author: PRICE, Judge.

text:
    Pleas WILSON, Jr., Plaintiff-Appellant, v. Reubin L. SWINFORD, Defendant-Appellee, Isaac Pennywell et al., Defendants-Appellants.
    No. 12750.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.

      Charles B. Emery, Shreveport, for plaintiff-appellant.
    James E. Bookter, Bossier City, for defendant-appellee.
    Wilkinson, Carmody & Peatross by Samuel W. Caverlee, Shreveport, for defendants-appellants.
    Before PRICE, MARVIN and GLAD-NEY, JJ.
   PRICE, Judge.

These consolidated tort actions arise out of a three-car chain reaction type collision on Highway 173 North of Shreveport. The plaintiff in suit # 12,750, Pleas Wilson, Jr., was the driver of the lead vehicle in a line of three cars proceeding northerly on Highway 173 approaching its intersection with the Roy Road. The second car was a Volkswagen being driven by Reubin L. Swinford, an uninsured motorist. The third automobile, a 1968 Chevrolet sedan, was being operated by Isaac Pennywell, whose liability insurer is Western Casualty and Surety Company.

A southbound pick-up truck made an attempt to turn left at the Roy Road intersection in the path of the Wilson vehicle causing Wilson to apply his brakes to avoid colliding with the oncoming vehicle. The Swinford Volkswagen struck the rear of Wilson’s automobile, and seconds later, the Pennywell car struck the rear of Swin-ford’s automobile. Whether there was a second striking of Wilson’s car by either of the other vehicles after the second impact is a disputed fact. The driver of the oncoming pick-up which caused the series of collisions did not stop and his identity is unknown.

In his action against Swinford, Penny-well and Western Casualty, Wilson seeks damages for personal injuries, loss of wages, medical expense and the amount of automobile damage not covered by collision insurance. He contends Swinford and Pennywell were joint tort-feasors causing his injury and resulting damages as each was negligent by following too closely and not maintaining a proper lookout under the prevailing circumstances.

Hartford Accident and Indemnity Company, the collision insurer of Wilson, filéd suit in docket # 12,749, 324 So.2d 586, against the same defendants seeking to enforce its right of subrogation for the amount of automobile damages paid by it to Wilson.

Answers were filed on behalf of all defendants in which negligence on the part of both following drivers was denied and a special plea of contributory negligence was alleged against Wilson. After hearing the evidence, the trial judge found Wilson free of contributory negligence and further found that Swinford and Pennywell were both negligent in following too close under the circumstances. The court also found as a fact that following the first collision of the Swinford vehicle with Wilson’s car, the Pennywell automobile caused the Swin-ford vehicle to again strike the Wilson car and that the Pennywell automobile may have itself struck the Wilson vehicle.

The court further found the second impact caused by Pennywell to have been much greater than the initial impact of Swinford’s vehicle with the Wilson car and concluded that all physical injuries to Wilson resulted from this second impact. For this reason the court awarded Wilson judgment for $2,501.87 in his suit for personal injuries, loss of wages and medical expenses, solely against Pennywell and his insurer, Western Casualty. The court held Swinford liable for one-half of the automobile damages due Wilson and his insurer, Hartford, and cast Pennywell and his insurer, Western Casualty, for the other one-half.

Pennywell and Western Casualty have appealed in each case assigning as error the action of the trial court in finding that Pennywell’s negligence was a proximate cause of the damage to Wilson or his automobile. Additionally they contend the court was in error in allocating the entire personal injury loss of Wilson against them and in failing to hold Swinford liable in solido with Pennywell and his insurer for Wilson’s personal injuries. These appellants also complain that Wilson did not offer sufficient proof to sustain the award made for loss of wages and part of his medical expense.

Wilson and Hartford have appealed complaining of the proration of the automobile damages equally between Swinford and the Pennywell defendants rather than rendering judgment against all defendants in solido. Wilson also asks that the trial court judgment be amended to hold Swin-ford liable in solido with the other defendants for his damages for personal injuries and related expense.

After the lodging of the transcript of appeal in this court, the Trustee in Bankruptcy was substituted as party-plaintiff in the place of Wilson. Swinford has not appealed nor answered the appeal.

In brief to this court it is conceded there was insufficient evidence to show contribu-, tory negligence on the part of Wilson and this is no longer an issue.

We shall discuss and resolve all issues involved in each suit in this opinion but separate judgments will be rendered for each case.

The issues presented to us in these appeals are as follows:

1. Is there sufficient evidence in the record to show Pennywell’s negligence in striking the rear of the Swinford Volkswagen caused any part of the physical injury or property damage sustained by Wilson in the accident?
2. Should all defendants have been cast in solido for the damages resulting to Wilson and his vehicle in this incident ?
3. Was there sufficient evidence to sustain the awards for loss of wages and medical expenses ?

We find the evidence sufficient to sustain the trial court’s finding that the collision of Pennywell’s car with the Swin-ford automobile caused a second impact on Wilson’s vehicle which resulted in part of his damages and personal injuries.

