text:
    Bobby Joe BRUMMETT v. Ruby Brummett HUDSON.
    No. 10877.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      Robert S. Rogers, Borne & Rogers, Franklin, for appellant.
    Kenneth W. Ford, Morgan City, for ap-pellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

On July 25, 1974, in the Court of Domestic Relations of Taylor County, Texas, Ruby Brummett Hudson, defendant-appellee, was divorced from Bobby Joe Brummett, plaintiff-appellant. In its judgment the Court granted custody of the children born as a result of the marriage to the appellee and ordered the appellant to pay $180.00 per month as child support.

Near the end of August, 1974, the appel-lee married Richard Hudson. The appellee, her present husband, and the children of her previous marriage moved to Louisiana after Christmas, 1974.

On April 7, 1975, the appellant married •Elva Linda Saenz.

On April 16, 1975, the appellant brought this suit to obtain custody of the children born during his marriage to the appellee. After a trial on the merits the District Court rendered judgment awarding custody of the children to the appellee and fixing visiting rights for the appellant. It is from this judgment that the appellant brings this appeal.

The appellant contends that:
“1. The Trial Court erred in its not allowing testimony as to the immoral conduct of the defendant-appellee occurring prior to the Texas divorce decree and award of child custody to the defendant-appellee.
“2. The Trial Court erred in not finding that the defendant-appellee, Ruby Brum-mett Hudson, neglected the said minor children and in not finding that she was morally unfit to retain the custody and care of the said minor children.”

The rule in Louisiana is that a party seeking to modify a custody decree bears the burden of proving a material change in conditions and circumstances which are detrimental to the child’s welfare. Gentry v. Gentry, 136 So.2d 418 (La. App., 1st Cir., 1961); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955). Evidence as to the conduct of the appellee prior to the divorce, is not evidence which would prove a change in conditions detrimental to the child’s welfare. The judgment of the Texas Court awarding custody to the appellee is recognized as being res judicata as to the best interest of the children at the time of its rendition. State v. Ricketson, 221 La. 691, 60 So.2d 88 (1952); Tennyson v. Tennyson, La.App., 263 So.2d 88 (1st Cir., 1972). Therefore, the Trial Judge did not err when he refused to allow testimony as to conduct of the appellee prior to the Texas divorce decree.

The evidence adduced at the trial on the merits did not indicate that the appellee was neglecting her children or that she was morally unfit to retain the custody and care of the children. While the appellant may be able to provide the children with better material surroundings, custody will be changed only where there is proof that the children are in a deleterious situation and that a change in custody will be in the best interest of the children. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

For the foregoing reasons, the judgment of the District Court is affirmed. Cost to be paid by the appellant.

AFFIRMED.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    TRI PARISH HEATING & AIR CONDITIONING v. Willie BROWN.
    No. 10878.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      Wesley Steen, Baton Rouge, for plaintiff-appellee.

      Joseph A. Gladney, Baton Rouge, for defendant-appellant.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

This is a suit on open account, together with incidental demands, arising from repair work performed on a residential air conditioning unit.

Willie Brown contracted with Phillips and Gray for the construction of a house. Phillips and Gray contracted with West Side Materials, Inc., a Rheem dealer, for the furnishing and installation of central air conditioning for the house. West Side supplied the unit and subcontracted the installation and repair and maintenance work to Tri-Parish Heating and Air Conditioning. The contract between Tri-Parish and West Side provided that Tri-Parish would install the unit and perform any repair and maintenance work for a year from the date of installation.

The record discloses that problems arose with the air conditioning unit soon after Willie Brown moved into his new house. Mr. Bob Rothman, owner of Tri Parish Heating and Air Conditioning, testified that he installed the unit in February, 1973, and “kicked it off” when Brown moved in March, 1973. Rothman made two service calls that summer following complaints from Brown that the unit was leaking. The first time Rothman cleaned the drain and changed the filter; the second time he pulled the coil, which was clogged with dirt, and cleaned it. No charge was made for these calls since the unit was still within the one year service contract.

The next summer, 1974, Rothman made two more service calls. In April, 1974 he cleaned the coil and filter, for which he charged Brown a fee. Again, in June, Rothman changed the compressor because of bad valves. A new compressor was ordered through West Side, which Rothman installed. A charge was made for the work, but not for the cost of the compressor which was still under warranty. A few weeks after this, Rothman was called back because of water dripping from the unit. He found the coil clogged and again cleaned it.

Rothman testified that the major problem was the failure to keep the filter clean. This caused the condenser coils to become clogged, which resulted in reduced cooling.

Robert Tarver, heating and air conditioning contractor, testified for Willie Brown. He stated that he was called to service the unit in July, 1975 and that he found one of the duct pipes separated from the plentum, which condition resulted in the cool air being blown into the attic, instead of into the house through the ducts. Further, he opined that the connection had never been made properly because there were no screws or tape on the line. On this point, Rothman testified that the duct work had been connected to the plentum on installation, but that it could be torn loose easily.

Tri-Parish sued on open account for $113.25, representing the balance owed for the two service calls in 1974 after one payment by Willie Brown of $80.00. Brown answered and filed a third party demand against his building contractors, Phillips and Gray, and against West Side Materials, Inc., the furnisher of the unit. Brown later filed also a reconventional demand for additional repair costs he incurred in 1975.

In September, 1975, a pre-trial conference was held. Because some 9 months had passed since the filing of the original petition and service had not yet been effected on the third party defendants, the trial judge ordered those third party demands severed from the main and reconventional demands. After trial, judgment was rendered in favor of Tri-Parish on the original demand in the amount prayed for and rejecting Willie Brown’s reconventional demand. Brown has appealed.

Appellant has specified as error the ruling of the trial court on the main and reconventional demands, the severance of his third party demands, and the manner in which the court required the appellant’s proffers to be made.

Appellant resisted the main demand on open account for the alleged reason that the services and repairs performed after expiration of the one year warranty period were made necessary by defendant-appellee’s failure to perform properly the original contract of installation of the unit.

The contract to install the unit and service it without charge for one year was between the appellee Tri-Parish and West Side, the furnisher of the unit. However, these provisions were made for the benefit of Willie Brown as owner of the house. Therefore, even though there be no contractual privity between Brown and TriParish, nevertheless Brown can enforce the obligation intended for his benefit. State ex rel. Guste v. Simoni, Heck and Associates, 331 So.2d 478 (La.1976). A fortiori, if the repairs sued on resulted from the failure to perform the contract, Brown has a defense as well provided him, since a suit on open account is not immune from such defenses. See Hob’s Refrigeration & Air Conditioning, Inc. v. Poche, 304 So.2d 326 (La. 1974).

Again, Tri-Parish contracted to install and service the unit, which was furnished by West Side. Therefore, if the unserviceability of the unit thereafter resulted from a defect in the unit — a badness of materials — ,rather than from the quality of work in installation, then Tri-Parish would be entitled to judgment. This is so because the repair work performed by TriParish would not have resulted from a failure of performance on its part. See Weathermasters Parts and Service, Inc. v. McCay, 242 So.2d 306 (La.App. 4th Cir. 1971).

Applying these principles to the case sub judice, we do not find that appellant has shown that the repairs performed by appellee, Tri-Parish, after the warranty period expired, were made necessary by appel-lee’s earlier failure to perform the installation properly.

As noted supra, the record discloses conflicting testimony on whether the installation was done properly. We cannot say that the trial judge erred to accept the testimony of Rothman, owner of Tri-Parish, that the proper connections were made. However, assuming arguendo and most favorably to appellant’s case that the installation was done improperly, appellant still failed to show any causal relationship between such installation and the repairs and service performed later by Tri-Parish. The repair work sued upon consisted of cleaning the coil and filter, which were without contradiction clogged and dirty, and replacing the compressor because of bad valves. These conditions possibly could have resulted from the operation of an improperly installed duct system, but such cause and effect was never established.

For the similar reasons we find no error in the rejection of appellant’s recon-ventional demand. Appellant did not carry his burden of proving the installation improper and, further that such alleged faulty work necessitated the repairs made.

Appellant also complains of the severance of his third party demands against West Side and his contractors, Gray and Phillips. We find no merit in this contention. The severance was ordered at the pre-trial conference some nine months after the third party demands were filed. It was ordered because service had not been effected yet on the third party defendants, with the prospect of endless delay of the main demand. Considering the discretion afforded the trial court by LSA-C.C.P. art. 1038, together with the lack of any demonstrable prejudice to appellant, we find no error in the severance.

Lastly, appellant contends the trial judge erred in limiting his proffer to a statement setting forth the nature of the evidence rather than allowing him to make a record thereof. Initially we note that LSA-C.C.P. art. 1636 permits the court, in its discretion, to proceed in either mode. In either case the appellant is not prejudiced, for the appellate court will remand for completion of the record if, in the former case, the evidence excluded is ruled admissable.

That evidence which appellant sought to have admitted is described in his first proffer as the price paid to Tri-Parish by West Side in consideration for installation and service agreement. We agree with the trial court that such was irrelevant and inadmissable.

The second proffer concerned testimony sought to be elicited from Tarver relative to whether the heater had been vented when Tri-Parish installed the air conditioning unit. Counsel for appellant stated in the proffer that the witness’s testimony would be that the heater was not vented and that it was necessary to do so to install the unit properly.

