay to plaintiff-appellee the sum of SIX THOUSAND NINE HUNDRED AND 77/100 ($6,900.77) DOLLARS, plus interest and attorney’s fees is reversed. All costs of this appeal are assessed against plaintiff-appellee.

REVERSED.


author: SWIFT, Judge.

text:
    Buford SMITH, Plaintiff-Appellee-Appellant, v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, and Houston General Insurance Company, Defendants-Appellants-Appellees.
    No. 6949.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Rehearing Denied June 6, 1979.

      Gravel, Roy & Burnes, Christopher J. Roy, Alexandria, for plaintiff-appellee-ap-pellant.
    Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendants-appellants-appellees.
    Before DOMENGEAUX, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

Both sides in this workmen’s compensation suit have appealed from the judgment of the district court awarding benefits to the plaintiff for partial disability under LSA-R.S. 23:1221(3), as amended in 1975, with a 12% penalty and $3,000.00 for his attorney’s fee.

The plaintiff, Buford Smith, was employed as a safety supervisor with the Department of Highways. As such, he was required to drive long distances all over the state at frequent intervals and also to stand and stoop for lengthy periods. In the latter part of 1974 the plaintiff stepped in a hole and sustained a compensable injury to his back. A bilateral laminectomy at L4r-5 and L5-S1 was performed on June 4, 1975. Mr. Smith recovered to the extent that he was able to go back to work around August of that year, but with some pain or numbness of the lumbosacral area which extended down towards his left heel.

During the course of his employment on December 3, 1975, the plaintiff hurt his back again in an automobile accident. He returned to his same job some time thereafter, but complained of continued pain and suffering while driving, sitting, standing and stooping for long periods of time. The physicians who examined him in connection with an application for a disability pension confirmed that his complaints were valid and Smith was retired in February of 1977.

Some time in 1976 Mr. Smith was appointed to the board of directors of the Central Louisiana Bank and Trust Company for which he was paid $137.50 per month. In 1977 he was made a member of the bank’s loan committee and paid an additional $100.00 a month. At the end of 1977 he received bonuses, which were apparently determined on the basis of the bank’s profit for the year, that brought his total income from Cenia Bank for 1977 to $13,500.00. He is now a vice-president of the bank, with an office in Effie, Louisiana, to which he goes each day to supervise loans and provide other services. Mr. Smith testified he sets his own hours according to the way he feels and spends considerable time resting at his office. The record indicates he is at the bank most of the time on banking days.

The plaintiff settled his workmen’s compensation claim that arose from the first accident. However, the trial judge concluded that he is presently disabled as a result of injuries sustained in the December 3, 1975, accident and certainly he was not manifestly in error in this respect.

The principal questions to be determined on this appeal are:

1) Whether the plaintiff is permanently and totally or only partially disabled; and if the latter

2) Whether the sums that the plaintiff has and will receive from the bank are to be considered as “wages” in computing the partial disability benefits to which he is entitled.

The plaintiff contends that he is in constant pain both at home and at the bank and spends most of the time resting. His wife testified to the same effect. However, her statement that the plaintiff was at home most of the time is not supported by him or by the record.

Both doctors who were called by Mr. Smith, Thomas Campanella and Herbert K. Plauche, said that he could do the work of a bank loan officer, provided he was not required to sit for any prolonged conferences and could get up and move around as he pleased. The plaintiff testified that he was able to do just this while at the bank. Also, Dr. Douglas Gamburg, who examined Smith at the request of defendants, expressed the opinion that the plaintiff could perform the duties of a loan officer at a bank as his pain was not constant. William Ed Candler, an investigator for the defendants, who spent a good part of a day with the plaintiff posing as a potential customer of the bank, testified that although the plaintiff walked slow he gave no indication of pain or discomfort while driving, walking, sitting or standing.