Wilson testified that after braking his automobile to avoid the left-turning driver, he felt an initial light impact and a few seconds later a second much greater impact. He did not see either of the following cars at the time of the collisions and did not know which struck him from his personal knowledge.

Swinford testified he began braking on seeing the danger develop in his path and had slowed considerably before striking the rear of Wilson’s car. The road was wet from a misty rain and he could not stop before colliding with the right rear of the Wilson vehicle. He was rendered temporarily unconscious by the impact on his car by the Pennywell Chevrolet and had no further knowledge of the events thereafter.

Although Pennywell contends he did not propel the Swinford car into Wilson’s vehicle and that his car came to rest by the side of the Wilson car without ever striking it, the evidence of physical damage to the automobiles and the relative position of each after the series of collisions seems to corroborate the plaintiff’s contention he was struck twice. Wilson’s Chevrolet was damaged extensively on the right rear and on the left front side. This car came to rest near the center line perpendicular to the road. The Swinford car began spinning after it was struck by Pennywell and it came to a stop on the right side of the road. It was severely damaged in the front and rear.

Pennywell’s car remained in the road also near the center line. It suffered substantial damage to the front portion.

Because of the damage to the left front of the Wilson vehicle, a reasonable conclusion can be drawn that it was struck a second time as a result of the Pennywell car colliding with the Swinford vehicle.

We are, however, of the opinion the trial court erred in not casting all defendants liable in solido for all damages occasioned by Wilson personally or to his vehicle in this incident.

Under the evidence in the record in this case there is no method of ascertaining with any degree of reasonable certainty the amount of property damage or of personal injury which resulted from either the first or second impact on Wilson’s vehicle.

There is no reliable evidence to show that Wilson more probably sustained the lumbar ligamentous sprain in the second collision caused by Pennywell rather than the first impact caused by Swinford. The successive collisions were obviously within a few seconds of each other and there were no immediate physical symptoms described by Wilson which would distinguish which impact caused his injury. It is too speculative to assume that the greater second impact would necessarily have been the sole cause of a cervical sprain when the first impact was from the rear.

In so far as the property damage is concerned, the estimate of damage on Wilson’s automobile is based on a total loss. From this evidence it would be impossible to allocate any specific amount of damage to the first or second collision.

In a similar circumstance the drivers of the following vehicles in a series of chain reaction rear-end collisions have been found solidarily liable to the forward driver in Fouquier v. Travelers Insurance Company, 204 So.2d 400 (La.App. 1st Cir. 1967). Also see Jones v. Lungaro, 231 So.2d 60 (La.App. 1st Cir. 1970), in which the solidary liability of joint automobile tort-feasors is found to exist under La.Civil Code, Article 2324.

We find the circumstances compel a conclusion that the district court erred in attempting to apportion the damages under the evidence presented. This is not to say that such an allocation would not be proper if the evidence were such that the damages could be separated with reasonable certainty.

Pennywell and Western Casualty complain that the evidence of loss of wages is insufficient. Wilson testified he was employed as a “chipper” at the time of the accident for Cast Metals of Shreveport. He testified to earning approximately $200 a week at this employment. No corroborating evidence such as check stubs or testimony of his employer was offered to support this claim.

Defendants also contend the evidence is not clear that the wage scale testified to was that being performed at the time of the accident rather than Wilson’s present scale as a welder which is a higher pay classification.

The evidence on loss of wages is minimum and admittedly it would be more certain if Wilson had offered some documentary or live testimony to corroborate his own. However, the trial judge found it sufficiently convincing to allow Wilson the minimal amount claimed of $600 for his three-week absence from work.

There is no evidence which would cast any suspicion on the testimony of Wilson and under the circumstances we find no error in the trial judges awarding loss of wages in this amount. See Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Fox v. State Farm Mutual Insurance Company, 288 So.2d 42 (La.1973).

Plaintiff’s attorney concedes defendants’ position that a portion of Dr. Nash’s statement was for treatment unrelated to the accident. The total charge of $118.50 should therefore be reduced by the sum of $28.00.

■ In accord with the foregoing, the judgment appealed from in the action brought by Pleas Wilson, Jr. against Reubin L. Swinford and Isaac Pennywell, et al, is hereby set aside and is recast as follows:

It is ordered that judgment be rendered in favor of Pleas Wilson, Jr. against Reu-bin L. Swinford, Isaac Pennywell, Jr. and Western Casualty and Surety Company, in solido, for the sum of $2,472.87, with seven per cent per annum interest thereon from the date of judicial demand, December 3, 1973, until paid and all cost including this appeal. The expert witness fee of Dr. Nash is fixed at $100 and taxed as cost.


source: Caselaw Access Project

license: Public Domain

text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY, Plaintiff-Appellant, v. Reubin L. SWINFORD, Defendant-Appellee, Isaac Pennywell et al., Defendants-Appellants.
    No. 12749.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    Mayer & Smith by Jerry Kircus, Shreveport, for plaintiff-appellant.
    James E. Bookter, Bossier City, for defendant-appellee.
    Wilkinson, Carmody & Peatross by Samuel W. Caverlee, Shreveport, for defendants-appellants.
    Before PRICE, MARVIN and GLAD-NEY, JJ.
   PRICE, Judge.

