author: HOOD, Judge. MILLER, Judge

text:
    Leonard SCHEXNAYDER et ux., Plaintiffs-Appellees, v. James R. CARPENTER, et al., Defendants-Appellants.
    No. 5577.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writ Refused Jan. 7, 1977.

      Caffery, D'uhe & Davis by John M. Duhe, Jr., New Iberia, for defendants-appellants.
    Fontenot, Gautreaux & Andrus by J. Winston Fontenot, Lafayette, for plaintiffs-appellees.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and GUIDRY, JJ.
   HOOD, Judge.

Mr. and Mrs. Leonard Schexnayder claim damages primarily for personal injuries sustained by Mrs. Schexnayder as the result of a motor vehicle collision. The defendants are James R. Carpenter, Willie Landry and United States Fidelity and Guaranty Company. The case was tried by jury, the trial resulting in a verdict in favor of Mrs. Schexnayder for $59,000.00, and in favor of Mr. Schexnayder for $4,040.60. Judgment was rendered by the trial court in favor of plaintiffs and against defendants in accordance with that verdict. Defendants appealed.

The sole issue presented relates to quantum. Defendants contend that the award of general damages made to Mrs. Schex-nayder is excessive and should be reduced.

The accident occurred about 1:30 P.M. on October 21, 1973. Mrs. Schexnayder was driving her stationwagon west on a highway in Iberia Parish at that time. She made a left turn into a private driveway, and as she did so the left side of her station-wagon was struck by an empty truck and trailer which was behind her and was attempting to overtake and pass the vehicle she was driving. The truck was owned by defendant Carpenter, and was being driven by his employee, Landry.

Mrs. Schexnayder testified that she fainted or was knocked unconscious by the blow, and that when she regained consciousness a minute or two later, she was bleeding from the area of the eye, and her face was “one solid bruise.” She stated that she was unable to get out of the car “for a while,” that she rejected an offer to call an ambulance, and that instead she asked that a friend be called. Her friend took her to Dauterive’s Hospital that afternoon where she was examined by Dr. Elias, who gave her first aid treatment, prescribed a medicine and told her to go home and go to bed. She was not hospitalized. Three days later she went to her family physician, Dr. J. L. Comeaux, and thereafter she was treated by Dr. Co-meaux, by Dr. Daniel C. Dunlap, and by Dr. James Blackburn.

The evidence indicates that the collision was of a relatively minor nature. The truck was being driven at a speed of about 35 miles per hour when plaintiff began to make her left turn. Landry applied his brakes, and the truck skidded about 13 feet before it struck plaintiff’s stationwagon. Both vehicles came to rest within a few feet of the point of impact. Neither the truck nor the stationwagon overturned. The truck was not damaged, and the cost of repairing the left side of plaintiffs vehicle was $810.42. Mrs. Schexnayder’s two year old grandson was riding in the stationwag-on at the time, and neither that child nor the driver of the truck sustained any injuries as a result of the accident.

A disinterested witness arrived at the scene of the accident within less than one minute after it occurred. He stated that Mrs. Schexnayder had “a little cut over the forehead, or something, and a bunch of glass in her hair, broken glass,” but that he talked to her and he observed no other injuries. He did not offer to call an ambulance or to obtain medical assistance for her, but he did call plaintiff’s daughter at Mrs. Schexnayder’s request. The same witness stated that he saw Mrs. Schexnayder again not more than two or three days later, when she went to a garage to inspect her damaged car, and that he does not recall her having a black eye or any other apparent injury at that time.

The state policeman who investigated the accident arrived at the scene a few minutes after the collision occurred. He stated that Mrs. Schexnayder said that she had been hurt, but that there were no physical signs-of injury, that no first' aid measures were required, that plaintiff was standing by her car when he arrived, that she did not appear to be hurt, and that the officer questioned her at that time about the accident.

The evidence convinces us that Mrs. Schexnayder sustained a black eye, a small cut over her eye and a straining type injury to her neck as a result of the accident. She admits that by December, 1973, or within two months after the accident occurred, she had recovered completely from the black eye, the cut over her eye and all of the aches and pains which she had following the accident, except that she claims that the pain in her neck has persisted. She also contends that since the accident she has experienced some fear of driving her automobile which prevents her from performing her work as she should.

Mrs. Schexnayder testified that her neck pain “steadily got worse” after the accident, and that the pain subsides only with home therapy treatments, consisting of wearing a traction collar. She described the collar as being a “soft collar,” or a “double dollar,” which snaps at the back and holds her neck up. She stated that “it does relieve the tension and the pain.”

With reference to her fear of driving, plaintiff stated that it relates more to the highway than driving in town. She concedes that she resumed driving her car four weeks after the accident, and that she has been driving it daily in connection with her work since that time. She stated that she had such a fear after the accident, but that she didn’t mention it to anyone because of the type job she had. Her job required her to do a great deal of driving. She said that she eventually mentioned that fact to her family doctor, and he recommended that she consult Dr. James Blackburn, a psychiatrist. She was treated by Dr. Blackburn for a period of time, and she concedes that she got “some improvement.” The trial took place on March 10, 1976, more than two years after the accident occurred. When asked at the trial what her concerns were at that time, she did not mention her fear of driving, but instead she listed only her neck pain. Her testimony was:

“Q. Now, as of today, what are your problems? What are your main concerns, Mrs. Schexnayder?
“A. As of today?
“Q. Yes.
“A. I have the persistent neck pain. With the home therapy — without the traction, without wearing the collar, but mainly the traction, the pain persists. The traction helps. The pain only subsides with treatment.
“Q. Do you have any trouble sleeping?
“A. Occasionally.”

Mrs. Schexnayder was about 51 years of age and was employed as Educational Director of the Headstart Program in Iberia Parish at the time the accident occurred. Her duties required her to drive to four Headstart centers in various parts of that parish at least twice each week. As a result of the accident she was not able to work for a period of about four weeks, but she returned to work after that four week period and has worked continuously since that time. Some time after she returned to work, she was promoted to the position of Educational Director of a two parish area, including Iberia and St. Martin Parishes, and since she received that promotion she .has had to visit at least nine Headstart centers in both parishes regularly. She has driven her own car daily from her home in New Iberia to her office in St. Martinville, and then from that office she has regularly driven her car a great deal in making the above visits in widely scattered parts of the two parishes. •

•Mrs. Schexnayder thus has worked, regularly for a period of more than two years and four- months since the accident occurred. She has never been disabled except ■for -the above period’ of about four weeks immediately following the accident. She has never been hospitalized in connection with her alleged injuries.. She was not paid her salary during the four week period she was off work, but she has performed all of the duties of her employment and has been paid regularly since that time.

Dr. Elias, the first treating physician, was not Called to testify either in person or by deposition.

When Dr. Comeaux,. a. general practitioner, first examined plaintiff - on October 24, 1973, he found that "she had a black eye, some soreness- and tenderness in .-her left trapezius muscles and in the deep muscles of the neck. His neurological and x-ray examinations were negative, and he found nothing to indicate that she had a disc injury. He previously had prescribed tranquilizers for her, and following the examination he made on October 24, 1973, he prescribed an increase in the tranquilizers which she had been taking. Later, he also prescribed an anti-inflammatory drug. He treated plaintiff six times over a period of the next 22 months. Dr. Comeaux testified that he found no medical reason why Mrs. Schexnayder could not return to her regular work approximately three or four weeks after the accident occurred. Since he could find no physical signs to explain or justify plaintiff’s continued complaints of pain, Dr. Comeaux referred her to a psychiatrist, Dr. James Blackburn, about five or six months after the accident occurred. Both of those doctors then referred her to a neurologist.

Dr. Daniel C. Dunlap, a neurologist, examined plaintiff initially on June 18, 1974, at which time she had complaints of tenderness in the muscles of the lower part of the back of her neck and spine. His x-ray examination showed a narrowing of the space between C-5 and C-6, but he -felt that that was caused by a degenerative disease, or arthritis, a.nd that it did' not result from the accident. He found no muscle spasm or any other objective signs'of injury. In view of plaintiff’s complaints, however, Dr. Dunlap prescribed physical therapy, including heat application to the neck, ultra sound, neck traction and some medication. The doctor saw her a total of six times over a period of 14 months, his last examination having been on August 5, 1975. He testified that Mrs. Schexnayder “does not need a cervical fusion,” that she has “no limitation of neck movement,” that he found “no objective evidence of any problem,” and that her “disc disease pre-ex-isted the injury.” The doctor conceded that the mere fact that there were “no neurological findings” does not mean that she does not have neck pain, and that if she had no pain before the accident, but did have pain afterward he would presume that her pain was due to the accident. He also stated that “a lot of the treatment that I gave her is based on what she tells me about the way she feels.”

Dr. Blackburn, a psychiatrist, first saw plaintiff on May 10, 1974, and he treated her thereafter periodically. The record does not show how long he treated her, or how many times he saw her. He stated, however, that she improved with his psychiatric treatments, and that on occasions she would not return for scheduled visits when she showed a little improvement. Dr. Blackburn stated that by the time of the trial Mrs. Schexnayder was “eight, ninety percent better than she was initially,” and that she “should be able to function” with a few more months of intermittent psychiatric care.

The medical bills incurred for the treatment of plaintiffs injuries were included in the award of special damages made to Mr. Schexnayder, and they are not at issue here. We note, however, that a total of $985.00 was paid to all of the doctors who treated Mrs. Schexnayder. Of that amount, $810.00 was paid to Dr. Blackburn alone, for psychiatric treatments which began about seven months after the accident occurred and at least five or six months after she had resumed driving her car. The aggregate sum of $175.00 was paid to all other treating physicians, including Dr. Elias, Dr. Comeaux and Dr. Dunlap. These payments made for medical treatment, considered with the other evidence, indicate that only a moderate amount of treatment was required for Mrs. Schexnayder’s injuries.

