author: GULOTTA, Judge.

text:
    CITY OF NEW ORLEANS v. Elvira Louise Wiener, wife of/and Lewis A. GIRAUD.
    No. 8027.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Phillip S. Brooks, Henry W. Kinney, III, New Orleans, for plaintiff-appellant.
    Salvador M. Cusimano, Thomas L. Gi-raud, New Orleans, for defendant-appellee-cross appellant, Elvira Louise Wiener.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

In March, 1975, the City of New Orleans brought this expropriation suit for property required in the Crowder Road and Chef Menteur Highway grade separation project. Both parties appeal the trial court’s award for property taken and for severance damages. Defendant further seeks an increase in the $3,500.00 award for attorney’s fees.

The property in question used or otherwise affected by the proposed construction project is an area of vacant land situated at the intersection of Crowder Road and Chef Menteur Highway in the City of New Orleans. The area of land actually to be used by the expropriating authority measures 84,450.6 square feet.

In addition to the property actually taken, contiguous property owned by defendant is adversely affected by the construction project. A “control of access” (a chain link fence or some other form of restraint) will be permanently constructed along the border of the property actually used and for an additional distance of 247.08 feet along the eastern side of Crowder Road. (See the segment P-Q on Appendix 1.) This control of access severely curtails the ingress and egress to 53,842 square feet of property owned by defendant directly adjacent to the property taken. (See areas designated D and E on Appendix 1.) Following completion of the project, this portion of ground will no longer front on Crowder Road, and ingress and egress to it can only be accomplished from other property fronting on the thoroughfare. Accordingly, severance damages were awarded by the trial judge with regard to this portion of land adversely affected by the control of access.

Though the parties do not dispute the total area of property actually taken and the total area adversely affected by the project, they disagree on three major issues: 1) the location of the zoning line dividing the property taken (or adversely affected) into commercial and residential portions; 2) the unit value to be placed on the land taken (or adversely affected) based on a market data approach using comparable sales; and, 3) the propriety of an award for severance damages in excess of the value of the property adversely affected.

LOCATION OF ZONING LINE

The property in question is traversed by a zoning line running from East to West and dividing the land into residential and commercial portions. Land to the south of the zoning line is zoned C-l (commercial), whereas the land to the north of the line is zoned RS-2 (residential). (See Appendix 1.) Defendant contends that a line running from point A to point Y in Appendix 1 accurately reflects the zoning line as pictured on the official zoning map of the City of New Orleans. Plaintiff, on the other hand, contends that line AZ, as pictured on Appendix 1, is a true representation of the official line. The location of the zoning line determines the proportion of RS-2 and C-l property taken and property subject to severance damages.

The City, in support of its claim on the location of the zoning line, offered the testimony of John Luecke, surveyor, who stated that in drawing the line he first referred to the official zoning map of the City of New Orleans, from which he located two points on the zoning line on either side of the subject property. The official zoning map line, according to Luecke, runs from the mid-point of Tulsa Street on the eastern side of the subject tract to a point at the intersection of Lot F and Lot 1 (marked on Appendix 1) on the western side of Crowder Road. He established the zoning line by connecting these two points. (See . line AZ on Appendix 1.) This line would run 500 feet north of Chef Menteur Highway.

Defendant’s expert, John E. Walker, a civil engineer, used a different method to establish the zoning line. Employing the scale as shown on the official zoning map, he determined that the zoning line intersects with the easternmost portion of the lots fronting on Flake Avenue at a distance of 600 feet north of Chef Menteur Highway. Following the “dimensional control” or scale method rather than the “point-to-point” method employed by the expropriating body, Walker located the zoning line by connecting the mid-point of Tulsa Street to the point (Y) 600 feet north of Chef Ment-eur Highway. (See line AY in Appendix 1.)

In his reasons for judgment, the trial judge stated, “The Court is convinced that the .survey of Mr. Walker correctly locates the line which separates the C-l zoned area from the RS-2 zoned area.” Though it is true, as pointed out by the City, that the line established by Luecke is consistent with the official zoning map insofar as it con-meets the points as shown therein (the midpoint of Tulsa Street on the East and the lot line of Lot F on the West), the line established by Walker is consistent with the scale of the official zoning map.

Furthermore, Harold R. Katner, Director and Secretary of the City Planning Commission of the City of New Orleans, produced the official zoning map on which the distance from Chef Menteur Highway to the property line of Lot 1 is designated as 598 feet. Point Y of Walker’s line, located 600 feet north of Chef Menteur Highway, more closely approximates this distance than does point Z of Luecke’s line, located 500 feet north of the highway. Katner’s testimony is consistent with the location of the zoning line as determined by Walker. This witness further testified that zoning lines generally follow street rights-of-way and that Walker’s line follows the Tulsa right-of-way. Apparently the trial judge felt that Walker’s line was more consistent with the official zoning map than Luecke’s line despite the fact that the former does not intersect the physical points shown on the map. The evidence considered, we cannot say he erred. We conclude, therefore, as did the trial judge, that the line established by Walker (line AY in Appendix 1) correctly reflects the zoning line dividing the property into commercial and residential areas.

VALUE OF PROPERTY EXPROPRIATED

Several appraisers testified during trial and submitted appraisal reports relative to the value of the commercial and residential areas expropriated.

Eugene Aschaffenburg, an appraiser who testified on behalf of the City, was of the opinion that the commercial portion of the property taken was worth $3.30 per square foot to a depth of 250 feet north of Chef Menteur Highway. He evaluated the remainder of the commercial portion beyond that depth at $2.10 per square foot. He appraised the residential portion at $1.28 per square foot. In evaluating the commercial portion, Aschaffenburg testified that the square footage values of long, narrow commercial tracts decrease in proportion to the distance from the street upon which the property fronts. He considered the subject property to be such a tract and employed a “depth chart” of values. In preparing the chart, he examined comparable sales of commercial tracts along Chef Menteur Highway. In arriving at the two values corresponding to the commercial property north and south of the arbitrary 250-foot line, however, Aschaffenburg stated that he made favorable upward adjustments in value because defendant’s property is situated on the corner of two major thoroughfares. In appraising the residential portion, he used comparables in the Castle Manor subdivision which is located to the east of the subject property and bordered on the south by Chef Menteur Highway.

The comparable sales of both residential and commercial properties used by Aschaf-fenburg dated as early as 1963. He stated, however, that values along Chef Menteur were either stable or decreasing. His appraisal report, completed in early 1972, is based on the Chef Menteur Highway influence on the property and comparables located on Chef Menteur or in close proximity to that highway.

V. G. Bob Warner, another expert testifying on behalf of the City, followed essentially the same method used by Aschaffen-burg in evaluating the commercial and residential property. He arrived at a value of $3.20 per square foot for the commercial property to a depth of 250 feet north of Chef Menteur and $2.00 per square foot for the portion beyond that depth. He appraised the residential property at $1.33 per square foot. He, like Aschaffenburg, considered the Chef Menteur Highway to be the dominant factor influencing the value of the subject property. His appraisal was completed on April 1, 1972.

Appraisers who testified on behalf of defendant, however, viewed the paramount factor influencing the value of the property to be its frontage on Crowder Road. These appraisers, who completed their reports in 1975, used comparable commercial and residential sales of property fronting on Crow-der Road in the vicinity of Lake Forest Boulevard and Interstate Highway 10, approximately .8’s of a mile from the subject property. There are no comparables along Crowder Road closer to the subject property-

Using these Crowder Road comparables, Jim Maloney appraised the commercial portion of the property to be taken at $4.50 per square foot. The comparable sales cited by Maloney in his report occurred during the period from 1973 through 1975 and ranged (discounting the lowest and highest sales) from $2.50 per square foot to $5.50 per square foot. In arriving at his appraisal of the commercial portion, Maloney, while recognizing the dominant influence of Crowder Road and the trend in development toward defendant’s property, stated in his report that his appraisal of $4.50 per square foot is “about $1.00 a square foot less than the going rate on Crowder and Lake Forest Boulevard — the center of activity at this time.” He testified that some downward adjustment was made in consideration of the distance between the commercial portion of defendant’s property and the I-10-Lake Forest Boulevard hub of activity. Maloney indicated, however, that defendants’ property is the only commercial property fronting on Crowder Road between the I — 10 activity and the Chef Ment-eur Highway. This expert further pointed out that property located at the comer of Crowder Road and Chef Menteur Highway (Parcel 4-1 on Appendix 1) was purchased at $5.84 per square foot in 1974. This property, according to Maloney, is of less utility than defendant’s property.

The comparable sales of residential property used by Maloney are also in the Lake Forest Boulevard area and are subject to the influence of Crowder Road. They ranged in value from $1.11 to $2.03 per square foot. He placed a value of $1.50 per square foot on the residential portion of the subject tract.

John Burke, another expert who testified on behalf of the property owners, arrived at appraisal figures of $4.40 per square foot for the commercial portion and $1.40 per square foot for the residential. He also considered the I-10-Lake Forest Boulevard area of Crowder Road to be the dominant influence on the value of the property and used essentially the same comparables as Maloney.

In expropriation cases, the property owner is to be compensated at the market value of the property taken according to its highest and best use. State, Through Department of Highways v. Hoyt, 284 So.2d 763 (La.1973); State, Department of Highways v. Covington Interstate, Inc., 295 So.2d 828 (La.App. 1st Cir. 1974), writs denied, 299 So.2d 800, 801, 802 (La.1974). Market value is determined as of the date of the taking. State, Department of Highways v. Trippeer Realty Corporation, 276 So.2d 315 (La.1973); State, Department of Highways v. St. Tammany Homestead Association, 304 So.2d 765 (La.App. 1st Cir. 1974), writ refused, 307 So.2d 373 (La.1975). In the instant case, the time of the taking is the date of the institution of the expropriation suit; i. e., March, 1975. Louisiana Power & Light Company v. Simmons, 229 La. 165, 85 So.2d 251 (1956); State, Through Department of Highways v. Levy, 242 La. 259, 136 So.2d 35 (1962). In ascertaining the market value, much discretion is given to the trial judge in weighing the testimony of experts, and his finding of value based on such expert testimony will not be disturbed unless clearly erroneous. State, Department of Highways v. Browning, 315 So.2d 784 (La.App. 1st Cir. 1975); City of Baton Rouge v. Allied Chemical Corporation, 308 So.2d 295 (La.App. 1st Cir. 1975).