The reasons for judgment of the district judge make no mention of his findings in regard to the plaintiff’s contention of being permanently and totally disabled. However, this court is convinced, as the judge undoubtedly was, the preponderance of evidence establishes that while the plaintiff is unable to do the work of a safety supervisor with the Department of Highways he is able to perform satisfactorily the duties of his employment with the Cenia Bank without substantial pain and suffering. This being “gainful occupation for wages” within the intendment of LSA-R.S. 23:1221, the plaintiff is entitled to benefits for partial disability, not for total and permanent disability.

We must reject the plaintiff’s contention that the “odd-lot” doctrine discussed in Larson’s Workmen’s Compensation Law, Section 57.51, is applicable in this case. Aside from its lack of recognition in our jurisprudence, Mr. Smith’s condition has not left him completely helpless. It simply prevents him from excessive driving, sitting, standing and stooping. Certainly, there are other jobs besides a bank loan officer that he can perform which do not require such activities.

Next, we must determine whether the trial judge was correct in deducting the sums the plaintiff was paid by the Cenia Bank from the wages he was earning when injured on December 3, 1975, in computing his partial disability benefits under LSA-R.S. 23:1221(3). He contends that these were not really “wages” under the statute, but were given to him principally for his having helped organize the bank some years before and for his influence in the community.

There is nothing in the record to indicate that Smith was not earning the money he was paid by the bank or that he would continue to get such sums if his positions with that institution were terminated. According to his own testimony, he went to his office early in the mornings and it is obvious from the record that he was actively engaged in its affairs each business day. No one from the bank said that the plaintiff’s position was a sinecure and the money was paid to him as a gratuity. We agree with the trial judge that such moneys were “wages” within the intent of our workmen’s compensation act.

That term is defined in LSA-R.S. 23:1021(7) as follows:

“ ‘Wages’ means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows: (a) If the employee is paid on an hourly basis, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury or forty hours, whichever is greater; (b) If the employee is paid on a monthly basis, his monthly salary divided by four; (c) If the employee is employed at an annual salary, his annual salary divided by fifty-two; and (d) If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by four; provided, however, that if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by four.

In Richmond v. Weiss & Goldring, Inc., 124 So.2d 601, 604, (La.App. 3 Cir. 1960) this court said:

“However, ‘In computing actual earnings as the beginning-point of wage basis calculations, there should be included not only wages and salary but any thing of value received as consideration for the work, such as tips and bonuses,’ 2 Larson, Workmen’s Compensation Law (1952), Section 60.12. ‘Any money paid the employee which can be regarded as remuneration or reward for his services should be included in fixing his compensation, irrespective of whether or not the payment was in the form of wages,’ Malone, Louisiana Workmen’s Compensation (1951), Sec. 329, P. 446. Thus, the trial court properly considered bonuses as well ^ wages ¡n fixing the compensation rate. See Biggs v. Libbey-Owens-Ford Glass Co., La.App. 2 Cir., 170 So. 273.”

Subsequently, in Deason v. Travelers Insurance Company, 242 So.2d 906 (La.App. 3 Cir. 1971) it was held that tips received by a waitress should be considered as a part of her weekly earnings in the computation of her weekly compensation benefits.

We are convinced that the employee’s gross earnings must be used in the computation of workmen’s compensation benefits, whether paid hourly, weekly, monthly or annually, or on a unit, piece work, commission, or other basis, including bonuses.

Except as noted above, neither side complains of the method employed by the trial court in computing the plaintiff’s weekly compensation benefit for partial disability at $26.61. A more troublesome question is presented in connection with the defendants’ claim for credit for the alleged overpayment of weekly compensation at the rate of $85.00 per week from January through September 16, 1977. The trial judge gave none, apparently because of the arbitrary termination of all benefits after September 16, 1977.

