author: BLANCHE, Judge.

text:
    Henry LEWIS, Jr. v. DAVIDSON SASH AND DOOR COMPANY.
    No. 10403.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 1975.
    James E. Moore, Baton Rouge, for appellant.
    Dennis R. Whalen, Baton Rouge, for ap-pellee.
    Before LANDRY, BLANCHE and BAILES, JJ.
   BLANCHE, Judge.

The defendant, Davidson Sash and Door Company, appeals a judgment of the Nineteenth Judicial District Court which declared that Henry Lewis, Jr., appellee, was entitled to workmen’s compensation benefits in the amount of $49 per week for a total of 500 weeks, subject to a credit for those benefits already paid. Ip addition, defendant was to pay all costs of court and expert witness fees. We affirm.

Plaintiff Lewis, a right-hander, suffered a laceration to the ring finger of his right hand in the course of his employment with Davidson on February 28, 1973, when a co-employee attempted to operate a table power saw that Lewis had been using. He was treated exclusively by Dr. Joseph A. Morgan, orthopedist and hand specialist, who performed two surgical procedures before discharging the plaintiff on July 1, 1974, with disability of 75 percent of the finger, or 10 percent of the entire hand. Temporary total benefits were discontinued on July 10, 1974, and the present suit was then instituted seeking total and permanent disability benefits.

The trial judge found that even though the plaintiff was classified as a laborer by Davidson, it was “obvious that Mr. Lewis had the skill and training to raise him to the level of at least a carpenter’s helper.” (Reasons, p. 12) This conclusion was drawn from the fact that the plaintiff received nine months . of carpentry training by Job Corps., and that the type of work he performed for Davidson required him to use many of the hand tools and skills used by carpenters. Based upon the evidence, we find no manifest error in this conclusion.

The trial judge observed that the plaintiff’s finger was continuously bent at a 90-degree angle and that he could not straighten it out. It also appeared that he could not fully bend the finger when he attempted to make a fist.

Dr. Morgan, the only medical expert to appear, was of the opinion that the plaintiff could return to the type of work that he performed prior to the accident but with some limitations. The trial judge, however, asserted that medical opinion as to disability is but one of several considerations that a court must analyze in making a legal determination of whether or not an employee is totally and permanently disabled, citing Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271 (La.S.Ct.1973). According to Futrell, he noted that the court must also consider the “state of the labor market, hiring practices, the amount of pain that an employee must endure if he returns to work, and other consequences of the injury.” (Reasons, p. 13)

After acknowledging that other factors are to be considered in addition to medical disability, the trial judge considered the testimony of the plaintiff with reference to the amount of difficulty he had in working. The plaintiff could no longer grip a hammer with the degree of strength required to work at a fast pace all day, and, in addition, the vibration of hammering caused pain in the finger. Because of the crooked position of the finger, the plaintiff was unable to quickly climb ladders, grasp the common tools of his trade, or carry materials quickly from one site to another. The plaintiff was no longer working as a carpenter’s helper -at the time of trial because he allegedly could not function properly.

The judgment also considered testimony from Bobby J. Smith, an expert in carpentry work and also the Training Director for the Baton Rouge Carpenters’ Joint Training Committee, a body composed of representatives of both the Carpenters’ Labor Union and Contractors’ Management Association. Smith was in charge of training men to be carpenters. He also administered tests to them prior to training to determine their aptitude for the trade. The judge used Smith’s testimony for the purpose of determining how the injury to the. plaintiff’s finger would affect his em-ployability.

Smith was of the opinion that the disability would definitely affect plaintiff’s earning capacity. He stated that even if plaintiff were a union carpenter (which he is not), they would have difficulty placing him on a job with such a handicap, as he would not be a “full carpenter.” Smith asserted the reason the plaintiff’s employability would be reduced was that the finger would hinder his use of carpentry tools and limit what he could do with them. He opined that plaintiff would be better off without the finger. In that regard, he recalled from his experience in working with men who had lost a finger or fingers that the absence of a finger reduced the ability and speed with which those men could work. He also noted that in today’s job market the Occupational Health and Safety Act makes an employer wary of any physical difficulty in the men that they consider for employment and, therefore, the condition of the plaintiff’s hand would greatly affect his employability under the Act.

With the foregoing considerations in mind, the trial judge awarded compensation for total, permanent disability.

The defendant contends that the plaintiff suffered only a partial disability, and since he has already received temporary total benefits in excess of the partial member benefits provided for in LSA-R.S. 23:1221, the defendant is, therefore, no longer liable to the plaintiff.

We are of the opinion that Futrell controls the instant case. There, one of the four examining physicians would have allowed the plaintiff to return to work. The other three did not declare him totally disabled but instead recommended further surgery and presumably would have reevaluated his condition thereafter. The Court concluded that the import of the medical testimony was that the plaintiff suffered 10 percent permanent impairment of function of the right leg. They were, therefore, faced with deciding whether or not this 10 percent impairment was total and permanent within the meaning of the workmen’s compensation law. To answer this question, they began by observing that the medical evaluation was “but one feature to be considered by the courts in determining whether the employee is totally and permanently disabled.” The Court continued by quoting from Malone, Louisiana Workmen’s Compensation, § 272 (Supp. 1964), as follows:

* * The medical expert defines disability in terms of the physiological injury and its effect upon the performance of the mechanical operations which the claimant can perform prior to and after the accident. * * *
‘On the other hand, a court is called upon to determine disability according to a legal definition drawn by interpretation from the compensation statute furnished by the legislature. The law fixes disability in terms of loss of earning capacity, which includes the extent of the physiological impairment as only one factor. The function of the judge is much broader than that of the medical man, for loss of earning capacity, which is the eventual touchstone of all legal definitions of disability, can be determined only by reference to the state of the labor market, hiring practices, the humanity of obliging a man to work in pain, and other broad policy considerations which the physician is not equipped nor authorized to evaluate.’ (Futrell v. Hartford Accident & Indemnity Company, 276 So.2d at 273, 274)

Since the Court has already concluded that Futrell suffered a ten percent physiological impairment of function, they turned to examine the nature of the work performed by him as a mechanic in order to fully assess the effect that the disability would have upon his capacity to perform work of the same or similar character. After studying Futrell’s own explanation of the requirements of his work, the Court considered the testimony of six other mechanics, all from the general area of the plaintiff’s employment. The purpose of their testimony was to set forth the working requirements of- the average mechanic in the locale in which the plaintiff lived. The Court then proceeded to evaluate Fu-trell’s ability to compete with these able-bodied mechanics in the general labor market in view of his work-induced disability. The Court stressed that the comparison must be made with the general working facilities in the particular field of endeavor, rather than to the particular facility offered by his employer. Finding Futrell’s ability to compete impaired, the Court awarded total, permanent disability benefits.

In the instant case, the trial judge similarly utilized the testimony of layman Smith to evaluate the effect that the established impairment of function would have upon the plaintiff’s employability. Smith gave no opinion concerning the medical degree of disability of the plaintiff but simply narrated the effect of the obvious disability upon similarly situated persons in the job market. Futrell depicts the law as it now stands, and as it clearly sanctions “reference to the state of the labor market, hiring practices,” etc., by a trial judge in determining whether or not a workman is disabled under the workmen’s compensation statute, we find no error in the application of that principle in the instant case. Clearly, the testmony of Smith was not considered as establishing a disability, but rather it was utilized to interpret the effect of the already established disability upon the plaintiff’s employability. For that reason, the instant case is in harmony with the guidelines set forth in Futrell.

The defendant contends that the trial judge erred in finding total, permanent disability and argues that the error resulted when the judge relied upon the lay testimony of Smith and that lay testimony was inadmissible since there was no conflict in the medical testimony, citing Lee v. Royal Indemnity Company, 149 So.2d 606 (La.App. 1st Cir. 1963), writ refused, 244 La. 209, 151 So.2d 689 (1963), and Jones v. Quick Shop Food Store, 263 So.2d 73 (La.App. 1st Cir. 1972). While the rule prohibiting lay testimony where there is no material conflict in medical evidence addresses itself more to the weight to be accorded to such lay testimony rather than to the admissibility itself, Lee, supra, the cited cases are inapplicable to the instant case.

In both Lee and Jones the plaintiffs sought to use lay testimony to establish physical disability, whereas in the instant case there is no dispute as to the physical disability of Lewis. As noted hereinabove, the layman Smith testified only regarding the effect that the disability would have upon Lewis’ employability. This follows the intent of Futrell, and we do not find that Lee and Jones are in conflict therewith.

As we find neither error of fact nor law, the judgment of the trial court is hereby affirmed, at cost of appellant.

Affirmed.


source: Caselaw Access Project

author: BAILES, Judge Pro Tem.

license: Public Domain

text:
    Dudley E. MILLET v. ALLSTATE INSURANCE CO.
    No. 10402.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 1975.

