author: PAVY, Judge.

text:
    LOUISIANA INTRASTATE GAS CORP., Plaintiff-Appellant, v. Rustum E. GIROUARD, Defendant-Appellee.
    No. 5434.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 27, 1976.

      See also, 336 So.2d 1049.
    Broussard, Broussard & Moresi by Marcus A. Broussard, Jr., Abbeville, for plaintiff-appellant.
    Deshotels & Deshotels by O. H. Deshotels, II, Kaplan, for defendant-appellee.
    Before HOOD, MILLER and PAVY, JJ.
   PAVY, Judge.

This case and that of Louisiana Intrastate Gas Corp. v. Girouard (Appellate Docket No. 5435), 336 So.2d 1049, involve expropriations of pipeline servitudes traversing three adjoining tracts of land. They were consolidated for trial and will be dealt with in one opinion with separate decrees.

For the purpose of laying a 12-inch pipeline from Gueydan in Vermilion Parish to Scott in Lafayette Parish, plaintiff sued for a 30-foot permanent pipeline servitude plus an additional 20 feet of temporary working space. No issues other than quantum are involved as the right to take was conceded.

The properties are located in a rural area of Vermilion Parish about four to five miles northwest of Kaplan. Rustum Girouard, father of the other defendant, Boyd Gir-ouard, had owned a 60 to 70-acre tract running nearly one-half mile on the east side of Highway 13 and being roughly rectangular in shape. The south end of this tract is traversed by a stream or canal known as Bayou Grand Marais. It runs generally east from the west line (highway) to the center of the tract and thence runs northeasterly to the east line of the tract. A few years prior to these expropriations, Rustum Girouard donated to his son, Boyd Girouard, a tract containing approximately 6V2 acres irregular in shape and set back about 516 feet from the highway but connected to it by an 80-foot strip running from the north end of the tract to the highway. This donated tract was bounded north by the northern portion of Rustum’s larger tract, west by Rustum’s property fronting the highway and (as to the 80-foot strip) by the highway and south and east by Bayou Grand Marais. Thus, at the time of these expropriations Rustum Girouard owned an 8V2-acre tract fronting on the east side of the highway. Boyd Girouard owned a 6V2-acre tract immediately east of Rus-tum’s tract and connected to the highway by the 80-foot strip. Additionally, Rustum Girouard owned a 7-acre tract immediately east of Boyd Girouard and bounded north and west by Bayou Grand Marais and south and west by adjoining owners. These three tracts were roughly at the same latitude. At this point, the pipeline ran roughly east to west and traversed each of these tracts at their approximate centers.

Two to three years prior to these condemnations, Boyd Girouard had built a modern brick residence on his property. The pipeline was estimated to be 130 to 160 feet south of this residence. Previous to Rus-tum Girouard’s acquisition of the original larger tract, two major Transco pipelines traversed the Rustum Girouard tract from its southeast corner and running slightly west from due north so that it ran mostly along the eastern line of the Rustum Gir-ouard rear tract and just barely traversed the northeast corner of Boyd Girouard's property. The distance of these lines to Boyd Girouard’s dwelling was estimated respectively at 400 and 600 feet by two of the experts.

The district court awarded Boyd Girouard a total of $11,054 and Rustum Girouard a total of $9,872.60. Plaintiff has appealed from both these awards and defendants have answered the appeals in each case to increase items of $2,400 for soil erosion and sodding to $10,125 for bulkheading to prevent further erosion.

LOSS OF CRAWFISH CROP BY RUSTUM GIROUARD

Defendant Rustum Girouard claimed $10,000 for loss of his 1975 crawfish crop from the rear or easternmost tract resulting from drainage of the area by plaintiff’s actions. The trial judge allowed $780 based on a loss of 2,000 pounds.

Prior to 1975, Rustum Girouard had never commercialized the crawfish potential of this area although it had naturally furnished some crawfish for family use. In 1974, he built levees for maintaining the water level, flooded the area with portable pumps and added to the natural stock by catching crawfish elsewhere and transferring them to the 7-acre tract.

Mr. LeBlanc Delahoussaye, a graduate agronomist and consultant in rice production with some experience in crawfish production as a supplementary crop to rice, testified that he tested for crawfish on the undrained areas and counted a catch of 45 crawfish per net in five minutes and calculated this would yield slightly above the usual harvest of 500 lbs. per acre. He set the price at 35 to 45<p per lb. He had visited the area in the first week of March and estimated only about Vso of the 7-acre tract was still unflooded.

Mr. Donald Gooch, a graduate zoologist who had specially studied crawfish farming, engaged in it and written on the subject, testified for defendants. He visited the area on April 12, 1975, but conducted no tests. There was little water remaining in the area. He explained that when ponds are drained some of the crawfish will burrow and on reflooding will emerge again and can be commercially harvested but that the young and some of the larger ones will be lost if the draining is too rapid. Based on his own crop of that year, he estimated a normal yield of 389 lbs. per acre with the price ranging from 15 to 35$ per lb. It was his experience that a nonlandowner farming crawfish netted 34 percent of the gross and paid 40% of the gross to the landowner.

Rustum Girouard stated that he had 5.6 acres in actual crawfish production consisting of three separate ponds of roughly equal size formed by two east-west internal levees. He claimed one of the levees was damaged when a marsh buggy was driven over it and the other was damaged when the line ditch was cut. The first of these instances would have occurred in November and the second in January. He made no effort to repair the levees or reflood and gave no completely satisfactory explanation for these failures. Testimony by the quality control engineer on the project tended to disprove the extent of drainage claimed by defendant.

Upon considering the testimony of both experts, the variables and unknowns involved in this issue and the overall probabilities, we think an award of $555 would be fair and realistic.

BULKHEADING, EROSION AND SODDING

Each defendant claimed $10,125 as the cost of constructing a 75-foot long bulkhead on his side of Bayou Grand Marais to prevent washout at the point where the pipeline crossed. The district court found that the evidence did not show the necessity for bulkheading but allowed each defendant $900 for sodding and $1,500 for repairing, maintenance and dirtfill needed to correct the erosion to date of the trial alongside and adjacent to location of the pipeline in question.

Defendants’ witness Delahoussaye, the agronomist, and Roy Young, a contractor, testified that the bayou banks had settled about two feet at the right of way point. Young considered a bulkhead was necessary to prevent washout and Delahoussaye stated that it would take $1,900 to resod both banks. A. J. Broussard, witness for plaintiff, who was employed by a drainage district, testified that such districts never require bulkheading. We think the trial court was correct in disallowing the claim for bulkheading.

Pictures of the banks taken a week before trial, and after defendants’ two witnesses had visited the bank site, do not support their testimony regarding the settling. The total of $2,400 ($900 for sodding and $1,500 for refill, maintenance, etc.) allowed each defendant is excessive. These banks will naturally resod themselves and the little erosion that can occur prior to that would be minimal. We conclude that an allowance of $400 to each claimant for the erosion of the bank and protective measures until natural resodding would be sufficient.

VALUE OF SERVITUDES AND SEVERANCE DAMAGES

Plaintiff’s expert witnesses were Mr. Allen Angers, a real estate consultant and professional appraiser with eminent qualifications and extensive experience in the general area of South Louisiana including Vermilion Parish, and Mr. Arthur Flemming, president of an Iberia Parish Savings & Loan Association and an appraiser with some experience in Vermilion Parish. Defendants’ expert was Mr. Cordell Hebert, an experienced realtor and appraiser from Abbeville in Vermilion Parish. Additionally, defendant offered the testimony of Mr. T. J. Stevens, a realtor of Natchitoches, Louisiana, who described the damage from a disastrous pipeline explosion in that city in 1954 in which several houses were destroyed and seventeen persons killed. He related a consequent depressing effect this had on sales and prices of lots within several hundred feet of pipelines in the Natchi-toches area. Two other witnesses for defendant testified as to the physical damage wrought by a pipeline explosion near Ka-pian in April, 1973.

In brief, plaintiff-appellee did not seriously question the awards made for value of the permanent servitudes and temporary work space except as to three instances in which the trial court allowed a greater amount than the experts expressed. Ordinarily, an allowance in excess of the expert’s figure should not be granted. See Department of Highways v. United Pentacostal Church, 313 So.2d 886 (2d Cir. 1975). Although we note no exceptional circumstances warranting an award greater than the experts’ maximum, the differences ($15, $16 and $102.70) are so small that we cannot say the trial judge was in manifest error and affirm as to those particular items.

Appellant strenuously attacks the district court’s award of severance damages. Rus-tum Girouard was allowed severance damages of $4,884 for the west (highway fronting) tract. This was calculated at 25% of the whole 8.14 acres outside the servitude at a value of $2,400 per acre. He allowed $672 for severance damage to Rustum Gir-ouard’s east (rear) tract. This was calculated at 10 percent of the whole 6.72 acres remaining at $1,000 per acre. Boyd Gir-ouard was allowed $5,054 severance damages to his residence calculated at 20 percent of $25,270, the home’s replacement value at time of taking and additionally, $3,100 for 20 percent of the whole 7.75 (correctly 6.25) acres remaining at $2,000 per acre.

All three of the experts used various comparable sales in the area from which adjustments were made to determine the value of these tracts. We do not deem it necessary to detail the various sales or the adjustments used by the experts. Mr. Angers did not think Rustum Girouard’s west (highway fronting) tract was adaptable to rule home-sites. He considered it too low in relation to the highway for that purpose. He treated it as farmland and placed a value of $1,100 per acre. Hebert and Flemming treated this tract as rural homesite land and valued at respectively at $2,400 and $2,500 per acre. We think the tract has some adaptability to homesite use because of its frontage on the highway. Pictures in evidence do show it be considerably lower than the highway. Although this will lessen the degree of its homesite potential, it will not completely deprive it of its use as rural homesite land. The evidence indicates that a substantial portion of this tract south of the pipeline and along Bayou Grand Ma-rais is in borrow pit. The exact amount cannot be determined from the record. We will fix the value of this tract exclusive of the borrow pit area at $1,800 per acre.