Whether or not the unit was installed properly in every respect is not at issue. This issue is who is liable for the subsequent repairs. Unless appellant could show not only that the installation was improper, in whole or in part, but also that such impropriety was the cause of the particular repairs, he has failed to meet his burden, either as a defense to the main demand or on his reconventional demand for those charges already paid and those later occasioned.

Therefore, the proffer, seeking to show only that a part of the installation was not performed, is irrelevant to the issues of the case.

The decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Roland GASPARD v. Leo SAMPEY, Jr., et al.
    No. 10886.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Donald L. Peltier, Thibodaux, Peltier & Peltier, for plaintiff and appellant.
    Stanley L. Perry, Galliano, Larry P. Bou-dreaux, Thibodaux, for defendants and ap-pellees.
    Before SARTAIN, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit by Roland Gaspard against Leo Sampey, Jr., Ace Ready Mix Concrete, Inc., and National Fire and Marine Insurance Company, for damages for personal injuries suffered by him in an accident on October 28, 1972, when plaintiff’s car was struck in the right rear by the left front of a concrete truck owned by Ace, driven by Mr. Sampey and insured by National. After trial on the merits, judgment was rendered in favor of plaintiff and against all defendants for $5,330.62. Plaintiff has appealed, praying that the award be increased.

Prior to the accident, plaintiff was a carpenter and the owner of a boat with which he fished for oysters and shrimp. He looked on the fishing as his main source of livelihood. Plaintiff testified that before the accident, he had never had any difficulty with his health.

Immediately after the accident, which happened on a Saturday, plaintiff drove himself to Our Lady of the Sea Hospital in Galliano, Louisiana, where he saw the duty physician. Plaintiff testified that he had a lump on the left side of the neck and numbness in his left arm. The doctor gave him some pills and sent him back to work.

On the following Monday, plaintiff left to do some oyster fishing in Texas. He testified that he had soreness in his left side. On the first day of work on his boat, he had swelling of his neck and soreness in his left arm, and could not carry out all of his duties as captain. On November 3,1972, he consulted Dr. G. W. Cox in Galveston, who diagnosed a cervical strain and put plaintiff on a physical therapy program. On November 8, 1972, plaintiff was found to have a total left sided hypesthesia, but his neurological examination and the range of motion of his neck were within normal limits.

Shortly thereafter, while at the helm of his boat, plaintiff was jerked to the left when a swell hit his boat causing a sharp strain to the muscles of the left neck and shoulders. He saw Dr. Cox on November 22, 1972, who noted “rather bizarre symptoms of blurring vision and weakness on the left side with associated numbness.” Dr. Cox advised him to go into the hospital, because he feared a cervical disc injury. Because plaintiff then returned to Louisiana, Dr. Cox had not seen him again.

Plaintiff saw Dr. John D. Jackson, a neurologist, on December 19, 1972, complaining of headaches, dizziness, a feeling of instability, some decrease in vision and pain in the shoulder, neck and chest. Dr. Jackson found that plaintiff had a completely normal neurological examination. He thought that the dizziness and instability might be due to some middle ear damage. He found no evidence of cervical muscular strain in his examination, but, was of the opinion that plaintiff had probably suffered a cervical strain, and that, in time, his symptoms would subside. He further stated that the episode on the boat, when plaintiff’s neck and shoulder were strained, would have exacerbated his condition and prolonged his recovery. Dr. Jackson prescribed no treatment and did not see plaintiff again.

From January 11, 1973, until the latter part of 1974, plaintiff was treated at the United States Public Health Hospital at New Orleans by Dr. Gary H. Myers, who was the chief of the neurology service. He gave a history of having suffered a whiplash type injury in an automobile accident on October 28,1972, which caused blindness in his left eye for 30 minutes after the accident. Since that time, he told the doctor he had suffered severe recurrent episodes of blurring vision in his left eye, as well as dizziness and instability, and headaches. He had a normal neurological examination, and an eye examination which was within normal limits. He was given medication for his dizziness.

On March 8, 1973, plaintiff’s condition was substantially unchanged, and he was complaining of pain in the left side of his neck and shoulder. On May 7,1973, he was still about the same, and complaining of left shoulder pain, for which additional medication was prescribed. By June 28, 1973, his dizziness had disappeared, but he was complaining of pain on the left side of his neck, radiating up into his head. This pain increased with exercise and work on his boat, and a cervical collar was prescribed.

Throughout the remainder of his treatment, he suffered neck and shoulder pain when working, which subsided when he did not work. He was treated with pain medicine, traction and a cervical collar.

Dr. Myers felt that plaintiff has sustained a severe cervical muscle strain, for which no treatment could be given beyond that already prescribed. He said that any improvement in plaintiff’s condition should have already occurred, and that plaintiff’s prognosis was guarded. He felt that plaintiff’s pain was real and genuine.

Dr. Dexter A. Gary gave plaintiff an orthopedic examination of his neck and shoulder on March 18, 1975, and found it to be completely normal. He could find no objective findings which would account for plaintiff’s neck and shoulder pain.

Plaintiff testified that he was severely restricted in his attempts to work, either as a carpenter or a fisherman, although he continued to try to do so throughout the time after the accident. Although he testified that his income was greatly reduced because of his physical difficulties, the record shows that he earned $4,465.00 in 1971 and $4,510.00 in 1972. In 1973, he had a loss of $425.00 resulting mainly from a drop of about $5,000.00 in his gross receipts from fishing. In 1974, his earnings from carpentry were about $1,900.00 and, from fishing, about $2,850.00, for a net income of some $4,700.00. The gross income from fishing, however, was about $9,300.00, about $4,500.00 less than in 1972. There is testimony that 1973 was a bad year for oyster and shrimp fishing.

Plaintiff further proved special damages of $330.62. We therefore assume that the award of $5,330.62 included the specials plus $5,000.00 for pain, suffering and disability and loss of income, if any.

In order to reach so low a figure in the light of plaintiff’s complaints of continuing pain, the trial judge must have believed that most of plaintiff’s complaints resulted from the accident on the boat in November, 1972, rather than the automobile accident. He may further have been impressed by the fact that neither Dr. Jackson nor Dr. Gary could explain plaintiff’s complaints objectively, and that the history given to Dr. ' Myers did not mention the second injury, and included an episode of blindness in the left eye immediately after the first accident. The latter episode was not related to any other physician who examined plaintiff, nor testified to by plaintiff at the trial.

Considering the great discretion enjoyed by trial judges in cases of this type, and since there is sufficient evidence in the record which would support his conclusion relative to quantum, we find no manifest error in the result reached below.

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

AFFIRMED.


author: ELLIS, Judge.

text:
    STATE of Louisiana v. Ray Anthony DUGAS.
    Nos. 10955, 10956.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      James L. Alcock, Asst. Dist. Atty., Hou-ma, for plaintiff and appellee.
    Larry Boudreaux and Leslie Clement, Jr., Thibodaux, for defendant and appellant.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

In this case, which is consolidated with State of Louisiana v. Dugas, No. 10956, a judgment forfeiting the appearance bonds posted on behalf of defendant was signed on January 23, 1976, the forfeiture having been ordered on September 2,1975. Another judgment, refusing to cancel the bonds and dismissing an opposition to the bond forfeiture was signed on January 5, 1976. After a new trial was refused, this appeal was taken.

The State has moved to dismiss the appeal on the ground that a bond forfeiture proceeding, while civil in nature, is considered to be criminal for jurisdictional purposes, and that the appeal should have been taken to the Supreme Court. Defendant concedes that the appeal should have been taken to the Supreme Court, but asks that we transfer the appeal rather than dismiss it. See Gennuso v. State, 332 So.2d 493 (La.App. 3rd Cir. 1976).

Under Article 2162 of the Code of Civil Procedure, we have the authority to transfer an appeal over which we have no jurisdiction to the proper court. We feel that the interest of justice requires that we do so.

ORDER in No. 10955

This appeal is therefore ordered transferred to the Supreme Court.

APPEAL TRANSFERRED.

ORDER in No. 10956

For the reasons stated this appeal is ordered transferred to the Supreme Court.

APPEAL TRANSFERRED.


author: JONES, Judge.

text:
    Thomas Gilbert HARKEY d/b/a T. G. Harkey Realtor, Plaintiff-Appellant, v. Addie Kiper GAHAGAN, Defendant-Appellee.
    No. 12955.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    En Banc. Rehearing Denied, Nov. 1, 1976.

      Freyer & Freyer by Sam A. Freyer, Shreveport, for plaintiff-appellant.
    Nelson & Achee, Ltd., by Harry R. Nelson, Shreveport, for defendant-appellee.
    Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.
   JONES, Judge.

The Constitution provides in part that when a judgment of a district court is to be modified or reversed and one judge of the court of appeal dissents, the case “shall be reargued before a panel of at least five judges prior to rendition of judgment.” La. Const. Art. V, § 8(B) (1974).

The original consideration of this appeal by a three-judge panel produced this result and the case was reargued before a five-judge panel.