      ' James J. Zito, Baton Rouge, for appellant.
    John W. Wilson and James F. Abadie, Baton Rouge, for appellee.
    Before LANDRY and BLANCHE, JJ., and BAILES, J. Pro Tem.
   BAILES, Judge Pro Tem.

In this suit plaintiff seeks to recover damages for physical injuries he received while a social guest at the home of his brother-in-law, Jerry M. Pratt, the husband of plaintiff’s sister. The defendant is Allstate Insurance Company, the insurer under a homeowners policy issued to Pratt. The trial court denied recovery to plaintiff and he perfected this devolutive appeal. We affirm.

On May 18, 1973, the date of his injury, the petitioner arrived at the Pratt residence about 6:30 P.M., for a fish fry with his family and others. Shortly after his arrival, he sent his 10 year old daughter to obtain the keys from Mr. Pratt to a Honda 70 “mini-bike” owned by the latter so that he could ride his daughter on the bike in the back yard which was about 250 feet deep by 150 feet wide.

The record indicates that shortly the daughter returned with the keys. As the kick starter pedal was missing from the bike Millet had to push it off to start the engine. He did this by making a circle approximately half way between Pratt’s patio and the rear of the property. He then allowed his daughter to get on the bike behind him and they rode towards the rear of the back yard. As that yard is faced to the rear, there is a garden in the left corner measuring some forty feet by forty feet. Two or three weeks prior to the day in question, Pratt had dug a drainage ditch from the corner of the garden closest to the house for some thirty feet diagonally toward the center and rear of the lot. The ditch was approximately a foot wide and about six inches deep. The grass over the back yard was probably six inches high.

As Millet reached that part of the property near that ditch, the bike suddenly hit something and overturned. In the fall, petitioner’s left leg was broken. It was daylight at the time of the accident.

The gravamen of the plaintiff’s case is that the ditch was a hazardous condition created by Pratt of which Millet should have been warned and that when Pratt neglected to do so, it amounted to a failure to exercise reasonable and ordinary care for the safety of social guests and was, therefore, actionable negligence.

In written reasons for judgment, the trial judge found no direct evidence that the ditch caused Millet to overturn, but rather concluded that the facts were strongly suggestive that such was the case. He further concluded that even assuming, arguendo, that the presence of the ditch was causally connected to the accident, that the landowner breached no duty to the plaintiff by failing to warn him of its presence.

Initially, we note that by answer to this appeal, Allstate again asserts Exclusion 1(2) (2) in its policy of insurance which excludes coverage for bodily injuries arising out of the ownership, maintenance, operation or use of, among other things, a motor vehicle owned by the insured. We do not reach a decision on that question here, however, in view of the disposition of this matter on the merits.

Without concluding that the ditch caused the accident, we find that the evidence preponderates to the effect that Millet hit the ditch just prior to the accident. Neither the plaintiff nor his daughter are able to say with any degree of certainty why they fell. Millet testified that all he knew was that he struck something just before the spill. However, Carol Millet did state that she stepped in the ditch as she went to get her mother and Pratt stated positively that the bike was on the other side of the ditch and within one foot of it when he arrived moments after the fall.

The mere occurrence of an accident on the premises of Pratt does not give rise to a presumption of negligence on his part by failing to warn the plaintiff of the presence of the shallow ditch. The record attests to the fact that the plaintiff was an experienced bike rider. The host homeowner owed to plaintiff the duty to exercise reasonable and ordinary care for the safety of plaintiff commensurate with the particular circumstances involved. There is no showing that this small ditch was a hidden or concealed peril to plaintiff. The homeowner is not the insurer of his guests or invitees while on his premises. See: Foster v. Allstate Ins. Co., 277 So.2d 478 (La.App. 4th Cir. 1973) and Garner v. La. Farm Bureau Mutual Insurance Co., 281 So.2d 860 (La.App. 1st Cir. 1973).

In Currington v. Great American Insurance Company, 281 So.2d 150 (La.App. 3rd Cir. 1973), the jurisprudence of this state concerning the duties owed an invitee are summarized in these terms:

“The invitee comes on the premises with an invitation and for the purpose of rendering some potential service or benefit for the occupier; and to him the duty owed is that of reasonable and ordinary care, which includes the prior discovery of reasonably discoverable conditions of the premises that may be unreasonably dangerous, and corrections thereof or a warning to the invitee of the danger. Foggin v. General Guaranty Insurance Company, 250 La. 347, 195 So.2d 636 (1967). The invitee assumes the ordinary and obvious risk involved in the use of the property and may not recover for his injuries which could have been avoided by the exercise of reasonable care. Palmisano v. State Farm Mutual Insurance Company, 233 So.2d 745 (La.App. 4th Cir., 1970). An invitee or business visitor is admonished to walk with his eyes open to observe the course which he is pursuing and to actually see and take cognizance of what is readily apparent. Raines v. Travellers Insurance Company, 254 So.2d 659 (La.App. 4th Cir. 1971).”

The precise cause of this unfortunate accident is not known. We conclude, however, as did the trial judge, that Pratt’s lack of warning to Millet of the presence of the ditch was not a failure to exercise reasonable care in protecting the invitee, as it did not present a reasonably foreseeable danger to the appellant. A shallow ditch measuring approximately one foot in width by six inches deep ordinarily does not present a danger to any person using the premises. . The plaintiff here was 34 years old at the time of the accident, had been riding motorcycles since he was fifteen years old, and had extensive “off the road” riding experience. We are not persuaded that a ditch of the width and depth previously described presented any foreseeable danger to a rider such as this plaintiff.

For the foregoing reasons, the judgment appealed is affirmed, at plaintiff-appellant’s cost.

Affirmed.


text:
    Velma B. and Alvin BOUDREAUX v. Eldon M. YANCEY et al. Alvin J. BOUDREAUX et ux. v. Eldon M. YANCEY et al.
    Nos. 10393, 10394.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 1975.
    Sidney G. Roos, New Orleans, for appellants.
    Iddo Pittman, Jr., Hammond, for defendants Yancey and State Farm.
    France W. Watts, III, Franklinton, for defendants Travelers Ins. Co. and Shell Oil Co.
    Donald H. Lee, Bogalusa, for Eldon M. Yancey.
    Before LANDRY, BLANCHE and BAILES, JJ. .
   BLANCHE, Judge.

Plaintiff-appellant, Velma Brunner Boudreaux, appeals an award of the Twenty-second Judicial District Court which ordered the defendants-appellees, State Farm Mutual Automobile Insurance Company and Eldon M. Yancey, in solido, to pay her $7,000 plus legal interest thereon at the rate of 5 percent from date of judicial demand until paid, for the death of her fifteen year old daughter, Deborah D. Boud-reaux. Plaintiff-appellant, Alvin J. Boud-reaux, also appeals that court’s award which ordered those same defendants-ap-pellees to pay him $7,000 general damages plus $3,737.85 special damages, together with legal interest thereon at the rate of 5 percent from date of judicial demand until paid for the death of his daughter Deborah.

The award specifically limited State Farm’s liability to its policy limits, $5,000, together with legal interest at the rate of 5 percent from date of judicial demand until paid.

The judgment complained of dismissed the plaintiffs’ suits against defendant Yan-cey’s employer, Shell Oil Company, and its insurer, The Travelers Insurance Company. The defendants, Yancey and State Farm, were cast with all costs. We affirm.

On Thursday, June 13, 1968, at approximately 3:00 P.M., Deborah Boudreaux, while driving a Volkswagen station wagon, was severely injured when the automobile which Yancey was driving struck her from the rear. Deborah died two days later.

Plaintiffs instituted trial court Suit No. 30,356 (Appeal No. 10,393) but that suit was dismissed without prejudice for failure of plaintiffs’ counsel to attend a pre-trial conference. As a result of that dismissal, the plaintiffs filed Suit No. 32,470 (Appeal No. 10,394). Thereafter, this Court at 256 So.2d 340 reversed the dismissal of the original suit and remanded the case to the district court for a trial on the merits. The cases were then consolidated for trial. Yancey was found to be negligent, which finding is not contested on appeal.

The plaintiffs present a single issue on appeal, that is, whether or not Yancey’s employer, Shell, is liable to the plaintiff? under the doctrine of respondeat superior.

At the time of the accident Yancey lived in Bogalusa, Louisiana, and worked for Shell, out of Venice, Louisiana, more particularly at Main Pass, Block 69 oil field. Venice is roughly 150 miles from Bogalu-sa, and Block 69 is an additional 30 miles by water south of Venice.