The evidence considered, we cannot say that the trial judge has abused his discretion in accepting the Maloney appraisal and rejecting the values presented by the City’s appraisers. The property in question fronts on Crowder Road and is in close proximity to the area of development from which the Maloney comparables were obtained. In his reasons for judgment, the trial judge indicated that rapid development has taken place during 1973 and 1974 along Crowder Road in the vicinity of I — 10. He further noted that the appraisals made by the City’s experts were based on comparable sales made in 1972 or earlier along Chef Menteur Highway and did not reflect the rapid development and rise in property values along Crowder Road. On the other hand, the Maloney report completed in 1975, the year in which the expropriation suit was filed, more accurately reflects, according to the trial judge, the development and more closely approximates the value of the subject property at the time of the taking. We conclude the evidence provides a substantial factual basis for the trial judge’s decision to reject the values presented by the City’s appraisers and to adopt the findings of the more recent Malo-ney report. Accordingly, we find no error in the trial judge’s award of damages for property taken.

We reject defendant’s request for an increase in the value of the commercial property taken. The basis of defendants’ claim for an increase is the fact that $5.84 per square foot was paid by the expropriating authority to the adjacent property owner for Parcel 4-1. According to defendants, under the due process and equal protection provisions of the U.S. and Louisiana Constitutions, they are entitled to be compensated at the same square footage value. We find no merit to this argument.

Market value is defined as the price agreed upon at a voluntary sale between a willing seller and a willing purchaser under usual and ordinary circumstances. Parish of Iberia v. Cook, 238 La. 697, 116 So.2d 491 (1959); Central Louisiana Electric Co. v. Mire, 140 So.2d 467 (La.App. 1st Cir. 1962). Value of a particular piece of property is affected by size, shape, location, time of purchase, utility of the property and other relevant factors. Merely because one property owner receives a certain price does not necessarily presuppose that other property owners in the vicinity are entitled to receive the same price. Depending upon several factors, the price may be higher or lower. Sales of property similarly situated to the subject property may be relevant as comparables used in evaluating the subject property to be expropriated, but cannot serve as a basis for invoking the due process and equal protection provisions of the U.S. and Louisiana Constitutions as argued by defendant.

SEVERANCE DAMAGES

The trial judge awarded the sum of $144,-061.00 as severance damages to the 13,214 square feet zoned C-l and 40,628 square feet zoned RS-2 remaining. As previously stated, these damages result from the curtailment of ingress and egress occasioned by the control-of-access fence to be constructed along Crowder Road.

In awarding damages, the trial judge relied upon figures presented in the Maloney report. The trial court’s total severance damage award contemplates diminution in value and cost to cure, i. e., use of additional property for access, use of property for a roadway and the expense of constructing the roadway. General agreement exists that the remaining residential property has virtually no value, for severance purposes, unless costs are incurred to cure the property as outlined in the Maloney report.

However, the City contends the trial judge erred in awarding damages with regard to the residential portion remaining in excess of the value of this property prior to the taking. When such damages (including the cost to cure) exceed the value of the property before the taking, the City argues that it should be adjudicated ownership of the remaining property damaged by the taking upon payment of its value before the taking.

In State, Department of Highways v. Mason, 254 La. 1035, 229 So.2d 89 (1969), cited in the City’s brief, the court stated:

“ * * * The ‘cost to cure’ concept has been brought into our appellate court jurisprudence apparently by various expert appraisal witnesses, and some appellate courts have adopted it without referring to it as a ‘cost to cure’ theory. If such an approach has relevance to the measure of damages, it should only be employed to demonstrate a diminution in market value resulting from the partial taking . . ..***”

See also State, Department of Highways v. Oil Mark Corporation, 324 So.2d 606 (La. App. 2d Cir. 1975), writ denied, 326 So.2d 380 (La.1976). Because the cost to cure in our case is in excess of the value of the residential portion prior to the damage, we consider the severance damage to be 100% of the pre-expropriation value. Accordingly, we conclude that the trial judge was in error in awarding damages in excess of this value.

We find no merit, however, to the City’s contention that the property adversely affected should be adjudicated to the expropriating body. Clearly established is the rule that only property that is reasonably necessary for the public purpose is to be expropriated. LSA-Const.1974, Art. I, Sec. 4. Parish of Iberia v. Cook, supra; Central Louisiana Electric Co. v. Covington & St. Tammany Land & Improvement Co., 131 So.2d 369 (La.App. 1st Cir. 1961). It is undisputed that the remaining commercial and residential property upon which severance damages were allowed by the trial judge is not needed in the grade separation project.

Total reliance by the trial court on the Maloney figures, in connection with severance damages, is misguided.

COMMERCIAL

Maloney stated that the remainder zoned C-l worth $4.50 per square foot, before the taking, will be reduced in utility, after the taking, from commercial to residential use and that the triangular shape of the remainder will further reduce its residential value from $1.50 per square foot to $1.20 per square foot. On the basis of these before-and-after values, he calculates the damage to the commercial remainder as $43,606.20. However, as indicated by the trial judge, the experts are in general agreement that the residential property sustained 100% severance damage. Further, we find no error in the trial court’s acceptance of the value (before the taking) of the remaining residential property at $1.50 per square foot, as determined by Maloney. Because the commercial property has been reduced in utility, according to Maloney, from commercial (before the taking) to residential (after the taking) and the residential property has sustained 100% severance damage, the severance damage for the remaining commercial property requires assessment based on 100% severance damage. Accordingly, the severance damage for the remaining commercial property amounts to 13,214 square feet multiplied by $4.50 per square foot, or a total of $59,-463.00.

RESIDENTIAL

Maloney calculates the severance damage to the residential portion remaining as $100,454.90. According to Maloney, the residential portion of the tract behind the control-of-aecess fence can only be developed by constructing a cul-de-sac or dead-end street with access to Crowder Road through other residential property owned by defendant north of the control-of-access point. The cost of access will be $28,165.50; the cost of the street will be $47,000.00; and, the loss in value of the residential tract will be $25,289.40 (the loss in value occasioned by transformation of otherwise salable residential land into the cul-de-sac and by the change in configuration of the remaining land).

Because the cost to cure the remaining residential property exceeds 100% severance damages, defendant is entitled only to the amount of 100% of value, before the taking. The trial judge erroneously based the residential severance damage award on the cost to cure and not on 100% severance. We reduce this award. One hundred per cent severance damage to the 40,628 square feet of remaining residential property at $1.50 per square foot totals the sum of $60,942.00. Accordingly, total severance damages (to both the commercial and residential areas) are reduced from $144,061.00 to the sum of $120,405.00. The award in the sum of $379,602.00 in damages for the property taken is affirmed.

We likewise affirm the trial court’s award of $3,500.00 in favor of defendant as reasonable attorney’s fees. The increase requested by defendant is not supported by evidence which would lead us to conclude that there has been an abuse of the trial court’s broad discretion in setting the award.

In all other respects, the judgment of the trial court is affirmed.

AMENDED AND AFFIRMED.

      . The purpose of the project is to elevate and extend Crowder Road across Chef Menteur Highway, Louisville & Nashville Railroad and Gentilly Highway to Almonaster Avenue. The property which is the subject of this suit is needed for the construction of a half-clover-leaf interchange at the intersection of Crowder Road and Chef Menteur Highway.

      . Designated as Area B and Area C comprising Parcel 4-2 on Appendix 1 attached. The property measures 194.09 feet on Chef Menteur Highway by a width in rear on a curved line of 267.46 feet by a depth on one side of 402.44 feet and on the opposite sideline (nearer to Crowder Road) of 645.09 feet.
      Appendix 1 is an exhibit introduced into evidence. For purposes of clarity, we have superimposed on the exhibit (Appendix 1) the following additional designations: Lot F, Lot 1, P, Q, Y, Z, Area B, Area C, Area D, Area E and Parcel 4-1.

      .The placement of the zoning line (AY) as contended by defendant results in the following characterization: Area B (C-l actually taken) = 84,309.2 square feet; Area C (RS-2 actually taken) = 141.4 square feet; Area D (C-l property severed and denied access) = 13,214.0 square feet; and, Area E (RS-2 property severed and denied access) = 40,628.0 square feet. On the other hand, placement of the zoning line (AZ) as argued by the City of New Orleans results in the following ratios: Area B (C-l actually taken) = 83,217.1 square feet; Area C (RS-2 actually taken) = 1,233.5 square feet; Area D (C-l property severed and denied access) = 7,856.0 square feet; and, Area E (RS-2 property severed and denied access) = 46,-700.0 square feet.

      . Lot 1 and Lot F intersect 500 feet north of ■ Chef Menteur Highway. Nevertheless, the zoning map designates this distance as 598 feet. The trial judge, in written reasons, acknowledged the existence of “some possible discrepancies on the Official City Zoning Map”. Nevertheless, he concluded that Walker’s line was consistent with the scale and the designated dimension on the official map. The judge further noted that the proper method for correcting any error on the official map is through an ordinance passed by the City Council of New Orleans.

      . U.S.Const. Amend. 14, Sec. 1; LSA-Const. 1974, Art. I, Sec. 2 and Sec. 3.

      . Maloney computes the pre-expropriation value of the remaining residential property at $62,789.40. Multiplying his $1.50 per square foot valuation of the residential property by the remaining residential area (40,628 square feet), we calculate the value of the residential portion adversely affected as $60,942.00.

      . Severance damages to 13,214 square feet zoned C-l amounts to $59,463.00. Severance damages to 40,628 square feet zoned RS-2 amounts to $60,942.00. Total, $120,405.00.