For the reasons given in the opinion this day rendered in the suit styled Wilson v. Swinford, La.App., 324 So.2d 582, the judgment appealed from herein is set aside and recast as follows:

It is ordered that there be judgment in favor of Hartford Accident and Indemnity Company and against Reubin L. Swinford, Isaac Pennywell, Jr. and Western Casualty and Surety Company, in solido, in the sum of $761.18 together with legal interest from date of judicial demand until paid and all cost of this proceeding including this appeal.


author: LANDRY, Judge.

text:
    W. E. GROVES v. The BOARD OF TRUSTEES OF the TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA.
    No. 10491.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused Feb. 17, 1976.

      Eugene R. Groves, Baton Rouge, for appellant.
    William T. Reeves, Jr., Baton Rouge, for Teachers’ Retirement System of La.
    David L. Dawson, Jr., Baton Rouge, for Retired La. Teachers’ Assn., Inc.

      Stephen M. Cohen, New Orleans, for In-tervenor La. Federation of Teachers.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   LANDRY, Judge.

Plaintiff W. E. Groves (Appellant) appeals from judgment allowing intervention herein by Louisiana Retired Teachers’ Association, Inc. and Louisiana Federation of Teachers (Intervenors), and dismissing Appellant’s suit for mandamus to compel defendant, Board of Trustees of the Teachers’ Retirement System of Louisiana (Appellee Board), to pay Appellant retirement benefits allegedly due as a retired member of the Teachers’ Retirement System of Louisiana (State System). We affirm in part, reverse in part and award Appellant certain retirement benefits.

The facts involved herein are virtually undisputed; the primary issues presented on this appeal are questions of law. Appellant was initially engaged by the former Orleans Parish Teachers’ Retirement System (Orleans System) as an actuary in 1948. At that time, and continuously since, Appellant also served as actuary to several other state and local retirement systems. In 1950, the Secretary-Treasurer of the Orleans System, who was also Secretary of the Orleans Parish School Board (School Board), retired and left vacant the position of Secretary-Treasurer of the Orleans System. Appellant was appointed temporary Secretary-Treasurer of the Orleans System to replace the retired Secretary. Because the retired Orleans System Secretary also served as Secretary of the School Board, she was not paid by the Orleans System for her services as Secretary-Treasurer to that organization. Rather the Orleans System paid the School Board a fee for keeping its books, and the School Board in turn paid the former secretary for services rendered to both the Orleans System and the School Board.

When Appellant became Secretary-Treasurer of the Orleans System in 1950, it was agreed that, in addition to Appellant’s retainer as actuary, the Orleans System would pay Appellant as its Secretary the same amount formerly paid the School Board to keep the Orleans System’s books. Pursuant to this arrangement Appellant was issued two checks monthly, one for his fee as retained actuary, and the other for his agreed salary as Secretary. Appellant continued to serve in both capacities and under the same payment procedure until 1971 when the Orleans System was merged with the State System pursuant to Act 3 of 1971.

From 1950 to 1971, Appellant’s duties as actuary and Secretary-Treasurer were for all practical purposes completely merged. Mr. Groves maintained his own office from which he provided not only actuarial counsel and guidance to the Orleans System, but also retirement counsel to the numerous teacher members of the system. It is undisputed that Appellant often exceeded the normal working day in his office to accommodate teachers requesting advice concerning retirement benefits. As actuary Mr. Groves assisted in preparing legislation required by the system, attended legislative sessions on behalf of the system, and kept the system’s Board' of Trustees fully advised concerning the status of its assets. As Secretary-Treasurer, Appellant attended Board meetings, advised prospective retirees concerning their benefits, calculated benefits for retirees, and received and accounted for contributions from the School Board. Appellant concedes that during the period 1950-1971, he continued to render actuarial and investment counseling service to several other retirement systems. He contends he did so on an overtime basis by utilizing his evenings and week ends.

No deductions were ever made for retirement benefits, social security payments or income tax withholding from any payments made to Appellant, either as actuary or Secretary-Treasurer of the Orleans System. Admittedly, Appellant never became a member of the Orleans System, and made no contributions thereto because the law provided that only employees of the Orleans School Board could become members of the Orleans System, and Appellant was never employed by that Board.

On May 1, 1971, Appellant was employed by the Board of Trustees of the Orleans System as Secretary-Treasurer of that system. Claiming credit for 22.92 years service to the Orleans System, Appellant retired from the State System effective October 1, 1971, the merger of the two systems having become effective July 1, 1971. Appellant was paid retirement benefits monthly until May 1, 1974, on which date Appellee Board discontinued payment.

Appellant’s claim is predicated upon Act 3 of 1971, Section 2, which pertinently provides :

“ . . '. . All persons employed or retained by the Board of Trustees of the New Orleans Teachers Retirement Fund as of May 1, 1971, shall become members of the Louisiana State Teachers Retirement System on the effective date of the merger, with full credit for all previous service as an employee of the Board of Trustees, Teachers Retirement Fund of New Orleans.”