. On the basis of the above evidence, the jury rendered a verdict in favor of Mrs. Schexnayder for $59,000.00. We think that award is excessive and must be reduced.

The injuries which plaintiff sustained as a result of the accident were not of a permanent nature, and they disabled her for only a very brief period of time. She was never hospitalized. The evidence does not show that she has ever suffered severe pain. She missed only four weeks of work, and since she returned to her job she has performed all of the duties of her employment, including a great deal of driving. Her own doctors can find no objective signs of injury. She had been working and driving her car for several months before she first visited her psychiatrist. Her alleged fear of driving thus was not great enough to disable her from driving when Dr. Blackburn first saw her, and yet her psychiatrist says that by the time of the trial she had overcome 80 to 90 percent of even that relatively minor, nondisabling fear of driving. He also stated that she would be completely relieved after a few more treatments. Accepting all of plaintiff’s statements as to her alleged traumatic neurosis, it is apparent that her asserted fear of driving is only temporary, it has never manifested itself by any objective sign, and it has never disabled her in any way.

In view of the fact that the jury awarded Mrs. Schexnayder a substantial sum for her injuries, we have interpreted the evidence in a light which is most favorable to her. Under such an interpretation, we believe that an award of $15,000.00 for her injuries is generous, and that that sum is the maximum which should be awarded in this case.

For the reasons assigned, the judgment appealed from is amended by reducing the award made to plaintiff, Mrs. Dorothy M. Schexnayder, from $59,000.00 to the sum of $15,000.00. In all other respects the judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiffs-appellees.

AMENDED and AFFIRMED.

MILLER, J., dissents and assigns written reasons.

DOMENGEAUX, J., dissents for the reasons assigned by MILLER, J., and additionally for the stated reasons in my dissenting opinion in Coco v. Winston Industries Inc., 330 So.2d 649; writ granted.

MILLER, Judge

(dissenting).

Although the unanimous jury award appears high, I respectfully dissent from the majority decision to reduce it. The majority did not take note of several factors which impressed me. It is significant to me that appellants did not ask the trial judge to grant a remittitur, nor did they seek a new trial. Appellants frankly acknowledged their opinion that such a request would be denied. We are therefore confronted not only with a unanimous jury verdict but one which comes to us with the concurrence of the trial judge. The judge and jury saw and heard the witnesses present their testimony; they unanimously agreed to an award of $59,000 in general damages. Their conclusion should not be disregarded without compelling and uniform evidence to support the conclusion.

Another factor which impressed me, and may have impressed the trial judge and jury, is that these defendants made no effort to present medical evidence of their own. I say again, these defendants did not have this lady’s medical complaints examined or evaluated by a single physician of their choice. They came to court with not one shred of evidence to refute the unanimous opinion of every one of Mrs. Schex-nayder’s doctors that she needed their prescribed treatment and she continues to need treatment.

The majority seems to indicate that Mrs. Schexnayder’s continuation at work reduces the value of her claim. The opinion does not mention that Mrs. Schexnayder and her husband were in difficult financial circumstances and she could not afford to give in to her complaints. This 50 year old claimant was at the peak of her career and her motivation to continue in a management position is understandable.

The majority noted the amount of the doctors’ bills but failed to include the cost of her medication and her thirty-three (33) prescribed physical therapy treatments— treatments which were undertaken over a fourteen (14) month period. The jury might have likened Mrs. Schexnayder’s problems relating to the physical therapy treatments to problems ordinarily experienced during periods of hospitalization.

The majority noted Mrs. Schexnayder’s use of a neck collar, but failed to note that she also purchased a prescribed traction device for use at home, was trained to use it, and testified that she did use it.

The majority failed to take note of Mrs. Schexnayder’s treatment under hypnosis and the fact that her subconscious mind manifested a vivid memory of this accident. Tr. 189. She had nightmare-type dreams related to this accident. Tr. 196. She needs further psychiatric treatment, and the psychiatrist also recommends continued traction and medication. Tr. 195.

All the points noted in the majority opinion were fully presented to the trial judge and jury by appellants’ persuasive counsel. Appellants concede the trial court properly instructed the jury.

On the other hand, the judge and jury heard evidence establishing that for two and one-half years plaintiff received treatment for complaints related to this accident; competent physicians were of the opinion that her complaints were sincere, were related to the accident, and required continued treatment. She wore a neck collar for some time; she had neck traction during physical therapy treatments and used a prescribed traction device at home. Her expressed fear of driving and riding in cars was confirmed under hypnosis. Mrs. Schexnayder has been under,medical treatment since the accident and her complaints are almost three years old and continuing. No physician recommended she stop her medication or discontinue treatment. The record substantiates Mrs. Schexnayder’s claim that she suffers fear and continuing pain related to the accident.

There is evidence to support the Unanimous jury award which has been approved by the trial judge.

A reviewing court might well disagree with the amount of the award fixed by the jury and approved by the trial judge, but it is not entitled to substitute its opinion for that of the trier of fact. When a jury fixes an award, and that award is not disapproved by the trial judge, the action of the trial court is entitled to much respect. It should be upset only when it can be demonstrated that the jury abused its discretion. Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 at 809 (La.1974).

I respectfully dissent.


source: Caselaw Access Project

author: PETERS, Judge ad hoc.

license: Public Domain

text:
    Kenneth DUTILE et al., Plaintiffs-Appellees, v. James AYMOND, Defendant-Appellant.
    No. 5590.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Rehearing Denied Nov. 5, 1976.
    Writ Refused Jan. 7, 1977.
    Kelly & Ware by Robert Salim, Natchi-toches, for defendant-appellant.
    Whitehead & McCoy by Charles R. Whitehead, Jr., Natchitoches, for plaintiff-appellee.
    Before MILLER, WATSON and PETERS, JJ.
   PETERS, Judge ad hoc.

This is a possessory action. Plaintiffs Kenneth Dutile and Willie Grappe purchased two tracts of land from the successions of W. H. Wallett and Emmie Ingram Wallett, one of which was the 74 acre tract here in dispute, on September 30, 1968. Prior to that time, Willie Grappe had lived on and farmed these tracts of land for approximately 26 years by virtue of a verbal lease with the Wallett family.

In 1953, Thaddis Jones purchased a tract adjoining the 74 acre tract leased by Wal-lett to Grappe. Several years later, Jones built a fence that roughly followed the property line separating his land from the Wallett land. The purpose of this fence was to keep Jones’ cattle from straying. As a matter of convenience, Jones built this fence partly on the Wallett property. The portion of the Wallett property fenced in by Jones was not then being used by Grappe. After building the fence, Jones told Grappe he had put the fence partly on the Wallett property. Jones added that he would remove the fence whenever Grappe wanted to use the land. Grappe never had any need for the fenced land so the fence remained where it was. The evidence clearly shows that Jones never made any claim of ownership to the portion of the 74 acre tract which he fenced, and he was allowed to use that portion only through the indulgence of Grappe.

On October 25, 1973, Jones sold his land to James Rex Fair. Fair testified that at the time of the sale, he believed he was purchasing up to the fence. Several months later, Jones told Fair that the fence was built partly on the Grappe-Dutile property. In early February, 1974, Fair sold the land to W. H. Franklin, and on February 26, 1974, Franklin conveyed the land to defendant James Aymond. Aymond testified he believed he was purchasing up to the fence. About one week after Aymond purchased the property, plaintiffs informed Aymond the fence was situated on plaintiff’s property and they wanted Aymond to move it. Aymond refused and this suit was filed on October 22, 1974.

The lower court rendered judgment in favor of plaintiffs. We affirm.

Defendants contend the lower court erred, arguing that defendant’s ancestor in title, Jones, had been in uninterrupted possession since building the fence sometime in the 1950’s. This argument is untenable. The evidence clearly shows that Jones never held the property as owner, but rather used it solely through the acquiescence of Grappe. Jones never intended to possess as owner, and intended to use the fenced property only so long as this was agreeable to Grappe. Thus, Jones’ use of the land for a number of years did not give him possession of the land, LSA-C.C. 3436, nor did it constitute a disturbance of possession, LSA-C.C. 3490; Whitney National Bank of New Orleans v. Munch (La.App.Orleans, 1956), 91 So.2d 144. In fact, because Jones was possessing through Grappe’s permission, he was possessing the land for Grappe. LSA-C.C. 3490.

We need not decide which of Jones’ successors in title disturbed the possession of Dutile and Grappe, or when such disturbance took place, because such disturbance certainly did not take place till at least October 25, 1973, this being the date Jones sold his land to Fain This suit was filed on October 22, 1974, less than one year after the earliest date the disturbance could have taken place, and this suit therefore was instituted timely. LSA-C.C.P. 3658.

For the reasons assigned, the judgment of the lower court is affirmed at the cost of defendant-appellant.

Affirmed.

WATSON, J., concurs in the result — no manifest error.


author: MILLER, Judge. HOOD, Judge

text:
    Lorena St. Amant MIRE, Plaintiff-Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Defendant-Appellee.
    No. 5601.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Concurring Opinion Sept. 30, 1976.
    On Rehearing Nov. 3, 1976.

      Albert L. Boudreau, Jr., Abbeville, for plaintiff-appellant.
    Broussard, Broussard & Moresi by Paul G. Moresi, Jr., Abbeville, Davidson, Meaux, Onebane & Donohoe by Timothy J. McNamara, Lafayette, Thompson & Sellers, by Charles M. Thompson, Jr., Abbeville, for defendant-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   MILLER, Judge.

Plaintiff Lorena St. Amant Mire appeals the dismissal of her claim against defendant Fidelity & Casualty Company of New York on its exception of no cause of action. F&C attached its insurance policy to its exception and based its exception on a policy exclusion. We reverse.

LSA-C.C.P. art. 931 excludes the taking of evidence to support the objection that the petition fails to state a cause of action. In ruling on an exception of no cause of action, only the well-pleaded facts in plaintiff’s petition or documents attached thereto can be considered. Documents not attached to plaintiff’s petition are excluded. American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970); Parks v. Winnfield Life Insurance Company, 336 So.2d 1021 (La.App. 3 Cir. 1976).