      .Property taken — 84,309.2 square feet zoned C-l at $4.50 per square foot amounts to $379,-391.40. 141.4 square feet zoned RS-2 at $1.50 per square foot, according to Maloney, amounts to $210.40. Total, $379,602.00.


source: Caselaw Access Project

license: Public Domain

text:
    John W. DUSSOUY and Ralph H. Long v. FIREMAN’S FUND INSURANCE COMPANY, Zurich Insurance Company, B & E Truck Service, Inc. and Cardinal Construction Company, Inc.
    No. 8553.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Anthony C. D’Antonio, New Orleans, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer & Matthews, Vance E. Ellefson, New Orleans, for defendants-appellees, Zurich Ins. Co. and B & E Truck Service, Inc.
    Loeb & Livaudais, Marcel Livaudais, Jr., New Orleans, for defendants-appellees, Fireman’s Fund Ins. Co. and Cardinal Const. Co., Inc.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

Plaintiffs, owners of a building, seek recovery for reduction in value of the building, loss of business and $150.00 damage to the plaintiffs’ sidewalk which resulted when the building was struck by a backhoe tractor owned by defendant B & E Truck Service, Inc. and leased to defendant Cardinal Construction Company, Inc. After trial on the merits, during which defendants rested without offering any evidence, the trial judge awarded to each plaintiff the sum of $150.00 for the cost of the sidewalk repairs.

On October 17, 1974, a backhoe collided with the side of plaintiffs’ brick building located at 1465 North Broad in the City of New Orleans. When a representative of plaintiffs, John W. Dussouy, Jr., arrived on the scene during the night, he found the machine running and the key in the ignition. After the engine was stopped, the key was placed in the possession of Dus-souy.

On the following morning, a superintendent for Cardinal Construction Company and a man who identified himself as an employee of B & E Equipment who operated the backhoe appeared at the office of J. W. Dussouy Company, Inc., obtained the key and removed the machine. The backhoe was being used in the erection of a filling station across the street from plaintiffs’ building. Cardinal Construction was the general contractor and B & E Truck Service was the subcontractor on this construction job. No evidence was offered at trial regarding who, if anyone, was operating the backhoe at the time it struck the building.

The impact created a hole in the side of the building and necessitated repairs in the sum of $2,419.91, paid by plaintiffs’ homeowner insurer. Replacement brick identical in color to the existing brick was unavailable and repairs were made using brick of a different color. Arthur J. Brandon, Jr., a building contractor who testified on behalf of plaintiffs, stated that the building could only be restored to its preaccident condition by replacing all the bricks at a cost of $16,355.94. John R. Komidor, an appraiser who testified on behalf of plaintiffs, stated that the value of the building following the accident was reduced by $9,600.00 as a result of the mismatched brick.

In this appeal, plaintiffs contend that the uncontradicted testimony of their witnesses indicated that the permanent loss in value of the building amounted to either $16,-355.94, the cost to rebrick the building, or $9,600.00, the depreciated value of the building resulting from the damage caused by the tractor. According to plaintiffs, this testimony was unrebutted and the trial court erred in failing to award to plaintiffs one of the two aforementioned amounts in damages.

Defendants, on the other hand, claim that plaintiffs failed to show by a preponderance of the evidence that they are liable for the damages to plaintiffs’ property. According to defendants, the only evidence relating to liability offered by plaintiffs was testimony that one of the plaintiffs was notified during the night by a police officer that the property was damaged and that a representative of one of the defendant companies appeared at plaintiffs’ office to obtain the key to the tractor which had been apparently placed in plaintiffs’ possession on the night of the occurrence. It is defendants’ position that this evidence standing alone is not sufficient to show negligence and causation on the part of defendants, nor is sufficient to establish or create an inference of negligence under the doctrine of res ipsa loquitur. We do not agree.

Well-settled, not requiring citation, is the rule that plaintiff is charged with the burden of proving negligence and causation by a preponderance of the evidence, either direct or circumstantial. In Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971), the Louisiana Supreme Court, in considering the test of sufficiency of evidence in a circumstantial evidence case, citing Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395 (1963), said:

“ * * * Whatever the descriptive term used, however, proof by direct or circumstantial evidence 'is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.”

See also A & M Pest Control Service, Inc. v. Fejta Construction Co., Inc., 338 So.2d 946 (La.App. 4th Cir. 1976); Hanover Insurance Company v. Jacobson-Young, Inc., 294 So.2d 564 (La.App. 4th Cir. 1974).

When we consider the evidence offered by plaintiff on defendants’ negligence and causation, absent contradictory evidence, we find no error in the trial court’s conclusion that defendants are liable for the damage sustained by plaintiffs as a result of the backhoe’s striking the building.

We find no merit, however, to plaintiffs’ contention that the trial judge erred in failing to award any damages for loss of value to the building. The evidence considered, we conclude, as did the trial judge, that plaintiffs simply have not shown any loss in value.

Though it is true that Brandon testified that every brick in the building must be replaced in order to establish uniformity of color, this witness also stated that the replacement brick is of the same size as the existing brick and that there are no leaks or structural damage to the building as a result of the accident. He stated with the exception of the difference in color of the brick, the repairs to the building were properly and correctly made. Brandon’s testimony was that the $16,355.94 estimate was the cost to replace all the bricks in the building in order to restore uniformity of color of the brick. He did not testify as to the amount of loss in property value caused by the use of slightly different colored brick in the repairs.

The trial judge, in oral reasons at the conclusion of the testimony, stated:

“ * * * I don’t see any evidence to substantiate the plaintiff’s [sic] claim for any damage to the building other than what you have been reimbursed for. I can’t give you a judgment based on somebody’s estimate to put new bricks all around the building unless there is something showing that the building is depreciated. * * * ”

Though Komidor was accepted as an expert in appraisal, the trial judge rejected this witness’s estimate of $9,600.00 depreciation to the building as a result of the accident. We find no error on the part of the trial judge in not according any weight to this witness’s testimony. The reasons assigned by this appraiser for arriving at the depreciated figure were vague and unsupported. The trial judge properly concluded, “This figure of $9600.00 is something out of the air.”

In view of the well-settled rule that an expert’s opinion may be disregarded if he fails to support his opinion with reasons, we conclude the trial judge properly disregarded Komidor’s testimony. See Dixie Pipeline Company v. Barry, 227 So.2d 1 (La.App. 3d Cir. 1969), writ refused, 255 La. 145, 229 So.2d 731 (1970); State Department of Highways v. Ebrecht, 135 So.2d 624 (La.App. 1st Cir. 1961).

We point out that this suit is directed against the tortfeasors and not against the contractor who used brick of a slightly different color in the repairs, nor against the plaintiffs’ homeowner insurer who paid for the repairs and asserted a claim in subrogation against defendants. If plaintiffs had a claim for depreciation in value resulting from the use of different colored brick, it appears that this claim might properly have been asserted against the contractor making the repairs or against plaintiffs’ homeowner insurer who paid for the repairs at the time they were being made. Presumably a suit directed against the contractor and the insurer would have precipitated a third party action against the defendants resulting in litigation of the entire matter involving all parties and interests. The repairs have been completed. Plaintiffs failed to lodge a complaint regarding the quality or lack of workmanship of the repairs before they had been completed.

When we consider plaintiffs’ evidence on depreciation or loss of value, together with the fact that no complaint was lodged when the repairs were being made, we conclude the trial judge properly dismissed plaintiffs’ claim for damages for loss of value. The judgment is affirmed.

AFFIRMED.


author: BEER, Judge. BOUTALL, Judge,

text:
    Betty Boucher, wife of Paul BOUCHER v. ORLEANS PARISH SCHOOL BOARD.
    No. 8286.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Polack, Rosenberg, Rittenberg & Endom, Lawrence W. Koltun, New Orleans, for defendant-appellant.
    Nelson, Nelson & Lombard, Ltd., Irving H. Koch, Patricia Saik, New Orleans, for plaintiff-appellee.
    Before REDMANN, GULOTTA, BOU-TALL, MORIAL and BEER, JJ.
   BEER, Judge.

Mrs. Betty Boucher is a state certified teacher with professional experience in several parishes over a twenty-year span. Since 1973, she taught kindergarten at the Johnson Lockett Elementary School, where she claims to have been physically assaulted by irate parents on two separate occasions allegedly Occurring in May, 1975. Then, following summer vacation, she returned, on August 26, 1975, to begin the fall term. On September 9,1975, another irate parent, Mrs. Zemenia Barbino, allegedly assaulted her, resulting, she claims, in temporary physical disability and, more or less, permanent mental upset.

The last episode allegedly necessitated treatment at the emergency room of Methodist Hospital. On September 12, 1975, she was seen by Dr. J. Terry Segurra, who diagnosed her physical injuries as contusion and strain of the cervical and lumbosacral spine and contusion of the skull. Valium and codeine were prescribed to relieve the pain and muscle tension.

Noticing anxiety and depression symptoms over the course of subsequent visits, Dr. Segurra referred her to Dr. Hiram G. Haynie, Jr., a psychiatrist. Dr. Segurra discharged her on January 27, 1976, as physically able to return to work as a kindergarten teacher. However, Dr. Haynie is of the view that she has become disabled from teaching in any situation which requires contact with black adult parents or black teachers as a cumulative result of the episodes noted above.

At the trial, Boucher testified that on the date of the third alleged incident (September 9, 1975), her kindergarten class was in full session. Due to the hot weather, the classroom door was open. Mrs. Barbino entered and pushed aside an easel as she approached Boucher, who described the incident:

“I was deathly terrified. I would not send Mrs. Bailey (a teacher’s aide who testified at the trial) out of the room because if I had sent her I knew that I would not be there in a live state when she got back, so I couldn’t send her anywhere. I had to have her right there. The woman pushed me and she was cursing and screaming and when she knew I was afraid she pushed me more and she cursed and screamed more and she punched me about seven times and finally I tried to get past her. There was no way I could get past her except to go between her and the table of children. She pushed me over the children and I hurt the inside — ”
As for her injuries, Boucher testified: “I fell over the chair and the inside of my right knee was hurt, the knee cap. The left knee inside was hurt and my left knee cap was purple and my elbow was black and my finger was hurt and I sustained a bruise on this arm when I reached over. When I fell my back was twisted and I had trouble getting up and I had pain in my back.”
Thereafter,
“. . . she pushed me about four more times and was screaming and cursing and I tried to get behind Mrs. Bailey because I felt safer. I don’t know how else to put it. If you’re a coward, you’re a coward.”