Both plaintiff’s experts were of the opinion that no severance damage would be incurred because of the proximity of a pipeline to a proposed residence. They were impressive in relating their experience regarding this. Mr. Angers told of tracing the course of a United Gas pipeline through the City of Lafayette and his findings regarding the proximity of dwellings to it. The size and exploding potential of that line was not compared to the instant one. Another key factor in his position was that although a pipeline may dissuade some prospective purchasers of adjacent lands, the market for residences is so active that no appreciable effect would be had on the price. We feel this may be true in metropolitan or suburban areas but question whether it would be applicable to the market for rural homesites.

Hebert, defendants’ witness, was equally impressive that there is a definite public fear of living near a pipeline and that the presence of one will decrease the sale value of adjoining property for residential purposes. He had no concrete market data to support his position. However, it seems to us that there must necessarily be an adverse effect on the sale value of property near a pipeline and we cannot conclude that no severance damages would result in this case.

Hebert calculated severance damages at 25 percent of the value of the whole tract. We do not believe that the whole tract would be so affected by the pipeline. Difficulty is encountered in devising a severance damage formula in this case. Plaintiff’s experts offered no such formula for they did not think severance damages were sustained. The expert Hebert would condemn a strip 200 to 250 feet wide on each side of the servitude swath as not suitable for actual construction of a dwelling but would consider said property usable as part of a residential homesite. We think a fair result might be reached by considering that 4.7 acres (the area formed by two 200-foot strips 500 feet long — -the property depth) outside and adjoining the servitude as damaged to the extent of 25 percent. At $1,800 per acre, this would compute to $2,115 severance damages on this tract. The tract fronts 650 feet on the highway and the pipeline crosses it at its approximate center. The area south of the pipeline which is in borrow pit is unknown. Alternatively, we could conclude that Rustum Girouard has been deprived of the residential value of one homesite area of the usual frontage of one acre by the property depth of 500 feet. This would roughly equal 2.5 acres. His actual loss would be the difference in that area’s value as residential property ($1,800) and its value as agricultural property. This latter is fixed at $1,100 in accordance with Angers’ testimony regarding its agricultural use value. This $700 per acre difference for the 2.5 acres would total $1,750. We will average out these two results at $1,925 and fix that amount for severance damages on this tract.

The Boyd Girouard (center) tract is set back approximately 500 feet from the highway and has access to it by an 80-foot strip at its northern end. It is well elevated and has tree growth adding to its residential appeal. All experts considered it to be adaptable to homesite use and fixed a $2,000 per acre value. The pipeline runs through this tract a distance of 367 feet at approximately its center and 130 to 160 feet south of the Boyd Girouard residence. Bayou Grand Marais forms its southern and eastern boundaries by running an irregular course in a northeasterly direction from the southwest corner of the tract. This gives the tract a narrowing or tapering effect towards its southern end. Neither of plaintiff’s experts thought it had sustained severance damages because of the reasons previously set forth. Additional consideration was given to the problem of establishing a road to connect with any proposed new additional residence and the fact of desired privacy by Boyd Girouard. These experts thought that any sale would be highly selective. Defendant Boyd Girouard expressed the hope that he would have been able to sell the land south of his residence to his two children for their homes. At time of the trial, they were only three and six years of age.

Defendants’ expert fixed severance damages to the tract at $2,500, being 20 percent of the $12,500 value for the 6.25 acres at $2,000 per acre. We think this formula is unduly favorable to defendant. With 200-feet strips on either side of the servitude as being partially affected, slightly over 3 acres would be involved (360 feet, the tract’s depth, X 400 feet equals 144,000 sq. feet).. This acreage at $2,000 per acre would come to roughly $6,000. Damage to the extent of 25 percent would equal $1,500. Because of the location of the pipeline in relation to the residence, we could also conclude that defendant Boyd Girouard has lost the residential value of one home site of an acre wide by the property depth of 367 feet. This would come to slightly over an acre and a half. The actual loss would be the difference between its value as residential land ($2,000 per acre) and its value as farmland, which would be $1,100 per acre in accordance with Angers’ estimate on the Rustum Girouard front tract. The per acre difference would be $900 and the total loss would be $1,350. We will average out these two results ($1,500 and $1,350) to $1,425 and set said amount as severance damages to this tract.

For the same reasons heretofore set out, neither of plaintiff’s experts thought that the Boyd Girouard residence was damaged by the laying of a pipeline 130 to 160 feet south of it. Defendants’ expert was of the contrary opinion and assigned 20 percent severance damage to the home. He gave it a value (replacement cost less depreciation) at the taking time of $25,270. The valuation seems in line and is not seriously questioned and we will accept it. Again we think it necessarily follows that some adverse effect must occur to the value of a residence within such proximity to a pipeline and accept defendants’ expert’s view on this matter. However, we conclude that the 20-percent damage percentage is unacceptable. This figure represents a judgment conclusion from his experience. As is necessarily so in these situations, he was unable to express a justification for the figure. While we cannot exactly criticize the formula in express terms, we conclude the result is high and will assign an overall loss to the residence of $3,600.00.

Rustum Girouard’s rear tract south and east of the bayou was treated by the experts as either farmland or seasonal pasture because of inundation. This flooding is borne out by the evidence regarding its crawfish production history. We cannot accept defendants’ expert’s assessment of a 10 percent devaluation of the tract due to the pipeline. The infrequent necessity of an owner or user’s presence near the pipeline can occasion only a negligible adverse effect on its value. We think such devaluation is too slight to be cognizant in law and must disallow this claim.

We recapitulate the various items of recovery as follows:

Rustum Girouard
Front or west tract
1. Permanent right of way $ 777.70
2. Temporary right of way 60.00
3. Severance damage 1,925.00
Rear or east tract
1. Permanent right of way 224.00
2. Temporary right of way 75.00
3. Severance damage None
4. Crawfish loss 555.00
5. Erosion on canal bank 400.00
Total $4,016.70
Bovd Girouard
1. Permanent right of way $ 450.00
2. Temporary right of way 50.00
3. Severance damage to land 1,425.00
4. Severance damage to residence 3,600.00
5. Erosion on canal bank 400.00
Total $5,925.00

Counsel for the expropriating authority claims we must, in assessing severance damages, give effect to the previous presence of the two Transco pipelines. No severance damages were allowed on Rus-tum Girouard’s rear tract over which those two pipelines mainly passed. They barely touched the northeast corner of Boyd Gir-ouard’s (center) tract and are estimated to be 400 to 600 feet from his residence. This is beyond the affected distance recognized in this opinion. Further, we have restricted severance damages on the Boyd Girouard tract to the area south of the residence. Therefore we see no problem of prior severance damage because of the two previously existing Transco pipelines.

Counsel for plaintiff complains of the court’s allowance of a preparation fee to the witness Cordell Hebert in the amount of his bill, arguing that the agreement between the client and the witness cannot control the amount. The trial court did allow the “contractual amount” but we take this to mean not that it was bound by the agreement but that the amount was reasonable. The bill was for $275 for 11 hours at $25 an hour. We do not conclude that it is excessive and will not disturb it.

Further, counsel questioned the fees of Young, Delahoussaye and Stevens on the grounds that they were not experts and did not assist the court. We think these witnesses offered expertise which was of some value to the court. The expert-witness-fee statute is not restricted to those who give opinions. It covers witnesses who relate or report special or scientific facts. See R.S. 13:3666.

For reasons assigned the judgment of the district court is amended so as to reduce the amount of the judgment in favor of Rus-tum Girouard and against Louisiana Intrastate Gas Corp. to the sum of $4,016.70 and as amended the said judgment is affirmed. Costs of this appeal are to be borne equally by appellant and appellee.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    LOUISIANA INTRASTATE GAS CORP., Plaintiff-Appellant, v. Boyd David GIROUARD, Defendant-Appellee.
    No. 5435.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 27, 1976.
    Broussard, Broussard & Moresi by Marcus A. Broussard, Jr., Abbeville, for plaintiff-appellant.
    Deshotels & Deshotels by O. H. Deshotels, II, Kaplan, for defendant-appellee.
    Before HOOD, MILLER and PAVY, JJ.
   PAVY, Judge.

This is a companion case to Louisiana Intrastate Gas Corp. v. Girouard (Appellate Docket No. 5434), 336 So.2d 1042, in which we have rendered a separate decision disposing of all issues in both cases.

For reasons assigned in the companion case, the judgment of the district court is amended so as to reduce the amount of the award in favor of Boyd David Girouard to $5,925.00 and as amended the said judgment is affirmed. The costs of this appeal are to be borne equally by appellant and appellee.

AMENDED AND AFFIRMED.


text:
    LOUISIANA INTRASTATE GAS CORPORATION, Plaintiff-Appellant, v. Irene Meaux BROUSSARD, Defendant-Appellee.
    No. 5436.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 27, 1976.

      Broussard, Broussard & Moresi by Marcus A. Broussard, Jr., Abbeville, for plaintiff-appellant.
    Deshotels & Deshotels by O. H. Deshotels, II, Kaplan, for defendant-appellee.
    Before HOOD, MILLER and PAVY, JJ.
   PAVY, Judge.

This is an expropriation suit involving a servitude for a 16-inch pipeline. The only issues are those relating to quantum. The judgment granting the rights was previously agreed upon. It provides for a 30-foot permanent servitude, being 15 feet on each side of the line that was laid, plus temporary construction servitudes consisting of two 10-foot strips adjacent to the permanent servitude area and three others, each 100 feet square and centered on the servitude strip.

The trial judge allowed the following amounts: permanent servitude, $1,768.10; temporary construction servitudes, $100; severance damages, $9,644; levee repair, $455; pasture damage, $555; erosion damage, $1,500. The plaintiff-condemnor has appealed. Defendant-landowner has answered the appeal, seeking to increase the erosion item to $25,000 as the cost of bulkheads necessary to prevent erosion.