Appellant contends Act 3 of 1971 was intended to benefit those employees of the Board of Trustees of the Orleans System who lost their jobs because of the merger. Appellant points out that these employees consist of two clerical employees and Appellant himself. It is urged that Act 3 of 1971 is self-explanatory, clear and unambiguous in that it expressly states that all persons “employed or retained” by the Board of Trustees of the Orleans System as of May 1, 1971, shall become members of the State System.

Appellees question Appellant’s right to proceed by mandamus to enforce the claimed right to retirement benfits on the ground that determination of Appellant’s rights involves a matter of discretion, not a mere ministerial function on the part of Appellee Board.

On the merits, Appellees contend Appellant is not entitled to retirement benfits because Appellant was never employed by the Orleans System and made no contribution to its retirement fund. It is Appellees’ position that the legislature never intended that Act 3 of 1971 apply to persons who made no contribution to either the Orleans or State System. Finally, Appellees contend that to grant Appellant retirement benefits without Appellant having made contribution would erode the rights of retirees of the State System and would violate state constitutional provisions which prohibit donation of public funds to private persons.

The trial court rejected Appellant’s claim upon finding that mandamus was not the proper procedure in a matter of this nature, and also because Appellant was never an employee of the Orleans System. . Appellant applied for a new trial which the lower court granted limited to argument only. On conclusion of the new trial, the lower court rendered judgment upholding Intervenors’ right of intervention, and again rejecting Appellant’s claim for benefits on the ground that although Appellant was employed as Secretary-Treasurer of the Orleans System, Appellant was not entitled to retirement benefits because Appellant made no contribution to the retirement fund. In essence the trial court held it was unreasonable to interpret Act 3 of 1971 to apply to employees who made no contribution to either the Orleans or State System.

IS MANDAMUS A PROPER REMEDY?

Invoking LSA-C.C.P. art. 3863, Appel-, lees contend that determination of Appellant’s retirement eligibility is a discretionary rather than ministerial function, and consequently, that mandamus is not a proper vehicle for relief in this instance.

Our jurisprudence is well settled to the effect that a mandatory duty of a public official or employee to perform some official act does not become less mandatory or ministerial merely because the statute creating the duty may require, to some degree or extent, construction of the statutory language. Cook v. City of Shreveport, 163 La. 518, 112 So. 402; Board of Trustees of the Firemen’s Pension and Relief Fund of New Orleans v. City of New Orleans, La.App., 207 So.2d 168; State ex rel. Saint v. Toups, La.App., 95 So.2d 55; State ex rel. Nunez v. Baynard, La.App., 15 So.2d 649; Dupuy v. Jones, La.App., 15 So.2d 528. See also, White v. Board of Trustees of the Teachers’ Retirement System of Louisiana, La.App., 276 So.2d 714.

The hereinabove quoted portion of Section 2 of Act 3 of 1971 specifically declares that persons retained or employed by the Orleans Board on May 1, 1971, shall become members of the State System on the effective date of the merger with full credit for all prior service rendered the Board of Trustees of the Orleans System. If Appellant was retained or employed by the Orleans Board of Trustees on May 1, 1971, by the express terms of the statute, Appellant became a member of the State System on the effective date of the merger, and Appellee Board has no discretion whatsoever in the- matter. Appellee Board’s only duty is to pay Appellant retirement benefits if Appellant is entitled thereto ■ pursuant to the statute. Consequently, the issue is basically a matter of statutory ■ construction concerning which Appellee Board has no discretion whatsoever. While Appellee may properly question Appellant’s asserted construction of the statute, it does not follow that Appellant may not resort to mandamus to determine the scope of the statute involved. We conclude, on the basis of the authorities cited above, mandamus is. available to Appellant in this instance.

WAS INTERVENTION PROPERLY ALLOWED ?

Appellant contends that intervention was erroneously allowed herein because: (1) intervention is not permissible in a mandamus proceeding; and (2) Inter-venors lack sufficient interest in the subject matter of this litigation. The trial court found that Intervenors possessed the required interest to intervene because the record showed that substantial contributions were made by members of Interve-nors and their employers to the fund from which Appellant seeks retirement benefits, and that any benefits paid Appellant would reduce the fund available to pay benefits to Intervenors’ members.

LSA-C.C.P. arts. 3861-3866 and 1091-1094, dealing with mandamus and intervention, respectively, do not expressly prohibit intervention in a mandamus proceeding.

Our jurisprudence has repeatedly recognized the right of intervention in a mandamus proceeding. See State ex. rel. Pope v. Bunkie Coca-Cola Bottling Co., 222 La. 603, 63 So.2d 13; State ex. rel. Continental Supply Co. v. Fontenot, 152 La. 912, 94 So. 441; State ex rel. Union Cent. Life Ins. Co. v. Dunn, 133 La. 221, 62 So. 639; State ex. rel. Board of Commissioners of Saline Levee & Drainage District v. Capdeveille, 122 La. 615, 48 So. 126.

We hold, therefore, intervention was properly allowed in this instance.

