text:
    MOTOR MACHINE AND SUPPLY CO. v. DELILAH TOWING CO., INC., and Boyce Machinery Corporation.
    No. 10314.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.

      Edmund J. Connely, Houma, and Wood Brown, III, New Orleans, for appellant.
    B. Ralph Bailey, New Orleans, for defendant-appellee.
    James E. Toups, Jr., Baton Rouge, for third party defendant-appellant Boyce Machinery Corp.
    Before SARTAIN, ELLIS and BAR-NETTE, JJ.
   BARNETTE, Judge.

This proceeding began by petition filed July 8, 1969 for collection of an account due in the amount of $1,048.14 for line-boring the block of a diesel engine in the motor vessel Delilah, on or about April 4, 1968. Reconventional demands and third party actions have made it a complicated litigation involving many issues. All parties have appealed.

The judgment of the trial court fails to mention the issue of the alleged account due for collection of which the suit was initiated. That issue seems to have been lost in the confusion of issues which followed. That demand must however, by implication and failure of specific disposition, stand as rejected and dismissed.

Before mentioning the judgment from which these appeals were taken it is necessary to define the posture of the litigants and their respective demands and counter-demands.

The defendant Delilah Towing Company, Inc. owns and operates the tug Delilah, used for towing barges in the Intracoastal Canal.

The crankshaft of the engine of the Delilah was removed during an overhaul of the engine in July, 1966. It was sent to Motor Machine and Supply Company in Houston for inspection and to determine if it was suitable for rebuilding. The plaintiff, Motor Machine, made the test defined as “magnetic particle inspection” and generally referred to as “magnafluxing”, a term which derives from the trade name, “Magnaflux” for equipment developed for use in the process. After magnafluxing the crankshaft Motor Machine determined that it was suitable for rebuilding and it was sent to American Crankshaft Company in North Carolina who actually did the rebuilding. For this service the defendant, Delilah was billed $1,300.00, which was paid.

The rebuilt crankshaft was returned to defendant Delilah and put in storage in its warehouse at Bourg, Louisiana, and kept as a spare. In March, 1968, it was reinstalled in the tug Delilah. This mechanical work was performed by Boyce Machinery •Corporation. The Delilah was put back in service on March 13 and operated until April 2, 1968, when the crankshaft broke. It was towed to Morgan City and the engine rebuilt with a new crankshaft by Boyce Machinery Company for which Delilah was charged $5,811.81. In connection with this overhaul job, the plaintiff, Motor Machine was engaged to line-bore the engine block to insure proper alignment before installing the new crankshaft. Motor Machine’s charge for this service was $1,048.14 which was stipulated to be a reasonable charge.

The Delilah was put back in service on April 12, 1968 after being out of service since the casualty of April 2, a period of ten days.

As stated above this suit was brought by Motor Machine against Delilah for collection of the $1,048.14 due for line-boring the engine block.

Defendant, Delilah, answered and reconvened seeking recovery of the $5,811.81 which it had been charged by Boyce for overhaul and installation of the new crankshaft, plus $2,500.00 alleged due for down time losses during Delilah’s repair. The basis of this reconventional demand was the alleged negligence of Motor Machine in improperly inspecting the crankshaft resulting in failure to discover a crack which resulted in its fracture when reinstalled and put back in service. Delilah alleged the crankshaft was not suitable for rebuilding and reuse and that Motor Machine was negligent in representing to the contrary.

Delilah then brought a third party action against Boyce for recovery of $3,548.14 in the event it should be determined that Motor Machine was not negligent and entitled to judgment on its demand for $1,-048.14. To this was added $2,500.00 for down time losses, making the total $3,548.-14. The basis of this third party demand is an alternative allegation of negligence on the part of Boyce in the manner in which it installed the rebuilt crankshaft which they alleged resulted in its failure. Specifically it alleged failure to properly inspect for alignment the engine block, the bearings and crankshaft.

On January 26, 1972, Boyce, third party defendant, answered denying the allegations of negligence charged by Delilah and reconvened against Delilah for the $5,8Í1.8T Delilah owed it for rebuilding the engine and installing a new crankshaft following the casualty of April 2, 1968. In this pleading, Boyce assumed the position of a third party plaintiff against Motor Machine and Supply Company for one-half of any amount it might be cast in the event it should be held liable in solido with Motor Machine for damages to Delilah.

Delilah later amended its petitions in re-convention and by third party actions alleging various additional items of damage to increase its demands against Motor Machine and Supply Company to $11,752.17 and against Boyce Machinery Company to $15,047.32.

On these pleadings trial was had and judgment was rendered in material part as follows:

******
“On the main demand, there be judgment rendered in favor of the defendant, Delilah Towing Company and against the plaintiff, Motor Machine and Supply Company in the full sum of * * * ($2,750.00) * * * and for all costs of the main demand, and * * *
“On the Third Party Demand, there be a judgment rendered in favor of the Third Party Plaintiff, Boyce Machinery Corporation, and against the Third Party Defendant, Motor Machine and Supply Company, in the full sum of * * * [$5,811.51 (sic)] * * * and for all costs of the Third Party Demand.”

The plaintiff, Motor Machine and Supply Company, against whom the judgment was cast as defendant in reconvention to Delilah and as third party defendant to Boyce, appealed suspensively. Delilah and Boyce each appealed devolutively.

The judgment as rendered is not responsive to the pleadings and must be recast. In the first 'place Boyce’s third party demand against Motor Machine is for one-half of such judgment as might be rendered in favor of Delilah against it and Motor Machine in solido on a finding of joint or concurrent negligence by them resulting in Delilah’s loss. Boyce did not seek recovery from Motor Machine of the $5,811.81 which it charged Delilah for the mechanical work involved in installing the new crankshaft after the April 2, casualty. Boyce seeks recovery of this amount through its reconventional demand against Delilah and its judgment of recovery should be against Delilah rather than against Motor Machine. Delilah seeks recovery of this amount, with other damages from Motor Machine. The judgment will be amended and recast accordingly.

There is no issue between Boyce and Delilah over the correctness of the $5,-811.81 account or that it is due and owing, if Boyce is found not to have been negligent as alleged alternatively by Delilah in its third party demand. However, counsel for Motor Machine has challenged the proof of this account and has attempted by brief in this court to raise the prescription of three years for open accounts as a bar to Boyce’s recovery on this claim. This is based on the work having been done on April 4, 1968 and no judicial demand having been made by Boyce for payment until its reconventional demand was filed against Delilah January 26, 1972.

The issue of prescription which Counsel for Motor Machine has attempted to inject into this proceeding by brief and oral argument in this court, raises several interesting questions of law, namely -whether it is governed by the doctrine of laches applicable under admiralty laws for maritime actions, or by the articles of the Civil Code. If the latter, whether it be three years for open accounts or ten years for contracts and whether it can be pleaded by Delilah’s third party defendant, Motor Machine, or only by Delilah. Finally, whether in any event, there was an interruption of prescription by Delilah’s alleged judicial acknowledgement of the account by its third party demand against Motor Machine for recovery of the amount of the account.

We cannot consider any of these questions since there has been no formal plea of prescription filed in this proceeding, either at the trial level or in this court pursuant to LSA-C.C.P. arts. 927 and 2163. The peremptory exception of prescription, regardless of any probable merit, cannot be injected as an issue in the case by brief or oral argument. Gulotta v. Cutshaw, 258 So.2d 555 (at p. 558) (La.App. 1st Cir. 1972); City of New Orleans v. Di Benedetto, 144 So.2d 558 (La.App. 4th Cir. 1962) and cases there cited.

On the issue of proof of the account the trial judge found that there was sufficient proof and that Boyce was entitled to recovery. There is no error in his finding in this respect and we agree that the account was proven to be correct, due and unpaid.

The principal issue upon which all other issues depend is to whom must be cast the responsibility for failure of the crankshaft with its resultant damage.

The only witness who testified as an expert in metallurgy was R. L. McDaniel. His qualifications as an expert were accepted by the court. There was no objection to his qualifications at the time but counsel for appellant, Motor Machine, has questioned his qualifications in this court. We agree with the trial judge that Mr. McDaniel was qualified as an expert in metallurgy. At the time of the trial he was employed as a metallurgist by Chrysler Corporation Space Division where the highest degree of skill is required. He has a Bachelor of Science degree in metallurgical engineering and had done work in metal failure analysis at Bell Helicopter Company. We do not question his credibility as an expert in the field of metallurgy.

The trial judge relied primarily on the testimony of this witness in reaching the conclusion that the responsibility for the installation of a defective crankshaft in the Delilah which failed after 20 days of use was that of Motor Machine and Supply Company. We find no manifest error in this finding of fact.

Mr. McDaniel saw the broken crankshaft on April 8, 1972 and was given a history of its rebuilding, storage, reinstal-lation and fracture. He conducted hardness tests and a laboratory examination of a broken segment and concluded that the fracture was the result of metal fatigue caused by repeated loading at less than ultimate strength but at greater than the endurance limit of the crankshaft. He was of the opinion that the crack was in the shaft on March 13, 1968 when it was reinstalled in the Delilah. He further testified that the failure to discover the microscopic crack when it was rebuilt was evidently the result of a failure to properly conduct the “magnafluxing” or “magnetic particle inspection”.

This witness described in detail the process by which “magnetic particle inspection” is done. The process requires the use of a black light for examination of the magnetic field. Motor Machine magnaflux expert, Al C. Rodriguez, testified that the process employed by them was to apply the black light after the magnetizing. Mr. McDaniel testified that “ * * * it is generally recognized in the trade. — a failure to maintain the magnetic field during a test makes it of marginal usefulness”. (Emphasis added) He emphasized the need of meticulous care in the cleaning process to get a proper magnetic particle inspection. A clean dry surface is an absolute requirement. Mr. Rodriguez could not remember if 'he personally conducted the magnafluxing of the Delilah crankshaft, but testified to the procedure which he supervises for Motor Machine and Supply Company.