Defendant’s land is located in a well-inhabited rural area about two miles from Kaplan in Vermilion Parish. It contains 53 acres and is formed into an L-shape by two rectangles. It is situated in the southeast quadrant of an intersection formed by a north-south blacktop highway and an east-west parish gravel road described by the experts as second-class. The pipeline herein dealt with measures 1,296 feet on defendant’s property, runs north to south and is located slightly over 700 feet east of the blacktop highway bounding defendant’s property on the west. There are no improvements within any area possibly affected by the line. Immediately south of, and parallel to, the gravel road is an irrigation canal. A drainage canal runs east to west and crosses the property at about its center. An old Monterey 14-inch pipeline parallels the line involved herein a distance of 35 feet west of it.

Plaintiff’s experts were Mr. Allen Angers, a professional appraiser and real-estate consultant with vast experience in the Acadiana area, and Mr. Sam Kennedy, a realtor and appraiser of New Iberia. Mr. Cordell Hebert, a realtor and appraiser from Abbeville in Vermilion Parish, testified for defendant. All these experts used various comparable sales in the area from which adjustments were made to arrive at the value of the land in question. Angers and Kennedy considered the land’s highest and best use to be agricultural with a near-future potential for rural homesites or midway between an agricultural and rural homesite. Angers valued it at $1,250 per acre and Kennedy at $1,000 per acre. Hebert considered its highest and best use was for rural homesites of one to three acres in size and placed a worth of $1,800 an acre on it. Upon examination of the various com-parables used by the experts, and consideration of the previously mentioned general factors regarding this land and the area involved, for the purpose of the specific taking herein, involving land located 700 feet from the improved road, we will use the $1,250 evaluation as proper.

Questioning of Hebert did not explicitly elicit a percentage of the land’s value which he attributed to the permanent servitude. Angers assigned roughly 80 percent and Kennedy 50 percent. We fix it at 75 percent and thus value the servitude at $937.50 per acre. For the 89 percent of an acre encompassed within the servitude area herein, the value of the servitude taken equals $835, which amount we assign for the permanent servitude.

There was some confusion regarding the exact area of the various temporary servitudes because of the descriptions in the petition and judgment and the fact that the three square temporary servitudes encompass the permanent servitude strip itself and the two 10-foot strips. Kennedy calculated the temporary servitudes at 2.08 acres and assigned a rental of 25 percent of the value. The other two experts calculated the temporary servitude areas at slightly in excess of one acre. We compute this to be the correct area involved in the temporary servitudes. Angers fixed the value at a rental of $50 per acre and Hebert at $75 per acre. Because of the small discrepancy between these figures and the trial Judge’s award of $100, we can not say there is manifest error and will not disturb this item.

By stipulation, the parties incorporated testimony of witnesses in two other pipeline servitude cases argued concurrently with this matter. See Louisiana Intrastate Gas Corp. v. Girouard, 336 So.2d 1042 (1976 3d Cir.) and Louisiana Intrastate Gas Corp. v. Girouard, 336 So.2d 1049 (1976 3d Cir.). This testimony related a pipeline explosion in Natchitoches with a consequent depressing effect on prices of residential property in proximity to pipelines and a 1973 pipeline explosion in Vermilion Parish.

Both plaintiffs’ experts were of the opinion that no diminution in value resulted to the lands adjacent to the pipeline due to any public fear of pipeline explosions or constructing residence in proximity to the lines. This was based on their experience in dealing with these type situations. Hebert, for defendant, was of the opposite view. We feel that there must necessarily be some adverse effect on the adjacent lands and will allow for such damage.

Hebert did not think there was such (public fear) type of severance damage to the land west (towards the prior Monterey pipeline) because of the previous pipeline but both he and Angers considered that the strip between the two pipeline servitudes would be reduced in value because of its isolation between the two servitudes. Hebert fixed the damage at 100 percent of the value; Angers fixed it at the value of a permanent servitude. The record did not reveal the width of the Monterey pipeline servitude and there was a question whether it provided any area other than the width of the pipe itself. Counsel for plaintiff agreed to treat it as covering only the width of the pipeline. Thus, the affected area would be a strip 20 feet wide (35 feet, the distance between the two pipes, less 15 feet, half the width of the servitude sought in this case) by 1,296 feet, the length of the servitude across plaintiff’s property. This would total 26,000 square feet or /io of an acre. Using the 75 percent valuation of the servitude previously employed by us, the Angers estimate of the extent of damage and the accepted land valuation of $1,250 per acre, we compute ($1,250 X %o X 75%) severance damages to this strip at $562.50.

Hebert expressed a severance damage percentage of 5 percent as to a 300-foot strip east of the servitude. He considered the prior Monterey line as having effected a substantial (10%) devaluation of this area. While we doubt whether the damage would be consistent throughout the strip, it appears that said percentage would result in. an overall realistic amount. The affected strip (300 ft. X 1,296 ft.) roughly equals 9 acres. Using said percentage and Angers’ valuation of $1,250 per acre, we calculate severance damages on the east side at $753.40.

We do not conclude that the bulk-heading expense was necessary or the amount allowed for erosion proper. Defendant’s evidence on this consisted in the main of the testimony of Roy Young, a contractor, to the effect that the point where the pipeline crossed the drainage canal about 6 feet of dirt had sloughed off for a distance of 100 feet on each side of the canal. Defendant’s husband confirmed this to some extent. It was brought out that Young had observed this condition in February prior to the completion of defendant’s cleaning-up operations. Mr. John Zieba, a consulting engineer specializing in pipeline construction and apparently unbiased except to the extent that he was employed to investigate the matter, visited the area in April and observed no sloughing off or erosion. Photos of the canal banks taken at this time revealed a normal canal bank except for lack of grass thereon. Incorporated testimony from the other two suits of knowledgeable individuals in the field was to the effect that bulkheading is rarely used at these pipeline crossings. Defendant’s husband testified that there was no erosion at the point where the old Monterey pipeline crossed the canal. We think there is a failure of preponderating evidence in support of the bulkheading claim and must disallow it. However some erosion will occur and, until natural resodding, protective measures will be necessary. For these we will allow the sum of $800.

Neither the claim for levee repair nor that for restoring pasture were alleged in defendant’s claim, but no objection based on failure to plead was offered to the evidence on these items, the trial court allowed them and, in brief before this court, plaintiff does not urge such failure of pleading. Accordingly, we will consider them.

Evidence on levee repairs consisted of an incidental mention by defendant’s husband that the levee near one of the canals was not as level as before and Young’s testimony that there were three or four levees that needed restoration along with his bill to “furnish dozer and backhoe to restore levees and repair damage to field” for $450. As previously noted, Young visited the property before completion of finishing-up operations. Because of the untimeliness of Young’s observation and the absence of any evidence showing the final condition of levees, we conclude the proof fails on this issue and will eliminate the item from the recovery list.

The proof for the pasture damage claim consisted of a sort of list of costs made by Mr. Delahoussaye, the agronomist who testified in the two Girouard expropriation suits, and a stipulation regarding his testimony. The list consisted of lime, fertilizer, Bermuda clover mix and land preparation, all totalling $555. Defendant’s counsel sought a stipulation that Mr. Delahoussaye would testify that such amounts were necessary. Plaintiff’s counsel objected to the stipulation. Apparently, the objection was based solely on irrelevancy in that such a claim was based on failure of plaintiff to meet the requirements of the judgment regarding “double ditching,” that is, the separate retention of the topsoil and returning it to the ditch as topsoil. He (plaintiff’s counsel) argued that defendant’s remedy was not by way of a damage claim but by enforcement of the judgment provisions. We cannot agree with this argument. If plaintiff has failed to comply with the judgment provisions defendant is not restricted to the remedy of specifically enforcing them and may claim damages. We have some doubts that defendant’s counsel actually agreed to the stipulation under the circumstances. However, it is noted that the trial judge allowed the item although not expressly ruling on the stipulation. He must have concluded that it was an effective stipulation. Accordingly, we treat it likewise. With such a stipulation, there is sufficient proof of the item and we will allow it.

Therefore, we allow the following elements of compensation:

1. Permanent servitude $ 835.00
2. Temporary servitudes 100.00
3. Severance damages:
West side $ 562.50
East side 753.40
Total $ 1,315.90 1,315.90
4. Pasture damage 555.00
5. Erosion 800.00
Total $3,605.90

Appellant challenges the fixing of experts’ fees, one being that of Hebert in the amount of his bill and supposedly based solely on it. We doubt that the trial judge relied solely on the bill. In any event, the amount appears reasonable and we will not disturb it. Further complaint is made as to fees of witnesses who did not appear at the trial in this case. T. J. Stevens had testified in the other two expropriation cases and his testimony was incorporated into this case by stipulation. Full compensation for him is provided in those other cases. He rendered no additional services for this case. A fee herein would constitute overpayment and will not be allowed. Dela-houssaye spent time in determining the pasture damage and the cost of correcting it. This was of assistance to the court. The stipulation obviated his presence at trial, but we do not think the trial judge abused his discretion in allowing this fee.

Accordingly, for reasons assigned the judgment of the district court is amended by reducing amount of the award in favor of Irene Meaux Broussard and against Intrastate Gas Corporation to $3,605.90 plus interest from date of expropriation demand until paid and for all costs in the trial court. The expert fee of the witness T. J. Stevens is disallowed. All costs of this appeal are to be borne equally by appellee and appellant.

AMENDED AND AFFIRMED.


author: MILLER, Judge. HOOD, J.,

text:
    Joseph Eiie LALANDE, Plaintiff-Appellee, v. INDEX GEOPHYSICAL SURVEY CORPORATION et al., Defendants-Appellees, v. TRAVELERS INSURANCE COMPANY, Intervenor-Appellant.
    No. 5546.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.