T. B. Harkey, a realtor, and Mrs. Addie Kiper Gahagan entered into a real estate listing contract on Dec. 28, 1973. The agreement provided that Harkey was to have the exclusive right to sell Mrs. Gaha-gan’s 11.14 acres for a period of 12 months, with a 12 month extension clause. The sale price was to be $15,000 per acre, which would result in a total price of $167,100. On June 6, 1975, some 5 months after the expiration of the primary term of the agreement, Mrs. Gahagan sold the 11.14 acres covered by the listing agreement, along with 2.14 acres of adjacent land and her home located thereon, to Don Coleman. The price for this 13.28 acres, plus the residence was only $150,000, some $17,000 less than the price originally asked for the 11.14 acres covered by the .listing agreement. Harkey sued, seeking to enforce the collection of a 6% commission allegedly due under the listing contract.

The trial court rejected plaintiff’s demand. We affirm.

At the time the contract was executed, defendant advised Harkey that Coleman had expressed an interest in the property at a prior time. Coleman had offered $150,000 for the 13.28 acres before defendant executed the listing contract. After Harkey obtained the contract, he telephoned Coleman and told him that he had 11.14 acres of the property listed, and the terms thereof. Coleman advised Harkey he was not interested in the property. The record reflects no further contact between Harkey and Coleman during the existence of the primary contract.

The trial court, in its reasons for rejecting plaintiff^ demands, held that the sale consummated after the expiration of the listing agreement was outside the scope of the listing agreement because the price was substantially reduced and there was substantial difference in the property sold from that in the listing agreement. Circumstances such as these do not necessarily deprive the realtor of the right to his commission, if he is otherwise entitled thereto. Corbitt v. Robinson, 53 So.2d 259 (La. App.2d Cir. 1951); Slimer v. White, 275 So.2d 468 (La.App., 2d Cir. 1973).

As an additional reason for denying plaintiff’s claim for his commission, the trial court held that plaintiff was not the procuring cause in consummating the eventual sale between purchaser and defendant.

‘Procuring cause’ refers to the efforts of a broker in introducing, producing, finding or interesting a purchaser, and means that negotiations which eventually lead to a sale, must be the result of some active effort of the broker. Lehmann v. Howard, 49 So.2d 453 (La.App.2d Cir. 1950); Womack Agencies v. Fisher, 86 So.2d 732 (La.App., 1st Cir. 1956).

The plaintiff did not find the purchaser nor did he interest the purchaser in acquiring the property, nor can it be remotely said that he began any negotiations with the purchaser for acquisition of the property. The trial court was therefore correct in holding that plaintiff was not a procuring cause to the transaction.

The listing contract between plaintiff and defendant contained the following extension clause:

“This employment and authority shall continue for the period of twelve (12) months from date hereof. I agree to pay said agent 6% percent of the selling price as and for the compensation of said agent hereunder in the event of a sale or an exchange of said real property by said agent or by any other agent or person, including myself, while this contract is in force, or if sold or exchanged within twelve (12) months after termination to anyone with whom said agent or owner had negotiated or to whom this property had been shown or submitted prior to the termination. . . . ”

Plaintiff contends he is entitled to recover the real estate commission because the extension clause had been activated by his telephone call to Coleman and therefore he was entitled to his commission on any transaction which occurred between Coleman and defendant for a period of 12 months following the expiration of the primary term.

The purpose of the extension clause in a real estate listing contract is to insure the realtor’s right to a fee when the property owner sells the property subject to the listing after the expiration of the primary term to a purchaser who had been located or otherwise interested in the property by the realtor’s effort. The realtor does not have to be the procuring cause in order to activate the extension clause. He need not have been involved in active negotiation with the purchaser at the time of the expiration of the primary term. However, his activities must have been the cause of creating some minimal interest in the purchaser which contributed to bringing about the eventual sale.

Illustrative of the interpretation and construction given to extension clauses by courts of other states is Hammerstad v. Saunders, 6 Wash.App. 633, 495 P.2d 349, 51 A.L.R.3d 1145 (1972). In that case a realtor had an exclusive listing contract providing that the realtor would be entitled to his commission in the event the property was sold by the owner to any person to whom it had been offered by the realtor or with whom the realtor had negotiated during the primary term. During the primary term one of the realtor’s employees, while showing some 40 pieces of property to a prospective purchaser, drove by defendant’s home and pointed it out and quoted him a price. The prospective purchaser immediately rejected any consideration of the property because the price was too high. Later an appointment was arranged during the primary term when the realtor’s employee was to have shown the property to the prospect, but this appointment was cancelled. After the elapse of the primary term the prospective purchaser’s wife learned of the availability of the house during a social visit in the home of the property owner. This visit had no relationship whatsoever to any of the realtor’s activities. Thereafter the prospective purchaser and his wife purchased the property and the realtor sued for his commission. The court denied recovery on the theory that no causal connection existed between the activities of the realtor during the primary term and the subsequent acquisition of the property by the person to whom it had been pointed out by the realtor’s employee. The court recognized the basic purpose of the extension clause and the fact that procuring cause was not essential to the activation thereof but held that in order for the realtor to recover under same, there had to be some connexity between the activities of the realtor and the ultimate sale. In discussing this, the court said:

“ ‘. . . [RJeal estate brokerage is a highly competitive business and it is a logical conclusion that the provision was intended to protect the agent beyond the duration of the exclusive “agency or right” to sell the property in order that he might not be deprived of his compensation for finding and presenting a purchaser during that period should the owner sell to him. Without such protection, it would have been an easy matter for the owners to circumvent his right by postponing acceptance until the definite time had expired. . . .’”
“Implicit in this underlying purpose is the fact that there must be some minimal causal relationship between the activities of the broker during the listing period and the ultimate sale. Cf. Korstad v. Hoffman, 221 Cal.App.2d Supp. 805, 35 Cal.Rptr. 61 (1963). We find no case in this state where a broker has recovered a commission in the absence of such a relationship, and we do not believe that Clients’ Service stands for such proposition. While Clients’ Service held that the activities of the broker neéd not be the ‘procuring’ cause of the sale, nevertheless, there was a clear connection between the activities of the broker and the ultimate sale.
“In the instant case, the court expressly found there was no connection between the activities of the plaintiff or Mrs. Ross and the ultimate sale. To hold that in these circumstances plaintiff was entitled to a commission would be contrary to the underlying purpose of the extension provision.” Id. at page 636, 495 P.2d at page 351, 51 A.L.R.3d at page 1148.

The principles expressed in Hammerstad are sound, and although not previously clearly enunciated in Louisiana, are consistent with the results reached in several Louisiana cases dealing with extension clauses.

In Acadian Investment Company v. Laird, 138 So.2d 429 (La.App.3d Cir. 1962) a realtor sought to collect his fee on a sale which occurred following the expiration of the primary term of his contract for the reason that the extension clause of the listing contract contained the following language:

“ * * * to anyone to whom this property has been exhibited, quoted or offered for sale . . .Id. at page 430.

There the realtor had contacted the subsequent purchasers during the primary term and advised them of his listing, indicating he would help in purchasing the property. The activity of the realtor, as reflected in the trial court’s reasons' for judgment was quoted with approval in the decision:

“Here the facts are entirely different. By his own testimony, Mr. LaBorde concedes that all he did was to call on Tanner and Cason, advise them that he had the Laird place for sale and offer to help them in purchasing it. . ” Id. at page 432.

The realtor made no further effort to effect the sale. The court, in denying plaintiff’s recovery of the fee, approved and adopted the trial court’s conclusions and reasonings:

“ * * * Here again the plaintiff can fare no better. It seems sufficient to say that the reason behind the contract, and the law which supports it, requires that the quoting or offering of the property to be sold must be in the course of a genuine effort to effect a sale. The testimony is convincing that such was not the case . .” Id. at page 432.

In this case because there was only a minimum effort made by plaintiff to consummate a sale during his primary term with the parties who later purchased a portion of the property subject to plaintiff’s listing, the court held the extension clause was inapplicable.

In Coppage v. Camelo, 330 So.2d 695 (La. App.4th Cir. 1976), a realtor sued for his commission on the extension clause in a listing contract. Following the expiration of the primary term, the property owner sold the lot subject to the listing contract, to an adjoining property owner who had attempted to purchase the property several times from the owner prior to his execution of the listing contract. During the primary term the realtor went to the adjacent property owner who conducted a nursery on the lot adjoining the one listed, and attempted to interest him in purchasing his property. The adjacent property owner immediately advised the realtor that he did not desire to talk to him, and that he would not buy the property through his offices. The nurseryman’s response to the realtor’s contact was as follows:

“ * * * [Y]ou don’t need to talk to me, about the land next door, I know all about it and I know who owns it and . I said, listen, let me tell you right now, there is no way I am going to buy it through a real estate [sic], I said, if I am going to buy it, you take your best shot and try to sell it, if I lose it it is okay.” Id. p. 696.

The court stated that realtor’s efforts to find a buyer did not produce the prospect who later purchased the property. The nurseryman promptly advised the realtor he was not interested in dealing with him. The nurseryman’s position precluded the realtor from advising him of the price of the property. The court found the activities of the realtor during the primary term did not activate the extension clause because he did not produce the buyer and denied the realtor’s right to recover his commission.

In construing the extension clause in the contract, we must consider the purpose of the clause and the intent of the parties at the time this contract was entered into.