Mr. McDaniel testified that it would have been impossible in his opinion for the crack to have developed resulting in total fracture in a period of 20 days use. It was his opinion that the crack was there when the crankshaft was installed and said: “I believe a properly conducted magnetic particle examination would have shown the crack * * * ”. He found no indication of improper lubrication. This was corroborated by Delilah’s witness, Jerry Gon-soulin. There was no evidence of bearing seizure which would be indicated if there was a malalignment in the line bore.

Raymond Keller, Field Service Manager for Boyce Machinery Company with thirteen years experience in the repair of caterpillar engines of the type used in the Delilah supervised the replacement of the crankshaft which broke. He said this overhaul was necessary because of burnt connecting rod bearings. The engine was not line-bored at that time because there was “no evidence of main bearing failure”. Line boring is a very expensive procedure and is not done unless the engine has been subjected to severe torque or stress which could cause distortion. This is likely to result from a breaking of the crankshaft, but not from burnt bearings. That is why the line boring was done by Motor Machine and Supply after the crankshaft was broken before Boyce installed the new crankshaft.

There is a clear preponderance of evidence that the failure of the crankshaft was the result of its being defective (cracked) when installed in March, 1968. The responsibility for this must be cast upon Motor Machine and Supply Company who undertook to determine if it was suitable for rebuilding and reinstallation in the Delilah’s engine.

We find no error in the trial court’s finding of fact on this crucial issue. No other conclusion could reasonably have been reached upon the evidence presented. There was no evidence of negligence or improper workmanship on the part of Boyce.

We therefore find, as did the trial judge that the entire loss must be borne by Motor Machine and Supply Company. Boyce Machinery is entitled to recovery against Delilah Towing Company in the amount of its repair bill, $5,811.81. Delilah is entitled to recovery of this amount plus its down time damage against Motor Machine and Supply Company.

We noted above the failure of the judgment below to specifically mention Motor Machine’s initial demand of $1,018.14 for line-boring the Delilah engine after the crankshaft broke. This procedure was made necessary by the breaking of the crankshaft, the responsibility for which was Motor Machine’s. It was therefore an item of damage for which Motor Machine is liable and its demand for payment of this amount will be denied.

In all of its pleadings Delilah alleged as an item of damage the necessity to rent a substitute tug to take up Delilah’s tow at a cost of $250.00 per day for ten days. It prayed for recovery of this amount $2,500.00. During the course of the trial Delilah’s witness produced an invoice and testified that the charge was $275.00 per day. Objection was made to the enlargement of the pleadings. The . trial judge overruled the objection and permitted the testimony. This, we think was an erroneous ruling under LSA-U.C.P. Art. 1154. The strictly proper procedure would have been to allow the plaintiff in reconvention to amend the pleadings and then to allow the objecting party, Motor Machine, an opportunity to satisfy the court that the amendment would prejudice its defense, and grant a continuance, if necessary, to meet the evidence.

Under the circumstances presented in this case, however, we hold this procedural error does not justify a reversal nor a remand which would serve no useful purpose nor alter the final judgment. Motor Machine has not alleged that it was prejudiced in its defense by the error of the trial judge. That is, it has not claimed that it would have conducted its defense any differently had it been given the opportunity afforded by Article 1154. We therefore consider the error to be harmless since the eventual outcome of the case would have been the same in either event.

Delilah has sought by its appeal to increase this award from $2,750.00 for ten days to $3,025.00 for eleven days. We will reject this additional claim. The casualty occurred on April 2, 1968 at 3:30 P.M. The Delilah was put back in service at 5 :30 P.M. on April 12. This was a down time of ten days and two hours. The judgment for ten days tug rental at $275.00 per day was correct. We find no merit in Delilah’s other claims for additional damage. The judgment appealed is therefore annulled and recast to read as follows:

On the main demand of Motor Machine and Supply Company for $1,048.14 there is judgment in favor of Delilah Towing Company, Inc. rejecting plaintiff’s demands and dismissing its suit.

The third party demand of Delilah Towing Company against Boyce Machinery Corporation is denied and there is judgment in favor of Boyce Machinery Corporation dismissing said third party petition.

There is judgment in favor of Boyce Machinery Corporation on its reconventional demand and against Delilah Towing Company, defendant in reconvention, in the amount of $5,811.81 with legal interest from date of judicial demand.

The third party demand of Boyce Machinery Corporation against Motor Machine and Supply Company is denied and its petition dismissed.

There is judgment on the reconventional demand of Delilah Towing Company, Inc. in its favor and against Motor Machine and Supply Company, defendant in reconvention, in the amount of $5,811.81 plus the additional sum of $2,750.00 all with legal interest from date of judicial demand.

Motor Machine and Supply Company is cast for all costs.

Judgment annulled, recast and rendered.

      . The defendant was sued as LeBeouf Towing Oo. By amended petition the name was corrected to Delilah Towing Co., Ine.


source: Caselaw Access Project

author: YELVERTON, Judge.

license: Public Domain

text:
    PARISH OF EAST BATON ROUGE v. Joseph CANTU.
    No. 10346.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 30, 1976.
    Sam J. D’Amico, Baton Rouge, for appellant.

      Joseph F. Keogh, Parish Atty., and Charles E. Pilcher, Asst. Parish, Atty., Baton Rouge, for appellee.
    Before LANDRY, BLANCHE and YELVERTON, JJ.
   YELVERTON, Judge.

The Parish of East Baton Rouge expropriated certain immovable property belonging to Joseph Cantu. The purpose of the expropriation was the acquisition of full ownership of certain land belonging to defendant for drainage, drainage maintenance and other public purposes, together with a temporary servitude for construction purposes incident to the improvement.

Prior to the taking, a natural drain known as the Lobdell Lateral of the North Branch of Ward Creek, crossed defendant’s property. The improvement of this lateral was part of a Parish project known as the “1965 Capital Improvement Program”. The Lobdell Lateral portion of the project consisted of the widening and deepening of the natural drain, as well as lining it with concrete, enclosing parts of it with a chain link fence, and installing underground boxed culverts at crossings. To accomplish this, it was necessary that the Parish acquire in full ownership not only the existing drainage ditch but also additional property on either side. Further additional space was required during the construction period, which we will herein refer to as the construction servitude.

For the property taken in full ownership, the Parish tendered $17,279. It offered $806 for the temporary construction servitude. It offered $100 for the costs involved in the relocation of a metal building situated on the property. Of the total sum of $18,185 offered, defendant accepted only the $100 tendered for relocation of the building.

Judgment was rendered on December 3, 1968, decreeing the Parish the owner of the land sought to be expropriated in full ownership, and of a temporary construction servitude on the land needed for construction purposes. Subsequently, issue having been joined as to the just compensation to which the owner was entitled, judgment was rendered on July 5, 1974 in favor of Cantu and against the Parish awarding $20,235 as compensation for the land taken, $4,600 as rental on the construction servitude, together with additional rental at the rate of $920 per year from December 3, 1973 (the date of trial of the compensation issue) until such time as all debris was removed from the construction servitude and all usage of the construction servitude sites by the Parish had ceased, and $335 for the cost of relocating two portable buildings, subject to a credit of the $100 previously paid. From this judgment defendant appealed asking for a substantial increase in the award. We affirm.

In seeking an increase in the total award, Cantu assigns four specifications of errors. He urges that we find manifest error in the following conclusions reached by the trial court.

I. A reasonable possibility of rezoning did not exist as of the date of the taking.

II. The adoption of the market valuations reached by the Parish’s expert, Lorin Willett.

III. The adoption of a $1 valuation for land taken from the canal area as it existed before the taking.

IV. The disallowance of the defendant-appellant’s claim for severance damages.

We will address ourselves to these assignments of errors seriatim.

I. POSSIBILITY OF REZONING

After evaluating the testimony of two real property appraisal experts for each side, the trial court resolved the “critical issue of rezoning probability” adversely to the defendant. It is this conclusion of the trial court that defendant most wants to overturn, because the experts differed sharply in their opinions as to the highest and best use of the property, plaintiff’s experts opining that the highest and best use of most of the property was residential, in which classification (A-l) it was zoned at the time of the taking (December 3, 1968) and remained so, and defendant’s experts being of the opinion that the highest and best use was commercial (C-l), based on the premise that there existed on December 3, 1968 a reasonable probability that the property would be rezoned commercial. It is this basic difference of opinion which accounts for the marked disparity between the experts’ evaluations of both the property taken and severance damages, and which constitutes the essential predicate upon which the appeal is largely founded.

In order to consider this issue it is first necessary to describe the property.

Defendant’s property is on the west side of Lobdell Avenue. Lobdell runs north and south. Lots 39, 40 and 41 of Good-wood Estates each fronts ISO feet on the west side of Lobdell Avenue by a depth of 600 feet between parallel lines. Lot 39 is the northernmost and Lot 41 the southernmost of these three lots. Cantu owns all of Lots 40 and 41 but only the western 450 feet of Lot 39; a ISO foot square portion of Lot 39 fronting on Lobdell Avenue is not owned by him. Therefore, Cantu’s frontage on Lobdell Avenue is limited to Lots 40 and 41, each having 150 foot frontage. Both on the date of the taking and on the date of trial, all of this property was zoned single-family residential with the exception of a parcel fronting 240 feet on Lobdell Avenue and extending west 200 feet between parallel lines, being in the southeast corner of the three lots considered as a whole, which is zoned commercial. Again considering the three lots as a single tract, and keeping in mind the non-owned status of the 150 foot square in the northeast corner thereof, the Lobdell Lateral drainage ditch enters defendant’s property very near the northeast corner of the owned portion of Lot 39 and flows south by southeast, exiting a little north of the southeast corner of Lot 41. It will be noted that all of the frontage of Lot 41, where the drainage canal exits, is zoned commercial, while only the south 90 feet of the Lobdell frontage of Lot 40 is zoned commercial; the remainder of that lot frontage on Lobdell Avenue is zoned single-family residential. The improvements placed on the property did not substantially alter the course and direction of the old natural drain, but the property taken in full ownership, including the old drainage canal, comprised about three times the area of the old canal.