      Pugh, Boudreaux & Gachassin by Nicholas Gaehassin, Jr., Lafayette, for interve-nor-appellant.
    Domengeaux & Wright by Terry E. Ther-iot, McBride & Brewster by Robert R. McBride, Lafayette, for plaintiff-appellee.
    Davidson, Meaux, Onebane & Donohoe by V. Farley Sonnier, Lafayette, Caffery, Duhe & Davis by Jerry A. Oubre, New Iberia, for defendants-appellees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   MILLER, Judge.

Intervenor, Travelers Insurance Company, is the workmen’s compensation insurer of Seismic Services, Inc. Travelers appeals the judgment rejecting its claim for reimbursement of workmen’s compensation benefits paid as a result of the serious injuries sustained by plaintiff Joseph Lalande and the death of plaintiff Paul Doucet; both were employees of Seismic Services. Seismic Services and its principal, index Geophysical Survey Corporation, together with their executive officers settled the executive officer claims against them for $260,-000. In the settlement agreements plaintiffs undertook to defend Seismic Services and Index against Travelers’ claims for reimbursement; if their defense failed, plaintiffs agreed to pay Travelers out of their settlements. We affirm the trial court’s' finding that Travelers’ claim is barred by Lalande’s and Doucet’s contributory negligence.

This case was consolidated for trial and appeal with Doucet v. Index Geophysical Survey Corporation, 336 So.2d 1058 (# 5547, La.App. 3 Cir. 1976). We are this date handing down a separate opinion in that case.

Seismic Services employed Joseph La-lande and Paul Doucet as a drilling crew to work in conjunction with Index Geophysical Survey Corporation’s seismographic crew. Lalande and Doucet were working as driller’s helper and driller respectively. Index’s employees, Gauthier and Pitre, worked as “shooter” and crew manager respectively. Pitre monitored the blasts in a recording truck some two miles away. Before the accident, four or five one-pound charges had been exploded in one hole at a depth of 70 to 80 feet. While preparing for the next explosion to be set in the same hole or during that explosion, Lalande and Doucet were severely injured in the blast.

Doucet sustained gruesome abdominal injuries which resulted in his death two weeks after the accident. Lalande’s face was split open; he lost his right eye; the bone structure around his right eye was completely crushed; numerous foreign particles were removed from his skull; he suffered a herniated cervical disc or discs and numerous puncture wounds of his entire body. He is totally and permanently disabled, and severely disfigured.

Travelers paid workmen’s compensation benefits to Lalande and the widow of Dou-cet. About a year after the accident La-lande and the widow of Doucet sued Seismic Services and Index together with their executive officers, seeking $750,000 for La-lande’s injuries and $750,000 for Doucet’s death. Although Travelers had not filed suit against the alleged tortfeasors, as permitted by LSA-R.S. 23:1101, Travelers intervened seeking reimbursement by preference of all workmen’s compensation benefits paid.

The lawsuits against the third-party tort-feasors were consolidated for trial. On the day of trial Lalande and the widow of Dou-cet settled wjth the insurers of the executive officers of Seismic Services and Index; each plaintiff received $130,000. As part of the compromises, plaintiffs agreed “to indemnify, hold harmless, take over and defend any lawsuits and pay all costs and expenses necessary to defend any and all claims, including the intervention of Travelers Insurance Company for compensation and medical benefits paid.” Each plaintiff deposited $30,000 of the settlement to be available to pay Travelers in the event Travelers was successful in its suit against Seismic Services’ and Index’s executive officers.

As the trial court noted at Tr. 200, it is ironic that plaintiffs each receive substantially larger damages because of their own negligence.

Intervenor appellant, Travelers, alleges errors which raise these issues: 1) Should the trial court have rendered judgment to Travelers (awarding it reimbursement of the workmen’s compensation benefits it has paid and will pay because of the accident) immediately after plaintiffs settled the case and prior to trial? 2) Did the trial court err in accepting allegedly biased testimony of Lalande and finding Doucet and Lalande contributorily negligent? 3) Did the court err in allowing plaintiffs’ counsel to participate in the litigation after plaintiffs had settled their cases?

EFFECT OF COMPROMISE ON INTERVENTION

Under LSA-R.S. 23:1101-3, the employer who intervenes in an employee’s tort action pending against a third party has a preference in any judgment for reimbursement of compensation benefits paid. However, a compromise is not a judgment. In a compromise, claimant accepts less than the full damages suffered. Crabtree v. Bethlehem Steel Corporation, 284 So.2d 545 (La.1973); Verbois v. Howard, 322 So.2d 110 (La.1975).

The right to compromise a claim against a third party belongs to the injured employee, or his beneficiaries, and does not require the assent of the employer or its workmen’s compensation carrier; the sums recovered by way of compromise belong to the employee. Compromise is not an adjudication of the third party’s legal liability, nor even evidence thereof. Intervenor’s remedy is to pursue his claim against the third party. See 48 Tul.L.Rev. 763 (1974). The trial court correctly rejected Travelers’ claim for judgment immediately after settlement and before trial.

THE FINDING OF CONTRIBUTORY NEGLIGENCE

We here consider the contention that Lalande and Doucet were not negligent and the contention that executive officers of Seismic Services and/or Index were solely and proximately responsible for the accident.

Travelers contends the sole legal cause of the accident was the failure of defendant executive officers to provide anchors to keep the explosives at a certain depth. There is conflicting evidence concerning the need for anchors and the contention that the explosive surfaced prior to the accident.

Several safety rules were violated by La-lande and Doucet. They were ten to twenty feet from the blasting hole when they should have been at least seventy-five feet away; prior to blasting they were required to remove the loading poles some 25 to 30 feet from the hole, and shattered loading poles were right by the hole after the blast; shattered pieces of the poles caused La-lande’s and Doucet’s serious injuries. Additionally, there is an indication that Lalande and Doucet had more than one charge in the area at the time of the blast and this was a violation of well-understood safety rules.

While there is conflicting testimony concerning the actual positions of the victims prior to and after the blast, the evidence establishes violations of well-known safety procedures in 1) stacking the loading poles, 2) removing more than one charge at a time from the steel magazine, and 3) carelessly standing too close to the blast area. This evidence supports the trial court finding of negligence on the part of the victims and that their negligence was a legal cause of the injuries. There is no manifest error in the trial court’s evaluation of the witnesses’ credibility and the finding of contributory negligence.

When evidence is before the trier of fact which, upon a reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, the appellate court should not disturb this finding absent manifest error, even though the appellate court may believe its own evaluations and inferences are as reasonable. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Constance v. Smith, 326 So.2d 905 at 906 (La.App. 3 Cir. 1976).

Contributory negligence of the injured employee bars recovery by the inter-venor-employer for workmen’s compensation benefits paid to that employee. TriState Insurance Co. v. Tidewater Trailer Mfg. Co., 312 So.2d 353 (La.App. 2 Cir. 1975); Liberty Mutual Insurance Company v. Gillen Oil Field Service, Inc., 164 So.2d 695 (La.App. 3 Cir. 1964). The rights of an employer to recover compensation benefits paid to an employee for injuries received in an accident are contingent on the employee’s right to recover from the third party. Bell v. Carolina Casualty Insurance Co., 227 So.2d 171 (La.App. 2 Cir. 1969).

We distinguish Vidrine v. Michigan Millers Mutual Insurance Co., 263 La. 300, 268 So.2d 233 (1972). In Vidrine the court held an employer may recover workmen’s compensation benefits paid its injured non-negligent employee from a third party tort-feasor, even if the employer himself negligently contributed to the accident (by imputation of the negligence of a fellow employee). In the present case, the injured employees were found to be negligent; their own negligence bars recovery from their employer’s executive officers. This in turn bars Travelers from recovering workmen’s compensation benefits from the alleged third party tortfeasors.

The equity of the alleged double recovery has been considered by Wex S. Malone, The Work of the Louisiana Appellate Courts for the 1972-73 Term, Workmen’s Compensation, 34 La.L.Rev. 354 at 363 (1974). The employee is not getting a double recovery when he compromises his tort claim and continues to receive compensation benefits, because the compromise does not fully compensate him for his loss; the compensation benefits merely augment the money obtained in the compromise to more fully compensate the injured employee. Roberson v. Fontenot Petroleum Co., Inc., 322 So.2d 287 (La.App. 1 Cir. 1975).

DEFENSE OF INTERVENTION BY COUNSEL FOR ORIGINAL PLAINTIFFS

In the compromise agreement between plaintiffs and the insurers of the executive officers, plaintiffs agreed to hold the executive officers and their insurers harmless from Travelers’ claims; they agreed to have their counsel defend the suit. Intervenor has cited no authority to prevent this. As to the privileged information held by plaintiffs’ counsel because of their previous representation of Lalande and the widow of Doucet, this privilege was waived by the terms of the compromise agreement. The original plaintiffs were before the court in an effort to increase their recovery by proving Lalande’s and Doucet’s contributory negligence. The attorney-client privilege is for the benefit of the client, and can be waived by the client. Pugh, Louisiana Evidence Law, 159 (1974). The former client may expressly or tacitly waive his objection and consent to his former counsel now representing a party with interests adverse to those involved in the lawyer’s former representation of him. Brasseaux v. Girouard, 214 So.2d 401 (La.App. 3 Cir. 1968).

The trial court judgment is affirmed at appellant’s costs.

AFFIRMED.'

HOOD, J.,

dissents, being of the opinion that intervenor, Travelers Insurance Company, is entitled to recover.


author: MILLER, Judge. HOOD, J,

text:
    Betty Jean Leblue DOUCET et al., Plaintiffs-Appellees, v. INDEX GEOPHYSICAL SURVEY CORPORATION et al. Defendants-Appellees, v. TRAVELERS INSURANCE COMPANY, Intervenor-Appellant.
    No. 5547.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Pugh, Boudreaux & Gachassin by Nicholas Gachassin, Jr, Lafayette, for interve-nor-appellant.
    Domengeaux & Wright by Terry E. Ther-iot, McBride & Brewster by Robert R. McBride, Lafayette, for plaintiff-appellee.
    Davidson, Meaux, Onefane & Donohoe by V. Farley Sonnier, Lafayette, Caffery, Duke & Davis by Jerry A. Oubre, New Iberia, for defendants-appellees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   MILLER, Judge.