The peremptory exception of no cause of action tests the legal sufficiency of the petition. The correctness of well-plead allegations of fact is conceded insofar as the exception is concerned, and the issue is whether the face of the petition presents a case which legally entitles plaintiff to the redress sought. Hero Lands Company v. Texaco, 310 So.2d 93 (La.1975).

Plaintiff’s petition alleges that her injuries resulted from negligence on the part of the Vermilion Parish Police Jury and she is entitled to damages; that F&C issued a policy of general liability and comprehensive general insurance to the Police Jury, which policy was in full force at the time of the alleged accident; and that the policy covered the matters, persons and things which are the subject of this lawsuit. Plaintiffs petition stated a cause of action against F&C.

Had F&C presented its arguments on a motion for summary judgment, the trial court could have considered the policy defense. F&C’s effort to affirm the trial court is based on its policy defense, and that cannot be considered on this exception of no cause of action.

The judgment dismissing Mrs. Mire’s claim against F&C also dismissed the claim of third-party plaintiff Nelson St. Amant. He did not appeal the judgment but has filed a brief contending the dismissal should also be overruled as to him. Nelson St. Amant did not appeal or file an appeal bond within the time set by law, and thus the dismissal of his claim against F&C is final. LSA-C.C.P. arts. 1974, 2087, 2121, 2123 and 2124.

Insofar as the trial court judgment dismissed Mrs. Mire’s suit against F&C, the judgment is set aside and reversed. The case is remanded for further proceedings. Costs of this appeal are taxed to appellee F&C.

In part, REVERSED and REMANDED.

HOOD, J., concurs and assigns written reasons.

HOOD, Judge

(concurring).

I disagree with the conclusion reached by my colleagues. I nevertheless am concurring in the majority opinion for two reasons: (1) My refusal to concur would cause the case to be reargued, entailing additional delays and expense to the parties, and eventually the same result would be reached; and (2) the majority recognizes that after the case is remanded, a motion for summary judgment may be filed presenting the same issue which is before us now, and in that manner the parties eventually will be able to have that issue determined.

The sole question presented on this appeal is whether an exclusionary clause in a policy of insurance issued by Fidelity and Casualty Company of New York relieves that insurer from liability.

The policy was not attached to plaintiff’s petition, but a duplicate of it was attached to “Exceptions of No Cause or Right of Action” filed by Fidelity. The policy thus is legally and properly in the record. The minutes of the court show that the exception filed by Fidelity was “taken up, tried and taken under advisement” before judgment was rendered. There is no transcript of the testimony, but we must presume that the trial was conducted properly and that the policy was introduced and received in evidence, since the entire trial and this appeal deal solely with the language used in one clause of that policy.

Four separate briefs were filed in this court on behalf of the four parties to the suit. In each brief the exclusionary clause of the policy was quoted, and scholarly arguments were presented as to the effect which should be given to that clause. No one objected to considering the policy or the legal issue presented. No one questioned the right of the court to consider the policy, or to decide the single legal question which must be determined. The parties, in fact, urged the court to decide whether the insurer should or should not be dismissed from the suit, so that the case then could proceed to trial on its merits.

My colleagues, on their own motion, have decided to treat the pleading filed by Fidelity solely as an exception of no cause of action, although it also is an exception of no right of action, and to interpose in behalf of the plaintiff an objection to the court’s considering the insurance policy, an objection which plaintiff obviously did not want to make.

Ordinarily, parties are permitted to stipulate as to facts and as to the issues which are presented in a case, and courts permit them to do so, unless the stipulations raise questions of public policy, questions as to the jurisdiction of the court, or questions which are not material to a disposition of the case. In the instant suit no question of public policy or of jurisdiction are raised, and clearly the issue presented is material to a determination of this case. I think my colleagues have erred in raising a technical objection, not urged or discussed by any party, and on that ground refusing to look at or consider the insurance policy which is properly in the record and which all parties obviously agree should be considered by the court.

The majority relies on American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970), and Parks v. Winnfield Life Insurance Company, 336 So.2d 1021 (La.App. 3 Cir. 1976).

I agree that some language used in Springer, appearing to me to be dictum, provides support for the majority’s view. I do not interpret that opinion, however, as prohibiting parties to a suit from stipulating as to facts or pleadings or as to the issues which are to be decided by the court. Neither do I interpret Springer as barring a party from waiving an objection which he could have urged. There did not appear to be a stipulation or waiver in Springer. In the instant suit, however, I believe that the parties at least tacitly stipulated that the policy was in evidence and should be considered. Certainly, plaintiff waived any objection which he might have to a consideration of the policy. In view .of this difference in circumstances, I do not believe that Springer prohibits a consideration of the insurance policy involved in the instant suit.

In Parks, I disagreed with the holding of the majority, and in a separate opinion I expressed views similar to those which are being expressed here.

In North Central Utilities, Inc. v. Sarver, 323 So.2d 173 (La.App. 3 Cir. 1975), our court held, unanimously, that evidence introduced by stipulation at a hearing on an exception of no cause of action had the effect of enlarging the pleadings and should be considered in ruling on that exception. That holding, I believe, is in direct conflict with the holding of the majority in the instant suit. Both of the judges who constitute the majority in the instant suit were on the panel which decided Sarver, and one of them wrote the majority opinion. In that case the court discussed and distinguished Springer, supra, and it concluded:

“Although LSA-C.C.P. 931, prohibits evidence to support or controvert the objection that a petition fails to state a cause of action, North Central’s petition was amended by the stipulated filing of the letter in the pleadings. The filing of the letter constitutes an amendment to the petition, and the trial court properly considered this amendment in deciding the exception of no cause of action. Rheuark v. Terminal Mud and Chemical Company, 213 La. 732, 35 So.2d 592 (1948). See also General Accident, Fire & Life Assurance Corp. Ltd. v. J. B. Glen, 261 So.2d 78 (La.App. 3 Cir. 1972), where a document was considered with consent of both parties.” (Emphasis added).

The two judges who constitute the majority in the instant suit also were members of the panel which decided Honeycutt v. Town of Boyce, 327 So.2d 154 (La.App. 3 Cir. 1976), which involved a suit for damages. The defendant filed an exception of no cause of action, based on the ground that plaintiffs had executed a formal release of the claim. The form of release was introduced in evidence. Our court considered the release which had been introduced in evidence, and it affirmed the judgment of the trial court sustaining the exception of no cause of action, based solely on that release. After citing Springer, our court held in effect that where evidence is introduced to sustain an exception of no cause of action, the exception may be treated as a motion for summary judgment, the evidence may be considered, and the exception of no cause of action may be sustained on the basis of that evidence. The court affirmed the judgment of the trial court sustaining the exception of no cause of action, and in doing so it used the following language:

“For the foregoing reasons, we conclude that the judgment of the trial court sustaining defendant Boyce’s exception of no cause of action is correct in its result.”

The two judges who constitute the majority in the instant suit were on the panel which decided Honeycutt, and one of them was the author of the opinion. The holding in that case is contrary to the holding of the majority in the instant suit.

In Parr v. D. H. Holmes, Co., Ltd., 311 So.2d 463 (La.App. 4 Cir. 1975), the defendants filed an exception of no cause of action after plaintiff had presented evidence and closed its case in a trial on the merits. The trial judge considered the evidence which had been introduced and sustained the exception of no cause of action. Our brothers of the Fourth Circuit, after citing Springer, pointed out that under LSA-C.C.P. art. 2164, the court may render any judgment which is just upon the face of the record. It considered the evidence which had been introduced and concluded that plaintiff was not entitled to recover. In view of Springer, the court amended the judgment of the trial court to dismiss plaintiff’s suit on the merits, rather than on an exception of no cause of action, and with that amendment it affirmed the trial court judgment.

I think any of the procedures employed in the above cases would be appropriate here. The insurance policy which is legally and properly in the record, without objection of any party, can and should be treated as an enlargement of plaintiff’s pleadings, and it should be considered in deciding the exception of no cause of action, as was done in Sarver, supra. Also, the exception of no cause and no right of action filed by Fidelity may be considered as an alternative motion for summary judgment, and on that basis judgment could be rendered sustaining the exception of no cause of action, as was done in Honeycutt, supra. And, finally, since the insurance policy was the only evidence material to decide the issue on the merits as to the liability of Fidelity, this court could properly amend the judgment of the trial court to dismiss plaintiff’s suit as to Fidelity on its merits, rather than on an exception of no cause of action, as was done in Parr, supra.

As already noted, although I disagree with the holding, I am concurring in the majority opinion solely to avoid unnecessary delays and expense to the parties, particularly in view of the fact that by filing additional pleadings, having another hearing and taking another appeal, all of which I consider to be unnecessary, the parties eventually will be able to obtain the same relief which could be afforded to them now.

For these reasons, I respectfully concur.


author: WATSON, Judge.

text:
    Lloyd FLANNER et al., Plaintiffs-Appellants, v. SUCCESSION OF Thomas J. FLANNER, Defendant-Appellee.
    No. 5602.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writ Refused Jan. 7, 1977.

      John F. Caraway, New Orleans, for plaintiffs-appellants.
    Richard E. Gerard, Sr., Scofield, Berg-stedt & Gerard by Benjamin W. Mount, Lake Charles, for defendant-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   WATSON, Judge.

Plaintiffs, Lloyd Thomas Flanner and Mrs. Olga Flanner Bannister, the only children of Thomas J. Flanner, brought this suit against the succession of their father asking that they be sent into possession of a one-half interest in certain United States savings bonds not included in the succession assets. The trial court concluded that ownership of the bonds passed under federal law to the co-owner, plaintiffs’ stepmother, Mrs. Maude Rau Flanner, also now deceased; and the succession could not be reopened to include the bonds. We affirm.