Wilma Bailey, the teacher’s aide, testified that she did not see Barbino strike Boucher. Nor did Bailey see Boucher being shoved over or across a table, although she saw Barbino shove Boucher’s shoulder. However, Bailey did hear Barbino’s profane expressions of contempt and could perceive that Boucher was in fear as a direct result. After the incident, Boucher appeared upset and nervous, complained of pain and showed Bailey her knees which appeared bruised. Bailey further testified that the entire incident took place in the time interval of approximately fifteen minutes and that Boucher stayed at work for the remainder of the school day.

Dr. Hiram G. Haynie, Jr., a psychiatrist, testified that he first examined Boucher on October 22, 1975, and concluded, at that time, that she was mildly depressed and markedly anxious when she was talking about school matters, particularly the alleged assaults. Dr. Haynie described Boucher as being in a precarious emotional state which resulted in a belief that she was persecuted by blacks. However, Dr. Haynie observed that Boucher “very likely could function as comfortably as any of us through the coming years” if she was not obliged to be in contact with black parents. He describes this as follows:

“I don’t recall her ever expressing any fear of the students; that was not the concern. The concern was that what would happen would be a repetition of what had' happened before, that a parent would come in from without the school and assault her and she felt that . there was no provision being made by the school for security and felt that the principal there did not maintain discipline and so on.”

On cross-examination, Dr. Haynie expressed his opinion that she was not prejudiced against black children — only black adults who were “ruining the school system and who subject her to physical danger . . ”

In Dr. Haynie’s opinion, Boucher could not teach at a racially integrated school because she:

“. . . had become extremely prejudiced toward black people and I had my doubts as to whether she was ever going to be able to function in a school placement that would involve racially mixed faculty even because of her prejudice.”

He felt that the alleged instances of assault were the cause of Boucher’s emotional difficulties and that these difficulties formed a basis for her alleged disability. Nevertheless, in a letter to the Assistant Superintendent of the school board, Dr. Haynie qualified his opinion by stating “(i)f there is such a thing as an all white setting with respect to teachers and students, I would not regard Mrs. Boucher as being disabled at present.”

Boucher’s emotional problem is categorized as fear of black adults. Apparently, this neurotic bitterness does not extend to include black children since the psychiatric testimony acknowledges that Boucher would have no difficulty teaching as long as she had no contact with black parents or black faculty.

The trial court concluded that Boucher was disabled from working as a teacher in the New Orleans public school system and made the further observation that:

“Disqualification from work in the public schools so substantially diminishes the plaintiff’s ability to compete in the teacher job market, that it constitutes disability ‘to perform the duties in which she was customarily engaged when injured or duties of the same or similar character, nature and description for which she was fitted by education, training and experience.’
“Even ignoring the job advantages of work in the public. school system, (of which there is no proof, and which may have qualified public school teaching as a separate job category distinct from teaching in the private sector), the prospect of the plaintiff’s gaining employment in one of the relatively few all white private schools is so speculative that she must nevertheless be deemed partially disabled.”

The Orleans Parish School Board (hereafter, “school board”) appeals on constitutional and factual grounds.

We reject, out of hand, the unacceptable contention that plaintiff’s claim is based “solely upon racial prejudice” and that the district court has made “an unconstitutional award” in violation of the 14th Amendment of the United States Constitution and Article 1, Sections 3 and 12 of the Louisiana Constitution of 1974.

The able trial judge properly addressed this matter as a compensation claim based upon markedly unusual circumstances. Though we may differ with the trial court insofar as the ultimate outcome of this litigation is concerned, we are completely in accord with that court’s apparent rejection of constitutional arguments which have no place in this litigation.

On the other hand, we find that the generally undisputed facts of this case require further consideration in two areas which, in some respects, overlap.

Those areas, which we now address, are as follows:

1. Has Boucher’s alleged disability foreclosed a sufficiently broad spectrum of her otherwise available employment opportunity to form a basis for the trial court’s award, and

2. Has she carried the burden of proof with respect to her alleged disability.

Addressing the first of these queries, we are of the view that the record can support the trial court’s conclusions even though we are impressed by and take note of the very substantial number of possible instances where Boucher’s employment as a teacher by the school board could result in her non-exposure to any, or to a very minuscule number of, potentially irate black parents or potentially hostile black faculty.

We turn, then, to a consideration of the alleged disability:

The record is clear that since the alleged incident of September 9, 1975, Boucher has made absolutely no effort whatsoever to return to teaching. Quite the contrary, she has moved, with her family, to Slidell, Louisiana, where her husband now operates a marina with help from her and other family members. Pretermitting the possibility of her continued employment by the school board, her reason for being unwilling to even look into or consider the possibilities of employment in such private or parochial schools as could guarantee her non-exposure to those elements which she fears are that she has no “religious training” coupled with the following verbiage which we quote directly from her testimony:

“I don’t trust anybody to take care of me. I don’t know whether I would be safe or not. How do I know this wouldn’t happen again? There is no way I could control the world. I can control myself and stay in my room and lock the door, but some day I’ve got to open it because I had to open it the day Mrs. Barbino got in there when the door had been locked for months before. You have to go out in the world sometime.”

Although the record contains essentially unrefuted evidence of the fact that Boucher’s present alleged condition (however it might be defined in psychiatric terms) is proximately related to the incident or incidents of abuse at the hands of an irate parent or irate parents, the actual description of her condition is harder to pin down. That portion of Dr. Haynie’s testimony upon which appellee most strongly relies and which is quoted in her brief is as follows:

. . She was mildly anxious, I would say, throughout the interview although markedly anxious when she was talking about school matters, in particular the three assaults which she had suffered over the previous year. I had some questions of depression. I finally concluded that she was mildly depressed. Her husband, I spoke to him in the waiting room afterwards, and he emphasized he felt she was depressed. This was, I would say, a mild state of depression. With regards to the presence of a schizophrenic illness, as I indicated in my report to Dr. Segurra or the School Board, I felt that she was in a very precarious emotional state and might well worsen, that is, become overtly psychotic, overtly out of contact with reality and if she were to do this I thought it probably would take a paranoid type of schizophrenia form. It was a kind of border line, subtle incipient sort of thing. It just intuitively seemed to me that she might, if she got any more upset, that she might conceivably come out of contact with reality.”

The only unconditional, conclusive observation in that testimony is that Boucher was mildly depressed. The psychiatrist describes the other possibilities as “a kind of border line subtle incipient sort of thing.” He bases such additional conclusions as might be gleaned from his testimony as intuitive and then he conjectures that “she might conceivably” have further mental difficulties. This kind of testimony, considered in light of the clear and undisputed fact that Boucher has made no attempt whatsoever under any circumstances to even set foot back in any classroom, causes us much concern.

There is no. doubt that physical manifestation of a traumatic neurosis or conversion reaction which results in actual physical disability is compensable. The characteristic of conversion hysteria is the substitution of physical signs and symptoms for anxiety. It is, essentially, the transformation of an emotional upset into a physical manifestation. That this may happen is no longer open to serious question by either physicians or by the courts of this state. Just as true is the fact that although mental anguish may be compensable in certain tort actions, the law, as it addresses this problem in .connection with workmen compensation claims, properly contemplates the imposition of a burden of proof that requires a showing of disability in the form of some physical manifestation of the alleged neurosis.

In Carter v. Avondale Shipyards, Inc., 308 So.2d 472 (La.App. 4th Cir., 1975), plaintiff sued for total disability premised on traumatic neurosis. Although there was no physical disability after a work-related accident, we found that plaintiff’s neurosis caused uncontrollable twitching or jerking of the left arm. We observed: “Dr. Ritter characterized the psychiatric problem of plaintiff as one of a conversion reaction in which the mental problem manifests itself in an outward or physical way.” Later, we concluded: “The accident triggered plaintiff’s conversion reaction manifesting itself in a specific physical symptom resulting in his disability. This triggering role is sufficient to support an award under our Workmen’s Compensation Act.” (Emphasis ours.)

In Stanford v. Long & Wolfe, 199 So. 608 (La.App. 1st Cir., 1941), plaintiff’s left foot was lacerated in a job-related injury and subsequently recovered sufficiently such as to allow him to resume his former duties. However, plaintiff claimed to be totally disabled due to subjective symptoms of pain, uncorroborated by medical testimony. In concluding that the plaintiff had failed to prove to a legal certainty that he was disabled from engaging in his usual occupation, the court held that while traumatic hysteria is recoverable under the Louisiana Workmen’s Compensation Law, “. there should be a sound cause and good reason for the mental condition which su-perinduces a fear of pain in the individual strong enough to render him totally disabled.” The court went on the state that a mere possibility or probability of disability is insufficient to prove the disability which must be proven on “a legal certainty.”

The Stanford case was cited in Porter v. W. Horace Williams Co., 9 So.2d 60 (La.App. 2nd Cir., 1942), wherein plaintiff was found to have suffered from an accidental injury while on the job. The medical testimony adduced at the trial showed that any physical injuries resulting from the accident had healed at an early date after the accident, and plaintiff only suffered from “traumatic hysteria.” Nevertheless, the psychoneurosis manifested itself through physical symptoms: plaintiff’s left leg possessed no motion or sensation whereas severe shaking was observed in the right leg; plaintiff made constant complaints of pain in the lumbar back; plaintiff’s face continuously flushed; and plaintiff suffered at times from extreme perspiration. Hence, although no bone pathology was observable, plaintiff’s traumatic hysteria condition was found to be compensable.