This case was consolidated for trial and appeal with Lalande v. Index Geophysical Survey Corporation, et al., 336 So.2d 1054 (# 5546, La.App. 3 Cir. 1976). Our decision in that case is being handed down this date. For the reasons there assigned, we affirm the trial court decision at appellant’s costs.

AFFIRMED.

HOOD, J,

dissents, being of the opinion that intervenor, Travelers Insurance Company, is entitled to recover.


author: GUIDRY, Judge.

text:
    George Dean NUGENT et ux., d/b/a/ Quality Appliance and Carpet Company, Plaintiffs-Appellees, v. Harlton Kenneth STANLEY, Defendant-Appellant.
    No. 5549.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.

      Scotty G. Rozas, Lake Charles, for defendant-appellant.
    Raleigh Newman, Lake Charles, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   GUIDRY, Judge.

The above numbered and entitled matter and the case entitled Stanley v. Nugent d/b/a Quality Appliance and Carpet Company, Number 5550 of the docket of this court, 336 So.2d 1064, were consolidated for trial in the lower court and on appeal. We decide both of these cases today and render a separate decision in the matter which bears our docket number 5550.

Suit number 5549 is one instituted by George Dean Nugent and his wife, Joy J. Nugent, hereinafter referred to as the Nu-gents, wherein they seek to rescind the sale of a business operated under the name “Quality Appliance and Carpet Company” made to them on December 4,1972 by Harl-ton K. Stanley. Suit No. 5550 is a suit by Harlton K. Stanley, hereinafter referred to as Stanley, wherein the latter seeks judgment against the Nugents on a certain promissory note in the principal amount of $5000.00 given to secure payment of the credit portion of the purchase price of the disputed sale dated December 4, 1972.

The following facts are not disputed. In the year 1972 the Nugents moved their home from the State of Washington to Lake Charles, Louisiana. After arrival in Lake Charles the Nugents began to look around for an established business which they might purchase. Sometime in October of 1972 the Nugents responded to an advertisement which was placed in a local newspaper by Stanley offering to sell a business known as “Quality Appliance and Carpet Company” (hereinafter referred to as “Quality”), which consisted of a carpet sales and installation business and a small appliance repair shop. The Nugents were very interested in Stanley’s offer to sell in that it was their intention that Mrs. Nugent would operate the business to be acquired and she was primarily interested in interior decorating. Negotiations between the parties extended over a period of approximately one and one-half months during which time the Nugents looked over the premises and business operation. Plaintiffs testified that during these negotiations it was made entirely clear to Stanley that they wished’to purchase a going established business with a good reputation, good will in the community, and an established line of credit with carpet mills and other suppliers. Plaintiffs further testified that during these negotiations they were assured by Stanley that upon consummation of the sales transaction they would acquire in addition to the physical property some $12,000.00 to $15,000.00 of firm contracts for installation of carpet which had been secured by him from customers of “Quality”, which contracts he would hold until the sale was complete in order that these might be turned over to the Nugents. On December 4,1972 the sale was executed in authentic form the Nu-gents acquiring all of the stock of carpet, parts and merchandise, tools and supplies, fixtures and furnishings and the good will of the business. The consideration for the sale was the sum of $15,000.00, Stanley receiving on the day of sale $10,000.00 in cash and a promissory note of $5,000.00 due six months from date. As additional security for the $5,000.00 note the Nugents executed a conventional mortgage on property owned by them. In addition to the purchase of the business, the Nugents leased the business premises owned by Stanley situated at 3004 Common Street, Lake Charles, Louisiana, at a monthly rental of $212.82 and were granted an option to purchase these premises at the expiration of six months for the sum of $25,000.00. In the contract of sale Stanley reserved the right, in the event of default by the Nu-gents, to seize and sell the movables comprised in the sale or to re-enter the premises and assume the operation of the business. In either event Stanley reserved the right to pursue the Nugents, in the event of default, for the balance of the purchase price remaining unpaid.

Shortly following consummation of the sale problems between the parties arose in that, according to the Nugents, “Quality” enjoyed an extremely poor credit rating with its carpet and appliance suppliers which resulted in the new owners being unable to secure shipments of carpet on credit, and from some of “Quality’s” former suppliers not even on C.O.D. Additionally, because the purchase was not made in compliance with Louisiana’s Bulk Sales Law the new owners were threatened with suit for certain delinquent accounts due by Stanley. A second cause of dispute between the parties concerned the fact that, contrary to Stanley’s alleged assurance that the Nu-gents would fall heir to some 12 to 15 thousand dollars of executory contracts for the installation of carpet, following the sale the Nugents received only two executory contracts, one with a church where no profit was made and the other with a bank official where no profit was intended.

Shortly prior to June 4,1973 the Nugents, asserting invalidity of the sale because of Stanley’s alleged misrepresentations as to his credit reputation and the amount of executory contracts which were to be transferred at the time of sale, gave notice that they were vacating the premises and that Stanley could re-enter if he chose. Following this notice, Stanley re-entered the premises, caused an inventory to be made and began to again operate the business.

On June 4, 1973 the Nugents filed the instant suit seeking a rescission of the sale of December 4,1972. Stanley answered the suit and admitted that he assured plaintiffs that he had a well established business, with good will and an established line of credit, plus approximately $12,000.00 worth of contracts for the installation of carpet but denied any inference that “such casual statements and/or representation(s) may have formed part of the contract of sale and assignment, the terms of which are best evidence of itself.” In his answer, Stanley reconvened and claimed damages for alleged dissipation of business and destruction of the good will of “Quality”. Some few days following institution of this suit, Stanley filed the suit which bears our docket number 5550 seeking judgment on the $5,000.00 note executed by the Nugents.

The district court, considered this suit to be one in redhibition, and pursuant to the authority contained in LSA-R.C.C. Articles 2541 and 2543, decreed a reduction of the price of sale of December 4, 1972. In his written reasons the trial judge set forth his conclusions as follows:

“Guided by these rules, and considering the value of the merchandise, tools, fixtures, and supplies on hand at the time of the sale, together with the amount of business passed on to the buyer, and a reappraisal of the good will and potential of the business as reflected by past income and the apparent credit problems, the court concludes that the value of the business could not have exceeded $7,500 at the time of the sale. Of this amount, $2,138.31, was turned back in to Stanley. Accordingly, since Mrs. Nugent paid $10,-000 and since she is entitled to a reduction of the price in the amount of $2,500, together with the further reduction in the amount of $2,138.31, representing the amount of property returned to Stanley, Mrs. Nugent is entitled to a refund of $4,638.31. She is also entitled to cancellation of the promissory note in the amount of $5,000 due June 4, 1973, as a further reduction of the price. Finally, she is entitled to the cancellation of the real estate mortgage which was given as security for that note.”

Formal judgment was signed in these consolidated matters on July 8,1975. Stanley has taken a devolutive appeal in each of the consolidated cases. The Nugents have neither appealed nor answered the appeal of Stanley.

At the outset we notice that although the trial court found that Stanley’s reconventional demand was totally without merit (Tr. pg. 162) no formal rejection of this demand appears in the signed judgment rendered on July 8, 1975. There being no signed judgment dismissing Stanley’s reconventional demand we dismiss that part of Stanley’s appeal ex proprio motu as being premature. LSA-R.C.C.P. Articles 1911 and 2083.

The trial court concluded that the re-entry of the premises by Stanley on June 4, 1973 amounted to a voluntary rescission of the sale, Stanley, however, being reserved the right to sue for any deficiency in the amount owed him under the contract. Having so concluded the trial court did not decree a rescission of the sale of December 4, 1972 in its signed judgment. As afore-stated, the trial court reached the further conclusion that plaintiff was seeking rescission of the sale by reason of redhibition and in lieu of rescission (which he considered occurred on June 4, 1973) decreed a diminution in the purchase price under authority of LSA-R.C.C. Articles 2541 and 2543. .

In both of these conclusions we find that the trial court erred for such conclusions are mutually exclusive.

A sale which has been rescinded, voluntarily or otherwise, ceases to exist. There can be no reduction in the consideration which has been paid in connection with a sale which has been rescinded. When a sale is rescinded the parties are returned as nearly as possible to the situation as it existed prior to the sale. The vendee returns the property to the vendor and the vendor returns the purchase price subject to whatever adjustments are necessary for his use of the property during the period he possessed same. Jones v. Deloach, 317 So.2d 240 (La.App. 2nd Cir. 1975).

We do not find that Stanley’s re-entry of the premises on June 4,1973 amounted to a voluntary rescission of the sale of December 4, 1973. In the sale contract Stanley had reserved the right to re-enter the premises.' The Nugents had abandoned the premises and in fact had no right to the continued occupancy of these premises after June 4th as their lease and option to purchase had both expired. The Nugents did not purchase the premises re-entered but rather only the business formerly operated therein.

We likewise find that the trial court erroneously concluded that the Nugents seek rescission of the December 4th sale by reason of redhibition. The plaintiff’s petition and the evidence adduced in support of the allegations of fact therein contained clearly reflect that plaintiffs seek to rescind the sale in question because their consent to the contract of sale was produced by error of fact which was a principal cause for making the contract.

Although we determine that the trial court erred in its application of the law, we find no manifest error in its factual findings.

The trial court made the following factual findings which we briefly summarize:

(a) The Nugents informed Stanley and the latter was well aware that the Nugents wished to purchase a going established business with a good reputation and an established line of credit with carpet mills and other suppliers.

(b) Stanley assured the Nugents of his good credit reputation and that upon consummation of the sale the latter would fall heir to some $12,000.00 to $,15,000.00 worth of executory contracts for the installation of carpet and such assurances continued up to the date of sale.