Plaintiffs have appealed, alleging that the trial court erred: in not reopening the succession; in not deciding whether plaintiffs had an interest in the bonds; and in not treating the matter as an action to reduce an excessive donation.

The facts are essentially uncontested. Thomas Jefferson Flanner willed all of his property to his second wife and widow, Mrs. Maude Rau Flanner. The sworn descriptive list of assets in the succession did not include the United States savings bonds owned by Thomas J. Flanner and Mrs. Maude R. Flanner. Decedent’s one-half interest in the community was valued at $4,984.75. Both plaintiffs, Lloyd T. Flanner and-:.Mrs. Olga. Flanner; Bannister,renounced the succession'.of their father by' authentic act executed after the succession was opened. Both testified that they knew' of the existence of the bonds but relied-upon the succession attorney’s advicé.that the bonds were not part of the succession-;that they executed the notarial' acts of renunciation because the assets -amounted to so little they felt the entirety should go. to the surviving widow; and that they would not have renounced the succession if they had thought the renunciations affected an interest in the United States savings bonds. Mrs. Flanner was put into possession of her husband’s estate by judgment of possession rendered June 16, 1970.

The succession attorney, John B. Scofield, testified that plaintiffs were aware of the bonds and their amounts and that they executed the renunciations because of a tacit understanding that they would be included in their stepmother’s will. In evidence is a copy of a will executed by Mrs. Flanner June 24, 1970, whereby she bequeathed her entire estate to these stepchildren. The original of the will was later destroyed in Scofield’s office pursuant to Mrs. Flanner’s instructions. Lloyd Flanner testified that he knew the will had been changed to remove him and his sister as beneficiaries. Also in evidence is a letter written by Sco-field to Mrs. Maude Flanner while she was staying with Lloyd T. Flanner in which Scofield advised that the bonds should not be included in the Louisiana succession proceedings. Attached to the letter is a legal memorandum, which states in the concluding paragraph:

“ . . the value of the Bonds must be computed in determining the legitime of the forced heirs, and, the forced heirs have a right to bring an action for reduction of an excessive donation in the event the value of the bonds would have impinged on the legitime had the value been given by donation inter vivos instead of by the survivorship provisions of the U.S. Treasury regulations.” (TR. 51)

Mr. Flanner testified that:

“This is the letter that my stepmother received while she was with me in New Jersey, which I read and copied.” (TR. 78-79)

The issue is whether plaintiffs’ renunciations of their father’s succession prevent them from asserting an interest in the U.S. savings bonds, either by reopening the succession or by an action for reduction.

The renunciations here are effective, since the heirs were aware that the succession of their father was open and that they were heirs. A succession cannot be accepted or rejected on a partial basis. While an heir may renounce a succession and then later accept it, this cannot be done when there has been acceptance by another heir and rights which third parties may have acquired cannot be prejudiced. Mrs. Maude Flanner was an heir to the property of her husband and accepted his succession. Her heirs or legatees have now, with her death, acquired rights under her will.

In Volume 3 of Professor Carlos Lazarus’ Civil Law Translations of Aubry & Rau’s Droit Civil Francais, § 685 c, at page 250, we find the following:

U * * *
2. Renunciation. The action for reduction may abate by the renunciation of the forced heirs. This renunciation, which can be validly made only after the opening of the succession is, moreover, governed by the general rules applicable to the renunciation of any other rights. Thus, it may be express or tacit.
“Whether the forced heir should be deemed to have renounced the action of reduction when, for example, he has received from the universal legatee a particular legacy made in his favor or when he has voluntarily paid a legacy or part of a legacy to a third person, is a simple question of fact and must, as such, be resolved according to the circumstances in each particular case. * * * ”

This is not a situation within the purview of LSA-C.C.P. art. 3393, because

the bonds do not constitute overlooked property of the succession. As the Louisiana Supreme Court pointed out in the recent case of T. L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La., 1976), transfer of a property interest with such bonds is valid but is:

“ . . . subjected to the judicial requirement of an accounting, where requested, to the claims of any forced heir whose legitime was thereby prejudiced . . . 322 So.2d 855-856

Here, the forced heirs did "not bring an action for reduction but renounced their father’s succession after being advised of their right to bring such an action. That right has now, as Aubry and Rau said, abated.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs are assessed to plaintiffs-appellants, Lloyd Thomas Flanner and Mrs. Olga Flan-ner Bannister.

AFFIRMED.

      . LSA-C.C. art.. 1016:
      “A succession can neither be accepted nor rejected conditionally.”

      . LSA-C.C. art. 1031:
      “Art. 1031. So long as the prescription of the right of accepting is not acquired against the heirs who have renounced, they have the faculty still to accept the succession, if it has not been accepted by other heirs, without prejudice, however, to rights which may have been acquired by third persons upon the property of the succession, either by prescription, or by lawful acts done with the administrator or curator of the vacant estate.
      In like manner, so long as the prescription of renunciation is not determined, the heir may still renounce, provided he has done no act to make himself liable as heir.”


author: CULPEPPER, Judge.

text:
    Gaston BUTAUD, Jr., et al., Plaintiffs and Appellees, v. CITY OF LAKE CHARLES, Defendant and Appellant.
    No. 5606.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Rehearing Denied Nov. 4, 1976.

      McHale & Bufkin by Louis D. Bufkin, Lake Charles, for defendant and appellant.
    William L. McLeod of Kimball, McLeod & Dow, Lake Charles, for plaintiffs and appel-lees.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

This is a companion case to Stanford v. City of Lake Charles, 338 So.2d 362 in which a separate decision is being rendered by us this date. These two cases, which were consolidated for trial and appeal, are actions to enjoin enforcement of a city ordinance levying paving assessments. The plaintiffs, 18 in number, are the owners of residential lots abutting Prien Lake Road between Second and Fifth Avenues in Lake Charles. They contend the paving assessments against their respective lots are invalid under the provisions of LSA-R.S. 33:3306(A) which require that each lot be benefited to an amount not less than its assessment.

The trial court rejected the demands of the three plaintiffs who own lots in the commercial zone on the south side of the road. As to the remaining plaintiffs, who own lots in the residential zone on the north side of the road, the trial court remanded this case to the City Council of Lake Charles for it to proceed, at its option, to make assessments consistent with the trial court’s oral reasons for judgment. Defendant appealed. Plaintiffs answered the appeal, praying that the judgment of the trial court be modified to nullify the subject paving assessment.

Before reaching the merits, we must dispose of two procedural matters. First, we are faced with a motion to dismiss the appeal of the three plaintiffs whose actions were dismissed by the trial court. These three plaintiffs are Albert L. King-ham, James M. Kingham, Jr. and Mark Wesley Kingham, each an owner of property abutting the south side of Prien Lake Road between Second Avenue and Fifth Avenue. The ground alleged for dismissal of these appeals, failure to post an appeal bond, is supported by the record. Failure to perfect an appeal by the timely filing of the appeal bond prevents the appellate court from acquiring jurisdiction. Belgard v. Aetna Casualty & Surety Company, 227 So.2d 24 (La.App. 3rd Cir. 1969). Therefore, the motion to dismiss the appeal of the three Kingham plaintiffs is granted.

The second preliminary matter is the question of whether the trial court had authority to render a judgment remanding these cases to the Lake Charles City Council for it to proceed, at its option, to make assessments against plaintiffs’ property consistent with the court’s oral reasons for judgment. All parties agree that the trial court had no authority to render such a judgment. We find no basis in our law to support a remand from a court to a legislative body for further legislative action in accordance with the views of the court.

Having disposed of these two procedural matters, we now address the merits. The issue is whether the City Council abused its legislative discretion by determining that the real estate to be assessed was benefited by the subject paving project to the extent of $35 per front foot.

The evidence shows that Prien Lake Road is and for several years has been a major traffic artery for vehicles traveling east and west in the southern area of the City of Lake Charles. In 1973, the City began execution of its plan to pave and improve a portion of Prien Lake Road between Second Avenue and Fifth Avenue. The proposed improvements of Prien Lake Road included the following: (1) Replacing a two-lane asphalt road surface with a four-lane concrete surface. (2) Construction of a “drive-over” type of curb , along both sides of the road. (3) Elimination of roadside drainage ditches by installation of a subterranean drainage system. (4) Construction of a sidewalk.

The property abutting the north side of Prien Lake Road between Second and Fifth consists of residential lots which have been improved with brick homes. The vehicular entrances to these lots have always been from a paved alley running behind the homes. The residences were not constructed with driveways leading to Prien Lake Road. This property is zoned for residential use only and, as a part of the Oak Park Subdivision, is subject to its restrictive covenants prohibiting commercial use. The property abutting the south side of Prien Lake Road between Second and Fifth is zoned for commercial use.

Pursuant to statutory requirements (LSA-R.S. 33:3301, et seq.), the City of Lake Charles gave the requisite public notice of its intent to make the improvements and scheduled dates for hearing objections to the proposal. The routine aspects of the paving project, including acceptance of bids and the award of the construction contract, were considered by the Council at several of its meetings between July 18, 1973 and March 20, 1974. No objection to the proposed improvements are noted in the minutes of the City Council meetings prior to March 20, 1974.

On March 20, 1974, the City Council adopted Ordinance No. 4916, wherein the Council accepted an engineer’s report detailing all expenses of the paving project. The ordinance also provides that “a determination is hereby made that each lot or parcel of real estate to be assessed will be benefited to an amount not less than the proposed . . . special assessment.” The amount of the proposed special assessment was $35 per front foot. The vote of the Council on this ordinance was four to three in favor of its passage, with all seven members present and voting.

The minutes of the March 20 Council meeting state that counsel for plaintiffs spoke opposing the ordinance. This is the first opposition to the paving project noted in the minutes of the meetings of the City Council. The evidence indicates, however, that plaintiffs were present at several City Council meetings. The vote on acceptance of the engineer’s report was postponed twice to allow opponents of the measure an opportunity to voice their objections.