Yancey’s work schedule was seven days on and seven days off. Routinely, he would drive from Bogalusa to Venice in his automobile where he would catch a crew boat and travel for approximately one hour and fifteen minutes until Block 69 was reached. He would then work from 6:00 A.M. to 6:00 P.M. for six consecutive days. On the seventh day he worked from 6:00 A.M. to 12:00 noon, and at noon he would again board the crew boat, travel the return one hour and fifteen minutes to Venice where he would proceed via his automobile back to Bogalu-sa.

The record establishes that Yancey was paid approximately $3.00 per hour for oil field work and $1.60 per hour during the crew boat travel time. It is undisputed that his pay stopped the moment he disembarked the crew boat upon its return to Venice after his seven-day work week. Yancey emphatically stated that when he was off duty he performed no function or work whatsoever for Shell.

On the day of the accident Yancey had completed his routine seven-day work schedule and returned to Venice by crew boat as usual. He reentered his automobile and began traveling home. Approximately halfway to Bogalusa where the Lake Pontchartrain Causeway reaches land in the vicinity of Covington, Louisiana, the defendant Yancey’s automobile collided with the rear of the automobile driven by Deborah Boudreaux.

The plaintiffs contend that even though Yancey had disembarked from the crew boat and was already homeward bound at approximately 75 to 80 miles from his place of work, he was, nevertheless, within the scope of his employment with Shell and, therefore, Shell is vicariously liable.

The general rule is that an employer is not liable for the negligent acts of his employee while the employee is on his way to or from his employment. Beard v. Seamon, 175 So.2d 671 (La.App. 1st Cir. 1965). The plaintiffs have not attempted to explain why the general rule should not apply in the instant case. Therefore, the general rule would deny the plaintiffs’ recovery against Shell, as the record indicates Yancey was on his way home and not engaged in any activity concerning Shell.

We also find no special rule by which Shell can be held liable in the instant case. In the latest expression by the Louisiana Supreme Court concerning the employment relationship in vicarious liability situations, LeBrane v. Lewis, 292 So.2d 216 (La.Sp.Ct.1974), the Court acknowledged that an employer (master) is liable for a tort committed by his employee (servant) if, at the time, the servant is “in the exercise of the functions in which they are employed.” LSA-C.C. Art. 2320. The Court then set forth some special guidelines to be used in determining which functions of the employee could be considered reasonably incidental to the performance of the employee’s duties and, therefore, require the employer to respond vicariously for the employee’s negligence.

Faced with the situation where a supervisory employee knifed and seriously injured another employee whom he had just fired, the Court first considered whether or not the fight which led to the knifing was reasonably incidental to the performance of the duties of the supervisory employee and then they noted that the entire incident occurred on the employment premises.

Continuing, the- Court stated:

“In short, the tortious conduct of the supervisor was so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests. It can thus be regarded as within the scope of the supervisor’s employment, so that his employer is liable in tort to third persons injured thereby.” (LeBrane v. Lewis, 292 So.2d at 218)

We find none of the special features of LeBrane present in the instant case and, therefore, the general rule that an employer is not liable for the negligence of its employees while returning home from work precludes recovery by the plaintiffs under the instant facts.

The authorities cited by the plaintiffs in support of their specifications of error all deal with re-entry into the scope of employment by the employee. The facts of this case do not present a re-entry problem.

For the above and foregoing reasons, the judgment of the trial court is hereby affirmed, at appellants’ costs.

Affirmed.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Lloyd Rowe DAVIDSON and Alfred W. Evans, Sr.
    No. 10390.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 1975.

      D. Ross Banister, Deputy Gen. Counsel, William W. Irvin, Jr., Executive Asst. Gen. Counsel, Jerry F. Davis, Asst. Gen. Counsel, Johnie E. Branch, Jr., Asst. Gen. Counsel, Baton Rouge, Alvin J. Liska, Special Counsel, New Orleans, Highway Dept., for appellant.
    ■ Clint L. Pierson, Jr., Covington, for ap-pellees.
    Before LANDRY and BLANCHE, JJ., and BAILES, Judge Pro Tem.
   BAILES, Judge Pro Tem.

This expropriation case involves the taking of two parcels of land in St. Tammany Parish, Louisiana, under the provisions of LSA-R.S. 48:441 et seq., usually referred to as the “quick taking” statute. On December 16, 1970, the State of Louisiana, through the Department of Highways (Department) expropriated property belonging to Lloyd Rowe Davidson and Alfred W. Evans, situated on the west side of U. S. Highway 190, just south of Covington.

The land in question lies entirely within Square 23 of Mailleville subdivision. Taken in full ownership was the approximate eastern half of Square 23; Additionally, a triangular shaped parcel in the southern portion of Square 23, and adjacent to that taken in full ownership, was also made subject to a permanent servitude of drainage. For these two takings, the sum of $18,423.00 was deposited by the Department as just compensation for the land. Thereafter, the landowners judicially sought an increase in that compensation.

The matter was set for trial and heard on February 21, 1972. Judgment was subsequently rendered ordering that the Department pay $29,882.00 for both parcels taken, less credit for the $18,423.00 deposited with the filing of the suit, and $12,000.-00 as severance damages. Thereafter, the Department appealed that judgment but before being heard by this court, the matter was remanded to the trial court for the taking of additional evidence on the joint motion of counsel.

On March 26, 1973, that additional testimony was taken and judgment was again rendered by the trial judge awarding as compensation and severance damages the identical amounts that had been rendered in the previous judgment. Again, the Department of Highways has appealed. However, the only question before us on this appeal is the amount of severance damages to be awarded.

At the first trial of this case, the state’s initial witness was Henry B. Breeding, Jr., an appraiser, who testified that he determined the severance damage to the property in question to be $12,065.00 immediately after the taking but that, at the time of the trial, there was no severance damage to the remainder because it had experienced a general increase in value along with all of the other property in the vicinity. Later in the trial, by stipulation of counsel, the appraisal report of Edward J. Deano was admitted on a summary sheet only and without testimony that appraiser estimated severance damages at $4,770.00.

During the presentation of the defendants’ case, counsel for the landowners stated that they would accept the state’s appraisal testimony as to severance damages and would offer no evidence in that regard. Written reasons for judgment were subsequently rendered by the trial judge in which he accepted the testimony of Breeding as to the severance damages and thus awarded $12,000.00 for that item.

As previously noted herein, that judgment was appealed but was then remanded for the taking of further testimony. The second hearing was concerned with the severance damage question only. At a later date, the trial judge rendered a second judgment awarding the amounts initially ordered subsequent to the first hearing. In written reasons for that second judgment, he found that the severance damage award of $12,000.00 should be maintained as originally rendered and further, that the Department had failed to carry its burden to prove special benefits to the defendants’ remaining property. We affirm.

At the second hearing, Breeding confirmed his prior testimony to the effect that, although there were severance damages to the remainder after the taking, that those damages had been offset by the time of the trial due to an increase in general market conditions. As the examination of him proceeded, the Department questioned him concerning special benefits to the remainder which may have existed due to the installation of certain culverts by the Department. At pages 195 and 196 of the transcript, these remarks are found:

“Q. I will repeat the question. Assuming that you had been aware that the culverts at the roadway had been put in at the expense of the State Highway Commission at the date of the trial, would you have still determined that the $12,000.00 figure was adequate severance damages ?
“A. No. I would have considered it something less than that because it provided, as I say, it was provided with culverts. They covered it for him so that he had an area that he could to some extent use.
* * * * * *
“Q. How much less would you have determined ?
“A. Mr. Liska, it would be a judgment factor without going into a lot of research, but I would say probably somewhere it would have reduced the amount of damages by twenty-five to fifty percent less than I originally had.”

Considering first the question of severance damages at the time of the trial herein, we note that in State, Department of Highways v. William T. Burton Indus., Inc., 219 So.2d 837 (3rd Cir. 1969) the principle that severance damage to a remainder is not to be offset by a general appreciation in the market value of the land in the area of the taking was firmly-established. There the court at page 842 said:

“The Department also contends that severance damages should not have been allowed because the landowner’s appraisers did not value the remainder as of the date of the 1967 trial. These experts estimated the damage to this remainder caused by the 1960-61 taking as of its date. In determining the market value of the tract at the 1967 trial, they did not take into consideration any increase in the value of the acreage produced by the general improvement in economic conditions between the time of the initial taking and of the trial seven years later.
“In suggesting that this method of ap-praisement was erroneous, the Department relies on the provisions of LSA-R. S. 48:453 that: ‘ * * * Damage to the remainder of the property is determined as of the date of the trial. * * * 9
“The ‘quick-taking’ statute, LSA-R.S. 48:441-60, does indeed provide that, when part of a tract is taken, severance damages should be determined as of the date of the trial, 48:453, which the statutory scheme contemplated as being after the highway project was completed and accepted by the Department, 48:451.
“[8,9] In our view, however, the provision that severance damages be valued as of the date of the trial was statutorily intended to specify that the damages the remainder suffers should be reduced by special benefits which result to it from the completion of the highway comstruction , not to deprive the landowner of compensation for damages sustained by his tract because of any general increase in the value of land between the taking and the trial. We do not believe that the legislature intended to deprive a landowner of damages to his property undoubtedly caused him by the taking, simply because — in the long interval between the taking itself and the subsequent completion of the long-term major highway construction project — his property had increased in value due to generally improved economic conditions, along with all lands in the area (and, probably, most other lands in the entire State).
“[10] The landowners’ damages should not be offset by such a general appreciation in value, any more than it is by general benefits the tract receives because of the improvement. As stated by the Grey decision, cited above, ‘ * * * the citizen whose property is taken cannot be compelled to bear more of the cost of the public improvement and general benefits resulting therefrom than is borne by other property owners whose property is neither taken nor damaged for the public purpose.’ 2 So.2d 660.”