Bynum v. Maryland Casualty Co., 102 So.2d 547 (La.App. 1st Cir., 1958), involved a plaintiff who sustained a slight hernia in one accident which became aggravated by a subsequent accident at a later date. After the second accident, the hernia was surgically repaired in a completely successful operative procedure. A third accident allegedly caused plaintiff further pains in the groin area. Medical testimony confirmed the possibility that plaintiff’s pain may emanate from the site of the surgical repair. A psychiatrist testified that assuming the complaints of pain had no organic basis, “plaintiff was suffering from an anxiety psychoneurosis producing genuinely felt pain (emphasis ours) resulting from the series of psychic traumas — the three accidents and the surgery involving the hernia repair — and that the last accident could be the trigger which activated the neurosis into disability.” In affirming the trial court’s award of total and permanent disability, the court relied upon plaintiff’s truthful complaints of pain as the disabling factor.

Similarly, Goodley v. Brunet, 150 So.2d 804 (La.App. 3rd Cir., 1963), writs ref. 244 La. 400, 152 So.2d 213, involved a physical injury to the left foot with subsequent recovery therefrom, followed by a definite neurotic condition manifested by genuinely felt pain in the leg and back on attempting to do hard work as well as a pronounced limp while walking. The court stated that “. . .a claimant is entitled to compensation for a disability caused by reason of subjective pain resulting from a mental condition or neurosis precipitated by an accident at work, even though there is no physical basis for such pain. . . . ”

Even neurotic racial prejudice, which directly results from a course and scope accident and is proven to be disabling, requires compensation act coverage. However, the bizarre nature of this claim coupled with the oft expressed care which is required of the judicial process when it addresses the subjective area of neurosis-triggered disabilities cause us to be much concerned with the quality of the proof. Even so, if the proof is there, plaintiff should prevail. Here, we do not find sufficient proof to support the plaintiffs claim for disability. The proof, though existent, is so weak and so vague and so conjectural, and so remote that, when considered in its entirety, it fails to measure up even to the level at which we would be restrained from substituting our view for that of the trial court.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is annulled, set aside and reversed, and it is now ordered that the claim of Betty Boucher, wife of Paul Boucher, against Orleans Parish School Board be dismissed, at her costs.

REVERSED AND RENDERED.

BOUTALL, J., dissents with written reasons.

GULOTTA, J., dissents for the written reasons assigned by BOUTALL, J.

BOUTALL, Judge,

dissenting.

Although I differ in some degree and in some small details as to the statement of facts contained in the main body of the majority opinion, I quite agree with the analysis of the nature of the issue presented to us, to-wit: That the plaintiffs claim is not based solely on racial prejudice nor is there an unconstitutional award because of prejudice, etc. Additionally, I agree with the resolution of the question that Boucher’s disability foreclosed a sufficiently broad spectrum of her otherwise available employment opportunity to form a basis of award. However, I disagree that she has not carried the burden of proof with respect to her alleged disability.

I point out that on three different occasions, this teacher was attacked by a parent of a child who was attending Boucher’s school, but not a member of Boucher’s class. The last attack occurred on September 9, 1975, shortly after school opened when Mrs. Zemenia Barbino assaulted Mrs. Boucher in a rather violent manner. Although there is a dispute in the evidence as to the violence of this attack, particularly between Mrs. Boucher and Wilma Bailey, a teacher’s aide, the trial judge could easily make a credibility determination favoring Mrs. Boucher’s version of the occurrence and this is supported by the fact that Mrs. Boucher sought medical treatment of her injuries, and the medical examination disclosed that she did indeed suffer physical injury as a result of that attack. However, it is not the physical condition of Mrs. Boucher that presents her disability, but her mental condition.

I am of the opinion that the trial judge in his reasons for judgment, correctly summarized the necessary facts and pertinent law in support of his judgment and the record supports him. He finds:

“The plaintiff’s emotional distress was obvious. She appeared tense in the extreme, and her doctors’ diagnosis was entirely confirmed by her demeanor on the stand.
“While it cannot be said that her emotional problem was entirely caused by her work-related stress, certainly the incidents she experienced served to focus her anxiety on her employment to the extent that she is disabled from work in the public school system.”

The severity of the mental condition of Mrs. Boucher is explained in the medical testimony. The Psychiatrist who testified, Dr. Haynie, stated that it was his opinion that Mrs. Boucher is presently disabled with respect to performing her teaching duties in either an all black or racially integrated school setting, and she may remain so indefinitely. He thought that she was presently disabled even with respect to working in an all white school setting if the teachers are integrated. The doctor’s description of her condition goes beyond a mere neurosis and places her on the point of a psychosis. He states that she had reached a panic level of anxiety and has a paralyzing degree of fear to return to school. He points out that it is not her depression which is the controlling basis of his decision but that it is her anxiety state. I conclude that overall the doctor’s testimony presents a much more debilitating condition than the condition described in the majority opinion, and there is sufficient basis for the conclusion that the trial judge reached. I would affirm his judgment.


text:
    Cleo Allen BUTLER, Individually, and Cleo Allen Butler, for and on behalf of her minor daughter, Michelle Butler v. FLINT-GOODRIDGE HOSPITAL OF DILLARD UNIVERSITY, Dr. Jerome Medley and Dr. Warren P. McKenna, Jr.
    No. 8739.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Darleen M. Jacobs, New Orleans, for plaintiff s-appellants.
    Adams & Reese, Lawrence L. McNamara, New Orleans, for defendants-appellees, Dr. Jerome Medley and Dr. Warren P. McKen-na, Jr.
    Lemle, Kelleher, Kohlmeyer & Matthews, H. Martin Hunley, Jr., New Orleans, for defendant-appellee, Flint-Goodridge Hospital of Dillard University.
   ON MOTION TO DISMISS

Before GULOTTA, STOULIG and BOU-TALL, JJ.

GULOTTA, Judge.

The basis of defendants’ motion to dismiss plaintiffs’ appeal is that a judgment maintaining an exception of prematurity is nonappealable because it is neither a final judgment nor an interlocutory judgment which may cause irreparable injury. See LSA-C.C.P. art. 2083. We disagree.

' Defendants’ exceptions of prematurity were based on plaintiffs’ failure to allege compliance with the requirements of LSA-R.S. 40:1299.41 et seq. which provide that malpractice claims against health care providers described in the statute cannot be asserted in an action in a court of the State until the claimant’s complaint has been presented to a medical review panel and an opinion by the panel has been rendered. Defendants assert that they are health care providers as defined in the statute. The exceptions of prematurity were maintained by the trial judge and plaintiffs’ action was dismissed.

Though the dismissal of the suit as the result of the maintaining of an exception of prematurity is a dismissal without prejudice, it is, nevertheless, a final judgment. The rule is well-established that a judgment of dismissal without prejudice is a final judgment from which an appeal will lie. People of Living God v. Chantilly Corporation, 251 La. 943, 207 So.2d 752 (1968); Rapides Savings & Loan Association v. Lakeview Development Corporation, 326 So.2d 511 (La.App.3d Cir. 1976). In City of New Orleans v. Crescent City R. Co., 41 La.Ann. 904, 6 So. 719 (1889), the Louisiana Supreme Court concluded, in effect, that a judgment dismissing a portion of plaintiff’s claim on an exception of prescription and another portion of her claim on an exception of prematurity was appealable. In Wright v. Round The Corner Restaurants of Louisiana, Inc., 252 So.2d 341 (La.App. 4th Cir. 1971), we entertained an appeal from a judgment maintaining defendant’s exception of prematurity. See also Stone v. Stone, 258 So.2d 404 (La.App. 4th Cir. 1972).

Accordingly, the motion to dismiss is denied.

MOTION DENIED.

      . See Official Revision Comment (c) following LSA-C.C.P. art. 933.


author: JONES, Justice.

text:
    Bess A. COSTANZA v. Vincent J. COSTANZA and Central Bank of Birmingham.
    SC 2429.
    Supreme Court of Alabama.
    May 27, 1977.
    William B. McCollough, Jr., for McCol-lough & McCollough, Birmingham, for appellant.

      Marshall Timberlake, for Balch, Bing-ham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellees.
   JONES, Justice.

Bess Costanza, the plaintiff, appeals from a judgment for the defendant, Central Bank of Birmingham, on its counterclaims in Mrs. Costanza’s action to cancel and annul a mortgage.

Bess Costanza and her husband, Vincent, operated two gift shops in Birmingham known as “Gifts by Bess” — one located in the Eastwood Mall and the other in Hoover. Prior to the opening of the Hoover Store, the Costanzas jointly owned and operated the Eastwood Mall store and it was characterized by Mr. Costanza as a husband and wife operation.

In 1973, the Costanzas decided to open the Hoover store and subsequently in July, 1974, Mr. Costanza obtained a loan from Central Bank for approximately $20,000. This money was deposited in the commercial checking account for “Gifts by Bess.” Mrs. Costanza had the authority to write checks against this account and did actually draw checks against this account. This loan was refinanced in January, 1975, and secured by the inventory at the two stores. Immediately prior to June 23, 1975, the gross balance due on this loan was $16,-881.02, with the payoff balance being $13,-209.24.

On June 23, 1975, Mr. Costanza negotiated for an additional loan of $10,000 and executed to the Bank a second mortgage on residential property jointly owned by the Costanzas for a total indebtedness of $26,-888.02. Mr. Costanza forged his wife’s signature on this mortgage agreement with the Bank; and he testified at the trial that his wife had no knowledge of the forgery. (Upon Mr. Costanza’s assurance that his wife had signed the mortgage, the Bank notarized her execution of the mortgage agreement out of her presence.)

The Bank first learned of the forgery when Mrs. Costanza phoned the Bank’s manager three weeks after the loan had been made. The branch manager, Mr. Massey, testified that Mrs. Costanza asked him whether her husband had recently borrowed any money; and that, upon learning that her husband had attempted to mortgage the property, Mrs. Costanza requested Massey not to tell her husband that she had learned of the forgery because “she was afraid of what he might do”.