On July 3, 1974, the City Council adopted Ordinance No. 4975 levying the assessments of $35 per front foot, which are the subject of this lawsuit. The paving project has since been completed.

Municipalities are specifically granted the power to pave and improve streets and assess abutting property owners for the cost of these improvements. LSA-R.S. 33:3301. Prior to 1970, the full cost of street improvements could be assessed against abutting property in proportion to front footage. In 1970, the legislature added a new requirement that paving assessments not exceed the amount of benefit to the assessed property. Specifically, Louisiana Revised Statute 33:3306(A) provides in pertinent part:

“Upon receipt of a certified statement or report of the engineer * * * the governing authority shall review said certified statement or report, including the proposed local or special assessments, and thereafter shall make a determination as to whether each lot or parcel of real estate to be assessed will be benefited to an amount not less than the proposed local or special assessment. Proposed assessments that are found by the governing authority to have been erroneously assessed or for which the governing authority does not find said benefit shall be deleted from said certified statement or report * *

Clearly, Section 3306(A) establishes the determination of benefits to the assessed property as a legislative function. Our review of this type legislative determination is severely restricted to prevent usurpation of the legislative power by the courts. A court cannot interfere with legislative discretion or substitute its judgment for that of a legislative body, except where the action of the legislative body is clearly arbitrary and capricious. The burden of proving that the legislative body acted arbitrarily or capriciously rests on the party attacking the legislative determination. The party attacking the determination must prove that there was “no room for a difference of opinion and that there was no substantial evidence on which the legislative action could be taken.” Hunter v. City of Shreveport, 216 So.2d 140 (La.App. 2d Cir. 1968); Olsen v. City of Baton Rouge, 247 So.2d 889 (La.App. 1st Cir. 1971), writ refused 259 La. 755, 252 So.2d 454 (1971).

There is no doubt that the property abutting Prien Lake Road at the site of this paving project was benefited. The aesthetic benefits are obvious. A crumbling, uneven black asphalt surface was replaced with a smooth, neat concrete surface with curbs. Unsightly roadside drainage ditches were replaced with a subterranean drainage system. The trial court recognized these benefits by making the following statement in his oral reasons for judgment:

“There is no question in the court’s mind that insofar as the people living on the north side of Prien Lake Road, that from an aesthetic viewpoint, there is a great improvement.”

Other benefits are not immediately apparent, but are nevertheless substantial. The testimony of the Lake Charles fire chief shows that the widening of the street from two lanes to four lanes improves accessibility for firefighting equipment. The testimony of the City Sanitarian explains that the elimination of the drainage ditches deprived mosquitos of a breeding ground which they enjoyed before the road was improved. In addition, a “drive-over” type curb along the edges of the road and the elimination of ditches facilitates construction of driveways by the owners of property abutting Prien Lake Road.

The expert appraiser employed by the City Council to determine the extent of benefits from the paving projects estimated that amount to be $28.50 per front foot. He announced this finding at the March 20, 1974 meeting of the Lake Charles City Council. Acting on the basis of this estimate, and after consulting various department heads and other advisors, and listening to plaintiffs’ objections, four of the seven City Councilmen voted for acceptance of the ordinance declaring that the benefit to the assessed property exceeded the amount of the proposed paving assessment. At a subsequent meeting, five of Lake Charles’ seven City Councilmen voted in favor of the ordinance actually levying an assessment of $35 per front foot.

Each of the four councilmen who voted in favor of the ordinance accepting the engineer’s report knew of the statutory requirement that paving assessments not exceed the amount of benefit to the assessed property. Each of the four councilmen testified that he discussed the matter of the paving assessment with various city department heads, or other advisors. Each of these four councilmen was asked the pivotal question of whether he thought the property abutting the Prien Lake Road improvement was benefited to the extent of $35 per front foot. Each answered affirmatively.

The record as a whole shows the Council considered the matter carefully over a period of several months. There was ample evidence that plaintiffs’ properties were benefited substantially. Essentially, the issue before the Council was whether the benefit was as much as $35 per front foot. Mr. Coleman, the appraiser employed by the Council, estimated the benefit as “at least” $28.50. This is so close to the figure of $35 approved by the Council that we, as a court reviewing a legislative determination, cannot say the Council acted arbitrarily on this basis.

Plaintiffs argue that the improvement of Prien Lake Road actually decreased the value of their property. They state that the improvement of Prien Lake Road caused an increase of its already heavy volume of traffic. The increase in traffic volume, according to plaintiffs, resulted in an ordinance banning the parking on Prien Lake Road. In addition, the heavy flow of traffic is said to impede plaintiffs’ ingress and egress to Prien Lake Road.

These arguments are not persuasive. The evidence adduced at trial indicates that parking on Prien Lake Road was prohibited by ordinance before the road was widened to four lanes.

If the paving of Prien Lake Road had any effect on ingress and egress to the plaintiffs’ property, it was a beneficial effect. As a result of the paving project, roadside ditches were eliminated and drive-over curbs were installed. These two features of the paving project facilitate construction of driveways onto Prien Lake Road from plaintiff’s property without the necessity of installing culverts in the roadside ditches.

One aspect of the evidence adduced at the trial of this case deserves mention at this point. The testimony of the City Councilmen and other City officials reveals that one of the prime considerations in arriving at the assessment of $35 per front foot was that it was the “going rate” for residential paving assessments in Lake Charles. Nevertheless, we determine that the City Council did not abuse its legislative discretion in levying assessments of $35 per front foot. There was substantial evidence before the Council to support this figure.

For the reasons assigned, the appeal by A. L. Kingman, J. M. Kingman, Jr. and M. W. Kingman is dismissed at their cost. The judgment of the district court is reversed and set aside. Judgment is now rendered in favor of the defendant, City of Lake Charles, and against the remaining plaintiffs, rejecting their demands. All costs in the trial and appellate courts are assessed against the plaintiffs.

REVERSED AND RENDERED.


text:
    Lester Raymond STANFORD, Plaintiff and Appellee, v. CITY OF LAKE CHARLES, Defendant and Appellant.
    No. 5605.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Rehearing Denied Nov. 4, 1976.
    McHale & Bufkin by Louis D. Bufkin, Lake Charles, for defendant and appellant.
    William L. McLeod of Kimball, McLeod & Dow, Lake Charles, for plaintiff and appel-lee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

This is a companion case to Butaud et al. v. City of Lake Charles, 338 So.2d 358, in which a separate decision is being rendered by us this date. For the reasons stated in our decision in that case, the judgment appealed herein is reversed and set aside. Judgment is now rendered in favor of defendant rejecting the demands of the plaintiff. All costs in the trial and appellate courts are assessed against plaintiff-appellee.

REVERSED AND RENDERED.


text:
    GENERAL MOTORS ACCEPTANCE CORPORATION, Plaintiff-Appellant, v. Louis J. BOUTTE, Defendant-Appellee.
    No. 5614.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Dissenting Opinion Oct. 8, 1976.
    Rehearing Denied Nov. 4, 1976.
    Piccione & Piccione by Peter C. Piccione, Jr., Lafayette, for plaintiff-appellant.
    Armentor & Wattigny by Gerald B. Wat-tigny, New Iberia, for defendant-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   MILLER, Judge.

Plaintiff General Motors Acceptance Corporation appeals the judgment refusing to grant it a deficiency judgment against defendant Louis J. Boutte amounting to $2,641.62 plus interest. The deficiency judgment was denied on finding the evidence established that the automobile seized and sold for $134 at GMAC’s foreclosure was not properly appraised as required by LSA-R.S. 13-4364 et seq. and C.C. arts. 2771 et seq. We affirm.

On October 12, 1973, Boutte bought a used 1970 Chevrolet Monte Carlo and signed a note for the sum of $2,796.20 payable in thirty installments at GMAC’s offices. When the outstanding balance was reduced to $2,122.88, he defaulted. Under executory process GMAC had the car seized and on September 11, 1974 it sold at sheriff’s sale for the price of $134.

Boutte failed to appoint an appraiser and the Monte Carlo was appraised for $200 and bought in by GMAC for $134. At the time of the sheriff’s sale, the average retail value of a Monte Carlo in average condition was in the $1,500 to $2,000 range.

The evidence supports the trial court’s conclusion that the appraisal did not meet the standards required by the cited statutes and codal articles. The repossession report in evidence as Exhibit D-l described the condition of the Monte Carlo as a good body, good grill, good top, but with a scratch on the hood. Tr. 117.

In answer to interrogatories GMAC stated that at the time of seizure, the car had been abandoned for approximately one year; it had no rear end or differential, no battery, paint on the car was peeling and spotted, upholstery was torn and mildewed, one window on the car was broken, etc.

At trial, GMAC’s witnesses acknowledged this description did not remotely fit Boutte’s car. Although the car had been run into a ditch on one occasion, the collision insurance which GMAC required Boutte to purchase covered the loss and GMAC’s dealer who originally sold the car made the repairs.

Both appraisers thought the car was inoperable when they appraised the Monte Carlo. They were wrong and the trial court specifically so held. Within eight days after the sheriffs sale, a battery was installed and the car was sold to a wholesale car buyer for the price of $400. So far as the record indicates only a few dollars, if any, were spent for the battery and one or two other minor repairs made before the car was delivered to the wholesale buyer. The wholesale buyer in turn spent some $600 on the car and sold it for $1,495. Tr. 96.

Boutte introduced evidence at Tr. 141,2 indicating that except for a weak battery the ear was in good shape when it was seized. This supports the trial court’s conclusion.

Appellant failed to establish manifest error in the trial court determination that Boutte successfully carried his burden of proof. Boutte established the appraisers did not substantially comply with the law set forth in LSA-R.S. 13:4365 so as to make “a true and just appraisement of” the Monte Carlo. See Ford Motor Credit Company v. Blackwell, 295 So.2d 522 (La.App. 4 Cir. 1974).