Applying that rationale to the case at bar, we conclude that the trial judge correctly refused to deduct from the severance damage award any increase due to the general market conditions prevailing in the area.

It is also well established that the burden of proof as to special benefits which may accrue to a remainder and which may be offset against severance damages, rests with the Department. In Burton, supra, we note:

“The landowner has the burden of proving that severance damages were sustained, LSA-R.S. 48:453. However, the condemning authority has the burden to prove that the remainder received special benefits available as an offset against severance damages otherwise allowable to the landowner. City of New Orleans v. Giraud, 238 La. 278, 115 So.2d 349; State Through Dept. of Highways v. Marks, La.App. 4th Cir., 188 So.2d 653.” (Emphasis added)

Here, the district judge found that the Department had not maintained that burden. That decision will not be disturbed unless manifestly erroneous. State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972). While Breeding testified at the second trial that there were special benefits, as his testimony quoted above indicates, he did not state any definite amount and, in fact, seemed uncertain. The Department of Highways offered no other evidence as to special benefits. Standing alone, that testimony is insufficient proof of such an allegation and will not serve to offset the severance damages awarded. We find no error in the judgment of the court below.

For the foregoing reasons, the decision of the district court will be af firmed. The appellant is cast for all costs of these proceedings which may be legally assessed against the State of Louisiana.

Affirmed.

      “1. The more common practice is for the landowner to file suit for his severance damages before completion of these long-term highway construction projects. In benefits to be received by the remainder this event, the determination of special several years later involves more speculative factors. State Through Dept. of Highways v. Black, La.App. 3d Cir., 207 So.2d 583, 589.”


text:
    Anthony C. PLESCIA and Marion Marino Plescia v. Arthur B. DUNHAM and Travelers Insurance Co.
    No. 10389.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 1975.

      Stephen A. Duczer, Slidell, for appellants.
    Wilson F. Shoughrue, Jr., New Orleans, and France W. Watts, III, Franklinton, for appellees.
    Before LANDRY, BLANCHE and BAILES, JJ.
   BLANCHE, Judge.

Plaintiffs-appellants, Anthony C. Plescia and Marion Marino Plescia, husband and wife, appeal a judgment of the Twenty-second Judicial District Court which granted Marion Plescia the sum of $5,000 general damages, Anthony Plescia, $3,500 general damages and also $1,248.13 special damages, against the defendants-appellees, Arthur B. Dunham and Travelers Insurance Company, all with legal interest thereon from the date of judicial demand until paid. The defendants were taxed with all costs of the proceedings. We affirm.

On June 7, 1970, the plaintiffs, along with Victor L. and Mary D. Dognibene, attended a party aboard a Chriscraft yacht, “Traci-Ann,” owned and operated by Arthur B. Dunham. The boat was powered by two 185 horsepower gasoline engines. The group had spent the day at pirogue races on Bayou Liberty in St. Tammany Parish. Late that afternoon as they prepared to return to New Orleans, Dunham started the motors and an explosion occurred, followed by waves of intense heat and flames which burned plaintiffs and the other guests.

The Dognibenes and the Plescias sued Dunham for their injuries. Even though the Dognibene suit was jury tried and the Plescia suit judge tried, they were consolidated and heard in one proceeding. The Dognibene case was heard on appeal by this Court at 286 So.2d 449 (La.App. 1st Cir. 1974), wherein it was “conceded by all parties that the explosion was caused by the negligence of Arthur B. Dunham.”

In the instant Plescia suit, the negligence of Dunham is uncontested. The issues on this appeal center around quantum and involve primarily the damages of Anthony Plescia, although both he and his wife have appealed.

Plescia and Edward V. Brown were partners in Western Packing Company, slaughterers and provisioners. Brown kept the books and Plescia did the buying for the business, and they split the remainder of the workload on a 50-50 basis. The remaining work included sales and service to their respective retail butcher customers and other general business activities around the meat packing plant. For the three years prior to the accident each partner earned approximately $2,400 per month from the business.

Following the accident, Plescia was treated by Dr. James E. Brown, the son of his partner. He was released on June 25, 1970. Dr. Brown deposed that the plaintiff was unable to work for five to six weeks following the accident.

Prior to Plescia being able to return to work, Brown stated that he could not handle Plescia’s workload in addition to his own. After approximately seven to ten days of attempting to do both jobs, Brown testified that he could no longer take the pressure and unilaterally closed the business.

On the trial of the matter the plaintiffs contended that the closure of the business was a direct result of the accident. They submitted the testimony of John Coerver, C.P.A., to establish that the business had a far greater economic value as a going concern than it did shut down. The plaintiffs then argued that the accident caused the business to be closed, and since Dunham was responsible for the accident, he was also responsible for the loss that Plescia suffered as a result of the closure. They contended that the measure of his loss is the difference between the going business value and the shut-down value. In their petition the plaintiffs asserted that the difference in value was $42,000.

Concerning the foregoing, the defendants entered an exception of “no cause and right of action” while the trial was in progress. The defendants contended that the proper party to bring an action for any business loss of. the partnership was the partnership entity and not its individual members. Therefore, they contended that Plescia, individually, had no right to bring the action for recovery of the alleged price differential.

The triad judge acknowledged that this peremptory exception could be filed during the course of the trial and accepted it even though it did not meet the standards set by the Twenty-second Judicial District Court in that it was not accompanied by supporting memoranda. Then, not wishing to tie up the jury trial to hear the merits of the exception, he referred the exception to the merits, as is his prerogative under Louisiana Code of Civil Procedure Article 929.

After trial, the judge pretermitted a decision on the exception by finding as a fact that regardless of the plaintiffs’ right to bring the action, he “did not feel there was adequate proof to conclude that the closure of the business in which Mr. Plescia was a partner, was a result of this accident.”

On appeal the plaintiffs assert the trial judge erred in holding that the accident was not- the cause of the business closure.

An appellate court should not disturb the factual findings of the trial court in the absence of manifest error. Carter v. New Orleans Public Service, Inc., 305 So.2d 481 (La.Sp.Ct.1975); Spreen v. Gibbs, 305 So.2d 494 (La.Sp.Ct.1975). The guidelines to determine manifest error were set forth in Canter v. Koehring Co., 283 So.2d 716 (La.Sp.Ct.1973), as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” (283 So.2d at 724)

We will now review the record to determine the correctness of the trial judge’s conclusion.

Plescia and his partner Brown were the only witnesses to testify regarding the effect of the accident upon the closure of the business. Both asserted that were it not for the accident they would not have closed the business.

However, various inconsistencies in their testimony raise questions concerning the credibility of their purported reason for closure. There is no indication from the record that either Brown or Plescia ever consulted the attending physician, Dr. Brown, concerning the probable length of Plescia’s disablement. Brown closed the business within seven to ten days after the accident without ever inquiring of his own son, who was his partner’s physician, as to whether or not Plescia would be able to return to work in the near future, nor did Plescia himself attempt to determine the expected length of his incapacity so that he could inform Brown. Brown contended that Plescia was in “kind of a shock” after the accident and, therefore, was unable to apprise him of the expected length of his absence.

Dr. Brown deposed that Plescia, who was not hospitalized but rather treated on an out-patient basis, would have been able to return to work within five to six weeks following the accident, but little interest was shown in this information by either partner, as neither ever asked the doctor concerning Plescia’s return.

Concerning attempts to obtain relief help for Brown, it is clear that neither of the partners put forth a good faith effort to obtain such help. We realize, of course, that the nature of the business and Ples-cia’s functions therein involved a great deal of personal contact with the customers and it would be unfair to require them to obtain immediate help in that particular area. However, Brown attempted to do all of the clerical work in addition to all of the sales and services when perhaps other arrangements could have been made. The partnership employed a dozen or more employees, including two bookkeepers, but the partners contended that none of them were qualified to fill in and perform the various jobs done by Plescia.