In this case the only money the plaintiff had actually earned and received from Cen-ia Bank before the $85.00 weekly payments were stopped were his fees as a director and loan officer amounting to $237.50 per month. Although it seems to have been generally understood that Mr. Smith was to receive a bonus at the end of each year, the record does not reflect that this was entirely certain. In any event, there was no way to determine the amount thereof until December. Consequently, when the weekly compensation benefits were paid in 1977 the only deductions that could have been made from plaintiff’s salary when injured to determine the amount due him each week for partial disability were the fees he was being paid at that time. 66%% of the difference between them and the plaintiff’s prior salary, both computed on a weekly basis, exceeded the applicable maximum rate of $85.00 per week. Therefore, there really was no overpayment of compensation at the time it was terminated and the trial judge was correct in refusing to give any credit to defendants therefor as they contend. Our view might be different if the amount of the bonus to which the plaintiff was entitled at the end of the year was definite or even if there was an overpayment of weekly compensation after the amount of the bonus had been ascertained. However, we are not concerned with those situations in this ease.

For the foregoing reasons, the judgment of the district court is affirmed. The costs of this appeal are assessed in the proportions of one-half to the plaintiff and one-half to the defendants.

AFFIRMED.


author: GUIDRY, Judge.

text:
    John MATTE, Plaintiff-Appellee, v. Verline GUILLORY, Defendant-Appellant.
    No. 6957.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Rehearing Denied June 6, 1979.
    Andrew S. Vallien, Natchitoches, for defendant-appellant.
    J. Harold Fontenot, Opelousas, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

This is a personal injury suit. Defendant appeals from a judgment rendered in favor of plaintiff, as administrator of the estate of his minor son, Charles Douglas Matte, in the amount of $3046.30. Plaintiff has not appealed nor answered the appeal of defendant.

The trial judge in well written reasons, succinctly set forth the facts as found by him and his legal conclusions in regard thereto. We take the liberty of quoting at length from his reasons:

I have considered the evidence and find it to preponderate as follows:
On January 1, 1976, Charles Douglas Matte, who was riding on a motorcycle was thrown to the surface of the highway when he was unexpectedly attacked by a dog. The animal suddenly lunged at Matte from a roadside ditch, and caused the motorcycle to overturn. As a result of the collision, the motorcycle was damaged, and young Matte suffered injuries to his left elbow, both hands, both knees, and his left shoulder. The dog was killed in the accident.
The plaintiffs minor son was taken to Opelousas General Hospital, where he was attended by Dr. Glynn A. Granger, a general surgeon, for the injuries he had received in the accident. Matte was hospitalized for one week, during which time surgery was performed for the removal of tissue from the inner side of the right knee which had been crushed in the fall. On January 8, 1976, the young man was allowed to return home, where he was confined to bed for an additional week, after which time he was permitted to ambulate on crutches. He was discharged by the physician on January 26, 1976, with no residual disability whatsoever.
Charles Douglas Matte was to begin work on the day of the accident as a part-time employee at Howard Brothers. His wages were such that he would have earned $213.80 for the month during which he was incapacitated as a result of the accident.
It is evident that the dog which attacked Charles Douglas Matte belonged to the defendant. Although ownership is denied, the testimony shows that the dog was seen many times in the defendant’s yard, and on several occasions it had exhibited aggressiveness towards persons walking along the highway in front of the Guillory yard. The defendant, as owner of the dog, is therefore liable in damages for the harm done by the animal. Holland v. Buckley [La.], 305 So.2d. 113.
The plaintiff’s minor son was riding his motorcycle in his proper lane of travel, and, because of the sudden attack of the dog, he did not have the opportunity to avoid colliding with it, he was thus free of negligence and contributory negligence.
The motorcycle upon which Charles Douglas Matte was riding was damaged as a result of the accident. It had been purchased at a cost of $525, one year and a half prior to the accident. No witnesses were called to testify as to the nature and extent of the damages nor the cost of repair; however, there was some testimony that it was damaged beyond repair.
Considering the evidence, I am of the opinion that plaintiff is entitled to recover pain and suffering for and on behalf of Charles Douglas Matte in the sum of $1,500.00, and is further entitled to recover the hospital and other medical bills in evidence and loss of earnings in the sum of $213.80. No recovery can be allowed for damages to the motorcycle because such a finding would require speculation, since the evidence is not satisfactory in this regard.”