(c) Stanley had a poor credit reputation with some carpet mills, as a result of which the Nugents had much difficulty in securing any credit, some suppliers even refusing to do business with “Quality” on a C.O.D. basis.

(d) Contrary to Stanley’s representations and assurances the Nugents received only two executory contracts for the installation of carpet, one with a church where no profit was made and the other with a bank official where no profit was intended.

(e) Stanley incorrectly represented and in fact grossly exaggerated the value and income of his going business.

Finding no manifest error in the above factual findings we determine on the basis thereof that plaintiffs are entitled to a rescission of the sale of December 4,1972 said sale being invalid by reason of lack of consent on the part of the Nugents.

It is well settled in our law that consent to a contract may be vitiated by an error of fact and that without consent there is no contract. LSA-R.C.C. Articles 1819, 1820, 1923.

Article 1821 states “That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.” Article 1826 provides in effect that error of fact as to the principal cause of the agreement does not invalidate a contract unless the other party knew or should have known it was the principal cause.

The jurisprudence under these code articles establishes that a contract may be invalidated for unilateral error as to a fact which was a principal cause for making the contract, where the other party knew or should have known it was the principal cause. Savoie v. Bills, 317 So.2d 249 (La.App. 3rd Cir. 1975).

Considering the factual findings made by the trial court, which factual findings we do not disturb, we have little difficulty in concluding that the Nugents executed the contract of sale of December 4, 1972 under error of fact as to a principal cause for making the contract. The principal causes which prompted the Nugents to agree to the sale of December 4, 1972 was their belief that they were acquiring a going business with a good credit reputation and that upon consummation of the sale they would immediately acquire firm executory contracts for the installation of carpet. The evidence clearly indicates that the Nu-gents received neither, for Stanley’s credit reputation with carpet suppliers was poor and upon consummation of the sale there were but two small contracts for the installation of carpet neither one of which proved to be profitable. The evidence is clear that the Nugents would not have agreed to the sale of December 4th had they been aware of Stanley’s poor credit reputation and the fact that the business which they were acquiring had little or no contracts for work. It is likewise clear that Stanley was well aware that the Nugents were not particularly interested in the value of his inventory but were keenly and mainly interested in acquiring his business which they thought was a going business with a good credit reputation. Having concluded that the contract of sale of December 4,1972 is void for error of fact we will order its rescission and amend the trial court judgment to that extent.

In concluding that the sale of December 4th is invalid for want of consent, we note that we have attributed no significance to the trial court’s finding of fact that defendant grossly exaggerated the value of the business. It is settled that misrepresentations with respect to value are not such an artifice as will invalidate an agreement of sale if the purchaser is in such a situation that he might with ordinary attention have detected the falsehood. LSA-R.C.C. Article 1847(3); Jackson v. Fonentot Building Inc., 314 So.2d 516 (La.App. 1st Cir. 1975, writ refused Sept. 25, 1975).

Appellant argues that the trial court erred in allowing the introduction of parole evidence concerning the representations made by Stanley to the Nugents prior to the confection of the sale. Appellant suggests that such evidence was inadmissa-ble as varying or contradicting the recitals in the authentic act of sale and cites LSA-R.C.C. Articles 2236 and 2276. Appellant’s argument is not persuasive. It is settled that parole evidence is admissable for the purpose of establishing that an agreement is subject to annulment because of lack of consent due to misrepresentation and error. Sylvester v. Town of Ville Platte, 218 La. 419, 49 So.2d 746; Overby v. Beach, 220 La. 77, 55 So.2d 873.

Appellees being entitled to rescission of the sale of December 4th are entitled to a return of the purchase price paid by them subject to their return of the property to Appellant together with whatever adjustments are necessary to compensate the vendor for their use of the property during the period from December 4,1972 to June 4,1973. The trial court determined that the Nugents were transferred $3,257.31 of physical assets on December 4, 1972 and returned to Stanley property of the value of $2,138.31, leaving a difference of $1,119.00. We find no error in this conclusion of the trial court. Considering the amount paid by the Nugents at the time of sale, i. e., $10,000.00 cash and a promissory note of $5,000.00, Appellees would be entitled to cancellation of the note (which was ordered cancelled by the trial judge) and a return of $8,881.00 less such sum as would reasonably compensate Stanley for the use of property transferred to the Nugents during the period December 4, 1972 to June 4, 1973. We need not calculate what a reasonable figure would be for such use in that under the facts of this case appellees would be entitled to a return of more money than that which was awarded to them by the trial court. We are powerless to change the award made by the trial judge in that ap-pellees have neither appealed nor answered the appeal of plaintiff.

For the above and foregoing reasons we dismiss plaintiff-appellants appeal insofar as his reconventional demand is concerned. Further, the trial court judgment is amended to the extent that we now decree that the sale of December 4, 1972 executed by Harlton K. Stanley d/b/a Quality Appliance & Carpet Company, as vendor, to George Dean Nugent and Joy Jean Nugent, as vendees, is invalid for lack of consent and is accordingly order rescinded. In all other respects the judgment of the trial court is affirmed, appellant to pay all costs of this appeal.

AMENDED AND AFFIRMED.


text:
    Harlton Kenneth STANLEY, Plaintiff-Appellant, v. George Dean NUGENT and Joy Joan Nugent d/b/a Quality Appliance and Carpet Company, Defendants-Appellees.
    No. 5550.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Scotty G. Rozas, Lake Charles, for plaintiff-appellant.
    Raleigh Newman, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion matter entitled Nugent et ux., d/b/a Quality Appliance and Carpet Company v. Stanley, No. 5549 of the docket of this court, 336 So.2d 1058, the judgment of the trial court rendered in this matter is affirmed. Appellant is cast for all costs of this appeal.

AFFIRMED.


author: JONES, Judge.

text:
    Brenda Jane DRAKE, Plaintiff-Appellant, v. Ronnie Lynn ALDRIDGE, Defendant-Appellee.
    No. 12970.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for plaintiff-appellant.
    Maynard E. Cush, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

The issue here is custody of children as between parents who have lived together without benefit of marriage. Plaintiff, Brenda Jane Drake, is the natural mother of two children fathered by the defendant natural father, Ronnie Lynn Aldridge. Plaintiff appeals the rejection of her demands and the award of custody to the natural father, who sought legal custody by reconventional demand. We affirm the judgment of the lower court.

The plaintiff and defendant lived together for about four years until June, 1972, during which time these two children were born. When plaintiff and defendant parted ways, the children lived with their mother and maternal grandparents in Oklahoma until January, 1975. Defendant-father occasionally sent small sums of money to the children during this time. In August, 1974, plaintiff became disabled and remained unemployed and in financial difficulty for about ten months. In January, 1975, she brought the children to Louisiana and by written agreement “surrendered” custody to the defendant-father where they have since remained. The defendant married his present wife in August, 1974. Plaintiff married her present husband in August, 1975. In January, 1976, when defendant would not agree to return the children to her, plaintiff brought a habeas corpus proceeding.

While neither of the parties had shown a significant amount of interest in the children when they were in the possession of the other party, the trial court found that the interests of the children would best be served by leaving them with the defendant. The lower court was impressed with the defendant’s present wife, whom the court found to be the “most solid” of the four prospective parents. The natural father’s present wife was the only nonworking spouse, and was able and willing to devote full time to the care and rearing of the children. The court considered the home situation of the defendant to be stronger and more stable than that of the natural mother.

The trial court also noted that during the periods of time the children were in the physical custody of their mother, the maternal grandparents were actually providing most of the children’s care. The trial court found the main reason that the children were surrendered to the defendant by plaintiff was because of friction between plaintiff and her mother, caused by grandmother’s dissatisfaction with the existing arrangement under which the grandmother was solely responsible for the children for extended periods.

The period of voluntary separation between plaintiff and the children continued for several months after plaintiff overcame her physical and financial difficulties. Plaintiff wrote to defendant that she was satisfied with the arrangement. This correspondence continued until shortly before this suit was filed. Plaintiff’s attempt several years ago to place the children for adoption was prevented by the defendant. The evidence shows the children are properly disciplined and generally well cared for in defendant’s home. We find no abuse of discretion or error on the part of the trial court in its factual conclusions.

Appellant argues that the trial court erred in not following the “maternal preference” rule. We cannot agree. In Brackman v. Brackman, 322 So.2d 314 (La.App.2d Cir. 1975) we commented:

“The underlying reason for the preference given the mother to custody of young children is to continue them in the care of the parent who, in a normal situation, has provided the degree of continuous care and affection which creates such a close bond that it would be harmful to the children to alter the relationship by granting custody to the father.
“When the children have remained away from the mother for a substantial period of time and have been cared for by the father or some other person, the rationale of the maternal preference rule becomes of less importance in determining what is in the best interest of the children.
“The court on three occasions has recently affirmed the trial court’s award of custody of minor children to the father where it appears to be in the best interest of the children, even in the absence of a finding of moral unfitness on the part of the mother. See Murphy v. Murphy, 293 So.2d 909 (La.App.2nd Cir. 1974), and Pipes v. Pipes, 293 So.2d 925 (La.App.2nd Cir. 1974), and Welch v. Welch, 307 So.2d 737 (La.App.2nd Cir. 1975). In all three of the above cited cases the children had been physically cared for by the father for a substantial period of time and the trial court found it in the best interest of the child to remain in the home of the father.” Id. at page 317.

Upon reviewing the record, we cannot say the trial court erred in its evaluation of what will best serve the interests of these children.

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

Affirmed.


text:
    William L. DILLON and Wilma Jean Dillon applying for Adoption of Rodger Dale Fontenot and Theresa Fontenot, Plaintiffs-Appellants, v. STATE of Louisiana, Defendant-Appellee.
    No. 12976.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.