APPLICABILITY OF ACT 3 OF 1971

Act 3 of 1971 provides for the merger of the Orleans and State Systems and states that members of the Orleans System shall become members of the State System with full credit in the State System for services credited in the Orleans System, and also that members of. the Orleans System shall be entitled to all benefits of retirees of the State System. Appellant contends the hereinabove quoted provision in Section 2 of Act 3 was intended to compensate Appellant and other employees of the Orleans System who would lose their jobs in the merger. Appellee Board and Intervenors contend this provision was merely a catch-all to insure that no member of the Orleans System would be adversely affected by the merger, and that it does not purport to confer membership in the State System upon persons who made no contribution to the Orleans System.

Appellee Board and Intervenors note that Section 1 of Act 3 of 1971 recites that the State System shall be the sole retirement system for teachers and other employees of the public schools who were eligible for membership prior to the effective date of Act 3. They refer to Section 2, which relates that all members of the Orleans System shall be members of the State System, and, as such, entitled to all rights and benefits of such membership, subject to all rules and regulations governing benefits therein. Section 2 of Act 3 of 1971 also provides for a transfer of service credits from the Orleans System to the State System. It is contended that Appellant could not be a member of the Orleans System because Appellant does not meet the definition of Teacher as contained in LSA-R.S. 17:771(19), and also because Appellant was ineligible for membership in the Orleans System pursuant to LSA-R.S. 17:803, which denied membership to a person over 50 years of age and lacking in prior teaching experience. Appellee Board and Intervepors next point to LSA-R.S. 17:593, which denies membership in the State System to any person over 50 years of age unless the party transfers membership from another system as provided for by LSA-R.S. 17:598. It is conceded that Appellant was over 50 years of age when the merger was effected.

Appellee Board and Intervenors also note the following retirement statute provisions : LSA-R.S. 17:593.3, which permits a teacher who commences teaching after age 50 to become a member after 15 years service upon making certain contributions to the retirement fund; LSA-R.S. 17:593.1 and 17:600, which allow a person who is over 50 years old when employed as a teacher to become a member by making payments to the retirement fund for years of teaching service in other state institutions and agencies where such other years of service plus service rendered after employment will equal or exceed 15 years service prior to attaining age 65; LSA-R. S. 17:593.4, which permits a person who will have 10 years of service at age 65 to join the State System upon payment of contributions; LSA-R.S. 17:600.2, which allows a teacher to purchase up to 4 years of credit for military service; and LSA-R.S. 17:600, pursuant to which members of the State System may purchase service in any agency upon meeting certain requirements, which include contributions by the member and payment of employer contributions. It is suggested that these various statutory provisions indicate legislative intent that members of the State System shall contribute thereto as a condition precedent to receipt of pension benefits.

Appellant notes numerous instances in which retirement benefits have been provided without contribution on the part of beneficiaries of the systems. Appellant cites instances in which free credit is given to members upon creation of a retirement system. Examples of this nature are Act 83 of 1936, Section 1(11), Section 4, LSA-R.S. 17:622, Teachers’ Retirement System of Louisiana; Act 116 of 1910, Sections 5-9, Teachers’ Retirement Fund of New Orleans; Act 124 of 1946, Section 4, LSA-R.S. 17:901, Louisiana School Employees Retirement System; Act 282 of 1946, Section 12, LSA-R.S. 17:1111, Orleans Parish School Employees’ Retirement System; Act 56 of 1956, Sections 3 and 4, LSA-R.S. 16:1021-1034, District Attorneys’ Retirement System; Act 51 of 1950, Sections 5 and 6, LSA-R.S. 13:935, 13:936, Clerks of Court Retirement and Relief Fund; Act 126 of 1946, Section 4, LSA-R.S. 42:571-574, State Employees’ Retirement System; Act 189 of 1973, Section 1, as amended by Acts 111 of 1974, Municipal Police Employees’ Retirement System. We further note that free retirement credit has been occasionally given for military service. See Act 126 of 1946, Section 2(8), (17), Section 4(6), before amended by Act 365 of 1954.

Appellee Board and Intervenors contend that the instances in which credit was given without contribution was in each case credit for services rendered prior to formation or existence of the system involved and that Act 3 of 1971 did not create a new system but merely merged two existing systems.

We commence our interpretation of subject statute by noting that legislation providing pension systems must be liberally construed in favor of the intended beneficiaries. Maillet v. Board of Trustees, Teachers' Retirement System, 248 La. 964, 183 So.2d 321; Miller v. City of Shreveport, La.App., 90 So.2d 565. Accordingly, any ambiguity in such a statute must be resolved in favor of the persons intended to be benefited thereby.

The primary rule of statutory construction is that of legislative intent, meaning the courts must endeavor to ascertain the reason and spirit of the law, or the cause which induced the legislature to enact the law. LSA-C.C. art. 18.

In determining legislative intent, the words of an act are to be understood in their usual signification and in accordance with the general and popular use of the words. LSA-C.C. art. 14.