In November, 1975, pursuant to a pending divorce decree action, the Bank was requested by the Costanzas to supply information regarding this loan so that it could be incorporated in the separation agreement which specifically referred to the June 23 mortgage. The agreement stated that the homestead was to be sold, and, “[f]rom the proceeds of the sale of the aforesaid homestead, all expenses of the sale will first be deducted, then payment in full of the first and second mortgages . shall be made . . . In essence, the agreement specifically referred to the existence of a debt to the bank in the amount of $22,401 and expressly stated that the parties agreed to sell their jointly-owned real estate to satisfy the debt to Central Bank.

Mrs. Costanza filed a bill to cancel and annul this mortgage. The Bank filed a counterclaim against Mrs. Costanza and a cross claim against Mr. Costanza seeking (1) to enforce the separation agreement and (2) an equitable lien on the real estate.

The trial Court decreed that the mortgage executed on June 23,1975, was void as to Mrs. Costanza and further decreed that Central Bank had an equitable lien on the real estate to secure the payment of $21,-280.95. This money was to be paid from the proceeds of the sale of the real estate as provided in the separation agreement.

It should be noted at the outset that both Mrs. Costanza and the Bank agree that the June 23 mortgage is void. Therefore, our scope of review is limited to the question of whether the trial Court was justified in assessing an equitable lien.

As previously noted, the trial Court held the mortgage void but nonetheless imposed a lien on the property in question for the full amount of the indebtedness. The Bank, in urging affirmance, contends that the decree below is sustainable on either one of the two theories asserted in the counterclaim: (1) The Bank was the third party beneficiary of the settlement agreement between the Costanzas, which agreement was merged into and became part of the final divorce decree; and (2) Mrs. Cos-tanza’s conduct relative to the last loan procured from the Bank by her husband was sufficient to create an equitable lien against the homestead to the extent of the aggregate balance due the Bank.

Third Party Beneficiary Theory

The only cases cited by appellee for this theory supportive of the trial Court’s final decree are Harris v. Board of Water and Sewer Commissioners of Mobile, 294 Ala. 606, 320 So.2d 624 (1975); Anderson v. Howard Hall Co., 278 Ala. 491, 179 So.2d 71 (1965); and Mutual Benefit Health & Accident Association of Omaha v. Bullard, 270 Ala. 558, 120 So.2d 714 (1960). None of these cases stand for the proposition that a judgment creditor acquires the status of a third party beneficiary to enforce the provisions of a divorce decree to which it was not a party. Counsel for Mrs. Costanza likewise fails to cite any authority to the contrary; and our independent research has failed to uncover any direct authority in our case law which speaks to the subject at hand.

We are constrained to conclude, however, that there are two compelling reasons for rejecting the third beneficiary theory as a basis for allowing the Bank the relief granted by the decree here under review.

1. The traditional elements of the third party beneficiary tests — as pointed out in Harris, Anderson, and Bullard — are here lacking. It is essential that one claiming benefits under a contract to which he was not a party must show that he falls within that class of persons for whose benefit the contract was intended. As this Court recently stated in Harris: “The only condition being that the third person must have been intended to be directly and not incidentally benefited.”

The purpose of agreements of this nature in a divorce case is to finalize a property settlement between spouses. The creditor is not a party, nor is the agreement entered into for his benefit. Such agreements can neither enlarge nor restrict obligations lawfully due by the divorcing spouses to third party creditors. Thus, under well-established precedent, the Bank, not being a party for whose benefit the settlement agreement was made, does not have standing to sue on or enforce the terms of the settlement agreement.

2. There is yet another reason for rejecting the terms of the divorce decree as the basis for the relief sought by the Bank. This reason was alluded to by way of dictum in the Court of Civil Appeals’ case of Wilson v. Wilson, 53 Ala.App. 194, 298 So.2d 616 (1973). The Court of Civil Appeals addressed a similar problem (though raised by a party rather than a non-party) thusly:

“Although there is a dearth of authority on this subject in Alabama, it is interesting to note that the . . . Alabama Rules of Civil Procedure, Rule 71, though not in effect at the time of this lawsuit, recognizes that a court order may be made in favor of a person not a party and require court process to enforce such an order; however this rule does exclude creditors of parties to a divorce action. However, the rule does not prohibit an order for the benefit of such a creditor; it merely provides that the creditor would not have standing to enforce such a debt under the divorce decree.
“An application of the rule to a case similar to the one at bar would authorize an order requiring payment of a debt to a non-party but would not provide [the non-party] the machinery for enforcement.”

Additionally, the Committee Comments to Rule 71, ARCP, conclude with this paragraph:

“This rule [permitting enforcement of a court order by a non-party] ..as been drawn so as to specifically exclude creditor of a party in a divorce proceeding. For example, should the court order the husband to pay for certain appliances to be used by the ex-wife, the vendor of the appliances would not be entitled to take advantage of this rule. To permit this Rule to apply in such an instance would further complicate an already difficult proceeding.”

Equitable Lien Theory

The remaining theory argued by the Bank in support of the trial Court’s decree is that of an equitable lien. At first blush, taking the strongest tendencies of the evidence favorable to the Bank’s position, in light of the ore tenus rule, we were inclined to the view that the equitable lien impressed by the decree below in favor of the Bank against Mrs. Costanza’s interest in the property was sustainable, at least to the extent of the “new money” (i. e., the last loan of $10,000). Our further study of well-established “equitable lien” principles, however, constrains us to reach a contrary conclusion: The fatal weakness of the Bank’s contention for an equitable lien consists in the total failure of the evidence to establish any equitable grounds for the intercession of a court to impress a lien against Mrs. Costanza’s real property as security for any portion of Mr. Costanza’s debt to the Bank.

Those “well-established ‘equitable lien’ principles” alluded to above are contained in a rather long line of Alabama cases. See, e. g., Robbins v. Bell, 285 Ala. 124, 229 So.2d 511 (1969); Title Insurance Company v. Ward, 279 Ala. 24, 181 So.2d 93 (1965); Murphy v. Carrigan, 270 Ala. 87, 116 So.2d 568 (1959); Rhodes v. Schofield, 263 Ala. 256, 82 So.2d 236 (1955), and other cases cited therein.

Although arising under multiple and varying circumstances, these cases stand for the rule that a court is authorized to exercise its equity power to impress a lien upon real property as security for a debt only where the person against whose interest the lien is declared and enforced is guilty of some wrongdoing in procuring the loan or service by which the debt is created. Our cases make clear that, whether the equitable grounds essential to give the “equitable lien” principle a field of operation are expressed in terms of “fraud”, “unclean hands”, or “unjust enrichment” mere passive conduct on the part of the party against whose interest the lien sought is not sufficient.

Our careful review of the record fails to disclose any conduct on the part of Mrs. Costanza which even approaches any culpability of the nature required to invoke the operative effect of the equitable lien doctrine.

REVERSED AND REMANDED.

TORBERT, C. J., and ALMON, EMBRY and BEATTY, JJ., concur.


author: ALMON, Justice.

text:
    ALABAMA PUBLIC SERVICE COMMISSION v. GREYHOUND LINES, INC., Continental Crescent Lines, Inc., Ingram Bus Lines, and the Alabama Bus Association.
    SC 1863.
    Supreme Court of Alabama.
    June 10, 1977.

      William J. Baxley, Atty. Gen. and L. G. Kendrick, Asst. Atty. Gen., and Vanzetta Penn Durant, Asst. Atty. Gen., for appellant.
    Robert C. Black, for Hill, Hill, Carter, Franco, Cole & Black, Montgomery, Henry E. Simpson, for Lange, Simpson, Robinson & Somerville, Birmingham, for appellees.
   ALMON, Justice.

By application of September 27, 1974, Rev. O. D. Hill of Lanett, Alabama seeks authority to institute a new operation as a contract carrier by motor vehicle to transport, in intrastate commerce over irregular routes, school children and groups, and church children and groups from Chambers, Randolph, Lee or Tallapoosa Counties to any point in Alabama.

The Commission treated the application as one for a common carrier rather than a contract carrier, and approved it upon finding that the applicant is fit, willing, and able to properly perform the proposed service, and that the service is or will be required by the present or future public convenience and necessity, as required by Tit. 48, § 301(9), Code of Alabama 1940, Recompiled 1958. Commissioners Hammond, Zeigler, and McDaniel were at the hearing and rendered the decision of the Commission. The protestants, Continental Crescent Lines, the Alabama Bus Association, Greyhound Lines, Inc., and Ingram Bus Lines appealed to the Circuit Court via Tit. 48, § 301(27), which reversed the Commission.

The issues presented are (1) whether adequate notice was given, (2) whether the Commission erred to the prejudice of the protestants’ (appellees’) substantial rights in its application of the law or based its order on findings of fact contrary to the substantial weight of the evidence (See Tit. 48, § 82, Code) and (3) whether the Commission has the authority to issue a certificate for charter authority over irregular routes where the applicant does not also request a regular route or routes between fixed termini. We affirm the circuit court’s decision (reversing the Commission) on the first and second issues, and pretermit discussion of the third.

Tit. 48, § 82, Code of Alabama 1940, Recompiled 1958, provides the scope of review for appeal to the circuit court:

“§ 82. Proceedings on appeal. — The commission’s order shall be taken as pri-ma facie just and reasonable. . [T]he court . . . shall set aside the order if the court finds that: the commission erred to the prejudice of appellant’s substantial rights in its application of the law; or, the order, . . . was based upon a finding of facts contrary to the substantial weight of the evidence.

We review the decree of the circuit court without any presumption of its correctness. “We are governed by the same rules in our review as was the circuit court, so we will review the order of the Commission as though the appeal from the Commission’s order had been taken directly and primarily to this court.” Alabama Pub. Serv. Com’n v. Consolidated Transp. Co., 286 Ala. 323, 325, 239 So.2d 753, 755 (1970), and cases cited therein.