In brief to this court appellant essentially complains that the trial court erred in its findings of fact and in its application of the rationale of Holland v. Buckley, 305 So.2d 113 (La.1974) to the facts found, in that there is no evidence that plaintiff’s son was bitten by a dog. We find no merit to either of appellant’s assignments of error.

There is abundant proof in the record to support each of the trial court’s findings of fact. Admittedly there is some evidence in the record which contradicts these findings. However, it is well settled that on appellate review the findings of the trier of fact are entitled to great weight and should not be disturbed unless clearly wrong. On appeal, the reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial judge. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Do-mingue, 365 So.2d 1330 (La.1978).

As aforestated we find no merit to appellant’s suggestion that the rationale of Holland v. Buckley, supra, is inapplicable under the circumstances of this case. We do not interpret Holland as applying only to cases involving injuries sustained as a result of being bitten by a dog. In its summary in Holland the majority was careful to point out that:

". . . the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.
“. . . The underlying reason for the owner’s liability is that, as between him who created the risk of harm and the innocent victim thereby injured, the risk-creator should bear the loss. He maintains the animal for his own use or pleasure.
Article 2321 places the master of the animal under a legal obligation to keep his animal under such guard that it does no damage .to others. A fault in this obligation to control the animal and guard others from harm by it entitles the victim to recover damages thereby sustained. . . (Emphasis supplied)

In the instant case the record amply supports the trial court’s finding that plaintiff’s minor child suffered harm as a direct result of being attacked by defendant’s dog. Under such circumstances, there being no showing that the harm resulted because of the fault of the victim, the fault of a third person or by a fortuitous event, plaintiff is entitled to recover.

For the above and foregoing reasons the judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.


author: FORET, Judge.

text:
    James A. DICKERSON et al., d/b/a Dickerson Real Estate Company, Plaintiffs-Appellants, v. L. D. HUGHES, Defendant-Appellee.
    No. 6967.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Rehearing Denied June 6, 1979.

      James G. Bethard of Bethard & Davis, Coushatta, for plaintiffs-appellants.
    Gahagan & Gahagan by R. E. Gahagan, Natchitoches, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

James A. and James S. Dickerson, d/b/a Dickerson Real Estate Company (Dickerson), brought this suit to collect a real estate commission allegedly owed them by L. D. Hughes. Plaintiffs have appealed from the trial court’s rejection of their demands.

Defendant, Hughes, entered into a written exclusive listing contract with Dickerson on August 1, 1977, for the sale of his residence in Natchitoches Parish, Louisiana. This contract called for a sales price of $55,000 with a 6% commission to be paid out of this to Dickerson. Approximately ninety days later Hughes validly terminated the contract with Dickerson. These facts are not in dispute.

In February, 1978, Hughes again discussed the sale of his house with the Dicker-sons. The substance of this discussion is in dispute. Both James A. (Jim) and James S. (Steve) Dickerson testified that Mr. Hughes came to their office requesting that they again attempt to sell his property but on the basis of a verbal non-exclusive listing with the same 6% commission if they were successful in obtaining a buyer. Mr. Hughes’ version of the meeting is considerably different. He contends that “ . on one occasion he went to see R. C. Dupree about some insurance and while he was in the building (also occupied by plaintiffs), he did merely state to Steve Dickerson that, ‘If you see someone interested in my house, send them to me’.” (Defendant’s brief, pgs. 1-2)

Shortly after this, Jim Dickerson contacted a Mr. Wayne Ivy, whom he knew to be in the market for a house and for whom he thought that the Hughes property might be suitable. Ivy was interested and made an appointment with Dickerson to see the house the following Sunday, February 26, 1978. Dickerson in turn contacted Hughes and told him that he intended to bring a prospective purchaser to see the property. That Sunday Mr. and Mrs. Ivy viewed the property in the presence of Dickerson and Mr. and Mrs. Hughes. No offer was made at this time, but later that day the Ivys discussed the purchase price of the property with Dickerson, who informed them that he believed $55,000 was as low as Hughes was prepared to go. Mr. Ivy then told Dickerson that he would have to consider the matter further.