In Cramer v. Guerico, 331 So.2d 550 (La. App., 1st Cir. 1976) wherein the court was interpreting the meaning of an extension clause, the court restates several precepts for the interpretation of agreements:

“When called upon to enforce or interpret a contract, the court must seek for and ascertain the mutual intention of the parties, if that be possible. . . . ”
“It is the court’s duty to construe agreements in accordance with the parties’ common intention rather than adhere to the literal meaning of the terms thereof. . ” Id. page 554.

Here, the purpose of the clause and the parties’ intent was that Harkey would be entitled to his commission if, following the elapse of the primary term, a sale was made by Mrs. Gahagan to a prospect in whom Harkey, by his activities, had created some minimal interest which contributed to the eventual sale. The facts involved in this case simply do not fall within the foregoing principle.

Harkey’s contact with Coleman during the primary term of his contract is comparable to the extent of the realtor’s contact with the subsequent purchaser as found in Acadian Investment Company and Cop-page, supra. Here, (a) Coleman was familiar with the property prior to the execution of the listing agreement and the telephone call to him from Harkey; (b) Coleman had made an identical offer to purchase the property some time prior to the listing contract; (c) Coleman, upon receipt of the Har-key telephone call, quickly expressed no interest in the property; and (d) more than one year elapsed between Coleman’s receipt of the telephone call from Harkey and his negotiations and purchase of the exact property at the exact price he had earlier offered to Mrs. Gahagan.

Our recent decision in Carter v. Hayes, 337 So.2d 295 (1976) is distinguishable from this case because there we found the actions of the agent resulted in the ultimate sale of the property.

There was no connexity nor minimal causal relationship between Coleman’s purr chase of the property from defendant and the activity of Harkey during the primary term of the listing contract.

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


author: BOLIN, Judge.

text:
    Ronald D. CASON, Plaintiff-Appellee, v. PAN-AMERICAN LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 12998.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.

      Watson, Murchison, Crews & Arthur, by R. Raymond Arthur, Natchitoches, for defendant-appellant.
    Bethard & Davis, by Henry W. Bethard, III, Coushatta, for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

Pan-American Insurance Company refused to pay Ronald D. Cason, insured, benefits under a health and accident policy and Ca-son sued. Pan-American disclaimed liability on the grounds plaintiff made material misrepresentations when he failed to disclose, in answer to a question in the policy application, that he had four other hospital policies in addition to the one he named; that the answer was made with the actual intent to deceive; and that had the question been answered fully and truthfully the company would not have issued the policy. The lower court found defendant had failed to prove plaintiff intentionally made material misrepresentations with intent to deceive and gave judgment in favor of plaintiff for the amount of the demand plus penalties and attorney fees. Defendant appeals and we affirm.

The issue on appeal is the correctness of the trial judge’s finding that plaintiff made no material misrepresentations and that defendant had no just and reasonable grounds for refusing to timely pay benefits under its policy.

Question number six in the application for insurance was: “What major medical, hospital or surgical insurance is in force on you or dependents . . . ?” To this question the insured answered: “Teamsters Local 568 (Wolf Baking Co.).” The square directly adjacent to the answer reads, “Hospital Benefits” and is checked to indicate the type policy.

The parties have opposed versions of what was said at the time the company’s agent went to plaintiff’s home to sell the policy. Cason testified the agent, in filling out the application form, asked him question number six and he told the agent about the policy with his employer, Wolf Baking Company. He also said he told the agent he had four other “cash” policies which he described as policies which would pay him stated amounts for each day that either he or his wife was hospitalized. He said the agent elected not to name these other policies. Plaintiff testified the four policies were advertised as cash policies designed to make up for lost income and that he purchased them for this protection since his income ceased when he was unable to work; that the Pan-American and the group policy with his employer were intended to cover hospital expenses.

The general agent for Pan-American testified there was a company practice that agents were not to sell policies which, when combined with other policies held by a prospective insured, would yield hospital room benefits exceeding $75 per day; that this practice was not made known to prospective purchasers but was instilled in the agents; that the agent who sold this policy knew and observed this practice; that had the agent known of plaintiff’s other policies he would not have sold plaintiff the Pan-American policy because Cason’s combined coverage would have been in excess of $75 per day. The agent who sold the policy corroborated this testimony and denied Ca-son told him about the other policies. However, he admitted plaintiff was never told of the company practice of limiting sales of hospital policies.

Louisiana Revised Statutes 22:619 provides:

A. Except as provided in Sub-section B of this Section and R.S. 22:692, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive. B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer. (Emphasis supplied)

The lower court, without deciding which of the two versions was correct, found Pan-American failed to prove Cason made any misrepresentations in his application because question number six is subject to being correctly answered two ways according to an individual’s understanding of the term “hospital insurance”. We agree with this conclusion. In view of this ambiguity the applicable rule is that when a policy term admits of two interpretations, the one sustaining the claim for indemnity will be adopted. Rambin v. Continental Casualty Co., 186 So.2d 861 (La.App.2d Cir., 1966).

Defendant urges, in view of Cason’s admission he had numerous other policies under which claims had been made and paid, plaintiff must have known his representation that he had only one other hospital policy was false and “materially affected either the acceptance of the risk or the hazard assumed by the insurer.” (La.R.S. 22:619 B). We find this position untenable since it was shown plaintiff had no knowledge of defendant’s practice of setting a $75 a day ceiling on recoverable policy benefits. Nothing in the application nor in the policy would alert a prospective purchaser that the answer to this question is considered by the company material to the risk. Cases cited by defendant deal with misrepresentations of applicant’s physical condition or health history and are inapplicable to the issue before us.

Defendant contends the lower court erred in awarding benefits for Mrs. Cason’s illness from April 28, 1975 to May 6, 1975, since no proof of claim for that illness had been received. A review of the facts shows plaintiff filed proofs of claim in December, 1974 for illnesses and hospitalizations for both Cason and his wife in that month. These claims were unpaid and on April 2, 1975, defendant wrote plaintiff’s attorney declaring the policy was null and void and the premiums were being refunded. Under these circumstances it was unnecessary for plaintiff to submit a claim for Mrs. Cason’s April illness prior to suit, which was filed May 28, 1975.

The remaining issue is plaintiff’s entitlement to penalties and attorney fees under Louisiana Revised Statutes 22:657(A), which provides that all claims under a health and accident policy shall be paid within thirty days from receipt of proof of claim, unless the insurer has just and reasonable grounds for refusing to pay the claim. Defendant claims it had reasonable grounds for refusing to pay plaintiff’s claim within the required thirty days; that the lower court erred in holding that defendant “improperly interpreted its own application”; that the insurance company was justified in refusing to pay benefits when it learned and established the fact that plaintiff had four or more other policies in effect at the same time.

The proofs of claim for two of the three illnesses were filled out by the attending physician on Pan-American’s claim form in December 1974. On March 25, 1975 plaintiff’s attorney advised defendant the claims had not been paid within the thirty-day period provided by Louisiana law and no reason had been given for this failure. The attorney also advised defendant this failure subjected defendant to penalties under the law. On April 2, 1975, more than three months after receipt of proofs of claim, defendant wrote plaintiff’s attorney declaring the policy null and void and tendering a refund of premiums.

It is apparent defendant had no information upon which to base its refusal to pay the claims until long after the expiration of the thirty-day period provided in La.R.S. 22:657(A). Consequently the company had no “just and reasonable” cause for refusing to pay the December claims within thirty days from receipt of proofs. When defendant undertook to determine the legal effect of plaintiff’s answer to question number six in the application form and declared the policy null and void, it took the risk of having a contrary judicial interpretation of the facts and the consequent imposition of penalties and attorney’s fees. Tingle v. Globe Life Insurance Co., 290 So.2d 460 (La.App.2d Cir., 1974), and cases cited. The lower court was correct in casting defendant with penalties and attorney’s fees.

The judgment is affirmed at appellant’s cost.


author: MARVIN, Judge.

text:
    Thomas R. Terral, Jr. d/b/a Omega Engineering, Plaintiff-Appellee, v. Oscar BEARDEN, Defendant-Appellant.
    No. 12999.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.

      Kidd, Katz & Strickler by Paul H. Kidd, Monroe, for defendant-appellant.
    Baker, Culpepper & Brunson, Jonesboro by Joseph A. Cusimano, Jr., Farmerville, for plaintiff-appellee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

Defendant appeals from a judgment awarded plaintiff under quantum meruit for a survey made in 1974 by plaintiff on verbal orders of defendant. Defendant contends the trial court erred because plaintiff brought suit on the oral contract and did not alternatively seek recovery under quantum meruit, contrary to the holding of Edington Drilling Company v. Yearwood, 239 La. 303, 118 So.2d 419 (1960).

The survey of defendant’s lands arose out of three telephone conversations between the parties litigant. Plaintiff contends he quoted defendant hourly prices of $15 for preparatory (office) work and $21 for field work, assuming that the lands were in one tract and had an established corner on which to base the survey, and estimating that it would take two and one-half days to do the job.

Defendant admits he directed plaintiff to make the survey, but only after plaintiff “guaranteed” to do the work for a fixed price figured on the basis of two and one-half days at $156 per day, or $390.