At the hearing before the Commission, Rev. Hill testified that he was the pastor of four churches including Fairfax Baptist Church. Rev. Hill did not own any buses at the time of the application, but proposed to buy a 1964 model 4106 and a 1954 model 4104. Testimony by the protestants indicated that used buses cost $8,000 to $12,000 with new engines costing $5,000 to $6,000. Rev. Hill did not file a financial statement, and was not aware of the cost of insurance, though he did establish that a company would write the insurance. His main concern was to transport the people of his churches and other local churches to various nearby functions. According to Rev. Hill, these people are unable to charter the existing common carriers operating in the area because of the deadhead expense (60$ per mile per bus) of getting Greyhound buses from' Columbus, Georgia, about 40 miles from Lanett, Alabama, or Ingram buses from Tallassee, Alabama, about 54 miles from Lanett, or Crescent buses from Birmingham, Alabama, about 131 miles from Lanett.

Nine people, including ministers, school principals, and a superintendent of schools, testified for Rev. Hill. The gist of their testimony is in agreement with Rev. Hill’s, namely, that while charter service is available, the parties cannot afford the deadhead cost. The principals and superintendent of the Lanett schools testified that the school system did not own any buses, that they have satisfactorily used Greyhound and Ingram previously, but that they could not afford to do this for short class trips such as to a science fair at Auburn, Alabama.

The protestants testified that to allow Rev. Hill to have the “cream” of the business (charter authority) without requiring him to maintain regular routes would diminish their ability to maintain regular routes. More specifically, Mr. Bowman, testifying for Greyhound, stated that Greyhound, Eastern Division, received $1.1552 revenue per passenger mile from its regular route service and charter operations. The operating expenses were $1.06 per passenger mile, and the charter revenue of 9.56$ per passenger mile provided the cushion of operating revenue over expenses. Similarly, Mr. Ingram of Ingram Bus Lines of Tallassee, Alabama, testified that his cost per mile on scheduled runs was 56.24$ while his revenue was 23.75$, and that he'needed the charter runs to make up the difference. According to Mr. Ingram, Rev. Hill’s charter authority would cover approximately 75% of the area over which Ingram’s authority extends.

Between December, 1974, and December, 1975, Greyhound derived $15,945.76 in charter revenues from Rev. Hill’s proposed area, based on their Columbus Georgia, records; some revenue was also generated out of their Montgomery office. Crescent derived charter revenue of $21,725.66 from the area in 1974. Ingram received approximately $1,500.00 from Lanett High School during 1974.

On the other hand, Crescent had not originated any charter trips in 1974 from the City of Lanett, and had originated only one trip from the churches Rev. Hill seeks to serve, though a few trips originated from other churches. Ingram has received charter business from Lanett, Fairfax and Langdale areas but in the last two years had not received any charter business from the churches sought to be served.

I

The protestants question the adequacy of a notice stating that the applicant sought to operate as a contract carrier, rather than as a common carrier:

“Institute a new operation as a CONTRACT CARRIER by motor vehicle, in intrastate commerce over IRREGULAR ROUTES, in the transportation of: School children and groups and church children and groups from Chambers, Randolph, Lee or Tallapoosa Counties, Alabama, to any point in Alabama.”

The “Report and Order of the Commission” nevertheless treated the applicant as a common carrier. “The application seeks authority to operate as a contract carrier, however, the evidence presented was that of a common carrier and no written contracts were offered, therefore, the Commission is treating the application as a common carrier application.”

According to Tit. 48, § 301(8)(B), in the case of an application for a common carrier to transport passengers, notice shall be given to each common carrier of passengers operating in the proposed territory. If the application is to transport freight, then notice shall be given to each common carrier of freight in the proposed area. Similarly, according to § 301(11)(B), if the application is for a contract carrier to transport passengers, notice shall be given to every contract carrier of passengers, and if for a contract carrier of property, then notice shall be. served on every contract carrier of property, then operating in the proposed area.

Apparently, the appellees, who are common carriers of passengers operating in the proposed area of Rev. Hill’s application, did receive notice. On the practical side, we believe the preferable procedure is to give notice to both common carriers and contract carriers, as oftentimes their interest may be adverse. See Osborne Truck Lines, Inc. v. Alabama Pub. Serv. Com’n, 284 Ala. 166, 223 So.2d 284 (1969). However, the notice given is nevertheless legally insufficient. Common carriers and contract carriers have entirely different scopes of operation and grants of authority. See Alabama Pub. Serv. Com’n v. Consolidated Transp. Co., supra. The notice provision quoted above was one of 18 notices of contract and common carrier applications appended together, covering five days of hearings. In each case, the notice stated in bold type whether the application was for a contract carrier or a common carrier. Should we assume that everyone who received the notice realized what the application was for? We do not believe so, and hold that when notice is given that an applicant seeks a contract carrier permit, the Commission may not then grant a common carrier certificate.

II

Tit. 48, § 301(9)(A) provides that a certificate for common carriage shall be granted “if it is found . . . that the applicant is fit, willing, and able to properly perform the service proposed and to conform with the provisions of this article and requirements, rules and regulations of the Commission thereunder, and that the proposed service, to the extent to be authorized by the certificate is or will be required by the present or future public convenience and necessity; . . . ” The protestants contend that nothing in the record supports the Commission’s finding that the applicant is fit, willing, and able to properly perform his proposed service. We agree.

The applicant appeared before the Commission pro se without investigating how he was going to obtain the necessary equipment, without knowing what expenses and capital investment he would incur, and without making any showing of his own financial resources. While we shall not outline specifically what “fit, willing, and able to properly perform” means — that task falls primarily within the expertise of the Commission, and would, of course, depend on the individual circumstances — we note, however, at the least, the Commission is required by § 301(9)(B)(2) to consider the financial ability of the applicant. In this case, the applicant made no showing of how he was going to physically perform the service he proposed.

We have already concluded that proper notice was not given. We also hold that for the Commission to find that an applicant is fit, willing, and able, sufficient evidence must be in the record to support that conclusion, though we- leave to the expertise of the Commission to determine what constitutes a fit, willing, and able applicant.

We add, parenthetically, for the guidance of the applicant and the Commission that cost, per se, will not normally support the conclusion that a proposed service is required for public convenience and necessity. Osborne Truck Lines, Inc. v. Alabama Pub. Serv. Com’n, supra; Alterman Transport Lines, Inc. v. U. S., 361 F.Supp. 664 (D.C.1973). However, when costs are in effect an embargo, the matter of rates need not be entirely excluded from consideration. Alterman Transport Lines, Inc. v. U. S., supra; I.C.C. v. J-T Transport Co., 368 U.S. 81, 82 S.Ct. 204, 7 L.Ed.2d 147 (1961).

“ . . . This does not mean that the lawfulness of rates would be injected into certificate proceedings. The issue of whether or not the proposed service offers a rate advantage and if so whether such advantage establishes a ‘need’ for the service that overrides counterbalancing considerations presents issues that fall far short of a rate proceeding.” J-T Transport, supra, 368 U.S. at 92, 82 S.Ct. at 211.

The judgment of the Circuit Court, which reversed the Commission, is affirmed.

AFFIRMED.

BLOODWORTH, JONES and EMBRY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.


author: EMBRY, Justice.

text:
    Eston H. STEAD, Jr. v. BLUE CROSS-BLUE SHIELD OF ALABAMA.
    SC 1891.
    Supreme Court of Alabama.
    June 10, 1977.

      John H. Lavette, Birmingham, for appellant.
    Reid B. Barnes and J. Gusty Yearout, Birmingham, for appellee.
   EMBRY, Justice.

Appellant, Eston H. Stead, Jr., states eleven issues that he contends are presented for review by this court. However, we perceive there is only one issue controlling a decision in this case: Whether or not, under the facts, upon breach of a hospital and medical benefits insurance contract, damages, compensatory and punitive, may be recovered that include those for mental anguish, personal injury, loss of earnings, pain and suffering and impairment of earning capacity.

We hold that such damages may not be recovered in this case and affirm the order of the trial court granting a new trial.

For a history of the facts and proceedings in this case to 6 March 1975, see In re Eston H. Stead, Jr. v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 310 So.2d 469 (1975). Thereafter, in September 1975, Stead filed an amendment to his original complaint in which he alleged that Blue Cross wilfully, wrongfully and in bad faith rejected and refused to pay his claim for benefits due him under his policy on account of incurred hospital and surgical expenses. He further claimed damages for the loss of insurance coverage, personal injury, loss of wages, impairment of earning capacity, inability to go about his usual pursuits and duties, physical pain and mental anguish, permanent injuries, inconvenience, humiliation, worry and distress of mind, expenditure of monies in the effort to heal and cure his injuries and future medical expense; all as a result of the refusal of Blue Cross to pay his claim.

In February 1976 he filed another amendment alleging that damages as claimed in the September 1975 amendment were:

the natural and proximate consequence of breach of contract and reasonably supposed to have been within the contemplation of the parties at the time the insurance contract was made;
that Blue Cross knowingly made false representations to him that his health insurance policy was in full force and effect shortly after it was underwritten with no intention to perform according to such representations and with intent that Stead would rely upon them and;
further that he, Stead, relied on the representations and purchased his health policy, that further false representations were made to Stead by Blue Cross, after denial of his initial claim, to the effect that his policy would remain in full force, future claims would be paid and there was no intent to perform according to the representations but rather they were made to induce Stead to continue to pay premiums;
and all the acts, omissions and representations made to Stead by Blue Cross were perpetrated by the latter, wilfully, fraudulently, intentionally, in bad faith, and by extreme outrageous conduct.

A further amendment was filed in February 1976 raising the demand for damages in the original complaint (for simple breach of contract) to $10,000. Defendant Blue Cross filed a motion to dismiss Stead’s amendments to his complaint, which was granted. The effect of this was to leave the original complaint before the court with a demand for damages in the sum of $10,000.

Among the grounds of the motion to dismiss was that to allow the amendments would work to the prejudice and harm of Blue Cross.

The case was tried to a jury and a verdict in behalf of Stead returned in the amount of $5,000. Blue Cross filed its motion for judgment n. o. v. or, in the alternative, for a new trial. Stead filed a motion renewing his earlier motions to allow the amendments to his complaint; this was overruled. Judgment for Stead was entered in the amount of $5,000.