On April 6, 1978, thirty-nine days after the initial viewing of the Hughes residence, the defendant sold the house to Ivy for $55,000. Defendant had continued negotiations with Ivy without contacting plaintiff and had, in fact, informed Ivy that plaintiff no longer had the property listed. Mr. Hughes claims that he took these actions because Dickerson had informed him the Ivys were no longer interested in the property. Dickerson denies having made any such statement asserting that he only told Hughes that the Ivys had not made up their minds as yet.

Under Louisiana law, a realtor may recover his commission without an exclusive listing agreement if he proves (1) a non-exclusive listing contract and (2) that he was the “procuring cause” of the subsequent sale. Sleet v. Williams, 291 So.2d 495 (La. App. 3 Cir. 1974).

A listing agreement need not be in writing, but its existence must be provable under Louisiana Civil Code Article 2277, which requires at least one credible witness and corroborating circumstances. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977) and cases cited therein. That Mr. Hughes did come in to the Dickerson office and had a conversation with at least Steve Dickerson is not in dispute. Even assuming that defendant’s version of this conversation is correct (“If you see a good prospect, send him down there.”), this would be sufficient as an offer of a non-exclusive listing to Dickerson. While it was perhaps said in a somewhat casual manner, his intent, considering to whom he was speaking, is unmistakable: he was requesting the assistance of a licensed real estate broker in selling his house. He knew how such a business operated (having previously had a written exclusive listing agreement with the same party) and surely could not expect Dickerson to gratuitously “send a prospect down there”.

While this office conversation may have left different impressions in the minds of plaintiffs and the defendant, when Jim Dickerson called the Hughes and told them that he was bringing over a prospective purchaser, Hughes should have then and there objected if he did not desire Dickerson’s assistance. We note the testimony of Mr. Hughes at trial:

Q. “Now the Sunday that Mr. Ivy saw the house, did Jim Dickerson notify you in advance that Mr. Ivy would be coming down?
A. Mr. Dickerson called and told us that
Mr. Ivy_he was going to bring
Mr. Ivy down there.” (Tr., pg. 51)

Hughes was aware, by his prior contract with plaintiffs, of the commission customarily charged by the plaintiffs even if it did not specifically come up in his disputed office conversation with Steve Dickerson.

PROCURING CAUSE

Finding that an oral contract existed between the parties, we move to the next contention of plaintiffs that they should be entitled to recover their commission under the jurisprudentially recognized theory of a broker being a “procuring cause” of a sale. “ . . . A real estate broker is considered the procuring cause of a sale and is entitled to a commission if he brings the parties together, even though the parties conduct the final negotiations themselves and even though the broker does not have a listing or an exclusive-agency agreement.” Slimer v. White, 275 So.2d 468 (La.App. 2 Cir. 1973) citations omitted. See also Sleet v. Williams, 291 So.2d 495 (La.App. 3 Cir. 1974).

Jim Dickerson, Wayne Ivy, and defendant all testified that Dickerson introduced Ivy to Hughes as he knew Ivy was a recent arrival in the area and was looking for a home to purchase:

Mr. Ivy: “He contacted me and said he had a house and showed it to me. .
Q. Now, was Mr. Dickerson the first one to contact you about this house? A. Yes, he was.” (Tr., pg. 41)
* sf: * * ‡ *
Mr. Hughes: Q. “Prior to this time, were you aware that Mr. Ivy wanted to purchase your house?
A. No, sir.” (Tr., pg. 51)

Defendant objects that after the initial viewing of the property on Sunday, February 26, that Dickerson did nothing to further the sale, and that there would not have been a sale had not Hughes personally called upon Ivy. This impression apparently comes from a conversation that Hughes had with the Dickersons at the “Cotton Patch” in Coushatta approximately one week after the initial contact. Hughes testified that Jim Dickerson told him that Ivy was not interested in his property. Dickerson denies this, stating that he only told Hughes that Ivy had not made up his mind yet. It was after this conversation that Hughes called on Ivy and eventually sold him the property slightly more than one month after the initial viewing.