Prior to the taking, the western portion of Lots 40 and 41, (opposite the drainage canal from Lobdell Avenue) was accessible to defendant only by virtue of the fact that he had been allowed by the Parish to place in the canal two old railroad tank car bodies as water conduits over which he had laid a vehicular bridge to reach his home situated some distance back from Lobdell Avenue. These tank car bodies were each 27\/2 feet long; placed side by side, they afforded support for a bridge 271/2 feet wide. The improvement called for these tank car bodies to be replaced by box culverts, which with the surfacing provided by the drainage improvement project, now provides a passageway variously estimated by the witnesses as having a width of a minimum of 50 feet to a maximum of 100 feet. The uncovered portion of the improved canal across defendant’s property is bordered on either side by a chain link fence.

Both of defendant’s real estate experts based their evaluations upon the premise that there was a reasonable probability of a zoning change which would result in all of Lots 40 and 41 being zoned commercial, thus enjoying a considerably higher market value than if the land remained zoned approximately two-thirds residential. To give it its optimum value for commercial use, defendant’s experts each agreed that box culverts would have to be extended all the way across Lots 40 and 41 and covered ov_r, which they considered economically feasible. The cost of laying box culverts and covering the ditch running across both lots was estimated by a consulting engineer, Allen L. Cox, testifying for defendant, at $46,297 as of the date of the taking in 1968. After deducting this cost, defendant’s expert Curtis Book, an independent field appraiser, concluded that the value of the land taken was $44,568, and Kermit A. Williams, the other of defendant’s appraisers, concluded that its value was $42,888. In reaching these conclusions of value, which we do not consider it necessary to examine here in greater detail, these witnesses based their valuations upon their assertion that there was a probability that the property would be rezoned to a commercial classification and that the owner would invest in the necessary box culverts and covering of the entire canal across those two lots.

The Parish’s two expert land appraisers, George S. Platt, Jr., and H. Lorin Willett, on the basis of their analyses, concluded that there was only a slight, if any, chance that the property would be rezoned to commercial classification. Platt’s conclusion as to the value of the land taken was $16,926. Willett’s was $20,235.

Thus it was that the trial court rightly regarded the issue of rezoning probability as a critical one. His conclusion regarding this issue which we consider sound and amply supported by the evidence is here quoted:

"... It is encumbent upon the land owner to show that there is a reasonable expectation that property may be so used or developed in the not too distant future in order that a proposed use be considered in determining market value of expropriated land. See Parish of East Baton Rouge v. Stipe, La.App., 231 So.2d 665 (1970). The defendant herein has failed to establish the reasonable possibility of a zoning change for his property. This is particularly true with regard to the rezoning of the balance of Lots 40 and 41 to a C-l or commercial status. A careful review of all of the evidence in this case pertaining to the question of rezoning leads us to the conclusion that such a possibility is speculative, to say the least. Market value cannot be based on mere speculation. Potential use of land must be removed from the realm of guesswork, speculation and conjecture. See also Central Louisiana Electric Co. v. Mire, La.App., 140 So.2d 467; Central Louisiana Electric Co. v. Harang, La.App., 131 So.2d 398; Plaquemines Parish School Board v. Miller, 222 La. 584, 63 So.2d 6; Recreation & Parks Commission, Parish of East Baton Rouge v. Loret, La.App., 203 [263] So.2d 467; State Dept. of Highways v. Mayer, La.App., 257 So.2d 723; and Recreation & Park Commission for East Baton Rouge Parish v. Drago, La.App, 247 So.2d 908.
“A thorough consideration of possible rezoning of defendant’s property was made in this case by Mr. Lorin Willett, an expert appraiser called by the plaintiff. We agree with his conclusion that only a very slight chance of success ever existed or does now exist. It is significant that on two occasions an owner directly across the street from defendant’s A-l segment has been denied a change from A-l to C-l. These denials occurred May 22, 1967 (before the taking herein) and November 24, 1971 (almost three years after the taking). It is also significant that thirteen owners along Lobdell Avenue in the block to the north of defendant were denied B-l (transitional) status for their respective properties on November 24, 1971. We are not impressed with the successful zoning changes made in the area to the south of defendant’s property and along Jefferson Highway. As stated by Mr. Willett, that area is ‘an entirely different neighborhood.’ Nor can one overlook the active lobbying efforts of the Goodwood Homeowners Association to preserve their neighborhood’s residential character. That part of defendant’s property now zoned C-l acquired its status many years ago as the result of an overall comprehensive zoning ordinance and as of December 3, 1968, the date of taking, there existed little possibility of it being rezoned to C-l status in the foreseeable future. This conclusion is not dictated by but is certainly fortified by the hindsight that can now be applied to the last five years of zoning experiences in the area.”

We are in accord with the trial court’s conclusions regarding this issue.

We will next proceed to a discussion of defendant’s second assignment of error, that the trial court erred in adopting the market valuations reached by plaintiff’s expert H. Lorin Willett.

II. MARKET VALUATIONS OF H. L'ORIN WILLETT

This witness concluded that at the time of taking, December 3, 1968, the value of the commercial (C-l) part taken was $1.25 per square foot, and the value of the residential (A-l) part taken was $.50 per square foot, which calculated out to $20,-235 as just compensation for the property actually taken. He concluded that the value of the construction servitude was $920 annually using the same per square foot values and an 8% per year factor. Finally, the cost of relocating two (not one) portable buildings, was determined to be $335.

All four appraisers who testified in the case used the “market value approach”. The trial court felt that the conclusions of Willett as to value drawn from the data related by him, as compared to the data used by the other appraisers, constituted the most logical and reasonable basis upon which an award could be made in the case. The trial court accordingly followed these evaluations in rendering its judgment. We agree with the trial court’s adoption of Willett’s conclusions. Our concurrence in this result is of course partially mandated by the earlier discussed conclusion that the highest and best use of the whole property cannot, on the facts of the case, be regarded as having a potential likelihood of upward reclassification, and we are therefore required to reject the evaluations of the owner’s experts because they are based on a rezoning probability.

III. THE VALUE OF THE OLD CANAL

Both of plaintiff’s experts assigned a token $1 valuation for the land comprising the old drainage canal as it existed before the taking. Their reasoning was that the land comprising the canal itself was committed perpetually to drainage use and, therefore, it was useless for any other purpose. Every witness agreed that the cost of box culverts and the covering of the remainder of the canal, which would have given that space limited utility, would be economically feasible only if the highest and best use of the property can be considered zoned commercial, a possibility we have previously rejected. The cost incident to reclaiming the canal would be prohibitively excessive in light of the present zoning classifications and the values based thereon. Therefore, the value of the land' comprising the old canal must be considered in light of its having no higher potential utility than to remain a canal, and, as such, a valuation of $1 was proper.

Of course, the experts for the landowner did not place a value on the old canal area that did not take into account their opinions that there was a likelihood of rezoning. Once again, we see how critical the resolution of the issue of the possibility of rezoning is to this case.

We find no error in the trial court’s resolution of this issue.

IV. SEVERANCE DAMAGES

While recognizing that defendant’s property was burdened with limited access before the taking, and that after the taking, the existing access was not diminished, the landowner nevertheless urges that before the taking it would have been possible to cure the access problem by laying culverts and covering over the entire canal, thus rendering the entire 300 feet of frontage of Lobdell Avenue fully usable as commercial property. The presence of the chain link fence effectively prevents any hope of future additional access and therefore, owner argues that the consequent devaluation is the measure of severance dam-wages. In its resolution of this issue, we quote the following language of the trial court:

“Another conclusion reached by the Court in this case is that it is simply not true that the defendant has been completely cut off from Lobdell Avenue by the drainage improvement project. To the contrary, it is inescapable that the defendant now has much better access to that portion of his property lying to the west of old Ward Creek. From a vehicular passageway of twenty-seven and one-half feet, it appears that access to the west of approximately seventy-five feet has been afforded the defendant. It cannot be assumed that the Parish will ever deprive the defendant of this improved access. To the contrary, as testified to by Mr. William W. Addison, a Civil Engineer for the Department of Public Works, it is the policy of the Parish to see that an owner is left with at least the same access he had before improvements are constructed. In this case, the Parish has done much better by Mr. Cantu. In this respect, this case is easily distinguishable from Stipe, supra, and from Parish of East Baton Rouge v. Nilson, La.App., 271 So.2d 622.
“In Stipe, severance damages were awarded for a 9.03 acre tract which was separated from other property by a large canal that was constructed. These 9.03 acres were actually cut off from the larger tract by the drainage channel. The Court held: . .we find that this land will now be separated from the other property of the defendants by a very large canal. In effect, the defendants no longer have access to this land.’ (Emphasis supplied.) In Nilson, the Court found that a substantial portion of the property would be completely cut off as a result of the taking for improvement of the canal traversing the property. The diminution in the value of the property after the taking was apparent and the court awarded the cost of a bridge to span the improvements constructed so that Mr. Nilson would have access to the rear of his property. The rationale of Nilson precludes an award of severance damages in this case based on the premise that the defendant has been deprived of access, and therefore, adequate usage of the property lying to the west of the canal. Of course, the Nilson case is of particular interest in that the property involved therein is only a few hundred feet from Mr. Cantu’s property and was the subject of the same construction project. The applicability of its rationale as regards access is compelling.”