Acts of the legislature are presumed constitutional and the party who asserts unconstitutionality bears the burden of proof. Everhardt v. City of New Orleans, 253 La. 285, 217 So.2d 400.

A law must be construed as a whole. Every part of a statute must be given effect where such a result can be reasonably achieved. It cannot be presumed that the legislature enacted meaningless clauses and phrases. Houghton v. Hall, 177 La. 237, 148 So. 37.

We agree with Appellant’s contention that the hereinabove quoted last sentence of Section 2, Act 3 of 1971 would be rendered meaningless if given the interpretation adopted by the trial court. It appears that by use of the word “retainer”, the legislature intended to include persons other than employees in the ordinary sense of the term. The statute declares unequivocally that such persons shall be members of the State System with full credit for all previous service as employees of the Orleans Board. No qualification is imposed on the membership thus conferred, no requirement is made for contributions by such employees for the service credit thus granted. Significantly, we note that the opening sentence of Section 2, Act 3 of 1971, provides that all members of the Orleans System, who are merged with the State System, shall be subject to all laws and rules and regulations relating to the State System. The last sentence of that same Section, which confers the membership in dispute herein, does not recite that these latter memberships shall be subject to all laws and rules relating to the state system. It would thus appear the legislature intended to differentiate in this regard.

The record discloses that Appellant and two other employees of the Orleans Board are the sole possible beneficiaries of the disputed statutory provision. To hold that the legislature did not thereby intend to confer privileges upon Appellant would emasculate and render absolutely null the entire last sentence of Section 2 of subject act. To require contribution upon Appellant’s part would entail an insertion of words and phrases into the Act which the legislature saw fit to exclude.

We find no merit in the argument that Appellant’s inclusion will erode benefits due other members of the State System and place financial soundness of the State System in jeopardy. The soundness of such a system is a matter of legislative discretion since it is the legislature which creates the system and contributes thereto pursuant to constitutional authorization. Presumably the legislature shall make whatever contribution required to guarantee benefits payable to any member, retiree or beneficiary, as mandated by Article 10, Section 29(A) of the Louisiana Constitution of 1974.

RAISING’ CONSTITUTIONALITY IN A MANDAMUS PROCEEDING

We agree with Appellant’s basic contention that, as a general rule, a public officer or agency charged with a statutory duty of a ministerial nature is without right or interest to question the constitutionality of the statute establishing such duties as a defense to a mandamus proceeding to compel their performance. Summerell v. Phillips, 258 La. 587, 247 So.2d 542; Smith v. Flournoy, 238 La. 432, 115 So.2d 809; Dore v. Tugwell, 228 La. 807, 84 So.2d 199; State ex rel. New Orleans Canal & Banking Co. v. Heard, 47 La.Ann. 1679, 18 So. 746.

However, Appellant fails to note the exception recognized in Dore v. Tugwell, above, wherein the following appears:

“(t)he doctrine of these cases should not be confused with the decisions holding that a public officer, as defendant in a mandamus proceeding, may claim that the interpretation placed on a statute by a particular relator, seeking performance, would be unconstitutional if construed to cover such relator. The latter ruling is distinguishable since the public officer does not contend that the statute is unconstitutional, but merely opposes the interpretation sought by the relator as unconstitutional.”

Insofar as Appellee Board is concerned, we find that the present matter falls within the ambit of the above quoted language from Dore v. Tugwell, above.

We additionally observe that the jurisprudence has repeatedly sanctioned the right of an intervenor with a real and direct interest in the subject matter of litigation to assert invalidity of a statute. Dore v. Tugwell, above; State ex rel. Tulane Homestead Association v. Montgomery, 185 La. 777, 171 So. 28; State ex rel. Huggett v. Montgomery, La.App., 167 So. 147. From the foregoing, we conclude the trial court properly allowed Intervenors to raise the issue of constitutionality in this instance.

CONSTITUTIONALITY OF ACT 3 OF 1971

Appellees suggest that Appellant’s proposed interpretation of subject statute would render the law unconstitutional. It is argued that as thus interpreted the body of the act is broader than its title and therefore violative of La.Const. 1921, Article 3, Section 16, and also viola-tive of La.Const. 1974, Article 3, Section 15, which provide that an act shall have but one object and a title descriptive thereof. Appellees contend the Title of Act 3 does not mention the purpose of amending the law concerning the Orleans System to include persons not formerly members of that system, and neither does its title show intent to allow nonmembers of the Orleans System to join or receive benefits from the State System. Therefore, it is suggested that the body of the Act is broader than its title, and consequently, that the statute is unconstitutional.

The constitutional provision in question does not require the title of an act to be an index of its contents, but only that the object of the act be expressed in general terms. All things proper and necessary to carry out the general intent and purpose of the act are deemed within the scope of its title. The applicable constitutional provision is deemed violated only when the variance in the provisions of the act is palpable and totally irreconcilable with its object as expressed in the title, or where title and body encompass distinctly different subjects. Parish of Jefferson v. Louisiana Department of Corrections, 259 La. 1063, 254 So.2d 582, and cases therein cited.