Brown admitted that some of their customers could have been serviced by telephone but that he did not attempt to do so, nor did Plescia attempt to service customers by telephone from his home during his convalescence.

The business was not reopened upon Plescia’s recuperation. The reasons given were that their customer contacts were lost during the five-week closure and that during the period of time needed to regain their former volume of business the partnership would have suffered too great a monetary loss. These contentions seem strained in view of the fact that the partners were experienced, having been in business for 37 years, and the business was very prosperous, with both partners earning approximately $2,400 per month after all expenses were paid. The trial judge did not accept the partners’ announced reasons for closure, and our review discloses that there was no error in this determination.

We find the trial judge was within his great discretion when he referred the defendant’s exception of no right of action to the merits. We also find no error in the fact that thereafter he disposed of the case on the merits rather than pass upon the exception. All the evidence in this case had been heard, and both parties had their day in court. It would have been a vain and useless thing to pass upon the merits of the exception and perhaps thereby have required the defendant to stand another trial at the hands of the partnership rather than with Plescia individually. A new trial would not change the fact that the accident was not the cause of the business closure. Accordingly, the question of whether or not Plescia, individually, had a right of action for the alleged damages is moot.

The trial judge refused to award damages to the plaintiffs for loss of income. The plaintiffs contend this was error and that Plescia should be awarded his lost income for the entire period of his incapacitation.

Plescia was a partner in Western Packing, and he contends his inability to work greatly decreased the sales volume of the business since he was primarily a salesman. Therefore, he argues that his personal income, which was derived from the partnership, was also greatly decreased as a result of the accident. We note that Plescia was unable to work for approximately six weeks. However, since the business was closed after the first ten days of his incapacity, he would obviously only have a claim for lost income encompassing that ten-day period. No claim lies for the remaining period of disability since we have affirmed the trial judge’s ruling that the closure was not due to the accident.

The evidence indicates that each partner received a salary of $175 per week and the excess profits were left to accumulate to be eventually divided when the bank account so justified. Therefore, each partner’s weekly income from the business would be the total of $175 plus the undivided profit for that week. The record reveals that both Plescia and Brown continued to draw the regular $175 per week salary during the ten-day period. The plaintiffs obviously seek the difference between $250 (Plescia’s draw for ten days) and Plescia’s undivided net profit for the ten-day period.

John Coerver, C.P.A., testified that the total sales of the business were reduced by $13,000 during the month of Juné, the last month of actual operation. (Routinely, sales at that time were running approximately $120,000 per month.) The plaintiffs contend this reduced volume was due solely to the absence of Plescia. Coerver also testified that for the entire fiscal year ending March, 1971, the partnership lost $16,713.52; but no evidence was adduced from which June’s net distributable income to each partner could be determined, nor was any proof adduced to establish the actual profit or loss of the ten-day period,in question.

In fact, even at the time of trial, some two years post-accident, when Plescia was asked if he knew the amount that the partnership’s profit was diminished by the $13,000 reduction in sales volume, he replied :

“Substantially. No, I couldn’t say dollars and cents but I would say it would put a considerable dent in it.” (Transcript of Testimony, Record, p. 523)

No other proof was offered by the plaintiffs to establish the partnership’s profit or loss for the period in question. Therefore, even though we know Plescia drew his regular salary for the period, we cannot calculate his total earnings, as no proof was offered concerning the distribution of profits or losses for the period.

Plaintiffs offered proof that Plescia was earning $2,400 per month from the business prior to the accident, but without evidence establishing his actual income for the pertinent ten-day period, it is impossible to determine the amount of income lost as a result of his being unable to work. Pretermitting a decision as to whether or not the plaintiff Plescia or the partnership would be the proper party to sue therefor, there is simply no evidence to support an award for loss of income for the period in question.

For the above and foregoing reasons, the judgment of the trial court is affirmed, at appellants’ cost.

Affirmed.


author: LANDRY, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Henry J. LeBLANC and Fremin Bros., Inc.
    No. 10400.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 25, 1975.

      Johnie E. Branch, Jr., Asst. Gen. Counsel, Highway Dept., Baton Rouge, D. Ross Banister, Gen. Counsel, William W. Irwin, Jr., and Jerry F. Davis, Asst. Gen. Counsel, Baton Rouge, for appellant.
    Sam A. LeBlanc, III, New Orleans, for defendant-appellee Henry J. LeBlanc.
    Patrick W. Pendley, Plaquemine, for defendant-appellee Fremin Bros., Inc.
    Before LANDRY, BLANCHE and BAILES, JJ.
   LANDRY, Judge.

The State of Louisiana, Through the Department of Highways (Department), appeals judgment of the trial court awarding Henry J. LeBlanc (Owner) allegedly excessive value for land expropriated for highway purposes, and granting Owner’s lessee, Fremin Brothers, Inc. (Lessee) an additional award as compensation for the expropriation of Lessee’s allegedly established leasehold advantage.

The issues presented on appeal are: (1) The value of the land taken; (2) The alleged error of the trial court in granting Lessee an award of $1,898.70, in addition to the land value granted Owner, as the value of Lessee’s expropriated leasehold advantage; and (3) The trial court’s alleged award of excessive fees to Owner’s expert witnesses. Owner has answered the appeal requesting an increase in the award for land value, and also requesting damages for frivolous appeal. We reverse the judgment awarding Owner damages for the land taken; we reverse the trial court’s award of expert witness fees, and remand this matter to the trial court for further proceedings.

The instant taking was total. The expropriated tract comprised 4,477.36 square feet, situated on Louisiana Highway 1, within the municipal limits of White Castle, Iberville Parish. The property contained improvements utilized as a roadside dairy bar dispensing sandwiches, ice cream, soft drinks and similar food items. The premises were leased by Lessee who constructed some of the improvements situated thereon. The lease contained the following pertinent provision:

“In the event any portion of the land herein leased or the improvements are taken for highway purposes, this lease shall be automatically terminated.”

At the commencement of trial, it was stipulated by the Department, Owner and Lessee that the value of the improvements involved was $16,000.00; that said item of damages was no longer in dispute, and said $16,000.00 would be divided equally between Owner and Lessee.

The Department then produced two appraisers, Dan Carlock and John Allphin who, utilizing the market data approach, valued the property at $8,059.00 and $7,970.00, respectively. After presenting the foregoing testimony, the Department rested.

Upon the Department’s resting, the trial court declared a short recess during which the court apparently informed all counsel that the court had reached a conclusion as to the value of the land taken. When court reconvened, the trial judge in open court suggested that he render judgment disposing of the entire matter. Counsel for Lessee suggested that several issues remained concerning the interests of Owner and Lessee in and to the sum to be paid by the Department as compensation for the land. Counsel for Owner took the position that any leasehold advantage recovery granted Lessee should be paid by the Department in addition to the amount the court might award Owner for the value of the land.

Owner and Lessee then offered the testimony of Kermit A. Williams and Gerald Dupont, Appraisers, to establish the present economic rental value of subject land. This evidence was tendered in support of Lessee’s claim for damages for loss of leasehold advantage, and also in support of Owner’s claim for additional compensation. The Department objected to the testimony on the ground that, assuming Lessee could establish a leasehold advantage, no recovery at all could be had by Lessee for such an item of damages because of the hereinabove quoted termination clause contained in the lease. Following protracted argument between counsel and discussion with the court as to the law and jurisprudence applicable to a claim of leasehold advantage in an expropriation proceeding, and the admissibility of Lessee’s proposed evidence on this issue, the trial court ruled that the issues of improvement value and land value were settled, and the court would hear no further evidence on these questions.

Owner contends- the parties, including the Department, reached an agreement as to the value of the land during an aside discussion which transpired while the Department was presenting its evidence as to land value. The Department vigorously denies such an agreement. Our review of the record shows no such specific agreement or stipulation by the Department. The record does disclose that the trial court and counsel for Owner and Lessee were of the view that an agreement had been reached with the Department as to land value. In this regard, we note the following in the record:

“COURT: Now, gentlemen, we have settled the issue of the land and the buildings, right?
LeBLANC (counsel for defendant-lessor) : Yes.
COURT: I don’t want to hear anything about it.
(Counsel for defendant lessee, Pendley, suggested that the court could consider the appraisal records of defendants’ witnesses, which were filed in the record, in determining the value of the land. The court interrupted him:)
COURT: I thought that you had agreed on that.
PENDLEY: Okay. Now, the second is the value — yes, I understand that.
COURT: That’s not an issue before the court. You agreed—
PENDLEY: Can I approach the bench for a minute, Your Honor ?
COURT: Yes
PENDLEY: Off the record
(Discussion off the record.)
PENDLEY: All right. Back on the record. So, the court has — the value of the land is set . . . ”

The Department concedes no objection was made to the foregoing colloquy, and explained its failure to object on the ground that its counsel believed the court had decided upon the land value and that further discussion of that issue would be futile. We note that the record contains various comments by the Department’s counsel which support this supposition. From the record as a whole, there is no justification for the conclusion that counsel for the Department agreed to a $10,000.00 land value as contended by Owner and Lessee.