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

Affirmed.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

I cannot agree with the conclusions reached by my colleagues. The foreclosure proceedings were conducted in strict compliance with the law, the property was sold subject to appraisement, I think the appraisal was true and just, and no fraud or error was alleged or proved. In my opinion, plaintiff is entitled to the deficiency judgment which it seeks.

The Boutte automobile was appraised by two disinterested, competent and experienced appraisers immediately before the foreclosure sale. Although one appraiser, Reuben Bienvenu, was a field representative of plaintiff and was appointed as an appraiser by plaintiff, the record shows that neither he nor plaintiff had any interest in foreclosing on defendant’s car, that GMAC was looking solely to the endorser, Evangeline Auto Company, Inc., for payment of the note, and that the foreclosure suit and this action were instituted merely to accommodate the endorser. There is nothing in the record which suggests that Reuben Bienvenu conspired against defendant, that he was in bad faith, or that he neglected to inspect or to properly value the automobile.

The other appraiser, Rodney Bienvenu, was appointed by the sheriff after the defendant failed to appear and appoint an appraiser, all as required by LSA-R.S. 13:4364. This appraiser was an automobile dealer, who had no connection at all with plaintiff or with Evangeline Auto Company. He has had extensive experience in valuing automobiles. He inspected the car involved here. Neither plaintiff nor Evangeline Auto had anything to do with the appointment of the second appraiser, and there is nothing in the record to indicate that he or the sheriff acted fraudulently, or that Bienvenu failed to discharge any part of his duties, or that he was incompetent, negligent or insincere in any respect.

Both of the appraisers testified at the trial. Reuben Bienvenu testified that when he appraised the car it was inoperable, there was no battery or air cleaner in it, the wheel covers were missing, its tires were poor and mismatched, the interior was poor, a glass was broken, and “the car needed attention all over”. He stated that he gave the car a “fair appraisal,” that he appraised it at what he thought it was worth “due to the shape the car was in,” that he considered the NADA book value, and that he concluded that the automobile was worth only $200.00. Rodney Bienvenu appraised many cars, and for that reason he was unable to recall the appearance of this particular automobile. He testified, however, that he inspects every car he appraises, and that he values each car at the maximum amount for which he feels he could sell it. He stated that in this case he obviously felt that the car could be sold only for salvage.

Defendant Boutte did not allege fraud or error on the part of anyone, and no evidence of any kind was introduced to show fraud or error on the part of plaintiff, Evangeline Auto, the sheriff, the appraisers, or anyone else. Defendant nevertheless argues on this appeal that “through error or fraud ” his automobile was grossly under-valued.

Since the evidence shows, without contradiction, that an appraisal was made by competent appraisers and that the car was inspected by them at that time it was valued, I think the failure of defendant to allege or to prove fraud or error is fatal to the position he takes in this case. It disturbs me to think that a creditor who uses executory process to enforce payment of his claim, and who in good faith has the mortgaged property appraised by two competent, disinterested appraisers, one of whom was appointed by the sheriff without even consulting with the creditor, may later be deprived of a deficiency judgment solely on the ground that the purchaser at the foreclosure sale later re-sold the property for slightly more than the amount of the appraisal. If the majority opinion stands, it seems to me that hereafter no creditor who hopes later to obtain a deficiency judgment will be able to run the risk of using execu-tory process initially to enforce his claim. It will deprive the creditor, unjustly I think, of the deficiency judgment to which he is entitled solely because of a technical defect in procedure.over which the creditor had no control.' ' It will enable the debtor in many cases to defraud his creditor by merely purchasing the property after the foreclosure sale at a price slightly higher than the appraised value, and thus avoid a deficiency judgment.

In the majority. opinion my colleagues make no finding - as to ' the actual value of the- car at the time of the foreclosure sale. They state that the average retail value of such an automobile was “in the $1500 to $2000 range,” inferring that the car should have been valued within that range. They have overlooked the fact, however, that the values they suggest apply to automobiles which are at least in average condition, whereas the Boutte automobile was in a dilapidated, wrecked condition and was inoperable at the time of the seizure.

The majority does not mention the findings of the trial judge that the car was “in pretty bad shape,” that the appraisers were “competent and knowledgeable,” and that they “considered that the car was inoperable.” Despite those findings, the trial judge nevertheless concluded that the car had a value of $400.00 at the time of the foreclosure sale, but he based that holding solely on the fact that the car was sold for $400.00 a few days after it was appraised. The trial judge acknowledged that a battery and an air cleaner had been installed in the car immediately before it was sold for $400.00, and he observed that these items cost the owner “no more than $36.00”. His determination thus was that the car actually must have been worth $364.00 at the time it was appraised, since it was later sold for that amount plus the cost of the new battery and air cleaner. On that basis alone he concluded that the earlier valuation of $200.00, before the new parts were installed, did not constitute a just and true appraisal. He found no fraud or error, no failure to inspect the automobile, no lack of competency on the part of the appraisers, and no bad faith.

I cannot accept the finding of the trial judge, or that of my colleagues, that the appraisal of the car did not constitute a just and true appraisal, and that plaintiff thus is not entitled, to a deficiency judgment.

Michael Bordelon, the owner or manager of Evangeline Auto Company, testified that the car was worth less than $200.00 when he acquired it, that it “didn’t qualify for a retail sale,” that the car wouldn’t run and had to be towed in when it was seized, that the outward appearance of it alone, together with the deteriorated condition of the suspension and interior, was such that “the cost of those things would have been prohibitive to get a reasonable amount for the car.” He stated, “The front suspension— the car was falling in front; it needed all of the new suspension in front; the interior was deplorable; the seats were in bad condition; the carpets, the paint was terrible; and, if I recall, the tires were either not there or they weren’t worth anything if they were there.” He testified that he was fortunate to get $400.00 for the car after installing some parts and getting the motor to run, and that he “would have taken four hundred from anybody”.

L. P. Bunch, the used car dealer who purchased the automobile for $400.00, testified “I thought the car was worth $400.00, but after I got it I found out it wasn’t.” He said, “The motor blew up on it on the lot,” that he spent over $600.00 to put “an upper control on it, bushings in it, . a new set of tires, . . . body work and paint job.” It took him three months to make those repairs, and he then sold the car at a price which allowed him to make “a couple of hundred dollars on the sale.” There is no showing as to how much it would have cost a bidder who was not in the used car business to make those extensive repairs, and the record thus does not show that the car could have been sold to anyone else for that amount.

Plaintiff, in answer to interrogatories propounded to it, described the condition of the car at the time of the seizure as follows:

“On information and belief, the 1970 Monte Carlo automobile had been abandoned on the levee at Bayou Benoit, Louisiana, for approximately one (1) year and at the time of the seizure the said automobile had no rear-end or differential, no battery, paint on car was peeling and spotted, upholstery was torn and mildewed, one window on the car was broken, the hood was wrecked and damaged, all of which contributed to the fact that the automobile had to be towed to the storage lot.”

Two witnesses, N. R. Bordelon and R. Michael Bordelon, responded to written interrogatories propounded to them as to the condition of the car, as follows:

“To the best of R. Michael Bordelon’s recollection, said automobile was in badly wrecked condition having no rear-end or differential, no rear wheels, no battery, paint on the car was peeling and spotted, upholstery was torn and mildewed, at least one car window was broken, the hood was wrecked and damaged.”

The majority brushes these answers aside with the statement that GMAC’s witness acknowledged that this description “did not remotely fit Boutte’s car.” I do not interpret the testimony of the witnesses as supporting that conclusion of my colleagues. It is true that all of them said that there was a rear-end or differential on the car when it was towed in at the time of the seizure, but Mr. Bordelon explained that “it wouldn’t be much of an operation to get one (a rear-end or differential) on there just to tow it in.” When Bordelon was questioned about his answer to the above interrogatories, he said “I don’t remember those exact words, but that sounds about right.”

Mr. and Mrs. Boutte admit that the car was wrecked about two months before it was seized. They stated that they had it repaired by Evangeline Auto Company, but there is nothing in the record to support that statement. The evidence convinces me that the car was never repaired. The testimony shows, for instance, that Boutte discontinued making payments on his mortgage note about two months before the seizure, or about the time he admits that the car was wrecked. Other evidence establishes that the car was still wrecked and was inoperable at the time of the seizure.

The law is settled that a judicial sale, apparently valid on its face, is presumed to have been conducted in accordance with law, and one seeking to attack the sale bears the burden of proving the contrary. Stockman v. Money, Inc., 277 So.2d 504 (La.App. 1 Cir. 1973). I think the defendant in the instant suit, Boutte, has failed to meet that burden of proof.

In my opinion the holding of the trial judge and my colleagues that a valid appraisal was not made in the foreclosure proceeding is not justified, since defendant did not allege or prove fraud or error on the part of anyone in connection with that proceeding. The majority erred, I believe, in holding that the appraisers did not substantially comply with the law, solely because the purchaser at the foreclosure sale later sold the car for a little more than the amount for which it was appraised. I also feel that the majority erred in its conclusion that the vehicle had a value of more than $200.00 at the time of the sale.

For these reasons, I respectfully dissent.


author: MILLER, Judge.

text:
    SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellant, v. Orlando LEMON, Defendant-Appellee.
    No. 5618.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writ Refused Jan. 7, 1977.
    Davidson, Meaux, Onebane & Donohoe by J. J. Davidson, III, Lafayette, for plaintiff-appellant.
    McBride & Brewster by Glynn Rozas, Lafayette, for defendant-appellee.
    Before HOOD, MILLER and WATSON, JJ.

       Hood, J., voted for rehearing.

   MILLER, Judge.

Plaintiff Southwest Louisiana Electric Membership Corporation (SLEMCO) appeals the judgment condemning it to pay defendant Orlando Lemon, as administrator of the estate of his minor daughter Marshia Lemon, severance damages of $17,760 resulting from its expropriation of a 100 foot by 1300 foot servitude for installation and operation of electric power lines. Lemon answered the appeal seeking an increase in the award. We affirm.