The title of Act 3 of 1971 reads as follows :

"An Act
To merge and consolidate the Orleans Parish Teachers’ Retirement System into the State Teachers’ Retirement System, effective July 1, 1971; to provide for transfer of records, assets, liabilities, obligations and service credits;, to provide rights, privileges and benefits of former members of the Orleans Parish Teachers’ Retirement System in the State Teachers’ Retirement System shall be the same as all other members of the latter system; to provide for effectuation of the consolidation by the boards of trustees of the two systems, and otherwise to provide with respect to said merger and consolidation.”

We find that the challenged provision falls within the general object of subject statute which is to merge two retirement systems. Inclusion of the employees of the Board of Trustees of one of the merged systems as members of the newly created system is not at variance or totally incompatible with the stated object of the Act which effectuates the merger.

Appellees also challenge the constitutionality of Act 3 of 1971 on the ground it violates La.Const.1921, Article 4, Section 12, and Article 12, Section 23. Article 4, Section 12, pertinently provides as follows:

“The funds, credit, property or things of value of the State, or of any political corporation thereof, shall not be loaned, pledged or granted to or for any person or persons, associations or corporations, public or private; . . . .”

The above provision must be construed in conjunction with Article 12, Section 23, which mandates the legislature to provide a retirement fund for aged and incapacitated teachers and school employees. Such authority necessarily includes establishment of an administrative agency to operate the system, the employees of which administrative agency could obviously not be school teachers or school employees. We find that inclusion of such administrative employees within the system is reasonably within the scope of the constitutional authority to establish the system and provide for its administration by full time employees. This the legislature has done in enacting' LSA-R.S. 17:571(23), as amended ;by Act 589 of 1972, which grants employees of the State System membership in said system. If the legislature may grant membership in the State System to the employees of that system, it may also extend such membership to the employees of another system merged therewith, as was done in this instance. Moreover, the legislative contribution to retirement systems is not a grant of public funds within the proscription of La.Const. 1921, Article 4, Section 12, because La. Const.1921, Article 12, Section 23, expressly authorizes creation of the State System and necessarily implies contributions by the state which are in the nature of additional compensation benefits for members of the system. We deem Act 3 of 1971 constitutional.

EFFECT OF APPELLANT’S MEMBERSHIP IN THE DISTRICT ATTORNEYS’ RETIREMENT SYSTEM

Appellee Board and Intervenors note that Appellant asserts and acknowledges a contributing membership in the District Attorney’s Retirement System as set forth in LSA-R.S. 16:1001-1112. It is also noted that Section 1021 (3) (a), above, provides that any member of the District Attorneys’ System, who on the date of becoming a member is also a member of another system, shall cease to be a member of such other system, with a full return of contributions to such other system, and shall be a member of the District Attorneys’ System with full credit for all prior service. It is suggested that this legislation applies to Appellant and that he cannot be a member of both the State System and District Attorneys' System.

Next, Appellee Board and Intervenors point to Act 745 of 1975, which provides that any person who by virtue of serving as secretary-manager of the District Attorneys’ Retirement System is a member of said system, and who heretofore served at least twenty-two years as secretary-treasurer of the Orleans Parish Teachers’ Retirement System, has the option to continue membership in the District Attorneys' System or to receive in lieu thereof such benefits as he is entitled to from the State System. The option to elect extends to No.-vember 1, 1976. It is suggested that this latter legislation indicates intent that Appellant must elect between membership in the District Attorneys’ System and the State System.

We pretermit consideration of the effect of Section 1021 (3) (a), above, and Act 745 of 1975, because we deem premature all such issues as may be thereby presented. Whether Appellant is prohibited from claiming benefits under two retirement systems can only be considered at such time as Appellant may claim benefits under a second system. We note in passing, however, that it would appear that Act 745 of 1975 has no application to Appellant because the statute applies to one having at least twenty-two years service as Secretary-Treasurer of the Orleans System. The record in this instance, namely, Groves’ own testimony, is to the effect that he became Secretary-Treasurer of the Orleans System in February, 1950, and retired October 1, 1971, a period of less than twenty-two years. If the legislature intended Act 745, above, to apply to Appellant, the legislature evidently mistook his service as actuary to the Orleans System, commencing in 1948, for service as Secretary-Treasurer, but failed to give him credit for the actuarial service rendered between 1948 and February, 1950.

AMOUNT OF BENEFITS DUE APPELLANT

For at least three years prior to retirement until June 30, 1970, Appellant was paid $250.00 per month as actuary and $750.00 per month as secretary, or a total of $1,000.00 monthly, except for the period January 1, 1969 to June 30, 1970, during which he received $625.00 monthly as secretary. From July 1, 1970 through June 30, 1971, Appellant received $450.00 monthly as actuary and $750.00 monthly as secretary, or $1,200.00 per month. For the final three months of his employment, July 1, 1971 through September 30, 1971, Appellant was paid a total of $2,500.00 per month.