We note once again that the approach to a determination of severance damages utilized by the landowner’s experts was based entirely upon the assumption of a rezoning and that all of Lots 40 and 41 would enjoy a commercial zoning as their highest and best use. We are in accord with the findings of the trial court as to the issue that no severance damages are due.

For the reasons assigned, the judgment of the trial court is affirmed.

Affirmed.


author: LANDRY, Judge.

text:
    Gladys Burns SCHOEN et al. v. Ernest David BURNS. Ernest David BURNS v. SUCCESSION OF Preston Allan BURNS et al.
    Nos. 10338, 10339.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.

      Louis B. Graham, New Orleans, for defendant-appellant in No. 10338 and plaintiff-appellant in No. 10339.
    Maurice J. LeGardeur, Jr., Covington, for plaintiff-appellee in No. 10338 and defendants-appellees in No. 10339.
    Before LANDRY, BLANCHE and YELVERTON, JJ.
   LANDRY, Judge.

The appeals taken in these consolidated matters by Ernest David Burns (Appellant) present the principal issue of whether an action by a forced heir to annul, for alleged fraud and ill practice, a judgment probating a will which deprives'the heir of his legitime, is an action to reduce an excessive donation which prescribes in five years pursuant to LSA-C.C. art. 3542, or whether such a suit is governed by LSA-C.C.P. art. 2004, which allows an action of nullity of judgment for fraud or ill practice within one year of discovery of the fraud or ill practice. Upon motion for summary judgment by Gladys Burns Schoen and Wade H. Burns (Appellees), the trial court concluded Article 3542, above, is controlling. So holding, the trial court dismissed Appellant’s action to annul the judgment of possession rendered in the Succession of Preston Allan Burns, Jr. (Appellant’s father) (Decedent), for alleged fraud and ill practice. Appellant charges that his existence and whereabouts were intentionally, deliberately, knowingly and willfully concealed from the court by Appellant’s paternal aunt, Gladys Burns Schoen, who was placed in possession of Decedent’s entire estate as universal legatee pursuant to Decedent’s last will and testament. Also on Appellee’s motion for summary judgment, the trial court rendered judgment in favor of Appellees in their companion suit against Appellant, decreeing that Appellant’s right to reduce the legacy has prescribed, and that Appellant has no right, title or interest in any property belonging to Decedent’s estate. We reverse both judgments rendered in these consolidated actions and remand both causes to the trial court for further proceedings.

Appellees’ motions for summary judgment were tried below upon the petitions and answers filed in these consolidated actions, and the following documents, records and depositions: (1) The entire record in the Succession of Preston A. Burns, Sr. (father of Decedent) ; (2) The record of the Succession of Decedent, Preston Allan Burns, Jr.; (3) The marriage certificate showing the marriage of Decedent and Emily T. Commagere on August 24, 1934; (4) The record of the Succession of Mary Jane Edgar Burns, mother of Decedent and paternal grandmother of Appellant; (5) The record in an action by Preston Allan Burns, Jr., filed September 25, 1934, in St. Tammany Parish, seeking nullity of his marriage to Emily T. Commagere on the ground of Decedent’s alleged lack of consent; (6) The record of a divorce action instituted by Emily T. Commagere Burns against Decedent in St. Tammany Parish on November 17, 1934, for divorce on grounds of adultery and rendition of judgment therein on November 19, 1934, in favor of Emily T. Commagere Burns, granting her custody of her unborn child; (7) Certified copies of the baptismal and birth certificates of Appellant Ernest David Burns, showing his birth on April 20, 1935, which certificates were filed on January 25, 1947, in the record of the suit wherein Emily T. Commagere Burns obtained a divorce from Decedent; (8) The depositions of Gladys Burns Schoen, Wade H. Burns and Ernest David Burns, and (9) An Act of Sale by Decedent, Gladys Burns Schoen and Wade H. Burns, passed before James T. Burns, Notary, to Covington Bank and Trust Company in Liquidation, wherein Decedent is described as the divorced husband of Emily T. Commagere Burns.

As constituted, the record discloses that Preston Allan Burns, Jr. was born of the marriage between Preston Allan Burns, Sr. and Mary Jane Edgar Burns, of which union Wade H. Burns, Gladys Burns, John A. Burns and Robert M. Burns also were born. The Senior Burns died June 16, 1916, survived by his widow and four children. Mary Jane Edgar Burns and John A. Burns both predeceased Decedent.

Decedent was a life long resident of Covington, St. Tammany Parish. A house painter by trade, Decedent lived in the home of his sister, Gladys Burns Schoen, from the time of Decedent’s marriage to Emily T. Commagere in August, 1934, until Decedent’s death on July 13, 1953. Decedent’s predeceased mother and brother, John A. Burns, also lived in Mrs. Schoen’s home until her death on September 24, 1937, and his death in 1943.

Emily T. Commagere was employed as a secretary in Covington, Louisiana, at the time of her marriage to Decedent in August, 1934. The parties never lived together following their marriage. Decedent’s action to annul the marriage, brought in September, 1934, was resisted by an exception to the jurisdiction of the St. Tammany Parish Court on the ground that defendant, Emily T. Commagere Burns had resided in Orleans Parish since October, 1933. No further proceedings were had therein.

On November 17, 1934, Emily Comma-gere Burns filed suit against decedent in, St. Tammany Parish for an absolute divorce on the ground of adultery. The petition alleged that plaintiff was a resident of St. Tammany Parish. The petition recites that plaintiff was pregnant at the time the divorce action was filed, and that petitioner’s husband, Preston Allan Burns, was father of the child she bore. Mrs. Burns further alleged that she renounced all claim to alimony for herself, and, insofar as the law allowed, relieved her husband of all responsibility for the care and maintenance of the unborn child. Additionally, Mrs. Burns prayed for custody of her child “in its present form and when born”. Decedent opposed the divorce action in the form of a general denial. After evidence was taken, judgment was rendered on November 19, 1974, granting Emily T. Commagere Burns an absolute divorce on ground of adultery, and awarding her “permanent care, custody and control of her child, now unborn, and when born”. On January 25, 1974, Emily T. Commagere Burns, presently married to Charles S. Malsbury, filed in the divorce proceeding in St. Tammany Parish, a certified copy of a birth certificate showing the birth on April 20, 1935, of Appellant Ernest David Burns, issue of the marriage between Decedent and Emily T. Comma-gere Burns, said birth certificate having been issued August 9, 1946.

Decedent died July ■ 13, 1953, leaving an olographic will dated July 18, 1949. The testament named Mrs. Schoen as Decedent’s sole and universal legatee. On January 22, 1954, Mrs. Schoen presented the will for probate. The petition for probate avers Decedent’s death and being survived only by Mrs. Schoen and one brother, Wade H. Burns. Mrs. Schoen further alleged that Decedent left no ascendants or descendants, and that Decedent never adopted any person or persons nor was Decedent adopted by anyone. The petition is supported by affidavits of two persons, and also the unqualified affidavit of Mrs. Schoen that all allegations therein are true and correct. The petition does not mention Decedent’s marriage to or the divorce obtained by Emily T. Commagere Burns, neither does it mention possible absent heirs. On January 22, 1954, Decedent’s will was probated. On February 9, 1954, judgment was rendered in Decedent’s succession proceedings recognizing Mrs. Schoen as Decedent’s sole and universal legatee and, as such, recognizing her as owner and sending her into possession of Decedent’s entire estate, including an undivided one-third (1/3) interest in certain real property inherited by Decedent from the estates of Decedent’s predeceased parents and brother, John A. Burns.

The depositions show that Appellant never knew, saw or met his father, Preston Allan Burns, Jr. After the marriage of his parents, Appellant’s mother went to New Orleans, Louisiana, where she lived with her parents. Appellant resided in New Orleans, Louisiana, mostly in the home of his maternal grandmother. When Appellant’s father died in 1953, Appellant was then 18 years of age and living with his grandmother at 728 Pine Street, New Orleans. In 1955, Appellant left New Orleans, lived in Chicago, Illinois, for about one month, and then moved to New York, New York. Appellant returned to New Orleans twice during the years 1955 and 1956. On one such visit, in the summer of 1956, he was shown a picture of his father and an obituary notice which his grandmother cut out of the obituary column of a newspaper. The obituary merely gave the date of Decedent’s death, and stated that at the time of his death, he lived in the home of his sister, Mrs. Schoen. The obituary did not mention that Decedent was ever married and failed to mention that Decedent was survived by a son. Appellant’s deposition indicated that he was never told anything about his father, and never knew whether his father was alive or that his father had left an estate. He stated that from the obituary notice, which recited that his father resided with his sister (Mrs. Schoen) at the time of death and was survived only by Mrs. Schoen and a brother, Wade H. Burns, Appellant surmised his father died leaving no estate. He explained it was for this reason that he made no further inquiry into the matter at that time. He also deposed he had no knowledge of his father leaving an estate until his receipt of a letter dated October 9, 1973, from Appellees’ attorney, containing the request that Appellant execute the enclosed formal renunciation of Decedent’s estate.

Mrs. Schoen’s deposition is simply that she knew her brother, Preston Allan Burns, Jr., was married to Emily T. Com-magere, but that the couple never lived together, and that she was unaware that a child was born of the marriage. She acknowledged that in her father’s succession, opened in 1935, in which she appeared as an heir, and also in a sale which she signed in 1938, it was recited that Preston Allan Burns, Jr. was the divorced husband of Emily T. Commagere. She denied any intent or attempt to defraud Appellant of his legitime, or to mislead the Court or conceal the fact of Appellant’s existence from the Court in Decedent’s succession.