Defendant argues that Ivy had broken off the original negotiations through Dickerson and that as Dickerson had nothing to do with the subsequent negotiations, he is not entitled to a commission. The cases defendant cites for this proposition are factually distinguishable from the present circumstances. ' They hold that no commission is owed when:

(1)there is no contract between the seller and the broker; or
(2) the broker is not a direct influence (procuring cause) of the sale; or
(3) negotiations had ceased or been abandoned, only to be renewed later, long after the broker had tried and failed to effect a sale.

The facts here show that Mr. Ivy was immediately interested in the property, that Dickerson contacted him again after the initial viewing, and that Ivy never became disinterested but did take time to consider the situation before deciding. Hughes dissuaded Ivy from calling Dickerson again telling him that Dickerson Real Estate had no listing on the property and that he should deal directly with him.

Mr. Hughes: Q. “During those negotiations did you ever contact Mr. Dickerson to come sit in and help you?
A. No sir.” (Tr., pg. 51)

Under Louisiana law, a real estate broker is considered the procuring cause of the sale and is entitled to a commission if he brings the parties together, even though the parties conduct the final negotiations themselves, and even though the broker does not have a listing or exclusive agency agreement. Slimer v. White, supra; Keating v. Lachney, 216 So.2d 906 (La.App. 1 Cir. 1968). Here, no long period of time had elapsed nor had Mr. Ivy broken off negotiations. It was approximately one month after the initial contact between Ivy and Hughes (arranged by plaintiff) that the sale was made. It is obvious that plaintiff set in motion the events and was in fact the procuring cause of the sale. The fact that the final negotiations were made by the individuals without the aid (or even the knowledge) of the real estate agent cannot negate the efforts he has put forth. Saturn Realty Co. v. Muller, 196 So.2d 321 (La.App. 4 Cir. 1967); Veters v. Krushevski, 100 So.2d 93 (La.App.Orl.Cir.1958), writ denied. All that a real estate agent has to sell is his services; if parties once introduced by this service were free to go around the agent and avoid paying him a reasonable commission, he would not long economically survive.

In accordance with the foregoing, we conclude that the holding of the trial judge was clearly erroneous and should be reversed. Accordingly, it is ordered, adjudged and decreed that there be judgment herein in favor of James A. Dickerson and James S. Dickerson, d/b/a Dickerson Real Estate Company, plaintiffs, and against L. D. Hughes, defendant, for the amount of $3,300 (6% of $55,000) plus legal interest thereon from April 6, 1978 until paid.

Costs of the trial court and of this appeal are assessed against the defendant, L. D. Hughes.

REVERSED AND RENDERED.

      . Art. 2277. Proof of agreements concerning movables or money.
      “Art. 2277. All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

      . U. S. Realty Sales of Shreveport v. Rhodes, 34 So.2d 523 (La.App. 2 Cir. 1948); Rosenthal v. Cangelosi, 164 So. 502 (La.App. 1 Cir. 1935).

      . Crasto v. Pohlman, 12 La.App. 685, 127 So. 89 (1930); Rosenblath v. Brumfield, 15 So.2d 474 (La.App. 2 Cir. 1943).

        . Ford v. Shaffer, 143 La. 635, 79 So. 172 (1918); Cobb v. Saucier, 30 So.2d 784 (La.App. 2 Cir. 1947).

      . April 6 is the date of the sale.