It is the Department’s position that there is no evidentiary support for the trial court’s determination of a $10,000.00 land value, and that the only evidence of record concerning this issue is that of the Department’s own appraisers whose maximum valuation was $8,059.00. On this basis, the Department suggests the maximum award for land value cannot exceed Carlock’s appraisal of $8,059.00.

Our review of Williams’ testimony discloses that he made no attempt to value the land as such. All reference in his testimony concerning land value was a consideration of that factor only insofar as it related to his estimation of Lessee’s leasehold advantage. Although Williams’ appraisal report was introduced in evidence over the Department’s objection, Williams was not examined concerning land value.

As noted, Dupont merely verified his appraisal report which was likewise introduced in evidence over the Department’s objection. Dupont was not examined with respect to his estimate of land value appearing therein. It was merely stipulated that if Dupont did testify, he would testify to the valuations appearing in his report.

We find no support in the record for the trial court’s determination of a land value of $10,000. We likewise find that Owner, in reliance on the trial judge’s remarks in open court as to the finality of his opinion on land values, refrained from introducing expert testimony to establish Owner’s claimed value of the land. Since the burden is upon Owner to establish a claim of value greater than that attested by the Department’s experts, the ends of justice require a remand in this instance to afford Owner an opportunity to discharge this onus.

As to the value of Lessee’s leas-hold interest, our jurisprudence follows the general rule that a lessee is entitled to compensation for the amount of a leasehold advantage, which is the difference between the value of the lease at the time of expropriation and the lease rentals Lessee has contracted to pay. If the value of the lease is equal to or less than the agreed rental, no leasehold advantage is due Lessee. If the present value of the lease is greater than the contract rent, Lessee is entitled to the difference. Where leasehold advantage is due the Lessee, it is payable out of the total market value of the property awarded the landowner who has burdened his land with the lease, if the value of the landowner’s interest is determined on a basis including consideration of the economic value of the lease at the time of taking. In Re Morgan R.R. and S.S. Company, 32 La.Ann. 371 (1880); State, Through Department of Highways v. Holmes, 253 La. 1099, 221 So.2d 811 (1969); State, Through Department of Highways v. D & J Realty Company, Inc., 254 La. 1149, 229 So.2d 344 (1969); State, Through Department of Highways v. Thornton, 220 So.2d 217 (La.App.1969).

Our jurisprudence also recognizes an exception to the above general rule in that a lessee is disallowed recovery of compensation for the loss of a leasehold interest in those instances where the lease expressly provides for termination of the rental contract in the event of expropriation of the leased premises or a zoning change. See State, Through Department of Highways v. Sumrall, 167 So.2d 503 (La.App.1964); Lafayette Airport Commission v. Roy, 265 So.2d 459 (La.App.1972).

Owner and Lessee offered their own pa-rol testimony to show that neither intended the termination clause as a relinquishment of any rights either party may have had against third persons, and that they intended only to terminate the lease as between themselves to avoid dispute between them in the event the land were taken. The Department objected on the ground that the lease provision is clear and unambiguous, and therefore unalterable by parol evidence. Owner and Lessee vigorously attack Sumrall and Roy, above, on the ground that Sumrall cites no authority for its holding, and Roy simply accepts Sum-rail as established authority. Owner and Lessee contend that inclusion of a termination clause in a lease is merely a restatement of the rule contained in LSA-C.C. art. 2697, which provides that if a leased object is taken for a public purpose the lease is terminated, and therefore that such a lease provision is intended only to affect the rights and liabilities of the contracting parties as between themselves. The trial court permitted Owner and Lessee to testify concerning what they meant by the termination clause despite the Department’s objection. On appeal the Department complains of error in this regard.

We pretermit consideration of the effect of inclusion of the termination clause in subject lease. We do so because assuming, purely for argument’s sake, that» Lessee has not waived its right to claim a leasehold advantage, Lessee has failed to establish such an advantage in this instance.

The record establishes that Lessee was paying a contract rent of $100.00 monthly, which it had paid for approximately 17 years under a lease which had a remaining life of approximately 48 months. For Lessee to recover a leasehold advantage, Lessee must establish that the present value of the lease, or the economic rent, is greater than the contract rent, the difference between the two being the amount of his recovery.

The Williams and Dupont appraisals offered in evidence by Owner and Lessee each value subject property by fixing the land value based' on comparables, and the improvement value predicated upon replacement cost less depreciation. Williams’ report shows a land value of $11,193.00, and improvements value of $16,255.00, or a total of $27,448.00. Dupont’s appraisal indicates a land value of $12,560.00, and improvements value of $16,150.00 making a total of $28,710.00.

Neither the Department, Owner nor Lessee was permitted by the trial court to examine Williams and Dupont concerning their land and improvement valuations, apparently on the ground that the trial court believed the matter of land and improvement value had been agreed upon in compromise. The trial court restricted all litigants to questioning of these witnesses upon the manner in which they determined the value of a purported leasehold advantage.

Williams calculated the economic rent by utilizing the total valuation of $27,448.00 which he found for land and improvements, on the basis above indicated, and determining the amount of rent an owner must receive to recoup such an investment over a 25 year period. He determined that a normal mortgage with average interest over the period would amount to $195.00 per month. ■ To this he added $55.00 per month as a 1% per month owner equity return, which resulted in a total economic rent of $250.00 per month. He thus arrived at a leasehold advantage of $150.00 monthly over the contract rent of $100.00. He then calculated $150.00 per month at 12% compound interest over the remaining 48 months of the lease and discounted the figure thus reached, thereby attaining a present worth of the future rent advantage in the sum of $5,696.00. Williams offered no comparables to establish economic rent in this instance. Neither did he utilize income figures from the business being conducted on the subject premises to support the premise that subject property could in fact be rented for $250.00 per month. When interrogated on these factors, Williams conceded that economic rent is usually determined by the rent which leases of similar properties will bring on the present market, but stated he found no compara-bles in the White Castle area.

Dupont merely identified his appraisal which indicates that he found a leasehold advantage of $5,837.00 utilizing essentially the same process as Williams.

We deem it elementary that in a matter of this nature, economic rent may not be established simply by showing property valuation, and determining mathematically the amount of rent an owner must receive in order to reap an acceptable return on his investment. To establish economic rent, it must be shown with reasonable certainty what rental the property could actually produce if put on the lease market at the present time. This may be shown either by comparables, that is, what other similar properties in the general areas currently produce in rent, by the income approach, meaning what rent is justified by the present income production of the property, or by the establishment of other factors which demonstrate what the property is actually capable of producing in present rentals. State, Department of Highways v. Branch, 262 So.2d 547 (La.App.).

Lessee having failed to establish a leasehold advantage, the trial court’s award of $1,898.70 for this element of damages is erroneous and must be reversed.

In answering the Department’s appeal and claiming additional compensation, Owner contends it has suffered damages in the form of loss of rental income. Despite the Department’s objection, the trial court permitted Owner to introduce expert testimony concerning the present economic rental value of subject property in excess of the stipulated rent. It suffices to say that the measure of damages in expropriation cases is the fair market value of the land taken. Housing Authority of Shreveport v. Green, 200 La. 463, 8 So.2d 295. Loss of business and profits are not recoverable in an expropriation proceeding. Central Louisiana Electric Co., Inc. v. Covington & St. Tammany Land and Improvement Co., 131 So.2d 369, (La.App.), and cases therein cited. The loss of future rentals is a business loss. . We conclude that Owner is not entitled to damages for loss of future rentals of any nature whatsoever.

Owner’s and Lessee’s appraisers, Williams and Dupont, each submitted a statement in the sum of $850.00 for services rendered in preparing their respective appraisals, and also each indicated a daily charge of $200.00 for court appearance. The trial court fixed each said expert’s fees at $1,050.00, and taxed said amounts as costs to be paid by the Department. Neither expert gave any testimony concerning the amount ■ of time spent in preparing his report, and the reports themselves do not contain this important information. The Department urges that, under the circumstances, the trial court erred in fixing these expert witness fees.

The trial lasted one day. As noted above, neither Williams’ nor Dupont’s testimony was apparently offered in support .of land values. On the contrary, it appears that Owner and Lessor were of the view the trial court had decided the question of land value after the appearance of the Department’s experts, and that the testimony of Williams and Dupont was offered solely on the issue of claimed leasehold advantage by Lessee and Owner’s claim for loss of rentals.

Granting that a trial court is vested with discretion in the assessment of expert witness fees, nevertheless, such awards must be made in consideration of the amount of time involved and the degree of learning, skill and experience of each such expert witness. State, Department of Highways v. Salemi, 249 La. 1078, 193 So.2d 252. In this instance, the record shows only that Williams and Dupont spent one day each in court appearance.