Wade H. Burns’ deposition conceded that he knew his brother had a child, and that said fact was known “all over Coving-ton.” He also stated that he was living near Covington at the time of the marriage and thereafter. He also stated that his brother, Preston, told him that Preston married Emily T. Commagere because Preston knew a baby was coming.

The trial court found that Appellant became aware of Decedent’s death shortly after Appellant reached majority and more than five years before Appellant instituted his action of nullity. The court reviewed jurisprudence which holds that a testator may dispose of his property to the prejudice of forced heirs which excessive donations are not null, but merely reducible to the extent of infringement of the legitime, provided an action for reduction is instituted within five years of date of probation of the will or, in the case of minors, within five years of attainment of majority. The trial court also held that Mrs. Schoen was not guilty of any fraud or ill practice. Alternatively, the trial court held that even if Mrs. Schoen were guilty of fraud, Appellant’s action to reduce the excessive donation was prescribed in five years as provided by LSA-C.C. art. 3542. The trial court apparently ignored and made no reference to LSA-C.C.P. 2004, which we hereinafter discuss.

We find that this case poses the question of does a forced heir have a cause of action to annul an ex parte judgment of possession depriving him of his legitime, rendered in a succession proceeding in which his existence is concealed from the Court by fraud or ill practice by a party to the succession proceeding, separate and distinct from the heir’s action to reduce an excessive testamentary donation ? We also answer the inquiry in the affirmative.

We find the following codal provisions pertinent:

LSA-C.C.P. art. 2004:
“A final judgment obtained by fraud or ill practices may be annulled.
An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”
LSA-C.C. art. 1502:
“Any disposal of property, whether inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null, but only reducible to that quantum.”
LSA-C.C. art. 3542:
“The following actions are prescribed by five years:
* * * * * *
That for the reduction of excessive donations.
******
This prescription only commences against minors after their majority.”

In the action for reduction of an excessive testamentary disposition, as authorized by Article 1502, above, the remedy of the forced heir is limited to recovery of the le-gitime or its value. In this action, however, Appellant does not seek to reduce the donation to his legitime. Appellant seeks annulment of the judgment of possession because of alleged fraud and/or ill practice perpetrated upon the court in the succession proceedings, in deprivation and derogation of Appellant’s rights. Otherwise stated, we find that the action to annul for fraud is predicated upon an alleged willful abuse of the legal processes to the detriment of the person asserting fraud or ill practice. That Appellant’s recovery may be limited to his legitime is a matter of no moment under the circumstances.

In this regard, we cite with approval the following language in St. Mary v. St. Mary, 175 So.2d 893 (1965), in which the provisions of Article 2004 were held applicable to a judgment obtained merely through ill practice, even though the decree innocently operated to deny a person’s rights:

“As to the former (or(a)) contention, under the jurisprudence the fraud which may justify annulling a judgment under LSA-CCP Art. 2004 is not only conduct which is fraudulent in the strict sense of the term. ‘The article is not limited to cases of actual fraud or intentional wrongdoing but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment, of some legal right, and where the enforcement of the judgment would be unconscientious and inequitable.’ Tapp v. Guaranty Finance Co., La.App. 1 Cir., 158 So.2d 228, 233 [244], certiorari denied, 245 La. 640, 160 So.2d 228.
“Official Revision Comment b. to LSA-CCP Art. 2004 expressly states the desire to retain the judicial discretion obtaining under the former jurisprudence to afford relief against judgments irrespective of any issue of inattention or neglect, when the circumstances under which the judgment is rendered show the deprivation of the legal rights of the litigant who seeks relief, and when the enforcement of the judgment would be un-conscientious and inequitable.’ See, e. g., Succession of Gilmore, 157 La. 130, 102 So. 94 (1924), Tapp v. Guaranty Finance Co. (1962), cited above, and Sturgis v. Gulfco Finance Co. (1962) [La.App., 147 So.2d 782], cited above, for discussion of jurisprudence upon which this principle is based.”

We note to the same effect Johnston v. Smith, 284 So.2d 149 (1973), and authorities therein cited.

Appellees rely upon Janney v. Calmes, 212 La. 756, 33 So.2d 510 (1947), and Martin v. White, 219 So.2d 219 (La.App.1969) in support of the position that an ex parte judgment of possession is not subject to an action of nullity. We find these authorities inapposite. Janney, above, did not concern an action to annul an ex parte judgment of possession. The issue in Jan-ney, above, was whether the trial court properly dismissed plaintiff’s action on pleas of equitable and judicial estoppel. On appeal, defendants filed exceptions of no cause and no right of action based on the ground that the judgments assailed were prima facie valid, final and definitive and therefore insusceptible of annulment or amendment save by a direct action for that purpose. In disposing of the exceptions, the Supreme Court noted that ex parte judgments of possession were not definitive decrees and were therefore not subject to an action of nullity. Clearly, the Supreme Court’s decision in Janney, above, was based upon La.Code of Practice Article 607, which then provided:

“A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud, or other ill practices on the part of the party in whose favor it was rendered; * * * (Emphasis supplied.)

However, LSA-C.C.P. art. 2004 allows the action of nullity as a vehicle for challenging any final judgment, and does not include the former Code of Practice requirement that a judgment be definitive to be vulnerable to the action of nullity. An ex parte judgment probating a will and sending the legatees thereunder into possession of a decendent’s estate is unquestionably a final judgment, LSA-C.C.P. art. 1841, although not a definitive judgment inasmuch as it may not be urged as ground for a plea of res judicata. Additionally, we note that an action of nullity of a final judgment is a separate remedy independent of all other actions for judicial relief, and may be availed of notwithstanding the right of appeal and without adverse effect upon one’s right of appeal. LSA-C.C.P. arts. 2005 and 2006.

Martin, above, citing only Janney, above, as authority, held that an ex parte judgment of possession in a succession proceeding was not subject to an action of nullity since it was not a definitive judgment. The ruling in Martin, above, must yield to the statutory change effected by LSA-C. C.P. art. 2004 which presently makes no requirement that a judgment be definitive, but only that it be final to be subject to the action of nullity for fraud or ill practice.

Citing Draper v. Van Leer, 197 La. 259, 1 So.2d 513 (1941); Succession of Smith, 182 La. 389, 162 So. 21 (1935); In Re Andrus, 221 La. 996, 60 So.2d 899 (1952); Thompson v. Thompson (On Rehearing), 211 La. 468, 30 So.2d 321 (1947), and Succession of Dancie, 191 La. 518, 186 So. 14 (1939), Appellees contend the only action available to a forced heir prejudiced by an excessive testamentary disposition is an action to reduce the excessive donation. On this premise, Appellees argue that Appellant’s petition, though labeled an action for nullity, is in effect an action to reduce an excessive testamentary disposition which impinges upon the legitime of a forced heir. Our consideration of these authorities disclose that all may be distinguished from the case at hand. For example, in Draper, above, an attorney was appointed to represent absent heirs. No allegation of fraud was made therein. Andrus, above, involved claims of children disinherited in their parents’ wills, and whose parents made inter vivos donations to other children. No issue of fraud or bad faith was' raised in Andrus, above.

We find the prescriptive period applicable herein to be that of one year from discovery of the alleged fraud or ill practice as prescribed in LSA-C.C.P. art. 2004. For that reason, we enter into no discussion of LSA-C.C. art. 3542, since we find it inapplicable in this instance.

In our judgment, the timeliness of Appellant’s action of nullity must be resolved in the light of two factual determinations, namely: (1) Whether the assailed judgment was obtained by either fraud or ill practice, and (2) if so, whether Appellant instituted his action within one year of discovery thereof.

From the pleadings, documents and depositions of record, we find that there are genuinely disputed material facts relating to Mrs. Schoen’s alleged knowledge of Appellant’s existence at the time of probate of Decedent’s will as well as dispute concerning other facts material to the issue of whether Appellant’s existence was knowingly and deliberately concealed from the Court in Decedent’s succession. We also note genuine dispute as to material facts bearing on the question of whether Appellant instituted his action within one year of discovery of the alleged fraud and ill practice. Under these circumstances, a motion for summary judgment may not be substituted for trial of these issues on their merits. LSA-C.C.P. art. 966; Bodcaw Company v. Enterkin, 273 So.2d 325 (La.App.1973).

In passing upon a motion for summary judgment, the function of the Court is not to resolve genuinely disputed material facts, but solely to determine whether or not there is in fact a genuine dispute of material fact. Bodcaw, above; Acadia-Vermilion Rice Irrigating Co. v. Broussard, 185 So.2d 908 (La.App.1966). In this instance, the trial court erred in failing to find the existence of a genuine dispute regarding material facts.

The judgment of the trial court is reversed and set aside and this matter remanded to the lower court for further proceedings consistent with the views herein expressed; all costs of this appeal to be paid by Appellees, Gladys Burns Schoen and Wade H. Burns.

Reversed and remanded.


text:
    Frank B. WOOD et al. v. Bessie B. Mills MORVANT et al.
    No. 10391.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 1975.
    Rehearing Denied Nov. 24, 1975.

      Lamar M. Richardson, Jr., and John D. Ponder, Metairie, for appellants.
    Horace R. Alexius, Jr., Covington, for Charles Raviotta, and others.
    Benjamin Saunders, New Orleans, for Gasper Schiro.
    G. Frederick Seemann and Melvyn J. Perez, Chalmette, for Bessie Morvant, wife of/and Simon Morvant.
    Dominick A. Raviotta, New Orleans, for Charles Raviotta and Theresa Raviotta.
    Joseph V. Bologna, New Orleans, for Elton Font, and others.
    John B. Wilkinson, New Orleans, for Jos. Judlin.
    Before LANDRY, BLANCHE and BAILES, JJ.
   LANDRY, Judge.