Among the grounds of the motion for judgment n. o. v. or for new trial were: The verdict was excessive and was arrived at by considering illegal evidence. The trial court then entered the following order:

“The Court being of the opinion that the verdict of the jury awarding the damages in this case is excessive by Three Thousand Nine Hundred and Seventeen Dollars ($3,917.00), it is, therefore,
Considered, Ordered and Adjudged that the motion for the new trial on the ground that the damages awarded are excessive be and the same is hereby granted, unless within 10 days from this date the plaintiff shall file an instrument remitting all damages in excess of One Thousand and Eighty Three Dollars ($1,083.00) and agreeing to a reduction of the judgment to One Thousand and Eighty Three Dollars ($1,083.00).”

Stead, electing not to file a remitti-tur, allowed the trial court’s order for a new trial to become absolute and thus ap-pealable. Ex parte Smith, 228 Ala. 232, 153 So. 152 (1934); McCormick v. Alabama Power Co., 293 Ala. 481, 306 So.2d 233 (1975).

In order to reach a conclusion about the single issue we deem controlling we must deal with: (1) Whether Stead was entitled to amend his complaint and attempt to recover damages under the theories expressed therein. (2) Whether the order of the trial court granting the motion for new trial, on the ground that the verdict of the jury was excessive, was plainly and palpably erroneous.

I

The trial court assigned no reasons for disallowing the proferred amendments. We note, however, the record contains no showing that the delays by Stead in advancing new theories as bases for recovery were: excusable, would not unduly delay trial on issues possibly raised by the amendments, or would not unduly prejudice Blue Cross. In this regard the case is even less favorable to Stead than it was as addressed by Justice Faulkner in In re Stead, supra. We cannot say, then, that the trial court abused its discretion in not allowing the amendments. Holding this, as we do, we need not determine if Stead could have maintained an action in tort where he could have recovered damages of the kind he sought to recover in this action for breach of an insurance contract. See Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976). Questions remain about the kind of damages recoverable in a case like this where the action is for breach of a hospital and medical benefits insurance contract.

The Blue Cross-Blue Shield contract in this case is a simple one calling for the payment of money only: specified rates of payment to others for supplies and services furnished Stead (in this case while an inpatient) by others; the hospital and physician. The breach of it will not permit recovery of damages for personal injury, inconvenience, annoyance or mental anguish and suffering under the exceptions spoken of in F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 141 So. 630 (1932):

“The general rule is that damages cannot be recovered for mental anguish in an action of assumpsit. Birmingham Water Works Co. v. Vinter, 164 Ala. 490, 51 So. 356. The ground on which the right to recover such damages is denied, is that they are too remote, were not within the contemplation of the parties, and that the breach of the contract is not such as will naturally cause mental anguish. Westesen v. Olathe State Bank, 78 Colo. 217, 240 P. 689, 44 A.L.R. 1484. ‘Yet where the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, it is just that damages therefor be taken into consideration and awarded.’ 8 R.C.L. p. 529, § 83; Southern Ry. Co. v. Rowe, 198 Ala. 353, 73 So. 634; McConnell v. United States Express Co., 179 Mich. 522, 146 N.W. 428, Ann.Cas.1915D, 80; Westesen v. Olathe State Bank, 78 Colo. 217, 240 P. 689, 44 A.L.R. 1484; Burrus v. Nevada-California-Oregon Ry., 38 Nev. 156, 145 P. 926, L.R.A.1917D, 750.
“Another exception is where the breach of the contract is tortious, or attended with personal injury, damages for mental anguish may be awarded. Vinson v. Southern Bell Tel. & Tel. Co., 188 Ala. 292, 66 So. 100, L.R.A.1915C, 450.
“The facts of this case, if the plaintiff’s evidence was believed, brings the case within these two exceptions.
“The contract related to placing a roof on the plaintiff’s residence, her ‘castle,’ the habitation which she had provided to protect her against the elements, and to shelter her belongings that she thought essential to her comfort and well-being, the very things against which she made the contract to protect herself and her property, and as a result of the breach of the obligation which defendants assumed, the roof leaked to such extent that she was disturbed in her comfort, her household belongings were soaked with water, her house was made damp, she was made sick, as the jury were authorized to find. And the defendants, though repeatedly notified, took no steps to meet their obligation, were not guilty of a breach of the contract, but were negligent in respect to the performance of the duty which it imposed on them. Charge 12 was therefore refused without error.
“She was also entitled to recover for inconvenience and annoyance, resulting proximately from such breach. Alabama Water Co. v. Knowles, 220 Ala. 61, 124 So. 96.” 224 Ala. 655, p. 657, 141 So. 630, p. 631.

II

The damages recoverable by Stead in this action being limited to those hospital and medical benefits payable to the hospital and physician, the rates fixed under the terms of the insurance contract, that furnished the supplies and services to Stead requires that we determine whether the evidence supports a finding by the jury that these were in the aggregate amount of $5,000; the amount of its verdict. This tells us if that verdict is excessive.

Under the evidence the net amount of the obligations of Blue Cross, by the terms of the policy, for the hospitalization and treatment of Stead was either $1,063 plus interest from date payment should have been made or $2,176.99 plus interest. It is the former because of the applicability of a clause in the insurance policy excluding from benefits monies paid by the United States and other governmental entities for hospital and medical expenses. This figure includes $913 of covered charges which remained after deducting the amount paid by the United States; and $150 which represented the maximum medical benefits allowable under the policy for any and all physicians’ charges. Therefore, the maximum allowable payment under the policy was $1,063.

In the order of remittitur the trial court made an arithmetical miscalculation of twenty dollars ($1,083 - $1,063 = $20). The order granting a new trial is now absolute, therefore the miscalculation is of no consequence.

The verdict of the jury is demonstrably excessive, therefore the order granting a new trial is not plainly and palpably erroneous. Kennedy v. General Transport Co., Inc., 293 Ala. 455, 304 So.2d 896 (1974).

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, JONES and ALMON, JJ., concur.


text:
    Lizzie LINAM et al. v. Clifton SIMS.
    SC 2024.
    Supreme Court of Alabama.
    June 10, 1977.
    W. J. Causey, Jr., Monroeville, for appellants.
    J. Milton Coxwell, Jr., Monroeville, for appellee.
   JONES, Justice.

This is a land line dispute between coterminous owners concerning a twenty-foot strip extending east and west across the dividing “quarter-quarter” line. The plaintiffs/appellants own the South forty; defendant/appellee owns the North forty; and no overlay of ownership exists on the face of the deeds. Both the North and South lines of the disputed strip are marked by fences. Appellants claim, by way of prescription, to the North fence, asserting that they built a barn upon and used the disputed strip between the fences since 1943. The appellee claims to a line approximating the southmost fence, asserting that the fence on the North side of the twenty-foot strip had been intentionally built north of the true boundary line to allow for a wagon lane which was used by all of the parties; and that such common use continued until recent years when the entire strip, except for the barn and the area immediately adjacent thereto, grew up in underbrush and small trees.

The trial Court, after hearing the evidence ore tenus and viewing the disputed property, entered a final judgment fixing the line according to a survey offered by the appellee — owner of the North forty— which substantially followed the southmost fence. We affirm in part, reverse in part, and remand with instructions.

Neither a detailed recital of the evidence, nor a restatement of our scope of review rules in such cases, would serve any useful purpose. Suffice it to say that the record discloses ample credible testimony to support the “common use” contention of the appellee with respect to the disputed strip generally. The only problem area raised by our review of the sufficiency of the evidence concerns the appellants’ claim of adverse possession with respect to the construction and use of the barn and the immediate area adjacent thereto. This problem can best be brought into focus by reciting the testimony contained in the surveyor’s reply to a question asked by the Court:

“THE COURT: As I recall, you said you ran along what we will call the southernmost fence but the angle kept getting smaller until you said it was just three or four feet over in this corner. Point out on your survey where that point was, please, sir.
“A I don’t have an exact measurement to it, Judge, but approximately one hundred yards, maybe a little more, east of this corner which would be right here at the edge of the woods (indicating). This south fence was about eight feet north of my line; I went on about a couple of hundred feet further and was about six feet south of the fence; I hit the barn; offset into the lane; west around the barn and for the last four hundred feet, roughly the east four hundred feet of Mrs. Linam’s line, I was running about three feet north of the south line of that lane.”

For the purpose of clarity, it should be pointed out that the surveyor’s reference to “I hit the barn; offset into the lane; went around the barn . . . ” does not mean that the line established by the surveyor, which was subsequently adopted by the Court and fixed as the boundary line between the parties, in fact offset around the barn. The line, as established and set out in the Court’s decree, is a straight east-west line that starts several feet south of the southmost fence, proceeds in an easterly direction, crosses the fence at some point west of the barn, runs through the barn, and terminates on the west side several feet north of the southmost fence. The “offset” referred to by the surveyor is obviously a surveying technique to establish a straight line through an immovable obstacle.

While the evidence of common use of the lane generally — which was apparently believed by the trial Court — is sufficient to defeat title by prescription in the appellants, there is no evidence of common use or claim to the situs of the barn other than the appellants’ construction and exclusive and hostile use of the barn, and the immediate area incident to its use, for approximately thirty years prior to this controversy. In other words, we find no evidence to dispute the claim of adverse possession to that limited area incident to the use of the barn, a part of which lies south and a part of which lies north of the line fixed by the Final Decree of the trial Court.

On remand of this case, whether an additional hearing will be necessary; whether the boundary can be redrawn so that the line retains its straight east-west direction; or whether an offset will have to be effected in order to place the location of the barn south of the established boundary, are all matters left to the sound discretion of the trial Court within the context of competent supportive evidence. For a similar case and a somewhat similar order on remand, see Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9 (1974).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.

      . For two recent cases that state the applicable scope of review rules, as well as the substantive law in this area, see Francis v. Tucker, 341 So.2d 710 (Ala. 1977), and Ferrell v. Shomo Land Co., 345 So.2d 297, 11 ABR 1332 (Ala. 1977).