Under the circumstances, we find the ends of justice will be best served by setting aside the awards made to said witnesses as expert witnesses’ fees. Since we must remand this matter for determination of land value, we find that the matter of expert witness fees can be reassessed by the trial court after said witnesses shall have given their testimony concerning land value, and presumably have given the court the information upon which such fees are customarily fixed.

It is ordered, adjudged and decreed that the judgment of the trial court awarding Owner damages in the sum of $10,000.00 for land taken, awarding Lessee damages in the sum of $1,898.70 for loss of leasehold advantage and awarding expert witnesses fees to appraisers Williams and Du-pont in the sum of $1,050.00 each, be and the same is hereby reversed and set aside.

It is further ordered, adjudged and decreed that there be judgment herein rejecting the claim of Lessee for alleged loss of leasehold advantage as against either the Department or Owner, and also rejecting the claim of Owner for alleged loss of future rentals.

It is further ordered, adjudged and decreed that this matter be remanded to the trial court for trial of the issue of the compensation due Owner for the land expropriated herein and the assessment of expert witnesses fees.

Affirmed in part, reversed in part, and remanded.


author: ELLIS, Judge:

text:
    Sidney TOBIN v. LOUISIANA STATE BOARD OF EDUCATION and Southern University of Louisiana.
    No. 10444.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    C. F. Duchein, III, Baton Rouge, for appellant.
    James P. Dore, Baton Rouge, for appel-lees.

      Before SARTAIN, ELLIS and PICKETT, JJ.
   ELLIS, Judge:

This is a suit for damages arising out of an alleged breach of contract. Plaintiff is Sidney Tobin. Defendants are the Louisiana State Board of Education and Southern University of Louisiana. After trial on the merits, judgment was rendered dismissing the suit, and plaintiff has appealed.

In March, 1969, plaintiff was employed teaching history at Southern University in Baton Rouge. Plaintiff held the degree of Master of Arts, and was in his sixth year as a teacher at Southern, where he held the rank of Assistant Professor. In a conference with Dr. Henry C. Cobb, Chairman of the Department of History and Geography, plaintiff told Dr. Cobb that he intended to pursue a Ph. D. degree in history during the academic year of 1969-1970. On March 19, 1969, Mr. Tobin wrote Dr. Cobb saying that he did not plan to work at Southern during the 1969-1970 academic year.

Plaintiff applied for admission to the graduate schools of Louisiana State University and the University of Texas. On or before May 1, 1969, plaintiff had either been rejected by both schools, or knew that he was going to be rejected. Shortly thereafter, plaintiff received a letter, dated May 1, 1969, reading in part as follows:

“President Netterville has authorized me to inform you that your employment for the 1969-70 Session has been recommended to the State Board of Education.
* * * * * *
“We are appreciative of the services that you rendered during the 1968-69 Session and we are hopeful that your professional services will be available during the ensuing year. Immediate knowledge of your availability will be appreciated.
“You may indicate your availability in the space provided below. Kindly sign and return the enclosed copy of this communication as soon as possible.”

At the bottom of the letter was a place for plaintiff to indicate whether his services would or would not be available to Southern for the coming year. Plaintiff did not sign or return the letter. When asked why he did not do so, he said:

“I thought that the letter did not mean too much. In other words I felt that I was making a commitment and the University was not making any commitment in the letter itself.”

Plaintiff testified that he had received a similar letter the year before, which he had not returned, and that he had eventually received his contract and taught at Southern. He further testified as follows :

“Q. Did this letter of May the first mean anything to. you insofar as your employment by Southern University or employment as a teacher at Southern University for the following school year was concerned; did you get all that?
“A. If I understand the thrust of the question, it meant that it was up to me whether or not — I mean Southern University was tendering to me a position and once I signed the letter it was an indication that a contract would be forthcoming.
“Q. Okay, but even though you didn’t sign the letter, did you still expect a contract to follow or did you not ?
“A. I still expected a contract to follow.
“Q. Why?
“A. Because it had followed in the past.”

In early August, 1969, plaintiff received a contract for the 1969-1970 school year, signed by the President of the University. Plaintiff signed it and returned it to the University within a few days.

In the middle of August, plaintiff testified that he had a brief chance meeting with Dr. Cobb at the post office at Southern. He testified that he told Dr. Cobb that he had received a contract. He could not recall Dr. Cobb’s response. Dr. Cobb had relinquished his post as Chairman of the History Department to Dr. Robert Moran at that time, and had no recollection of such a meeting.

On September 5, 1969, plaintiff called Dr. Moran to ask why he had not been called to return to work. Plaintiff testified that he was told he would be placed on the registration committee, but heard nothing further. Dr. Moran testified that he told plaintiff that he had not been called because he was not expected to teach during the coming year.

On September 10, 1969, plaintiff sent a telegram to the President of the University, asking if the University intended to honor the contract of employment. He received an answer the same day, from the Dean of the College of Arts, stating:

“Appears contract missent through clerical error. Department Chairman indicated your intention to return to school. Consequently, no courses assigned you this fall. Kindly inform me of your plans for further study.”

Shortly thereafter, plaintiff consulted counsel, and this suit followed.

Plaintiff testified that had he not received the letter of May 1, 1969, and the contract, he would have sought employment elsewhere. He stated that he did not do so because he relied on the contract with Southern University.

It is clear from other testimony in the record that both the letter of May 1 and the contract were sent in error; that plaintiff was not expected to teach in the 1969-1970 academic year, and that a replacement was obtained for him that year.

It is fundamental in our law of obligations that there can be no contract unless the wills of the parties thereto coincide. Article 1766 of the Civil Code provides that no contract is complete without the consent of both parties. Article 1797 of the Civil Code provides:

“When the parties have the legal capacity to form a contract, the next requisite to its validity is their consent. This being a mere operation of the mind, can have no effect, unless it be evinced in some manner that shall cause it to be understood by the other parties to the contract. To prevent error in this essential point, the law establishes, by certain rules adapted to the nature of the contract, what circumstances shall be evidence of such consent, and how those circumstances shall be proved; these come within the purview of the law of evidence.”

Article 1762 of the Civil Code states:

“The contract must not be confounded with the instrument in writing by which it is witnessed. The contract may subsist, although the written act may, for some defect, be declared void; and the written act may be good and authentic, although the contract it witnesses be illegal. The contract itself is only void for some cause or defect determined by law.”

Even when there has been an unequivocal communication of consent, in writing, as in this case, the obligations, arising therefrom may still not be enforceable if the consent has been produced by some vice. Article 1819 of the Civil Code provides :

“Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exercise of the will, it follows that there is no consent, not only where the intent has not been mutually communicated or implied, as it provided in the preceding paragraph, but also where it has been produced by — Error; Fraud; Violence; Threats.”

Parol evidence may be introduced to show the existence of the vices of consent. Sylvester v. Town of Ville Platte, 218 La. 419, 49 So.2d 746 (1950); Blackwell v. Nagy, 122 So.2d 903 (La.App. 1 Cir. 1960).

We think it clear from the evidence offered herein that Southern University sent the contract to plaintiff by mistake, and that it never intended to offer him a position on the faculty for the 1969-1970 academic year.

We are further of the opinion that, since plaintiff never advised the University of any change in his plans to further his education, he must have known that he was not expected to teach in 1969-1970. We find that his own consent to the contract was flawed, because when he signed the contract he knew or should have known that it did not represent the true intention of Southern University. If the wills of the parties concurred in anything, it was that plaintiff would not teach at Southern during the 1969-1970 academic year.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

Affirmed.


author: PICKETT, Judge:

text:
    Diane MITCHELL, Plaintiff-Appellee-Appellant, v. K-MART ENTERPRISES OF LOUISIANA, INC., Defendant-Appellant-Appellee.
    No. 10443.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Frank M. Coates, Jr., Baton Rouge, for de f endant-appellant-appellee.

      Walter C. Dumas, Baton Rouge, for plaintiff-appellee-appellant.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   PICKETT, Judge:

This is a workmen’s compensation suit. On November 17, 1973, Diane Mitchell sustained injuries while in the course and scope of her employment with the defendant, K-Mart Enterprises of Louisiana, Inc. (“K-Mart”). The occurrence of the accident is not disputed.

The District Court found that plaintiff was able to return to work on December 6, 1973, and awarded compensation benefits accordingly. However, plaintiff continued to incur medical expenses thereafter and the Court also awarded the full stipulated total thereof in the amount of $910.62, with the following statement:

“The Court feels that this is an excessive atnount in view of the overall injuries. The Court is satisfied that this treatment flowed from and was a direct result of the accident even though the period of disability was very brief. Under the Workmen’s Compensation Law - the employer is responsible for all medical bills incurred, even though the person’s employee, the plaintiff, has recovered essentially and is able to return to work, so to that extent the Court is satisfied she should be entitled to this amount.”