As it turned out, defendant’s property was not one tract, but two separate tracts, one of twenty acres and the other of eight acres. The terrain of the properties was not uniform or even and there was no established corner. Plaintiff and his crew spent four and one-half hours in preparation work and 63 hours in the field. Plaintiff and his crew worked one and one-half or two days traversing rough terrain and cutting through thickets to reach one of defendant’s corners from an established corner some two thousand feet away. Defendant’s tracts were in an isolated area. The survey began on Friday, August 23, and was completed on Thursday, August 29, at which time plaintiff telephoned defendant about the completion. On Wednesday, August 28, defendant walked around the surveyed lines with one of plaintiff’s crew. Almost 10,000 linear feet were surveyed and staked. The lower court also considered plaintiff’s expenses for stakes, measuring tape and general overhead, in approving as reasonable the hourly rates mentioned.

Plaintiff testified that when he obtained a copy of defendant’s deed and learned there were two tracts involved, he informed defendant that it was going to take longer than two and one-half days to make the survey. Plaintiff said defendant responded by telling him to proceed with the survey and to report his progress to defendant on a daily basis.

The defendant admitted he learned from plaintiff that his property was in two tracts; that he heard from the plaintiff after the survey started and before the surveyors reached defendant’s corner; that defendant knew the survey started on a Friday (August 23) and that defendant walked the lines on the following Wednesday (August 28). Defendant admits receiving telephone calls from plaintiff on the nights of Saturday (August 24), Sunday (August 25), Monday (August 26), and Tuesday (August 27) about the progress of the survey team. Defendant also admits knowing on Wednesday (August 28) how many days the surveyor had been working.

The lower court said:

“ . . . [I]t is understandable that, based upon preliminary discussions and the hypothetical situation posed by plaintiff, defendant might justifiably have assumed that the surveying work would take no longer than 2V2 days. However, if this was his understanding, it defies logic that he did not raise this issue when informed that plaintiff’s crew took two full days just to reach a corner on defendant’s property from which they could run his lines.” Opinion, p. 3.

The lower court noted plaintiff’s testimony that he told defendant before the survey was begun “ . . .in surveying you can’t contract [at a fixed price] because it depends on what kind of terrain you run into and how far you have to run and everything else.” (Material in brackets supplied). The defendant was or should have been aware that the two and one-half days mentioned was only an estimate and that he was going to be charged on the basis of how long it would take for the survey to be completed. It is not shown that time was of the essence to defendant for the survey to be completed and we can only conclude that the two and one-half days was interjected into the parties negotiations merely as an estimate. As the survey progressed, defendant became aware by telephone and visual inspection that it was taking longer than two and one-half days.

The trial court concluded there was “no meeting of the minds . . . as to the total cost of the survey . . . ” We do not dispute this conclusion because the surveying was not yet begun. We find, however, that before the work began, there was a meeting of the minds that the total cost would be computed on a time or hourly basis after the survey was completed unless defendant ordered the surveyors to cease working before completion. Otherwise, there would have been no necessity for the nightly telephone calls from plaintiff to defendant.

Even assuming arguendo, that there was no meeting of the minds on the hourly rate or rates to be charged does not avail defendant. Here, the plaintiff staked at 100 foot intervals the boundaries of defendant’s two tracts and defendant, with knowledge of plaintiff’s efforts, has benefited thereby. The circumstances here are appropriate for application of the doctrines of quasi contract and quantum meruit notwithstanding the absence of a plea therefor. In this respect defendant relies on Edington Drilling Company, cited supra (1960), and Josey v. Howard Lbr. & Supply Company, 232 So.2d 119 (La.App. 2d Cir. 1970).

Other cases which should be considered are National Crankshaft Co. v. Natural Gas Industries, Inc., 246 La. 395, 165 So.2d 1 (1964); Brooks v. Britnell, 183 So.2d 434 (La.App. 2d Cir. 1966); and Duggan Machine Co. v. Consolidated Well Servicing Co., Inc., 187 So.2d 124 (La.App. 2d Cir. 1966).

Edington arose before the Code of Civil Procedure became effective. It said:

“This plea cannot be granted because plaintiff seeks recovery only under its contract and not on a quantum meruit basis. The law is well settled that, when a plaintiff sues on a contract which is shown to have been breached by him, recovery may not be had in that action on a quantum meruit . . . , unless he has pleaded for such relief in the alternative.” 118 So.2d 422. (citations omitted).

Next came National Crankshaft in 1964. It said:

Although plaintiff’s suit is based on the contract of sale of January 11, under the authority of Article 2164 of the Code of Civil Procedure the appellate court may render any judgment which is just, legal, and proper on the record on appeal.” 165 So.2d 3, footnote 1.

Brooks and Duggan Machine Co., by this court in 1966, said:

“Under the provisions of the Louisiana Code of Civil Procedure an appellate court may grant relief on the basis of quantum meruit under a quasi contractual theory although such relief is not prayed for in an alternative demand. LSA-C.C.P. 2164; National Crankshaft Company v. Natural Gas Industries, Inc., supra; Brooks v. Britnell, La.App., 183 So.2d 434 (2nd Cir. 1966).” 187 So.2d 126. See also 183 So.2d 435.

Josey, by this court in 1970, obviously overlooked the authority of Brooks and Duggan, as well as of National Crankshaft, which were decided since the advent of the Code of Civil Procedure, and relied solely upon the statement in Edington in 1960. Josey also did not mention the Edington requirement that before quantum meruit recovery can be allowed a plaintiff, the plea must be made in the alternative when the contract is shown to have been breached by the plaintiff. Josey said:

“Plaintiff has sued solely under allegations of contract and has not asked for recovery on a quantum meruit basis in the alternative. We, therefore, cannot grant him any relief under this theory of law. B. F. Edington Drilling Co. v. Yearwood, 239 La. 303, 118 So.2d 419.” 232 So.2d 122.

Each of these cases of course, must stand on its peculiar facts and we see no need to detail the factual distinctions between them. Instead, we turn to more recent judicial pronouncements which call for scrutiny of reasons underlying procedural bars imposed either by the Code or by cases, before the bar is applied.

The reason for not allowing recovery in quantum meruit when suit is brought on a contract and no alternative plea is made, is to avoid surprise and resulting injustice to the defendant. The same reason exists in the code requirements that special damages be “specifically alleged” (C.C.P. Art. 861) and that affirmative defenses shall be “set forth affirmatively” (C.C.P. Art. 1005). See Paxton v. Ballard, 289 So.2d 85 (La. 1974) and Townsend v. Cleve Heyl Chevrolet, 318 So.2d 618 (La.App. 2d Cir. 1975). In Paxton, the procedural bar was lifted because the adverse party was timely given “fair notice” by factual pleadings of what the other party was seeking, although the pleading was technically deficient when weighed against the Codal authority. In Paxton, the defendant failed to plead contributory negligence as a bar to recovery. In Townsend, the “fair notice” doctrine of Paxton was extended to cover special damages under La.C.C.P. Art. 861. In both instances, the test applied was whether the adverse party had “fair notice” by the factual pleadings of what the other party was contending and was not “surprised” so as to create an injustice. Where this question is affirmatively answered, the procedural bar because of technically deficient pleadings is not applied. These principles are appropriate here.

In the instant case, defendant was sent an itemized statement before suit was filed showing the hours worked and the respective hourly rates. Plaintiff’s petition alleged the same information and a copy of the itemized statement was attached. Defendant attempted to negotiate with plaintiff’s attorney after suit was filed and was generally informed by this attorney of plaintiff’s contentions as to the hours and the rates. Defendant was afforded ample time to contest the reasonableness of both the hours and the hourly rates on which plaintiff was basing his case. Defendant did not, but could have asked for a continuance to obtain evidence to rebut plaintiff’s testimony regarding the basis of the hours and the rates (C.C.P. Art. 1154).

Plaintiff expressly alleged in his petition that the itemization submitted to defendant “ . . . represents a fair and reasonable charge for services rendered in view of the skill and time involved and plaintiff is entitled to recover same from defendant.” The reasonableness of plaintiff’s charges and the amount of time involved were put at issue by this allegation and it was not necessary for plaintiff to plead quantum meruit in the alternative. Under this allegation plaintiff was required to prove the reasonableness and fairness of the time and the charges. Plaintiff did this to the. lower court’s satisfaction. We hold therefore that defendant was timely given “fair notice” of plaintiff’s contentions and was not taken by surprise so as to cause him an injustice.

Article 862 of the Louisiana Code of Civil Procedure further supports the right of the trial court to grant the relief to which the plaintiff is entitled. The Article provides:

“Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contained no prayer for general and equitable relief.”

It is not shown that plaintiff in any way breached any agreement with defendant, an additional reason why Edington does not control. To the extent that the statement quoted from Josey is contrary to our holding herein it is overruled.

At appellant’s cost, judgment is

AFFIRMED.

      . The trial court cogently observed: “ . [H]ow the figure of $156.00 per day was arrived at was never explained, since this would evolve an uneven hourly rate.”


author: PRICE, Judge.

text:
    C. D. HUNTER, Plaintiff-Appellant, v. The FIREMEN’S FUND INSURANCE COMPANY, Defendant-Appellee.
    No. 13000.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    En Banc. Rehearing Denied, Nov. 1, 1976.
    Rothell & Lawson by David A. Rothell, Mansfield, for plaintiff-appellant.
    Mayer, Smith & Roberts by Charles L. Mayer, Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

C. D. Hunter has appealed from the judgment of the trial court rejecting his demands in this direct action against the liability insurer of Roy H. Corley for damages resulting from an intersectional automobile collision in the City of Mansfield.