The parties stipulated to a $15,840 valuation of the 2.96 acre servitude taken through the middle of landowner’s 21 acre tract. The $17,760 award of severance damages was additional compensation. The tract is located some three miles from the city of Lafayette and has a highest and best use for suburban homesites; that part fronting Highway 339 is ready for rural homesites and the balance is potential residential subdivision property. The entire 21 acre tract is almost rectangular measuring approximately 700 feet north and south by 1300 feet east and west; the east side fronts Louisiana Highway 339. The 100 foot wide servitude extends due east and west near the center of the tract, leaving landowner with a 325' x 1300' tract to the north of the servitude and a 275' x 1300' tract to the south.

SLEMCO expropriated the servitude to transmit electric energy and power, which specifically includes the right to enter upon and erect, construct, extend, maintain, inspect, operate, replace, remove, repair, patrol and relocate within the right of way, transmission lines and other lines included but not limited to H-frame poles and all appurtenances of wood, metal or other type structures, with the right to replace one structure with another type at any time with conductors, wires, cross-arms, guy wires, conduits, stubs and the other usual fixtures for the transmission of electricity, together with all the foundations, anchors and braces to support the same, together with all rights of ingress and egress for the full and complete use and occupation and enjoyment of the servitude, including the right from time to time to cut and remove all trees, underbrush and other obstructions situated upon the right of way without the payment of damages, and the further right to cut and remove from adjacent land outside the right of way any and all trees, which, while falling may come within ten feet of the electric lines, upon payment of reasonable market value of such trees, after prior notice to landowner.

SLEMCO’s initial plans are to construct a 138,000 volt transmission line, which can be converted to carry 230,000 volts, along the center of the servitude mounted on H-frame poles 60 to 65' tall. The H-frame poles will be placed 15.5 feet apart. Along each side of the servitude, SLEMCO plans to build a service line mounted on 35' tall single poles with suitable cross-arms and wires.

The parties agree that landowner’s remaining property was worth $5,000 per acre prior to the taking. SLEMCO contends the trial court erred in awarding severance damages amounting to a 30% loss in value to a 200' strip of land on each side of the servitude and adjacent thereto. On the other hand landowner contends it has suffered a 30% loss in value to the entire remaining tracts and severance damages should be increased to $28,750.

Preston Babineaux and Jesse Guidry were landowner’s two expert appraisers; both have developed subdivisions. in the general area and both routinely buy and sell properties. Both referred to compara-bles to support their contention that properties adjacent to electric transmission lines are worth less than properties situated in other areas. There was little price differential in some cases and in others there was about a 15% differential rather than 30%. On cross examination, both admitted extreme difficulty in finding precise compara-bles; the ones relied upon were in a subdivision developed long after the electric transmission line was installed. Nevertheless, both were convincing in citing personal experiences establishing buyer resistance to purchasing homesites adjacent to servi-tudes; this they translated to a 30% reduction in the value of the entire remainder of landowner’s tract. They also supported their opinion that severance damages were sustained by this landowner because of difficulties in subdividing the remainder of this tract; particularly important was the problem of where to locate roads to the back part of the two tracts. What was an easily subdivided desirable suburban home-site tract has become two tracts which, because of the servitude, present difficult problems.

Gene Cope and Dan A. Ritchey were SLEMCO’s two expert appraisers; Cope is highly qualified as an appraiser but has no experience buying and selling properties in the area. Although Cope admits his personal preference to homesite properties remote from electric transmission lines, over the years he has developed evidence to show that the market makes no price distinction between tracts adjacent to or remote from electric transmission lines.

He presented an exhibit of numerous 8 x 10" color photographs showing transmission lines along major highways coming into Lafayette and points to buildings and businesses operating under and around these lines. Although he didn’t know the sale prices for these properties he projected the theory that the transmission lines did not affect their value. Most of those lines were single pole lines and the servitude agreement did not prohibit landowner from using his property under the transmission lines. Cope admitted at Tr. 278 that he has never been involved in developing, purchasing or selling property on which there were transmission lines.

Cope was most impressive in attacking the comparables used by Babineaux and Guidry; he opined that the difference in price paid for the lots was not related to the adjacent transmission line, but instead to the -fact that the higher priced lots were sold some two years later than the lots adjacent to the transmission lines; that the subdivision was then more attractive because it was better developed. Cope admitted that SLEMCO’s servitude made it more difficult to subdivide the subject tract, but contended the problem was not insurmountable.

As distinguished from Cope’s testimony based entirely on a study of the properties and the records, Ritchey based his “no severance damage” conclusion on his “opinion as to what the remainder of the property would sell for after the taking.” Tr. 306. Ritchey admits that homesite property is easier to sell if it is not adjacent to electric transmission lines (Tr. 311). His opinion simply differed with the opinions expressed by Babineaux and Guidry; he concludes that this difficulty in selling homesites does not establish the property is worth less.

Landowner’s experts were of the opinion that the buyer resistance which makes it harder to sell suburban homesites adjacent to highvoltage transmission lines reduces the market a developer can attract, and this reduction translates to severance damages.

The trial judge’s factual determination is entitled to great weight and will not be disturbed absent manifest error. See, Dakin & Klein, Eminent Domain in Louisiana, “Burden of Proof and evidence,” § 6. We fail to find manifest error in the trial court’s finding that severance damages resulted. Although SLEMCO’s experts insisted upon a contrary view, there is an adequate basis for the trial judge’s conclusion. Central Louisiana Electric Company, Inc. v. Davis, 291 So.2d 489 (La.App. 3 Cir. 1974).

We reject SLEMCO’s assignment of error that there is no factual basis for the conclusion that severance damages were sustained by landowner’s remaining property. SLEMCO argues that our past decisions are being interpreted as holding that severance damage occurs as a result of a taking of an electric transmission line servitude as a matter of law and is not a factual proposition. In our view, the issue of severance damages is a factual one.

The burden of proving severance damages rests with landowner and he must establish such damages with legal certainty by a preponderance of the evidence. State, Department of Highways v. Denham Springs Development Co., Inc., 307 So.2d 304 (La.1975). Just as the court was there convinced that landowner proved severance damages, we too find the trial court’s decision supported by the evidence. Every single expert agreed the servitude made the adjacent property less desirable for its highest and best use, suburban homesites; SLEMCO’s witnesses were of the opinion this did not create a reduction in value and landowner’s witnesses held to the contrary view. The trial court was evidently impressed with the practical experience of landowner’s experts in developing subdivisions and in buying and selling properties in the area. The trial court was likewise impressed with the difficulties confronting a prospective subdivision developer because of the servitude through the middle of the tract, leaving two tracts to be developed.

The trial court’s decision is supported by the jurisprudence. Southwest Louisiana Electric Membership Corporation v. Beck, 299 So.2d 411 (La.App. 3 Cir. 1974); Central Louisiana Electric Company, Inc. v. Davis, 291 So.2d 489 (La.App. 3 Cir. 1974); CLECO v. Mire, 140 So.2d 467 (La.App. 1 Cir. 1962).

Landowner’s answer to the appeal is rejected for the same reasons assigned for rejecting SLEMCO’s argument. Because of the configuration of landowner’s tract, all of landowner's' property is adversely affected by the servitude. Nevertheless, as we view it, the award is adequate to cover all severance damages sustained by landowner.

The trial court award is just and reasonable under the facts and circumstances and is supported by the record.

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

AFFIRMED.


author: WATSON, Judge. MILLER, Judge

text:
    CARROLL W. MAXWELL LUMBER COMPANY, INC., Plaintiff-Appellee, v. JEFFERSON INSURANCE COMPANY OF NEW YORK, Defendant-Appellant.
    No. 5635.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writ Refused Jan. 12, 1977.
    Gold, Hall, Hammill & Little by Henry B. Bruser, III, Alexandria, for defendant-appellant.
    Gist, Methvin & Trimble by David A. Hughes, Alexandria, for plaintiff-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Carroll W. Maxwell Lumber Company, Inc., a Louisiana corporation, brought this suit against defendant, Jefferson Insurance Company of New York, to recover for malicious damage to a piece of equipment, a model 135-B Franklin Skid-der, under a policy issued to Tommy Wayne Lashley by the defendant insurer. The trial court gave plaintiff judgment for $5,600, which it found to be the cost of repairing the skidder at the time it was vandalized in December, 1974. The defendant insurance company has appealed, contending that the trial court erred:

1. in holding that Lashley was the owner of the skidder in 1974 and transferred ownership to Maxwell Lumber Company in June, 1975 by an act of sale and assignment;
2. in holding that Jefferson’s policy was in effect on the date of the damage and that plaintiff Maxwell was entitled to recover on that policy;
3. in the alternative, in making an excessive award.

FACTS

Tommy W. Lashley was employed by the plaintiff lumber company in November of 1973, and the president of the company, Carroll W. Maxwell, endorsed Lashley’s note for the purchase of the skidder. Lash-ley bought the skidder from H. & P. Equipment Company in Pineville to drag logs in the course of his job. Lashley remained with the lumber company about two months afterward and made four monthly payments of $377.48 each on the note, paying installments from December, 1973 through March of 1974. President Maxwell was contacted several months later by the Security First National Bank because the note was in arrears. The note, which had been discounted to the bank, included a premium of $450 for insurance. Maxwell commenced making the payments and eventually paid the balance of $7614.60, upon which the bank sent the original note and chattel mortgage to Maxwell.

Lashley apparently signed a “VOLUNTARY SURRENDER FORM” dated August 21, 1974, which Ronald Everett Wilkins, an employee of First Security, identified as a standard form used by the bank when releasing a debtor and taking his collateral. However, the bank’s name is not on the form; it has Tommy Wayne Lash-ley’s name typed in as the creditor and does not indicate to whom the “surrender” is made.