Both parties have appealed. Plaintiff contends that the Trial Court should have found a longer period of disability, in view of the period for which medical expenses were awarded. Both contentions assume that a finding of a person’s entitlement to compensation benefits necessitates a finding of entitlement to medical expenses for the same time period, and vice versa. However, as this Court held in Welch v. Clemons Brothers Lumber Company, 262 So.2d 79 (La.App. 1st Cir. 1972), the right to medical expenses is separate and distinct from the right to compensation benefits. In many cases, an injury sustained in a covered accident may necessitate medical services even though the injury may not prevent the employee from returning to his normal duties.

The .Court finds, however, that the award of medical expenses must be limited to those shown to have been made necessary by the accident. LSA-R.S. 23:1203 provides in part as follows:

“The employer shall in every case coming under this Chapter, furnish all necessary medical, surgical, hospital services and medicines or any nonmedical treatment recognized by the laws of this state as legal, not to exceed the total sum of twelve thousand five hundred dollars, except in cases of undue and unusual hardship as hereinafter provided, unless the employee refuses to allow them to be furnished by the employer.”

As noted hereinabove, the district court reached the general conclusion that the medical expense claimed by plaintiff as recoverable “flowed from and was a direct result of the accident.” In the absence of evidence to the contrary, we would agree that plaintiff’s own testimony is sufficient to justify the court’s conclusion in this case.

However, with respect to one particular instance, the visit to Dr. William M. Moody on January 5, 1974, the evidence is in fact to the contrary. Dr. Moody testified that he examined the plaintiff on six occasions prior to that date for complaints of stiffness and pain in the neck and head. (In plaintiff’s accident, she was struck in this area by a falling object.) With respect to the visit of January S, 1974, Dr. Moody testified as follows:

“She was complaining of some headache at the time and talking to her I could see that she was nervous and upset and I very frankly told her that — asked her if she wasn’t nervous and she said, yes, she was, and I said, ‘I think at this time here that the headache you have is a tension headache due to nerves rather than that from the wreck.’ ” (Transcript, pp. 30-31.)
í(í Jfc * * * *
“No, I think this was a tension-type headache at that particular time and which was not due to the accident.” (Transcript, p. 33.)

In our opinion this medical testimony shows affirmatively that the expenses incurred on January Sth, 1974, were not made “necessary” by the covered accident and were in fact due to another particular cause. Thus, these expenses are not recoverable under LSA-R.S. 23:1203.

The record does not disclose the amount of medical expenses attributable to this office visit, but it is clear that the defendant is entitled to a credit for this amount against the total of the trial court’s judgment.

Accordingly, the judgment appealed from is affirmed, less and except a credit in favor of the defendant for the medical expenses attributable to the office visit of January 5, 1974, to Dr. Moody, which were erroneously included in the aggregate or total award by the trial court.

Appellant and appellee are cast for costs in equal proportions.

Affirmed.


author: WATSON, Judge.

text:
    Joseph BABINEAUX et al., Plaintiffs-Appellants, v. UNITED STATES FIDELITY & GUARANTY COMPANY et al., Defendants-Appellees.
    No. 5126.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      Joseph J. Piccione, Lafayette, for plaintiffs-appellants.
    Pugh, Boudreaux & Gachassin by Nicholas Gachassin, Jr., Lafayette, for defendants-appellees.
    Before DOMENGEAUX, WATSON and MORRIS, JJ.
   WATSON, Judge.

Plaintiff, Joseph Babineaux, filed suit individually and on behalf of his 17-year-old minor son, Randy Babineaux, to recover for injuries and medical expenses sustained as a result of Randy’s being struck by a Winnebago camper-bus on September 5, 1973. It was stipulated that the Winnebago was being driven by defendant, Glenn H. Tanner, in the course and scope of his employment with defendant, Gator Hawk External Testers, Inc., and that the vehicle and the employer had liability insurance coverage with defendant United States Fidelity & Guaranty Company. Limits under the policy of $100,000 per person were also stipulated.

The trial court found Randy Babineaux’s negligence to be the “sole and proximate” cause of the accident and dismissed the suit. (TR. 234).

Plaintiff has appealed from the adverse judgment, alleging in essence that the trial court erred in not finding defendant Tanner negligent, contending that:

(1) the accident occurred at a crosswalk within the meaning of LSA-R.S. 32:212;
(2) Tanner was obliged to yield the right-of-way to a pedestrian in a school zone;
(3) Tanner was proceeding at an unsafe speed;
(4) Tanner was obligated to anticipate the discharge of a passenger from the city bus stopped ahead of him; and
(S)there was gross negligence on the part of Tanner.

This being basically a factual case, the issue on appeal is whether the trial court committed manifest error in its conclusions of fact. Wiley v. Travelers Insurance Co., 300 So.2d 555 (La.App. 3 Cir. 1974), writ den. 303 So.2d 187 (La.1974); Vaughn v. Earthly, 313 So.2d 347 (La.App. 3 Cir. 1975), writ den., 318 So.2d 52 (1975).

Therefore, we will briefly review the testimony presented.

Defendant Tanner testified that he was familiar with the intersection of Ar-nould Boulevard and West Congress Street in Lafayette where the accident occurred. He was proceeding east on West Congress Street, a four-lane street. He knew of Lafayette Senior High School on West Congress Street and the city bus stop at the intersection. He had noticed the school crossing signs at the intersection and the speed limit sign of 25 miles per hour on West Congress Street about two blocks south of the intersection. At the time of the accident, there was a light rainfall and the street was wet. He had his windshield wipers on. The accident occurred as the Winnebago was passing a city bus which had come to a stop in the outer righthand lane of travel; the bus was proceeding in the same direction. Tanner further testified that he was traveling between 20 and 25 miles an hour and he did not remember whether he saw a passenger moving inside the bus on his way out of the bus nor did he know whether he looked to see if anyone were getting off the bus. Tanner said he first saw Randy as a blur coming out from the front of the bus; the boy moved from two to four feet before he struck him. Randy was struck by the right corner of the Winnebago.

Officer Gerald W. Lantz, an employee of the Lafayette City Police Department, testified that he investigated the accident in question, arriving at the scene at approximately 11:49 a. m. It was raining and wet. When he arrived at the scene, the Winnebago was partially in the intersection. Randy Babineaux was lying some 21 feet away from the Winnebago and approximately 144 feet from the impact area. The school zone speed was not in effect at the time of the accident, and the speed limit was therefore 35 miles per hour.

Gilford Chaisson testified that he was driving the city bus on the occasion of the accident. Randy Babineaux was a passenger on the bus sitting in the rear. He had come to the front prior to the stop and was standing there waiting to get off. He left from the righthand front door of the bus. He then crossed in front of the bus at a fast walk or “trot”. No one else got off at the stop. Chaisson did not see the Winnebago before the collision. There was no horn blown. After the accident, Chaisson saw Randy Babineaux’s body sliding on the concrete. The Winnebago was also sliding at an angle through the intersection.

Randy Louis Babineaux testified that he was a student at Lafayette High School in the 12th grade. The accident occurred close to noon and Randy was on his way to his first class at 12:30. The accident occurred on West Congress Street in front of the school. Prior to the accident he had been sitting in the back of the bus but he got up and moved to the front before the bus stopped and then walked around in front of the stopped bus. He claimed he looked to the left before crossing but did not see anything. He was walking fast but not trotting. He did not hear a horn prior to the accident. He remained in the hospital 13 days and had an operation for a broken rib and ruptured spleen. He then remained under the doctor’s care for three more weeks and returned to school in November. Randy completed high school by going to summer school the following summer. He has various scars from the accident.

Alvin Doyle, Jr. was accepted by the court as an expert automotive accident consultant. He inspected the accident scene and testified that in his opinion the Winnebago had a probable speed of 45 to 40 miles an hour.

On the basis of the testimony presented the trial court found that Randy Babi-neaux failed to stop and look before crossing in front of defendant Tanner; that Tanner was driving at a lawful rate of speed in his proper lane of travel; and that Tanner could not have avoided the accident. The trial court concluded that the “sole and proximate” cause of the accident was Randy’s failure to stop and look before crossing West Congress Street.

We find that the record amply supports the trial judge’s conclusions of fact. There is no question that Randy was negligent and that his negligence was at least a contributing, and perhaps the sole, cause of the accident. Tanner’s possible negligence presents a closer question but we find no manifest error in the trial court’s resolution of the case.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against plaintiff-appellant.

Affirmed.

      . Although Bandy reached the age of majority during the course of the litigation, he has never been made a party-plaintiff; however, no issue has been made of this omission.