Firemen’s Fund Insurance Company was originally named as defendant, but by amended pleadings, the American Insurance Company was substituted as the proper party defendant.

At about 4:00 p. m. on March 27, 1975, as Hunter was driving west on Gibbs Street, his automobile collided with the vehicle being driven in a southerly direction by Corley on Monroe Street. Gibbs is the favored thoroughfare, and a stop sign controls traffic entering the intersection of these streets from Monroe Street.

Hunter contends the accident was caused solely from the negligence of Corley in failing to comply with the stop sign and not maintaining a proper lookout before proceeding into the intersection with the street accorded the favored right-of-way. In responsive pleadings, American denied Corley was guilty of negligence, and alleged Hunter’s negligence in driving at an excessive speed and failing to maintain a proper lookout was the sole cause of the accident. In the alternative, American pled the doctrine of contributory negligence as a bar to recovery by Hunter.

The trial judge found Hunter negligent in driving at an excessive speed, and in failing to see the Corley vehicle slowly entering the intersection at a time when he could have either stopped or taken evasive action to have avoided the collision.

We reverse the judgment rejecting Hunter’s demands and award him damages in accord with the evidence.

The only witnesses to the accident were the drivers of the vehicles involved.

Hunter testified he did not see the Corley vehicle until it suddenly pulled out in front of him from Monroe Street, and that although he immediately applied his brakes, he could not stop in time. He further testified he was driving within the speed limit of 30 miles per hour at the time.

Corley testified he came to a stop at the intersection in response to the stop sign facing him and allowed several cars to pass on Gibbs Street before slowly proceeding into the intersection. He further testified “and then after that time I pulled out slowly and pulled out just a little in the highway and when I looked to my left I saw Mr. . well I didn’t know who it was right then, but Mr. Hunter and in my judgment he was coming pretty fast . . . ”

The trial judge based his conclusion that Hunter was traveling at an excessive speed on evidence showing Hunter’s vehicle left 30 feet of skid marks prior to colliding with the Corley automobile and retained enough speed to force the Corley car to a position parallel with Gibbs Street.

This physical evidence of itself is not sufficient to corroborate Corley’s testimony that Hunter appeared to be traveling at an excessive speed. The left front side of the Corley car was struck by the front of the Hunter vehicle in the northwest quadrant of the intersection. This shows the collision took place just as Corley pulled into the intersection which strongly supports Hunter’s contention that he did riot have time to stop. This also negates any question that Corley had preempted the intersection.

The physical evidence as reviewed above when weighed along with Corley’s testimony clearly shows he was negligent in entering the intersection in the path of the Hunter automobile, and that this negligence was the sole cause of the accident. Hunter was, therefore, free of any contributory negligence.

As all evidence concerning Hunter’s personal injuries is in the record before us, we are in a position to pass on the issue of quantum without the necessity of remanding the case to the trial court for this purpose.

Hunter was examined at DeSoto General Hospital after the accident by Dr. J. L. Grindle. He was there overnight and treated for a contused left shoulder and right rib cage.

As he continued to have problems with this shoulder, he was referred to Dr. Ray King, an orthopedist of Shreveport, in June, 1975. Dr. King diagnosed plaintiff’s injury as a frozen left shoulder caused by adhesive capsulitis and sclerosis in the greater tuber-osity. He recommended therapy known as Blake’s traction for primary treatment, and should this not succeed, he recommended the shoulder be manipulated with Hunter under an anesthetic to break loose the adhe-sions.

Hunter underwent the Blake therapy in DeSoto General Hospital from July 2, 1975, to July 11, 1975. He was last examined by Dr. King in November, 1975, at which time it was noted that he continued to have some stiffness in the shoulder.

Hunter contends he is unable to undergo the second treatment recommended by Dr. King as he cannot be placed under a general anesthesia. He had undergone open heart surgery in 1973, and evidence was presented showing it is more hazardous for a person in his circumstances to be placed under an anesthesia. He, therefore, contends disability is permanent.

The primary issue is whether the accident could have caused the adhesive capsulitis in Hunter’s shoulder. Dr. King explained this is a condition which is slow in manifesting itself. As Hunter had suffered from gout for a period of time prior to the accident, Dr. King was of the opinion he was more inclined to develop the adhesions in the shoulder capsule. He explained that a sudden trauma received in an accident, although not a direct and immediate cause, could result in injury to the shoulder which would prevent its being moved freely for a period of time and this inactivity would probably have caused the adhesions to form.

We are of the opinion that the medical evidence is sufficient to show the accident had a causal connection with Hunter’s frozen shoulder.

He has sued for past and future loss of wages contending that he is unable to carry out the duties as a body shop repairman in the same manner as prior to the accident.

Dr. King found Hunter to have a fifteen to twenty per cent disability to the shoulder which would affect his use of the shoulder in overhead lifting only.

The evidence shows Hunter had for several years prior to the accident worked as foreman of the body shop at Lowery Motor Company in Mansfield. He worked on a commission, receiving a percentage of the gross receipts from the work of others in the shop. He had, at times in the past, done some work himself for which he received a greater percentage. Since his open heart surgery, his work had been more limited to preparing estimates of repairs and supervision the work of others. A comparison of his 1974 and 1975 income tax returns does not show he had suffered any loss of income in 1975, the year of the accident.

The evidence taken as a whole does not show to a degree of legal certainty that Hunter has sustained any loss of past earnings or any predictable basis for a loss of future earning capacity caused by the accident.

He has, however, undergone some pain and suffering which can be attributed to the accident and which may continue to some degree in the future. An award of $5,000 for general damages in sufficient to compensate him for his injury.

Although medical expenses were sued for, there was no evidence presented of any such expense nor evidence of estimated future medical costs. Therefore, no amount can be awarded for this purpose.

The judgment appealed is reversed, and judgment is rendered in favor of C. D. Hunter against The American Insurance Company for the sum of $5,000, together with legal interest thereon from judicial demand until paid, and all costs of this proceeding, including this appeal. The fees of the expert witnesses for plaintiff are taxed as costs and are fixed as follows:

Dr. Ray King $100

Dr. John Bagley $100

Mr. Alva Nash $ 50

Reversed and rendered.


author: HALL, Judge.

text:
    Billie Jewel SPENCER, Plaintiff-Appellant, v. Archie COLLINS et al., Defendants-Appellees.
    No. 13001.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.

      Peters, Ward & Miller by Frederic L. Miller, Shreveport, for plaintiff-appellant.
    Campbell, Campbell & Johnson by James M. Johnson, Minden, for defendants-appel-lees.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

Plaintiff, Billie Jewel Spencer, filed a petition for partition by licitation of several parcels of land, alleging she was the owner of an undivided one-half interest in each parcel. She alleged that the several properties were acquired during the existence of the community of acquets and gains formerly existing between her and Doyle H. Wilson, the community having been dissolved by judgment in separation proceedings between her and her former husband.

Among the properties listed in the petition was Lot 7, Wood Corporation Subdivision, Bossier Parish, Louisiana, of which defendant, Archie Collins, was alleged to be the owner of the other undivided one-half interest. Collins filed a motion to strike the allegations of plaintiff’s petition dealing with Lot 7, alleging he had acquired full title to Lot 7 by virtue of a deed from F. 0. Langheld, who had acquired the property by sheriff’s sale deed pursuant to foreclosure of a mortgage of the property granted by Doyle H. Wilson and Billie Jewel Wilson prior to their separation. Attached to the motion to strike were copies of the separation proceeding, foreclosure proceeding, and deed from Langheld to Collins.

After a hearing, for oral reasons not shown in the record, the motion to strike was sustained and the demands of plaintiff relating to Lot 7 were ordered stricken from the petition. Plaintiff appealed. For reasons expressed in this opinion, we affirm the judgment of the district court.

It is questionable whether a motion to strike under LSA-C.C.P. Art. 964 is the appropriate procedural vehicle for raising a defense of the nature presented in this case. Nevertheless, no issue is raised in this regard by either of the parties, the matter was fully presented and heard before the trial judge, and the issues are squarely presented to this court for appellate review.

On June 2, 1965, during their marriage and the existence of the community of ac-quets and gains, Doyle H. Wilson and Billie Jewel Wilson, executed a promissory note in the amount of $9,100, payable to the order of Delbert Speights. To secure payment of the note, Doyle H. Wilson and Billie Jewel Wilson granted a mortgage on Lot 7 and other property, which mortgage contained a confession of judgment and pact de non alienando.

Doyle H. Wilson and Billie Jewel Wilson were separated by judgment rendered December 27, 1968, with plaintiff being recognized as owner of an undivided one-half interest in all community property. The parties were divorced by judgment rendered June 22,1971, the judgment recognizing plaintiff as owner of an undivided one-half interest in the community property.