      Baker, Culpepper & Brunson by William H. Baker, James E. Beal, Jonesboro, for plaintiffs-appellants.
    Whitten & Blake by Leon Whitten, Dist. Atty., Second Judicial Dist., Jonesboro, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

The question in this appeal is whether parents have the burden to prove their fitness in order to reacquire the custody of children voluntarily surrendered to the State while the parents were in hardship circumstances.

The facts leading to this controversy began in 1973 when Mrs. Carol Dillon Fonten-ot, mother of the minors, Rodger, age two, and Theresa, age one, was pregnant with a third child. Both she and the children were ill, she was separated from her husband, and she was no longer receiving welfare payments. She could not turn to the Dil-lons (her parents and plaintiffs herein) for assistance because they were both in Ohio where her father was undergoing open-heart surgery. While Carol had earlier declined state intervention regarding the children, and had once changed residences to avoid such intervention, her situation compelled her to approach the State for help.

Carol Fontenot was told by the State agency the only way assistance could be provided her was for her to place the children in a foster home either until the grandparents returned or until Carol Fon-tenot was able to care for them. Carol Fontenot and the agency’s caseworker testified that Carol then agreed to a voluntary, temporary transfer of the children to the agency (State Division of Family Services). On August 8, 1973, the senior judge of the lower court signed a judgment giving custody of the children to the State.

The State then placed the children in a foster home but later transferred them to another foster home because the original foster home became unsuitable. In the meantime, Mr. Dillon recovered sufficiently to return to work and Mr. and Mrs. Fonten-ot became reconciled and improved their financial situation.

On August 23, 1974, the Fontenots executed an authentic act declaring their consent to the adoption of the children by the maternal grandparents, plaintiffs herein. On October 24, 1974, while the children were still in a foster home but were visiting plaintiffs, an order was signed in an adoption proceeding by a second judge of the lower court giving temporary custody of the children to plaintiffs. This temporary custody order was rescinded on November 20, 1974, by the second judge when the State informed him of the August 8, 1973 custody order signed by the senior judge in favor of the State.

On February 7, 1975, the Dillons filed a rule against the State to show cause why the Dillons should not be granted custody of the children under the adoption proceedings. The lower court, rejected their demands for the children, maintaining the custody of the State. The Dillons appeal. We reverse.

The central issue in this appeal is under what circumstances the State can retain the custody of minor children against the wishes of the parents. (Under these facts we regard the plaintiffs as representing the interest of the natural parents, Carol and Steve Fontenot. See discussion infra.)

There are several methods by which the State can obtain the custody of minor children. Under LSA-R.S. 9:402, 404, the State may obtain the irrevocable custody of a minor child if the child is surrendered for the purpose of having the child adopted, and if the surrender is evidenced by an authentic act signed by both legitimate parents. See Golz v. Children’s Bureau of New Orleans, Inc., 326 So.2d 865 (La.1976). Here, however, no such document is in the record and we cannot conclude that such a document exists. The evidence is unequivocal that the mother intended the surrender to be only temporary. We also have no evidence that the father of the children joined in the surrender to the State.

The State may also obtain custody of a minor child after a contradictory hearing against the parents, upon a judicial determination that the child is abandoned, neglected, abused or delinquent. LSA-R.S. 9:403, 13:1570, et seq., 14:403. In such a situation the State bears the burden of proof. As the court said in State ex rel. Paul v. Department of Public Welfare, 170 So.2d 549, 552-553 (La.App. 3d Cir. 1965):

“The burden . . . is on those resisting the parent’s demand for custody to show that the latter is disqualified or unfit to have the custody, that the parent is incapable of caring for the child, or that it would be detrimental to the child’s welfare to place him under the care of the parent . . . .” (Citations omitted)

The State did not introduce a judgment into the record which makes such a determination against the parents. Furthermore, we note the absence of competent evidence in this record which would support such a finding against the Fonten-ots or the Dillons in this case. See State in the Interest of Prestridge, 323 So.2d 868 (La.App. 2d Cir. 1976). Since there has been no judicial determination in a contradictory hearing that the interests of the children require continued State intervention, we hold that Mrs. Fontenot’s voluntary relinquishment of custody to the State in 1973 does not in itself forever bar her from exercising her parental rights.

An incidental issue is whether the grandparents of the children, plaintiffs herein, are able to assert this right of the parents to the custody of the children. We are of the opinion that by virtue of the August 23, 1974, authentic act executed by the Fontenots, which relinquishes custody to the Dillons, this suit may be viewed as a request by the parents for the return of their children to the Dillons, grandparents of the children.

For the foregoing reasons, the judgment of the lower court is reversed and there is now judgment granting the temporary care, custody and control of the minors, Roger Dale and Theresa Fontenot to plaintiffs, William L. and Wilma Jean Dillon, under the pending petition for an Interlocutory Decree of Adoption, all further proceedings below to be subject to the provisions of LSA-R.S. 9:421, et seq., which allows investigations into the proposed adoptive home by the State. The State shall pay all such costs as are legally assessable against it in the instant proceedings, below and here, except the cost in the pending adoption below.

Reversed, rendered and remanded.


author: SAMUEL, Judge.

text:
    Maxie P. GAGNARD v. Ernest C. THIBODEAUX et al.
    No. 7361.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.

      Steven R. Plotkin and James C. Azcona, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Stewart E. Niles, Jr., New Orleans; for defendants-appellees.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   SAMUEL, Judge.

Plaintiff, a policeman, was injured in the course of his employment by the City of New Orleans when the police car he was driving, an automobile owned by the city, was rear ended by a vehicle driven by Ernest C. Thibodeaux, an uninsured motorist. He sued the city and its compensation insurer for workmen’s compensation benefits and Thibodeaux for personal injuries. Subsequently, the city and its compensation insurer were dismissed from the suit for all claims other than workmen’s compensation. Plaintiff then amended his petition by naming The Travelers Insurance Company, his own automobile liability insurer, a defendant under the uninsured motorist provisions of his policy.

Plaintiff appeals from a judgment dismissing Travelers Insurance on the latter’s exception of no cause of action and motion for summary judgment. The judgment is based on a finding that plaintiff’s policy excludes uninsured motorist coverage under the following provisions contained in “Definitions” and “Exclusions” in “Part III— Protection Against Uninsured Motorists”:

1. “ ‘insured automobile’ means
(d) a non-owned automobile while being operated by the named insured; and the term ‘insured automobile’ includes a trailer . . .•, but shall not include:
(2)any automobile while being used as a public or livery conveyance ” (emphasis ours) and
2. “This policy does not apply under Part III:
(c) so as to inure directly or indirectly to the benefit of any workmen’s compensation or disability benefits carrier or any person or organization qualifying as a self-insurer under any workmen’s compensation or disability benefits law or any similar law.” (emphasis ours).

We are of the opinion that the words we have emphasized in the above quoted (d)(2) do not lead to a conclusion, as contended by the defendant that the police car in suit is not included as an “insured automobile”. Our conclusion is to the contrary. As we understand the words used, a police car is not a “public conveyance”. Especially in view of the word “livery” (which is defined as “The hiring out of horses and carriages” or “a concern offering vehicles of any of various kinds for rent”), the other adjective modifying “conveyance”, the police car was not a “public conveyance” such as a public bus, taxicab or streetcar, which transport the public for a consideration. A police car is not a vehicle for hire nor does it transport the public for a consideration. The emphasized policy words are at least sufficiently unclear or ambiguous as to be construed against the writer of the policy, the insurer.

Finally, as the policy limit of liability, each person, is $5,000, we are of the opinion the second provision, the exclusion relative, to workmen’s compensation benefits, is invalid because that provision violates the pertinent statute by reducing the policy limits below the required minimum. In Williams v. Buckelew, La.App., 246 So.2d 58 (on rehearing), the Second Circuit came to this conclusion in connection with a provision similar to the one in suit. We agree with that conclusion and the stated reasons therefor.

For the reasons assigned, the judgment appealed from is reversed, the exceptions of no right or cause of action are overruled, the motion for summary judgment is denied, and the matter is remanded to the trial court for further proceedings. Costs of this appeal are to be paid by the appellee, The Travelers Insurance Company; all other costs are to await a final disposition.

REVERSED AND REMANDED.

      .Travelers Indemnity Company, erroneously originally named as Travelers Insurance Company.

      . The American Heritage Dictionary of the English Language.

      . Webster’s Third New International Dictionary.

      . Thus, we do not reach a consideration of the issue decided in Powell v. Allstate Insurance Company, La.App., 233 So.2d 38, that a policy provision excluding a municipally owned vehicle from uninsured motorist coverage is not sanctioned by the pertinent statute.

      . LSA-R.S. 22:1406(D)(1).


author: MILLER, Judge.

text:
    David T. SHIVELY et al., Plaintiffs-Appellees, v. Peter PICKENS et al., Defendants-Appellants.
    No. 5639.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 1976.
    William J. Doran, Baton Rouge, for defendant-appellant.
    Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for plaintiff-appellee.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, George Griffing, Jonesville, for defendant-appellee.
    Before HOOD, MILLER and DOMEN-GEAUX, JJ.
   MOTION TO REMAND

MILLER, Judge.

Plaintiffs-appellees-appellants, David T. Shively and Deanna Boudoin Shively, move to remand the above captioned unlodged appeal to the 28th Judicial District Court for the purpose of retaking the testimony in this matter, as the original testimony cannot be transcribed due to a malfunction in the court reporter’s recording device at the time of the trial.

Judgment was rendered on September 22, 1975. Prom this judgment both plaintiffs and defendants perfected appeals to this court. After defendants and plaintiffs perfected their appeals, plaintiffs received a letter from the court reporter dated July 2, 1976, informing them that, because of the quality of the recording belts, he could not transcribe the testimony.

On July 12, 1976, plaintiffs-appellees-ap-pellants filed a Motion to Remand with this court seeking a remand to the trial court for the purpose of retaking the testimony.

“A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.” (Emphasis added) LSA-C. C.P. art. 2132.