Plaintiffs (Appellants) appeal dismissal of their petitory action against defendants (Appellees) to determine conflicting claims of ownership of certain immovable properties situated in Slidell, St. Tammany Parish, Louisiana. We affirm.

The primary issue presented is the efficacy of notice to third parties arising from two purported sales of subject properties which contain inaccurate descriptions, of the lands conveyed.

There is no dispute as to the facts. Appellants contend the errors in the recorded deeds render said transactions ineffective against Appellants as third parties. Appel-lees contend that references in the recorded transfers and other instruments of public record are sufficient to put Appellants on notice of the transfer to Appellees.

The land in controversy consists of the east half of the southeast quarter of the northeast quarter (E/2 of SE/4 of NE/4) of Section IS, Township 9 South, Range 14 East, St. Helena Meridian, St. Tammany Parish and is depicted on the official township maps of said Parish, on file and of record, in the office of the Clerk and Recorder, as follows:

Subject property was separated from the sovereign by a homestead grant from the Government of the United States to Frank W. Gibson on January 11, 1897. The recorded certificate of transfer described the land as follows:

“South East quarter of the North East quarter and Lots Numhered four and five of Section fifteen in Township Nine South of range fourteen East of St. Helena Meridian in Louisiana Containing Ninety-One acres.”

By recorded instrument dated November 16, 1898, Gibson sold a portion of the property to George H. Gause, by recorded deed which inaccurately described the transferred property as follows:

“A certain tract or parcel of Land Being the East half of South East quarter and Lots Four and Five of Section fifteen Township Nine South of Range fourteen East St. Helena Meridian in Louisiana Containing Seventy-One acres. Bounded East by Salmen and McMahon, South by Guzman, West by Salmen and Gipson, North by Lowery and G. H. Gause. Being a portion of the same land obtained by me as per homestead Certificate No. 6753 of date January 11, 1897.”

On June 12, 1925 Gause’s Heirs, his widow and daughter having inherited the land upon Gause’s death, sold several tracts of land, including those acquired by Gause from Gibson, to Andrew G. Clark. The duly recorded deed to Clark, in pertinent part, reads as follows:

“1. The East half (i/j>) of the Southeast quarter (%) of the Northeast quarter (%,) of Section Fifteen (15), Township Nine (9), South, Range Fourteen (14) East, containing twenty (20) acres.
2. Lots Four (4) and Five (5) of said Section Fifteen (15) containing 51.08 acres, LESS AND EXCEPT the following portions thereof, heretofore, bargained to Dubuisson and Gazano, ...”

The sale to Clark, a credit transaction, correctly described the land in dispute. To secure the credit portion of the purchase price, Gause’s widow and heir reserved a vendor’s lien on subject property, which lien was separately recorded.

By deed dated January 20, 1928, Clark sold all of the property he acquired from the Gause widow and heir to Homer G. Fritchie, which deed incorrectly described the property as follows:

“The east half of the southeast quarter of the northwest quarter of Section Fifteen (IS) Township Nine (9) South Range Fourteen (14) East, containing twenty (20) acres.
Lots Four (4) and Five (5)
Acquired by Andrew Grant Clark by purchase from Kate Chaney Gause, widow of George H. Gause and Georgia Gause Bowen by act of sale dated June 12, 1925 and recorded in C. O. B. 90 folio 132.”

The foregoing reflects the transfer from Clark to Fritchie erroneously, situating the property in the northwest quarter of Section IS instead of the northeast quarter.

On April 3, 1928 Fritchie sold to Standard General Realty Company (Standard), a Louisiana corporation, all of the property Fritchie acquired from Clark. The act of transfer describes the property precisely according to Fritchie’s acquisition from Clark and also makes reference to the sale by which Fritchie purchased from Clark. Fritchie retained a vendor’s lien to secure the unpaid portion of the $11,476.00 purchase price. The act released from Frit-chie’s mortgage certain portions of the land conveyed, which released lands are correctly described as being situated in the northeast quarter of Section 15. Simultaneously with the recordation of its acquisition, Standard recorded a subdivision plan for Terrace Park Addition, Slidell, which consisted of all the property Fritchie released from his vendor’s lien. The plat of the subdivision dedicates streets therein to public use and clearly shows that the subdivided tract is situated in the northeast quarter of Section IS. Between 1928 and 1931, Standard sold lots in Terrace Park Addition to several Appellees or their ancestors in title. These numerous sales describe the plots by lot and square number.

By stipulation all parties agreed that title would be determined herein on the face of the public record. Defendants (Appellees) base their claims of ownership upon a chain of title commencing with Gibson’s acquisition from the sovereign and the above mentioned mesne conveyances.

Appellants claim ownership by three alternate chains of title. The first chain includes: (1) judgment of possession rendered in 1928, recognizing the widow Gibson as sole heir of Frank W. Gibson, and as such recognizing her as owner of all portions of the homestead grant not previously sold by Gibson or his widow; (2) a judgment rendered in 1968, in the Succession of Mrs. Gibson, recognizing her heirs and placing said heirs in possession of said decedent’s estate, including the SE/4 of the NE/4 of Section IS, and; (3) certain non-warranty sales executed by the heirs of Mrs. Gibson in 1965, of their respective interests in the SE/4 of the NE/4 of Section IS, for which Appellants paid each heir the sum of $25.00. The validity of this chain is asserted on the ground that the 1898 sale to Gause did not constitute notice to third persons because of the inaccuracy of the description in the recorded instrument of transfer.

The second chain asserted by Appellants includes the Gibson-Gause transaction and the transfer from Gause’s widow to Clark, as set out above. Since Appellants deny the effectiveness against themselves, as third persons, of the 1928 conveyance from Clark to Fritchie because of another inaccuracy in the deed, this chain is asserted to continue from Clark based on the following instruments: (1) a 1966 supplemental judgment of possession placing Clark, Jr., in possession of Clark, Sr.’s, separate estate, including the disputed property; (2) a 1965 non-warranty sale from Clark, Jr., to Lake, Inc., of which plaintiff Wood, Sr., was president, for the sum of $200.00, and; (3) a 1965 sale from Lake, Inc., to Appellants for $250.00.

Appellant’s final chain tracks that of Ap-pellees down to the 1928 purchase by Standard. From Standard in receivership, Appellants in 1968 purchased subject property along with several other tracts in the same general area.

By stipulation it was agreed that neither claimant would produce evidence of possession of the property in dispute and that all parties litigant would rely herein upon the strength of their respective recorded titles. It follows that this dispute must be resolved on the strengths of the titles advanced by the contending parties and that Plaintiffs—Appellants must establish recorded title superior to that of Appellees in order to prevail. Gulotta v. Cutshaw, La., 283 So.2d 482.

The 1898 deed from Gibson to Gause incorrectly describes the land as the E/2 of the SE/4 of Sec. 15 whereas its proper description is the E/2 of the SE/4 of the NE/4 of Sec. 15. The 1928 transfer from Clark to Fritchie erroneously situates the land in the NW/4 of Section 15 rather than the NE/4. Simply put, the issue is whether these inaccuracies may be relied upon by third parties or whether the errors were so obvious as to constitute notice to third parties that the land intended to be sold was the E/2 of the SE/4 of the NE/4 of Sec. 15.

As properly argued by Appellants, it is settled jurisprudence that a purchaser of immovable property need only look to the public records to determine ownership and, if such records show no adverse claim of ownership, the purchaser obtains good title from the record owner notwithstanding the purchaser’s personal knowledge of title defects outside of the record. McDuffie v. Walker, 125 La. 152, 51 So. 100; Hodgeson v. McDaniel, 233 La. 180, 96 So.2d 481; Mid-State Homes, Inc. v. Knapp, La.App., 156 So.2d 122.

In applying the foregoing rule, no precise criteria can be established for distinguishing between descriptions which are sufficient to put third persons on notice and those which are not. This basic premise has resulted in consistent jurisprudence which holds that each case of this nature must be decided in the light of its own peculiar facts and circumstances. Consolidated Association of Planters of Louisiana v. Mason, 24 La.Ann. 518; Daigle v. Calcasieu National Bank in Lake Charles, 200 La. 1006, 9 So.2d 394; Mid-State Homes, Inc. v. Knapp, above.

However, our jurisprudence provides guidelines for determining the sufficiency of a property description in cases of this nature. A deed is deemed to constitute notice to third parties where it enables the court to locate and identify with certainty, the property intended to be conveyed, with the aid of such extrinsic evidence as is admissible under the rules of evidence. The recorded description need not be given with such particularity as to make resort to extrinsic evidence absolutely unnecessary. However, the description may not be so inaccurate or faulty as to be misleading. Tircuit v. Burton-Swartz Cypress Co., 162 La. 319, 110 So. 489; White v. Ouachita Natural Gas Co., 177 La. 1052, 150 So. 15; Blevins v. Manufacturers Record Publishing Company, 235 La. 708, 105 So.2d 392. Where a deed makes reference to vendor’s acquisition, both acts should be consulted and taken into consideration in determining the proper description of the property conveyed. Lawler v. Bradford, 113 La. 415, 37 So. 12; Lee v. Long, 166 La. 1084, 118 So. 320.

Both of the deeds challenged by Appellants refer to vendor’s title. One such deed also refers to a mortgage and vendor’s lien on the property, in which instrument the land is correctly described. A perusal of these mentioned documents are sufficient to place a third person on notice that in this instance the land intended to be conveyed was situated in the E/2 of the SE/4 of the NE/4 of Section IS.