On January 12, 1970, F. 0. Langheld, the holder and owner of the note payable to Speights which had been endorsed in blank, filed suit by ordinary process for foreclosure of the mortgage securing the note. Named as defendants were Doyle H. Wilson, a resident of Bossier Parish, and Billie Jewel Wilson, a resident of California. Doyle H. Wilson was served personally and Billie Jewel Wilson was served through an attorney at law appointed to represent her. The suit sought a personal money judgment against Doyle H. Wilson, with reservation of plaintiff’s rights against Billie Jewel Wilson as solidary obligor of the indebtedness, recognition of plaintiff’s mortgage, and sale of the mortgaged property at public auction to satisfy the amount of the judgment.

Answer was filed on behalf of Billie Jewel Wilson by the attorney appointed to represent her. No appearance was made by Doyle H. Wilson. On March 13, 1970, with the attorneys for plaintiff and the attorney appointed to represent Billie Jewel Wilson present, judgment was rendered against Doyle H. Wilson for the balance of $4,565.70 due on the note and further ordering the plaintiff’s mortgage on the property recognized and that the property be sold at public auction and that plaintiff be paid the amount of the judgment from the proceeds in preference to other creditors. Plaintiff’s right to further proceed against the absentee defendant was reserved.

Thereafter, a writ ordering the seizure and sale of the property was issued. The sheriff seized the property. After advertisement and appraisal, the property was sold to Langheld at public sale and the sheriff’s deed recorded May 20, 1970. Lan-gheld sold the property to Collins on August 11, 1970.

The present suit was filed September 25, 1974.

The basis of plaintiff’s claim to ownership of an undivided one-half interest in the property is that the foreclosure proceeding did not divest her of her one-half interest in the property.

Plaintiff argues first that since Langheld elected to proceed by ordinary process, it was necessary that the court have personal jurisdiction over her or obtain in rem jurisdiction by prior seizure of the property in order to render a valid judgment.

A conventional mortgage may be enforced by either ordinary or executory proceedings. LSA-C.C.P. Art. 3721. When the mortgagee enforces a conventional mortgage by ordinary proceeding, he must first obtain a judgment against the mortgagor and then execute the judgment. LSA-C.C.P. Art. 3722.

A court has jurisdiction to enforce a right in, to, or against property having a situs in this state, claimed or owned by a nonresident not subject personally to the jurisdiction of the court. LSA-C.C.P. Art. 8. Such in rem jurisdiction is not to be confused with quasi in rem jurisdiction defined in LSA-C.C.P. Art. 9 which requires attachment of the nonresident’s property at the commencement of the action in order to render a money judgment.

LSA-C.C.P. Art. 5091 provides for the appointment by the court of an attorney at law to represent a nonresident or absentee defendant' when the court has jurisdiction over the property of the defendant.

It is well-established that no prior seizure of the property is necessary to give the court jurisdiction in a mortgage foreclosure suit against a nonresident, and that an attorney should be appointed to represent the nonresident. Hibernia Bank & Trust Co. v. Lacoste, 190 La. 162, 182 So. 314 (1938); National Acceptance Company of America v. Wallace, 194 So.2d 194 (La.App. 2d Cir. 1967), writ refused, 250 La. 467, 196 So.2d 533 (1967).

The mortgage holder’s options in foreclosing on a mortgage are outlined in Hibernia:

“The plaintiffs, therefore, could have proceeded via executiva, which is strictly an in rem proceeding, via ordinaria, which is also an in rem action, or, sued the defendant in personam on the note.”

National Acceptance Company of America v. Wallace, supra, is authority that the procedure used in the instant case was proper:

“Nor do we find any basis for concluding the court was without jurisdiction, by reason of Mrs. Wallace’s absence or non-residence, to recognize and to order the enforcement of plaintiff’s mortgage. LSA-C.C.P. Art. 5091 provides that where a court has jurisdiction over the person or property of a defendant, it shall appoint an attorney at law to represent the defendant if the defendant is a nonresident or absentee who has not been served with process, either personally or through an agent for the service of process, and who has made no general appearance. The property involved is located within the jurisdiction of the trial court. The mortgage, evidenced by an authentic act, imports a confession of judgment. Under such circumstances, it was held in Hibernia Bank & Trust Co. v. Lacoste, 190 La. 162, 182 So. 314 (1938), that, where a judgment in rem was sought, service of citation upon the mortgagor personally was unnecessary and that the court had jurisdiction, although the property had not been seized or attached and service was had on a curator.” 194 So.2d 202, 203.

The procedure followed by the foreclosing mortgage creditor in this case was in accordance with the requirements of law. He elected to proceed by ordinary proceeding and sought a money judgment against Mr. Wilson, who was subject personally to the jurisdiction of the court, and an in rem judgment against Mrs. Wilson, who was a nonresident. An attorney at law was appointed to represent her, against whom the proceeding was contradictorily carried on. In due course, judgment was rendered against both parties as prayed for, recognizing the indebtedness due, granting a personal money judgment against Mr. Wilson, and recognizing the mortgage and ordering it enforced against the property.

Plaintiff next contends that a writ of “seizure and sale”, authorized only in executory proceedings (LSA-C.C.P. Art. 2638), was issued in this case instead of a writ of “fieri facias”, required in execution of judgments under ordinary proceedings (LSA-C.C.P. Art. 2291).

Regardless of the precise form and language of the writ, it directs the sheriff to seize and sell the mortgaged property in satisfaction of the judgment rendered in the proceedings. The sheriff did, in fact, seize the property, make due return thereof, and proceed to sell the property at public sale after proper delays, advertisement and appraisal. The precise form of the writ in this instance is of no great importance and does not affect the legality and validity of the sale. See Truxillo v. Delaune, 47 La. Ann. 10, 16 So. 642 (1895).

Underlying a consideration of the issues raised as to Mrs. Wilson’s position in the foreclosure proceeding is the fact that the entire interest in the property was mortgaged to secure the indebtedness owed by the husband and wife in solido. The mortgagee was entitled to enforce the mortgage against the entire interest in the property upon establishing an indebtedness due on the note, which was done in this case. It was not necessary to obtain a personal money judgment against the wife. Under the conventional pact de non alien-ando contained in the mortgage and the statutory pact de non alienando contained in LSA-C.C. Art. 3399 and LSA-C.C.P. Art. 3741, the dissolution of the community and the vesting of the wife’s right of undivided ownership in the property after execution of the mortgage could not affect the mortgagee’s right to foreclose the mortgage against the entire interest in the property. Compare Washington v. Palmer, 213 La. 79, 34 So.2d 382 (1948) with Shiflett v. Brewer, 208 So.2d 31 (La.App. 1st Cir. 1968).

For the reasons assigned, the judgment of the district court is affirmed, at plaintiff-appellant’s costs.

Affirmed.


text:
    Ruby COLE, Plaintiff-Appellee, v. Billy John COLE, Defendant-Appellant.
    No. 13002.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    Eugene J. Coen, Shreveport, for defendant-appellant.
    Whitmeyer & Rubenstein by Alex Ruben-stein, Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

This is an appeal from the trial court’s refusal to reduce the amount of child support being paid by the father. We affirm the trial' court’s judgment.

The party requesting a change in an alimony or child support award bears the burden of proving a change in the financial condition of one of the parties. This rule applies to a party seeking a modification of a “consent” judgment. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

The trial court found that neither parent’s income had changed appreciably and that the expenses of supporting the children had increased. We find no error in this factual determination. The change cited by the father was a temporary job held by the oldest child at a McDonald’s restaurant. The trial court correctly decided that temporary employment of a minor child which has ended at the time of trial has no bearing on whether a child support award should be modified. The father has shown no circumstances which have changed materially since the original award was made. Consequently, no modification is warranted.

The judgment is affirmed at appellant’s costs.

Affirmed.


text:
    Carl SMITH and Patricia Smith, Plaintiffs-Appellees, v. Stanford B. WHATLEY d/b/a Fantasia No. 2, Defendant-Appellant.
    No. 13003.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    En Banc. Rehearing Denied Nov. 1, 1976.
    Writ Refused Jan. 7,1977.
    Hamilton & Sermons by Joel M. Sermons, Shreveport, for defendant-appellant.
    Lewis Weinstein by Richard Goorley, Shreveport, for plaintiffs-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Patricia Smith was stopped and searched when her departure from defendant’s clothing store activated a shoplifting warning device. The trial court held the search was unreasonable and awarded plaintiff $350 damages. Defendant appeals and we affirm.

The primary issue is whether, when the store employee admittedly detained and searched plaintiff, the employee had reasonable cause to believe plaintiff had committed a theft of merchandise.

Upon leaving defendant’s store each customer was required to pass through a shoplifting detection device which would activate a signal if a customer attempted to leave the premises with merchandise from which the check-out clerk had not removed a special tag. As plaintiff was leaving the store this device was activated. Defendant’s employee stopped plaintiff on the sidewalk adjacent to the premises and searched plaintiff’s handbag and packages. Finding no merchandise in plaintiff’s possession, the employee ordered her to reenter the store through the alarm device. The alarm was not activated when plaintiff reentered the building. The employee again searched plaintiff’s bags inside the store and found no merchandise.

Louisiana C.Cr.P. Art. 215 authorizes a merchant to use reasonable force in detaining a customer for questioning on his premises when he has reasonable cause to believe the person has committed theft of merchandise.