Plaintiffs are entitled to the requested relief. When, due to mechanical failure, all or part of the testimony is unable to be transcribed, the parties are entitled to a remand for the purpose of retaking this testimony. Loewer v. Vanderhider, 320 So.2d 315 (La.App. 3 Cir. 1975); Kay v. Home Indemnity Company, 301 So.2d 705 (La.App. 3 Cir. 1974); Middleton v. Pleasant, 298 So.2d 895 (La.App. 3 Cir. 1974); Neal v. Neal, 268 So.2d 723 (La.App. 3 Cir. 1972).

The case is remanded to the trial court for the limited purpose of retaking the testimony in this suit.

APPEAL REMANDED.


author: PER CURIAM.

text:
    John R. PEREZ, Jr., Plaintiff-Appellant, v. Hon. Edwin W. EDWARDS, Governor of the State of Louisiana, et al., Defendants-Appellees.
    No. 11062.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 11, 1976.
    Writ Refused Aug. 12, 1976.

      Gibson Tucker, Jr., New Orleans, for plaintiff-appellant.
    Winston G. Decuir, Baton Rouge, for defendant, appellants, the Governor and Secretary of State.
    Johnnie A. Jones, in pro. per.
    Maurice J. Le Gardeur, Jr., Covington, for John W. Greene, defendant-appellee.
    Max Mercer, in pro. per.
    A. Denis Bechac, in pro. per.
    Before LANDRY, SARTAIN, ELLIS, BLANCHE and CHIASSON, JJ.
   PER CURIAM.

John R. Perez, Jr. seeks to enjoin the holding of the August 14, 1976 open primary election for Judge, Division “D”, 22nd Judicial District, and to obtain a writ of mandamus ordering the Governor, the Secretary of State and the 22nd Judicial District Democratic Executive Committee to call an election pursuant to the provisions of R.S. 18:384, et seq., for the said office.

He seeks this relief on the ground that Sections 16, 17 and 18 of Act 46 of 1976, which created the said judgeship, among others, are unconstitutional for various reasons.

Defendants Edwin W. Edwards, Governor of Louisiana, and Paul J. Hardy, Secretary of State, filed various exceptions, including a peremptory exception of unauthorized use of summary process, all of which were overruled by the trial court.

After trial on the merits, judgment was rendered, declaring Act 46 of 1976 to be constitutional, and dismissing plaintiff’s suit. From that judgment plaintiff has appealed. Defendants Edwards and Hardy have also appealed the judgment overruling their exceptions.

We acknowledge that constitutional issues may properly be raised in these proceedings and for that reason reject defendants’ claim that summary process is not a proper vehicle in this instance. See Summerell v. Phillips, 258 La. 587, 247 So.2d 542. But we decline to consider the constitutional objections raised by plaintiff for we believe it is not proper for us to enjoin the election at this late date. Appellate courts are obligated to render any judgment which is just, legal, and proper upon the record on appeal. LSA-C.C.P. Art. 2164.

The protection of plaintiff’s individual right to have his name on the ballot at this time is far outweighed by the chaos which would occur by our enjoining the election at this late date. Other candidates have qualified according to the Governor’s proclamation for the election call and in reliance thereon have conducted their campaigns. Absentee ballots have been cast and most, if not all of the election procedures have been completed except for voting on the candidates. No irreparable injury will occur if the election is allowed to proceed for if the statute calling the election is unconstitutional as plaintiff contends, its validity can be challenged just as well after the election. It is well settled that a preliminary injunction will issue only when the plaintiff has shown that he will suffer irreparable injury if it is not granted. Melancon v. Assumption Parish Police Jury, La.App., 231 So.2d 690, and cases cited therein. Furthermore, if the act is subsequently declared unconstitutional, then there is no reason to believe that the Governor will refuse to call another election which complies with the Constitutional guidelines and for that reason the mandamus is premature.

For these reasons, the judgment of the trial court dismissing plaintiff’s suit at his cost is affirmed.

AFFIRMED.


author: LEMMON, Judge.

text:
    Leona Martin, wife of/and Cecil S. COSSE, Sr. v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS and Fireman’s Fund Insurance Company.
    No. 7567.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.
    Dillon & Williams, C. T. Williams, Jr. and Robert E. Birtel, New Orleans, for Schweg-mann Bros. Giant Supermarkets, Inc., and Associated Indemnity Corp. of San Francisco, California.
    Phelps, Dunbar, Marks, Claverie & Sims, Edmond Phelps, II, New Orleans, for Robert Rogers, Specialty Food Sales, Inc., and Aetna Ins. Co.
    Before SAMUEL, LEMMON and BEER, JJ.
   LEMMON, Judge.

The issue in this appeal from a summary judgment dismissing a third party demand is whether there was a genuine issue of material fact.

Plaintiff slipped and fell in a supermarket operated by Schwegmann Bros. Giant Super Markets, Inc. In the ensuing litigation Schwegmann Bros, and its insurer filed two third party demands. The one against the appellees (Specialty Food Sales, Inc., its employee, Robert Rogers, and its insurer) alleged that Rogers had spilled cooking oil on the floor and had failed to barricade the area of the spill or to take steps to insure the safety of its customers. The other third party demand against Hunt-Wesson Foods, Inc. and its employee, Charles Weirbel, asserted the same allegations about Weirbel.

After several discovery depositions Specialty Food and Rogers moved for summary judgment, filing Rogers’ deposition in support of the motion. In the deposition Rogers testified: On the day of the accident he and two other employees of Specialty Food, along with several pickle salesmen from other companies, were rearranging the pickle section in the supermarket. They were removing jars of pickles from the shelves and placing them in shopping carts lined up in the center of the aisle. At the same time other salesmen were rearranging the cooking oil section, which was adjacent to the pickle section. He had no responsibility for rearranging the cooking oil section and had never arranged a cooking oil display in that store. The store manager discovered oil dripping from one of the carts, but he (Rogers) did not know what caused the oil to spill and to form a puddle (the size of an ashtray) on the floor about 15 feet from where he was working. The manager barricaded the area with shopping carts and called a porter. Shortly thereafter, plaintiff slipped and fell at the location of the oil spill. Neither he nor the other Specialty Food employees had moved any of the carts in the vicinity of the oil spill.

Schwegmann and its insurer filed nothing in opposition to the motion, which was ultimately grantéd.

The summary judgment procedure is designed principally to decide issues of law in cases where the material facts are not in dispute. The procedure is therefore seldom appropriate in those negligence cases in which the decision turns on a determination of whether or not a defendant’s conduct constitutes a tort, since such a determination almost always involves a factual dispute. Nevertheless, the procedure may be-useful to one of multiple defendants in seeking dismissal, without a trial on the merits, after the operative facts of the accident have become fairly well established by investigation and discovery procedures. See Continental Cas. Co. v. McClure, 313 So.2d 260 (La.App. 4th Cir. 1975).

In the present case plaintiff sued the supermarket operator and later joined parties who may have been responsible for causing the hazard. After discovery Specialty Food, Rogers and their insurer sought dismissal on the basis that no facts existed to indicate Rogers either caused the spill or contributed in any way to causing the injury. Schwegmann Bros, neither sought additional time for investigation nor asserted any factual basis for holding Rogers liable. Under these circumstances, and under the facts established by Rogers’ deposition, third party defendants are entitled to judgment as a matter of law.

The judgment is affirmed.

AFFIRMED.

      . Plaintiff joined Specialty Food, Rogers and their insurer as defendants after the third party demand, but voluntarily dismissed these parties after discovery was completed.


text:
    Albert J. BALDO v. Lester J. THIBODEAUX.
    No. 7852.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.

      Jesse S. Guillot and Emile Schneider, New Orleans, for plaintiff-appellee.
    Norman Mopsik, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and BEER, JJ.
   LEMMON, Judge.

This is a lessor’s suit for cancellation of a written contract of lease of immovable property and for possession of the premises. After a trial on the merits the trial court rendered judgment in favor of the lessor, and the lessee appealed. On motion to dismiss the appeal, this court ruled that there was no valid judgment of eviction from which an appeal could be taken. See 324 So.2d 457. The case was then tried again on the merits, and judgment was again rendered in favor of the lessor. The lessee’s appeal from that judgment is now before us for review, based on the evidence taken at both trials.

The lessor sought cancellation on several grounds. However, since there was an undisputed violation of the lease provision concerning liability insurance, we need not discuss the other grounds.

The lease contract required the lessee to maintain liability insurance with specified limits. At the last trial the lessee admitted there was no liability insurance then in effect, explaining:

“Well, each time that I get the insurance, he brings me into court to evict me and I am waiting on decisions of the Court, and there is no use having a policy if you don’t know whether you are going to be there or not. You can’t operate the business if you don’t know whether you’re going to be there or not.”

The lessee clearly breached the lease by failing to maintain liability insurance. His reason for the failure did not justify the breach, and the evidence did not support the allegations in his pleadings that the lessor’s harassment prevented fulfillment of certain conditions of the lease. Under the facts and circumstances presented in this record the lessor is entitled to cancellation of the lease.

The lessor answered the appeal, seeking damages for a frivolous appeal. All of the other grounds asserted for cancellation involved difficult questions and conflicting evidence, and the grounds as to liability insurance did not occur until after two separate suits had been tried in the trial court. Furthermore, the lessee did present evidence bearing on his allegations of harassment, and we cannot say he was not in good faith in seeking appellate review of this evidence. Under these circumstances we decline to award damages for a frivolous appeal.

The judgment is affirmed. All costs in both the trial court and this court are assessed against defendant.

AFFIRMED.

      . There was also an earlier trial in another division of the Civil District Court. The lessor’s appeal in that case was dismissed as untimely. See 295 So.2d 866. The evidence in that case was also introduced in the present case by stipulation.

      . A letter from the insurance agency indicated the lessee’s liability insurance expired at the end of the policy term on July 29, 1975 (before the March 31, 1976 trial, but after the May 23, 1975 trial in which we held no valid judgment was rendered).