The skidder was picked up by H. & P. Equipment Company on December 14,1974, and Maxwell was advised that it had been vandalized. Maxwell asked Lashley to transfer his interest in the skidder and any insurance proceeds to Maxwell, which Lash-ley did. In evidence is the act of sale and assignment, dated June 13, 1975, whereby Lashley assigned all of his interest in the skidder as well as all rights against Jefferson Insurance Company of New York on the policy covering the skidder to Carroll W. Maxwell Lumber Co., Inc.

James A. Prentice, a co-owner of H. & P., gave an estimate of $6815 in damages, including about $1200 for subsequent damage resulting from failure to repair, the repair figure in December, 1974, being approximately $5600.

Gerald Nichols, insurance appraiser for Crawford & Company, testified that he had made an estimate of the cost of repairing the Prentice skidder as of March 2, 1975. His estimate of damages was $1,155.11. He apparently did not determine whether or not the skidder would run and included only the obvious damages in his estimate.

The policy shows the named insured as Tommy Wayne Lashley and states that losses are payable to the insured and/or Security National Bank as their respective interests may appear. The policy period is from November 16, 1973, to November 16, 1975.

ISSUE

The primary issue is whether Lashley owned the skidder at the time of the damage.

CONCLUSION

It is contended that the voluntary surrender form operated to divest Lashley of his ownership of the skidder prior to the occurrence of the damage. Significantly, this form does not include: (1) the name of the party or parties to whom Lashley purported to release the skidder; (2) a provision that Lashley himself was released from anything; or (3) a signature or execution by any creditor or any other person. The instrument, due to ambiguity and lack of clarity as to the parties, is not sufficiently certain in legal effect that it can be relied on by the defendant insurance company to avoid the obligations of the policy. Lash-ley’s unilateral execution of a release to an unnamed party, with no cause or consideration shown, did not divest him of an insurable interest under the paid-up policy issued by defendant. The trial court correctly refused to attach any weight to the voluntary surrender form. As the trial court found, the evidence does not bear out the contention that this instrument transferred ownership of the skidder from Lashley. There was no actual delivery of the item. LSA-C.C. art. 1922. The skidder remained the property of Lashley at the time of its damage in December of 1974. Subsequently, on June 13, 1975, Lashley assigned his interest in the skidder to Maxwell Lumber Company. This assignment is clearly valid. The trial court correctly held that Carroll W. Maxwell Lumber Company, having been assigned all amounts due under the insurance policy, is entitled to the proceeds thereof.

The appellant insurance company relies on the holding in Eagle Star Ins. Co., Ltd. v. General A. F. & L. A. Corp., 315 So.2d 826 (La.App. 3 Cir. 1975), that insurance on an airplane was a personal contract between the insurer and the owner which did not inure to the benefit of the buyer of the airplane without a proper assignment; the insured under the policy not having an insurable interest in the airplane at the time of the accident because of the sale. In this case, the damage occurred in December of 1974 when the named insured, Lashley, was still the owner of the equipment and the policy was in effect. Also, here there was a valid assignment, LSA-C.C. arts. 2642 and 2643.

The award of damages shows no abuse of the trier of fact’s much discretion.

For the foregoing reasons, the judgment of the trial court herein in favor of plaintiff, Carroll W. Maxwell Lumber Company, Inc., and against defendant, Jefferson Insurance Company of New York, in the amount of $5,600 is affirmed. All costs of this appeal are assessed against defendant-appellant, Jefferson Insurance Company of New York.

AFFIRMED.

MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(dissenting).

Although equities favor the affirmation, it seems to me that Lashley sold the Franklin Skidder (Serial No. 3115) on August 21, 1974. I therefore am compelled to respectfully dissent.

When Lashley purchased the Franklin Skidder, the sale and chattel mortgage expressly assigned the note to Security National Bank.

In the sale and chattel mortgage contract (and the assignment which was part thereof) the parties expressly provided that Lashley had “full power to make and execute a dation en paiement of, and to make delivery of (the Franklin Skidder) for such consideration, at such time and on such terms and conditions as (Lashley) may see fit.”

On August 21, 1974 Lashley signed the following dation en paiement:

In this dation en paiement Lashley not only conveys all right, title and interest in the Franklin Skidder, but he expressly authorizes cancellation of the insurance and payment of those proceeds directly to the holder of the dation en paiement, Security National Bank.

I do not understand how we can ignore the plain provisions of the sale and chattel mortgage and dation en paiement.

I respectfully dissent.

      .LSA-C.C. art. 1922:
      “Art. 1922. With respect to movable effects, although, by the rule referred to in the two last preceding articles, the consent to transfer vests the ownership of the property in the obligee, yet this effect is strictly confined to the parties until actual delivery of the object. If the vendor, being in possession, should, by a second contract, transfer the ownership of the property to another person, who gets the possession before the first obligee, the last transferee is considered as the owner, provided the contract be made on his part bona fide, and without notice of the former contract.”

      . LSA-C.C. art. 2642:
      “Art. 2642. In the transfer of credits, rights or claims to a third person, the delivery takes place between the transferrer and the transfer-ree by the giving of the title.”

      . LSA-C.C. art. 2643:
      “Art. 2643. The transferree is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place.
      The transferree may nevertheless become possessed by the acceptance of the transfer by the debtor in an authentic act."


text:
    Harvey BYRD, Plaintiff and Appellant, v. Raymond Lee ISGITT et al., Defendant and Appellee.
    No. 5636.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Rehearing Denied Nov. 4, 1976.
    Gahagan & Gahagan, by Marvin F. Gaha-gan, Natchitoches, for plaintiff and appellant.
    G. F. Thomas, Jr., Natchitoches, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

Plaintiff seeks damages for personal injuries resulting from a battery committed by the defendant, Raymond Lee Isgitt. From a judgment rejecting his dema-nds, plaintiff appealed.

The substantial issue is whether the defendant Isgitt used more force than was reasonably necessary in self-defense.

The facts are that on the afternoon of Tuesday, July 29, 1975, the plaintiff, Harvey Byrd, and a man named Bruce Chand-ley engaged in a drinking party at the Apollo Apartments near Many, Louisiana. Chandléy was living in one of the apartments with plaintiff’s sister. The two men ■started drinking at approximately 1 o’clock in the afternoon,, partaking of a quantity of rum and two six-packs of beer. They sat outside and placed the record player speakers in the window of the apartment and played the music loudly. They became intoxicated and used loud and profane language.

The defendant Isgitt was the manager of the apartments. He was charged by the owner with the responsibility for protecting the property and the peace and quiet of the tenants. During the afternoon, Isgitt began to receive complaints from the tenants as to the conduct of Byrd and Chandley, particularly the public drunkenness and the use of vile and filthy language in the presence of women and children. Isgitt finally telephoned the Sabine Parish sheriff’s office and requested that deputies be sent to arrest the two men. While waiting for the deputies, Isgitt went to the front of the apartment where Byrd and Chandley were causing the disturbance.

There is a conflict in the testimony as to what transpired when Isgitt confronted the two men. At about this time a heavy rain began to fall. Isgitt testified that Byrd was out in the rain laying on the ground and shouting. He says he tried to get Byrd up and place him under the porch out of the rain. Also, he says he told the two men that he had called the deputies and that they would have to cease their disturbance and wait for the deputies. Chandley, who is a big, strong young man, weighing about 240 pounds, attempted to hit or shove Isgitt out of the way and Isgitt struck Chandley and knocked him down. Chandley got up and Isgitt knocked him down again. At this point, Byrd got up and started toward Isgitt with his arms outstretched. Isgitt testified that he was afraid Byrd was going to try to hold him so Chandley could beat him. So Isgitt struck Byrd and knocked him down. Isgitt is a state trooper, 36 years of age and weighing about 170 pounds. He was not on duty at the time. He says that FBI agents had been to the apartment complex two days before search-, ing for Chandley as being AWOL from the Army.

Before the deputies arrived, the plaintiff got up off of the ground and started running toward the corner of the building. Isgitt says he ran after him and caught him and they fell to the ground, but Isgitt denies striking plaintiff again after they went around the corner of the building. Isgitt brought plaintiff back in front of the apartments and about that time the deputies arrived and arrested the two men and charged them with being drunk and disturbing the peace, to which charges both later pleaded guilty.

The plaintiff and Chandley admit they were intoxicated and disturbing the tenants. However, Byrd testified that he was lying on the ground in the rain when Isgitt came from behind and jumped on him and started beating him. He testified further that after he came to he tried to escape by running around the corner of the building, but that Isgitt pursued him and caüght him and beat him again. Chandley’s testimony was substantially the same, except that Chandley did not see Isgitt strike the plaintiff after they went around the corner of the building.

Several of the tenants who lived in the apartment complex corroborated Isgitt’s testimony as to the disturbance. It is noteworthy that none of these witnesses saw Isgitt strike the plaintiff again after they went around the corner of the building.

The trial judge gave written reasons in which he concluded as follows:

“The Court is of the opinion that the facts establish that Mr. Isgitt, both as the Manager of the apartment complex, and as an individual, was acting to protect the premises and the interest of the other dwellers in the complex, as well as to defend his own person, and that while it appears, in retrospect, that he could have accomplished both purposes without inflicting such painful injuries on Mr. Byrd, under the pressures and heat of the occasion it cannot be- found that he acted unreasonably.”

The plaintiff Byrd is 23 years of age and is employed as a laborer in a plywood plant. His injuries consisted of a black eye and a bloody nose. He missed one week from work.

The general rule is that where a person reasonably believes he is threatened with bodily harm he may use whatever force appears to be reasonably necessary to protect himself. Each case depends on its own facts, such as the relative size, age and strength of the parties, their reputations for violence, the degree of physical harm reasonably feared and the presence or absence of weapons. Roberts v. American Employers Insurance Company, Boston, Mass., La.App., 221 So.2d 550 (3rd Cir. 1969) and the authorities cited therein. In the present case there is a reasonable evidentia-ry basis for the trial judge’s conclusion that the defendant Isgitt used only so much force as was reasonably necessary under the circumstances to defend himself. Canter v. Koehring, La., 283 So.2d 716 (1973).

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.