Reasonable detention and search of a store customer as the result of activation of an automatic detection device similar to the one used in this case was held justified in Clark v. I. H. Rubenstein, Inc., 314 So.2d 489 (La.App. 1st Cir. 1975).

In a written opinion the trial judge found defendant was justified in stopping and searching plaintiff on the sidewalk; that since the first search revealed nothing, the second detention and search were unjustified; and that the search inside, which was made in the presence of at least three people, entitled plaintiff to $350 damages for humiliation and embarrassment.

We agree with the findings of the lower court. Under these facts, defendant at the time of plaintiff’s second search had no “reasonable cause to believe that the person ha[d] committed [a] theft . . . ” as required under Criminal Code Art. 215.

Since plaintiff has neither appealed nor answered the appeal, the inadequacy of the award is not at issue. We find the award of $350 was not so excessive as to constitute an abuse of discretion (La.C.C. Art. 1934(3)).

The judgment is affirmed at appellant’s costs.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Humble W. THURSTON, Defendant-Appellee.
    No. 13004.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    En Banc. Rehearing Denied, Nov. 1, 1976.
    Writ Refused Jan. 7,1977.

      William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Bernard L. Malone, Jr., by Bernard L. Malone, Jr., Baton Rouge, for plaintiff-appellant.
    Baker, Culpepper & Brunson by Herman A. Castete, Jonesboro, for defendant-appel-lee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

This is an expropriation proceeding by the State of Louisiana through the Department of Highways in connection with the widening of Louisiana Highway 2 (Bernice-Far merville Highway) in Union Parish. The Department of Highways obtained an order under the quick taking statute for the expropriation of a .226 acre strip of land from a 1.726 acre tract owned by Humble W. Thurston abutting Highway 2 about IV2 miles east of Bernice. The Department deposited the sum of $865 in the registry of the court as the estimated just compensation due Thurston for the property taken.

In answer to the expropriation proceeding, Thurston placed at issue the amount of land actually taken by the Department, the value of the property taken, and whether severance damages have resulted to the remaining property by the taking.

The trial court found the area of the property taken from defendant to consist of .446 acres rather than the .220 acres claimed by the Department. The court also found Thurston to be entitled $1,670 for the property taken and to severance damages of $3,587.50.

In appealing from the judgment rendered in accord with these findings, the Department of Highways complains only in respect to the trial court’s determination of the amount of land taken. Thurston answered the appeal asking for an increase in the amount awarded for property taken and severance damages allowed.

AMOUNT OF LAND TAKEN

The dispute as to the amount of land actually taken results from an uncertainty as to the width of the right-of-way of Louisiana Highway 2 prior to the filing of the expropriation proceeding. It is undisputed that the Department of Highways had no recorded right-of-way for this road, and had acquired the right to maintain the highway under the St. Julien doctrine.

The land being expropriated is described in the petition and order for expropriation by boundaries. The north boundary is described as the existing south right-of-way line of Highway 2. Thurston contends this is the edge of the blacktop traveled portion of the road as located at the time of the expropriation. The Department of Highways contends the right-of-way under the St. Julien doctrine also includes the shoulders, ditches, slopes, and cut or fill areas existing at that time. It further contends the total width should be determined by reference to prior construction limits as reflected by the records of the Department.

Assuming that the right-of-way acquired under the St. Julien doctrine includes any shoulders, ditches, or slopes constructed and maintained in connection with the highway as argued by the Department, the burden is on it to show that these appurtenances were actually built and maintained on Thurston’s property.

The trial judge in his written reasons for judgment concisely reviewed the evidence presented by the Department and correctly concluded it was not sufficient to satisfy the burden of showing the right-of-way extended beyond the paved portion of the highway. We quote the pertinent part of the trial judge’s opinion as follows:

William Hickey, assistant road design engineer with the Department, testified that Highway 2 was first constructed in 1928 as a 14 foot wide gravel road, with the plans for that project calling for a ditch on each side of the road for drainage. The highway was widened in 1942 to a 20 feet wide blacktop road, but those plans did not show any ditching. Both Hickey and James R. Wheat, head land surveyor for the Department’s boundary survey unit, testified that the usual construction area for a highway consists of the road surface proper, shoulders, ditches and slopes. Therefore, the outer limit of this construction area would normally be the point where the back slope crosses the natural ground line. This is usually approximately IV2 feet beyond the back slope in order that road maintenance equipment can have room in which to work the slopes.
* * * Implicit in the St. Julien doctrine is the rule that the least property area that will adequately serve the purpose of the taker will be the only one granted to him. The burden was upon the Department in the case at bar to show by a legal preponderance of the evidence the exact limits of the physical construction performed by it, in either 1929 or 1942, in connection with Highway 2, which would have clearly indicated to the landowner at that time the dimensions of the land area which the Department intended to occupy for a public purpose. The witnesses who testified on behalf of the Department on this point had no direct knowledge pertaining to the question but relied entirely upon old plats and surveys. Their testimony consisted largely of information concerning the usual limits of highway construction rather than the actual limits of the construction in question in 1928 or 1942. It is the conclusion of this Court that the Department has not proven that it acquired a right-of-way across the north portion of the subject property beyond the limits of the road surface proper. It follows that the amount of land actually expropriated in this case, as shown on the Terral plat of survey, is 14,381.28 square feet on the south side of the highway and 5,045.43 square feet on the north side of the highway, for a total of 19,426.712 square feet or .446 acre rather than the .220 acre claimed by the Department.

We find no error in the above findings of the trial judge and are in accord with his conclusion that the area expropriated consisted of .446 acre.

VALUE OF PROPERTY TAKEN AND SEVERANCE DAMAGES

Thurston’s property prior to this taking consisted of a rectangular tract on the south of the highway containing 1.726 acres. It was improved with a one story brick veneer building, 50 feet in length by 35 feet in depth, used by defendant for a florist shop, beauty shop, and sale of children’s wear. Prior to the taking, the building was situated 85 feet from the edge of the pavement of the highway. An asphalt surfaced parking lot and drive containing 5,000 square feet was in front of the building. The taking will place the front of the building within 14 feet of the new right-of-way line and eliminate the asphalt parking area in front of the building.

The appraisers for the Department and the landowner are of the opinion the best and highest use of the property is for rural commercial purposes as now being used. The two Department appraisers valued the land at $373.69 and $650 per acre. They relied on sales of small rural tracts to determine market value. Thurston’s appraisers relied on sales of commercial properties in the Town of Bernice to arrive at their estimates of between I2V2 and 15 cents per square foot for the value of the land taken.

The trial judge considered the deed of acquisition in 1969 showing the. land and improvements were purchased by Thurston for $9,000 to indicate the estimates of value of the land at $1,000 per acre.

The comparable sales relied on by the landowner’s appraisers were not indicative of market value of rural property, and the trial judge was correct in not finding these estimates controlling. The court allowed a per acre value almost double the estimate of the Department of Highways’ appraisers which is just compensation for the land taken under the circumstances.

There is no dispute in regard to the amount of $1,224 for the value of the asphalt paving allowed by the trial court.

Appraisers for both parties agree the remainder of Thurston’s property has sustained some damage as a result of the taking. The principal cause of the loss of market value is the loss of the front parking resulting from the right-of-way line being extended to within 14 feet of the building. Since the taking, parking is provided on the east side of the building.

Thurston’s appraisers were of the opinion this factor has damaged the remainder between 40 and 50 per cent. The three experts who testified on his behalf, in arriving at their estimates of severance damage, determined the before and after value of the land and improvements. In estimating the value of the building, they used the reproduction cost as of the time of the taking, and gave the building a value of between $27,075 and $35,000. Their final estimates of severance damages ranged from $10,340 to $14,000.

The trial judge, in establishing a before and after value of the property, accepted the testimony of one of the Department of Highways’ appraisers in part and one of Thurston’s appraisers in part. He concluded the total value prior to the taking to be $18,891. After deducting the value of the part taken of $1,670, he found the remaining property to be worth $17,221. He further found the percentage of diminution of market value estimated by Thurston’s appraisers to be excessive, and the estimate of the Department of Highways’ experts to be too low. He found the property had suffered a 25 per cent loss in value because of the taking or $3,587.50.

Thurston contends the court was in error in its conclusions as none of the expert witnesses testified in accord with its findings.

The trial judge in an expropriation case is not required to accept or reject the testimony of any particular witness, but may give whatever weight he finds appropriate to the testimony of all witnesses in making his factual determination of market value and severance damages. He may reach a conclusion which does not coincide with the testimony of any witness. State, Department of Highways v. Salassi, 244 So.2d 871 (La.App. 1st Cir. 1971).

There has been no showing that the trial judge abused this discretion in determining the severance damages in this case.

The judgment appealed from is affirmed.

      . This jurisprudential rule provides that an unopposed appropriation for a public purpose creates a servitude and precludes an action for damages for trespass by the landowner who is relegated to recovery of the value of the property taken. The term “St. Julien” comes from the parent case, St. Julien v. Morgan’s Louisiana & T. R. Co., 35 La.Ann. 924 (1883). The cases following this doctrine have recently been overruled in Lake, Inc. v. Louisiana Power and Light Company, 330 So.2d 914 (La. 1975). The Supreme Court gave prospective effect of its ruling in Lake, and thus the doctrine is applicable to the instant case and this is not made an issue by the landowner.