We find that in each instance the descriptive errors in question were apparent on the face of the public record, namely the official township maps on file and of record in the office of the Clerk and Recorder. The error in the 1898 Gibson to Gause deed, which described the land as situated in the E/2 of the SE/4 of Section IS instead of the E/2 of the SE/4 of the NE/4 of that section, was obvious because the deed expressly transferred the land described by quarter-section and also Lots 4 and 5 of Sec. 15. Township maps show that Lots 4 and S alone comprise the entire E/2 of the SE/4 of Sec. IS. The transfer of both the E/2 of the SE/4 and Lots 4 and S of Sec. 15 would be a duplication of a single description. Such a description should alert a prospective purchaser to the probable error. Moreover, the deed describes the land as being bounded west by Salmen and Gibson. If only Lots 4 and 5 had been intended to be sold, Gibson would have been the sole bounding owner on the north rather than the west and the acreage conveyed would have aggregated only about 53 acres rather than 71 acres as indicated by the description employed. The acreage contained in Lots 4 and S and the E/2 of the SE/4 of the NE/4 of Sec. IS, together comprise 71.04 acres which the deed purports to convey.

The error in the 1928 Clark to Fritchie deed is also apparent on the face of the record. The Township plat shows no portion of ground identifiable as the E/2 of the SE/4 of the NW/4 of Sec. 15 (as the property was described in the Clark-Frit-chie transfer) because the area which might normally have comprised the NW/4 of Sec. 15 is shown as Headright No. 44 belonging to Guzman and later to Salmen.

We find the public record sufficient to put Appellants on notice of the transfer of subject property to Appellees herein.

The judgment of the trial court is affirmed at Appellants’ cost.

Affirmed.


author: BLANCHE, Judge.

text:
    Mr. and Mrs. Leander H. GRAY v. POPLAR GROVE PLANTING & REFINING COMPANY, INC., et al. Mr. and Mrs. Anderson PIERCE, Sr. v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY et al.
    Nos. 10383, 10384.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 16, 1976.

      John A. Bivins, Lafayette, for defendant & third party plaintiffs Poplar Grove Planting & Ref. Co., Inc.
    Robert Hunt, P. Chauvin Wilkinson, J. Carter Wilkinson & American Mut. Liab. in 10383 and for defendants & third party plaintiff (Shown above in 10384.)
    Guy A. Módica, Baton Rouge, for Mr. & Mrs. Leander Gray in 10383.
    Joseph A. Gladney, Baton Rouge, for third party defendant-plaintiffs Mr. and Mrs. Anderson Pierce, Sr., in 10383 and plaintiff-appellees in 10384.
    Horace C. Lane, Baton Rouge, for 3rd party defendants. Mr. & Mrs. Anderson Pierce,'Sr., and State Farm Mut. in 10383 and defendant-appellees Anderson Pierce, Sr. and State Farm Mut. in 10384.
    Before LANDRY, BLANCHE and BAILES, JJ.
   BLANCHE, Judge.

These suits arise out of an accident which occurred on Louisiana Highway No. 1 in West Baton Rouge Parish on what is referred to as the “Anchorage overpass” located between Port Allen, Louisiana, and the Mississippi River bridge on U. S. Highway 190.

Robert Hunt, an employee of Poplar Grove Planting & Refining Company, Inc., while in the course and scope of his employment was driving a tractor and pulling a cart used for planting sugar cane south on Highway No. 1. At that point Highway No. 1 is a four-lane divided highway having a posted' speed limit of seventy miles an hour, and Hunt was traveling in the inside or passing lane of said highway at a speed estimated at approximately ten miles per hour or less.

Anderson Pierce, Jr., the minor son of Anderson Pierce, Sr., was also proceeding south on said highway in a 1969 Chevrolet owned by his father. Riding with him as a passenger in said automobile was Sherwin O. Gray, the minor son of Leander H. Gray. Young Pierce was traveling in the outside southbound traffic lane and behind a school bus. As Pierce passed around the school bus, he was confronted with the slow-moving tractor. Although he applied his brakes, he was unable to stop and skidded approximately 131 feet into the rear of the cane cart. Both occupants were instantly killed.

Separate suits were filed by the parents of the deceased minors and the suits were consolidated for trial. The Pierces sued Robert Hunt, his employer, Poplar Grove Planting & Refining Company, Inc., and their insurer, American Mutual Liability Insurance Company. They also sued the executive officers of Poplar Grove. The Grays sued these same parties and additionally Anderson Pierce, Sr., and his insurer, State Farm Mutual Automobile Insurance Company. In both cases State Farm intervened for funeral expenses paid under the provisions of the automobile insurance policy. The defendants Hunt, et al., filed a third party demand against the Pierces and State Farm for contribution.

The trial court rendered judgment in favor of the Pierces and the Grays in the sum of $25,000 each for the death of their minor sons and against Hunt, Poplar Grove and American Mutual only. The court dismissed all of the other demands of the parties except the intervention of State Farm for funeral expenses.

After judgment the defendant Hunt, et ah, settled with the Grays but reserved their rights under the third party demand filed by them against the Pierces and State Farm.

This appeal is by Robert Hunt, Poplar Grove and American Mutual of the judgments in favor of the Pierces and the Grays. In the Gray suit it is directed solely to their claim of contribution from Pierce and State Farm.

The errors complained of are the finding of the trial court that Robert Hunt was negligent and in failing to find that Anderson Pierce, Jr., was negligent. We affirm.

The trial judge found that the tractor was in the inside lane of traffic at the time young Pierce attempted the passing maneuver around the bus; that the defendants failed to prove excessive speed on the part of Pierce; that the failure of the brakes on the rear wheels of the Chevrolet driven by Pierce had nothing to do with the accident, as all of the expert witnesses called to testify in the case agreed that because of the difference in the speed of the two vehicles and the distance between the vehicles when young Pierce perceived the danger of the tractor and applied his brakes, that an accident would have occurred even if the Pierce vehicle possessed 100 percent braking efficiency.

We find from our review of the record that the evidence supports these findings.

At the time of the accident, planting of cane was in progress, and Robert Hunt was picking up cane at a location on the east side of the highway immediately south of the overpass and transporting it to a field west of the highway and north of the overpass where it was being planted. The cane was loaded into a large two-wheeled trailer or cart which was pulled by an International tractor which Hunt was driving. He had finished with one load and was returning to get another load of cane prior to ceasing work for the day. Hunt left the canefield to the north, and west of the overpass, and was proceeding southerly toward Port Allen with the intention of making a left turn at the first intersection south of the Anchorage overpass. The time at which Hunt drove into the inside lane of Highway No. 1 was seriously contested, but the trial judge found (and we agree) that Hunt was in the inside lane a considerable length of time before Pierce began his passing maneuver.

The parties stipulated that Hunt was traveling at approximately ten miles per hour, and the school bus driver whom Anderson Pierce had been following stated he was traveling between 52 and 56 miles per hour at the time Pierce began his passing maneuver.

There was no slow-moving vehicle sign on the rear of the trailer which Hunt was pulling, though there was such a sign on the rear of the tractor. The evidence preponderates that this sign was not visible to young Pierce as he commenced his passing maneuver, because it would have been obscured by the trailer on the rear of the tractor.

The conduct of Robert Hunt was a cause in fact of the harm to plaintiffs. It consisted of his driving a slow-moving vehicle without the proper warning signs' on the inside or passing lane of a multi-lane, high speed highway. In so doing, he breached a duty imposed by the following statutes:

REVISED STATUTE 32:54(B) — General Speed Law

“Except when a special hazard exists that requires lower speed for compliance with paragraph A of this section, no person shall operate or drive a motor vehicle upon the highways of this state at such a slow speed as to impede the normal and reasonable movement of traffic. Acts 1962, No. 310, § 1.”

REVISED STATUTE 32:71(B) — Driving on Right Side of the Road; Exceptions

“Upon all multiple-lane highways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the circumstances then existing, shall be driven in the right hand lane then available for traffic, except when preparing for a left turn at an intersection or into a private road or driveway, or passing or overtaking a vehicle proceeding in the same direction, if passing on the left side of it. Acts 1962, No. 310 § 1.”

REVISED STATUTE 32:377 — ,Slow Moving Vehicle Emblem

“Every motor vehicle, combination of motor vehicle and towed equipment, every self-propelled unit of equipment, self-propelled implement of husbandry Ox" towed implement of husbandry normally operating at speeds not in excess of twenty-five miles per hour on public streets and roads at all times shall be equipped with a slow moving vehicle emblem as follows:
(1) Where the towed unit or any load thereon obscures the slow moving vehicle emblem on the towing unit, the towed unit shall be equipped with a slow moving vehicle emblem.
(2) Where the slow moving vehicle emblem on the towing unit is not obscured by the towed unit or its load, then either or both may be equipped with the required emblem but it shall be sufficient if either has it.
(3) The emblem required shall comply with current standards and specifications as established by the American Society of Automotive Engineers and approved by the director of the Department of Public Safety. Added by Acts 1972, No. 142, § 1.”

The duty imposed by the foregoing statutes is to protect against the risk that a slow-moving vehicle would block traffic or create a dangerous condition on a high speed highway. R.S. 32:64(B) was designed to proscribe against slow speed which would impede the normal and reasonable movement of traffic. Driving a tractor pulling a cane cart at ten miles per hour on the inside or passing lane of a four-lane divided highway, in our opinion, is a violation of the statute. R.S. 32:71(B) requires slow-moving vehicles to drive in the right-hand lane except as allegedly appropriate here when preparing for a left turn. Hunt would have us believe he was preparing for his left turn approximately 780 feet on the other side of the overpass by moving into the inside or left lane even before he reached the overpass. We find this rather farfetched and believe that even if the statute does provide for slow-moving vehicles to drive in the left lane, a reading of the same together with R.S. 32:64(B) requires the conclusion that such vehicles are not permitted in the left lane if they impede the normal and reasonable movement of traffic. In other words, such slow-moving vehicles are not permitted in the left-hand lane when they would impede the normal and reasonable movement of traffic and thereby create an emergency as was created here by Hunt’s driving a tractor ten miles per hour in the left-hand lane when the point at which he was to make his turn was not even in sight of either vehicle.

R.S. 32:377 requires slow-moving vehicles towing a trailer to display a slow-moving emblem on the towed unit. The obvious purpose of this requirement is to aid a following motorist to perceive the fact that the vehicle ahead is not moving normally but at a slow speed. As noted above, the slow-moving vehicle sign was not displayed on the towed cane cart but the sign on the rear of the tractor was, in fact, obscured from view by the cane cart which was being towed. Had such a warning sign been displayed as required by the statute, then possibly Anderson Pierce, Jr., would have had additional reaction time to perceive the danger created by the tractor proceeding at a dangerously slow rate of speed in the passing lane of the highway.

Appellants contend that Hunt was not in violation of R.S. 32:71(B) as the statute plainly gives him the right to be in the left lane in preparation for a left turn. The left-hand turn lane was located approximately 420 feet south of the overpass, or approximately .5 of a mile from the point where Hunt decided to change lanes. Nevertheless, it is argued that the choice of Hunt in entering the left lane prior to ascending the overpass was a reasonable and proper choice because it gave following vehicles the opportunity to observe the lane in which he was traveling and, therefore, eliminate surprise as to following vehicles as they came over the crest of the overpass. This argument might have merit if the left turn lane was located at the foot of the overpass; but such was not the case.

We reject the argument, as did the trial judge, who observed:

“The question presented is whether his maneuver in changing lanes more than .5 miles from the point of the anticipated left turn was in preparation of the turn. This Court thinks not. Counsel strongly urges that his choice in this regard need not be the best one but only a reasonable one. We agree with the above statement as to the standard of care but disagree that the choice he made was reasonable. To be on the down side of the crest of the overpass when vehicles traveling in that lane of traffic might reasonably be anticipated too ‘close’ at a speed of 60 miles per hour (70 miles per hour less 10 miles per hour) is much more dangerous than to remain in the right lane until the point of the left turn is reached, particularly since that point is .2 of a mile from the south ‘toe’ of the overpass.
At a speed of 10 miles per hour the tractor would travel approximately 14.5 feet per second. At this rate the tractor would have been in the left lane for a period of approximately 3 minutes before reaching the left turn point.”

Counsellor argues that the distance from the south toe of the overpass was less than .2 of a mile, but we do not view this as crucial to the foregoing observation.

Defendants argue that even if Robert Hunt was negligent, so was Anderson Pierce, Jr. and that his negligence contributed to the accident. The negligence charged against young Pierce is excessive speed and overtaking and passing the school bus without first ascertaining that the passing lane was clear.

To show excessive speed, the defendants sought to elicit testimony from a witness who observed the Pierce vehicle driving recklessly and at a high rate of speed east of the Mississippi River bridge, approximately 3 or 4 miles from the accident. The trial judge sustained an objection to this testimony on the grounds that it was too remote from the scene of the accident. Defendants also produced the testimony of another witness who described a reckless passing maneuver of young Pierce not more than a mile from the accident.

Even though we regard the evidence of the witness who observed young Pierce driving east of the Mississippi River bridge relevant and admissible, the trial judge did not give it any weight, as he excluded the same. As a trier of fact, it certainly was within his prerogative to disregard the testimony, but it was technically error to exclude it as the same was relevant for the purpose of being weighed on the issue of Pierce’s speed.

Further, on the question of the relevancy of Pierce’s speed, the trial judge found and the evidence is in full support thereof, that even assuming a speed in excess of the legal limit, such speed was not the cause in fact of the accident, as the accident would have occurred even at much slower speeds, due to the failure of young Pierce to timely perceive the danger of the slow-moving vehicle.

However, our review of the evidence discloses that witnesses on the bus and other expert testimony could be relied upon by the trial court as proof that young Pierce was not exceeding the legal speed limit at the moment of the accident and, therefore, no manifest error was committed by the trial judge as to this finding of fact.

The defendants also argue that Pierce was contributorily negligent because he attempted to pass a school bus without first ascertaining that the left or passing lane was clear. In other words, he is charged with a duty to observe the tractor which was clearly in the left lane in front of him. While it is true that Pierce could have seen the tractor, it is also understandable that he failed to realize that the tractor was driving so slow as to be virtually blocking his lane of travel as this is the very risk of harm that the foregoing statutes sought to protect against.

We find the failure of Anderson Pierce, Jr. to perceive the slow-moving vehicle in time to avoid the accident is excusable and that the sole and only cause of the accident was the presence of the slow-moving tractor and trailer in the passing lane of a high-speed, multi-lane highway without displaying the proper warning signs.

For the above reasons, the judgment of the trial court is affirmed at Appellants’ costs.

Affirmed.


author: ELLIS, Judge.

text:
    Jesse M. MILLER et ux. v. BROADMOOR VILLAGE, INC., et al.
    No. 10398.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 14, 1976.

      Wm. M. Barnette, New Orleans, for National Supermarkets, Inc.
    Wm. C. Kaufman, III, and Robert W. Smith, Baton Rouge, for Broadmoor Village, Inc., and Trinity Universal Ins. Co.
    Michael A. Patterson, Baton Rouge, for appellees.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   ELLIS, Judge.

This is a suit for damages for personal injuries suffered by Mrs. Ruth H. Miller when she fell while leaving the premises of the National Food Store in Broadmoor Shopping Center in Baton Rouge. Plaintiffs are Mrs. Miller and her husband, Jesse M. Miller. Defendants are National Super Markets, Inc., operator of the store, and Broadmoor Village, Inc., owner of the shopping center. Each of the defendants third partied the other, seeking contribution.

The case was tried on its merits before a jury, which returned a verdict for plaintiffs. From a judgment signed pursuant thereto, defendants have appealed. Plaintiffs have answered the appeal asking for an increase in the award made.

Outside the entrance and exit doors of the National store, there is a twelve foot covered sidewalk which abuts on the parking lot. There is a six inch curb where the sidewalk and the parking lot join. Immediately in front of the doors, at the edge of the sidewalk, there is a cart ramp, seventeen feet in width, and sloping from the level of the sidewalk to the surface of the parking lot which it meets at a point thirty inches from the curb. The ramp has been in use since the store was opened eight years prior to the accident.

Plaintiff testified that she fell while leaving the store when she placed her foot on the ramp. She testified that she did not know what caused her to fall. It is not contended that there was any foreign substance on the ramp which caused her to fall.

It is plaintiffs’ contention that the defendants’ liability arises from two bases. First, that the design of the ramp is inherently dangerous; and, second, that it does not conform to the minimum standards for such ramps in the Baton Rouge Building Code.

On both points, plaintiffs rely on the testimony of their expert witness, Murvan M. Maxwell, an architect. Mr. Maxwell testified that, in his opinion, the ramp was so steep as to constitute a hazardous condition. He further testified that, as he interpreted the Baton Rouge Building Code, the ramp constituted part of an “exit way” from the store. It is not disputed that the Code requires that a ramp in an exit way have a maximum slope of one inch in ten. The ramp in this case has a slope of one inch in five.

Defendants offered testimony to show that almost four million people had made purchases in the store over an eight year period, and that there had not been any complaints made about the ramp or any record of anyone having fallen thereon during that time. Plaintiff herself was a regular weekly shopper at the store during its eight year existence, and had used the ramp regularly during that time, without mishap.

In addition, the officials responsible for the enforcement of the provisions of the Baton Rouge Building Code testified that they did not consider the ramp to be part of the exit way of the store, and did not consider the ramp to be in violation of the Code. Two architects testified that the ramp did not form part of the exit way.

Section 601.1 of the Baton Rouge Building Code, which is the same as the National Building Code, provides:

“601.1 Exit way and exit doorway defined.
“(a) Exit doorway means the doorway opening: directly to the exterior; to a horizontal exit; to an exit stairway; or to a similar place of safety.
“(b) Exit way means the exit doorway or doorways, or such doorways together with connecting hallways or stairways, either interior or exterior, or fire escapes, by means of which occupants may proceed safely from a room or space to a street or to an open space which provides safe access to a street. Two or more separate exit ways may use the same corridor or hallway.”

We find the above provisions to be more susceptible of the interpretation placed on it by its administrators than that urged by Mr. Maxwell, and hold that the ramp is not in violation of the Baton Rouge Building Code.

The owner or occupant of the property must, keep the premises in a reasonably safe condition. He cannot permit a hazardous condition to exist on his property without giving adequate warning to those legally on the premises. However, only conditions which would reasonably be expected to cause injury to one using ordinary care can be classified as hazardous or dangerous and give rise to the duty to warn. McCauley v. Nicholas, 297 So.2d 914 (La.App. 1 Cir. 1974); writ denied, 302 So.2d 24.

In a case of this nature, plaintiffs must show the existence of a hazardous condition of which the owner had actual or constructive notice, and which caused the injury complained of. We find that they have failed in the first and third of these requirements.

Considering the fact that literally millions of people have used the ramp over a period of eight years without mishap, we can only conclude that the ramp per se presented no hazard to those using it. Plaintiff herself was unable to say what made her fall. Her own use of the ramp for many years, without any prior difficulty, belies her contention that the fall was caused by the faulty design of the ramp. We are aware of the testimony of Mr. Maxwell as to the hazardous nature of the ramp. However, in view of the law, and the overwhelming evidence as to prior safe use of the ramp by plaintiff and millions of others, we are unable to give it credibility. If the jury did so, it committed manifest error. Since we are of the opinion that plaintiffs have failed to prove fault on the part of the defendants, we need not consider the defense of contributory negligence raised by the defendants or their third party demands.

The judgment appealed from is reversed, and there will be judgment in favor of defendants dismissing plaintiffs’ suit. All costs are to be paid by plaintiffs.

Reversed and rendered.