The State System act provides that retirement benefits shall be computed upon the retiree’s three best average years of earning. Upon Appellant’s retirement his pension was computed on the above indicated income for the last three fiscal years of his employment, namely, July 1, 1968 through June 30, 1971, and therefore did not include the last three months of employment at $2,500.00 per month. Appellant maintains this was error, and that his benefits should be recomputed on the basis advocated; that he should have judgment for the difference due during the period of former payments, and that resumed payments should be increased accordingly.

The record discloses that the State System has adopted the policy of computing benefits on the basis of the fiscal year irrespective of the time of actual retirement. We find nothing in the retirement act which prohibits such a determination. It is also obvious that in the administration of the act, the State Board is vested with some discretion. It is shown that the method used in Appellant’s case is the same as that employed with regard to all other retirees. Appellant has shown no discrimination, no abuse of the State Board’s discretion, and consequently no ground for complaint or relief.

Lastly, Appellant contends his pension should be fixed on an income of $750.00 per month as Secretary to the Orleans Board for the period January 1, 1969 to June 30, 1970, instead of $625.00 as determined by ' Appellee Board. Appellant argues that although he received checks of only $625.00 per month as Secretary during the period in question, his pension should be computed on a salary basis of $750.00 for this interim because he agreed to a reduction of his own salary for the benefit of his staff.

We find no merit in this argument. The record does disclose that Appellant magnanimously agreed to this $125.00 monthly deduction in his salary as Secretary to provide a raise for his employees. Nevertheless, Appellant was paid a salary of only $625.00 for the period in question. Having voluntarily consented to the reduction for whatever reason, Appellant may not claim the benefit of income he did not receive and was not paid.

Thusly determined, Appellant’s benefits amount to $273.83 monthly, or a total of $13,417.67 from October 1, 1971 through November 1, 1975. It is conceded that Appellant, if entitled to benefits, is entitled to an additional $400.00 cost of living lump sum payment authorized by Act 107 of 1973, making a total of $13,817.67 due as of November 1, 1975. Appellant has been paid benefits aggregating $8,359.83', leaving a balance due him of $5,457.84 as of November 1, 1975.

It is ordered, adjudged and decreed that the judgment of the trial court be reversed and there be judgment herein in favor of Appellant, W. H. Groves, against defendant, The Board of Trustees of the Teachers’ Retirement System of Louisiana, decreeing plaintiff Groves a member of the State System as of October 1, 1971, entitled as such to monthly retirement benefits of $273.83 from October 1, 1971, plus all such additional benefits as have heretofore or shall hereafter be granted members of said State System.

It is further ordered, adjudged and decreed that there be judgment herein in favor of plaintiff Groves and against defendant State Board in the sum of $5,457.84, representing the difference between retirement benefits paid and retirement benefits due plaintiff for the period October 1, 1971 through November 1, 1975, together with legal interest on each monthly installment or other benefit, from due date, until paid.

It is further ordered, adjudged and decreed that defendant State Board recommence payments due plaintiff Groves at the rate hereinabove indicated, commencing December 1, 1975; all costs of these proceedings for which defendant State Board may be legally assessed to be paid by said State Board.

Reversed and rendered.


author: HEARD, Judge.

text:
    Allen D. MORGAN, Plaintiff-Appellant, v. Vadna Burkett CULPEPPER et al., Defendants-Appellees.
    No. 12763.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Writs Refused Feb. 13, 1976.

      Hamilton & Sermons by Joel M. Sermons, Shreveport, for plaintiff-appellant.
    Bethard & Davis by Henry W. Bethard, III, Coushatta, for defendants-appellees.
    Before PRICE, HALL and HEARD, JJ.
   HEARD, Judge.

This appeal involves the efforts of plaintiff, Morgan, to obtain a servitude of passage across the land owned by defendants, Culpepper and Thomas, and leased by the other defendants, on the ground that plaintiff’s property is enclosed and has no access to a public road. Plaintiff claimed a right of passage was owed him under any one of several theories: (1) a gratuitous servitude under Louisiana Civil Code Article 701; (2) a servitude imposed by law under Civil Code Articles 699 and 700; (3) the road on defendants’ property was a public road under Louisiana Revised Statutes 48:491, et seq., and (4) a right of passage under R.S. 48:731 et seq.

The trial court in written reasons for judgment found adversely to plaintiff under all of his theories that a right of passage was owed him. Plaintiff appealed from the adverse judgment of the trial court.

Plaintiff is the owner of a certain tract of rural land in Bienville Parish which borders on property owned by defendants, Thomas and Culpepper. Plaintiff had leased this property of defendants for over 20 years until November of 1974, at which time the property was leased to the other defendants in this suit. During the period of his lease, plaintiff constructed a road running from his land through the property of defendants to Louisiana Highway 154 to provide a means of access to his property. Following the termination of plaintiff’s lease, personal differences between the parties caused defendants to refuse to allow plaintiff to use the road across defendants’ property to get to his own property.

Plaintiff filed suit praying that the district court enjoin defendants from interfering with plaintiff’s use of the road on their property pending the decision of the court in another suit in which the question of whether this particular road was a public road was at issue. If the decision in that suit were that the road was not a public road, then plaintiff prayed defendants be enjoined to allow plaintiff “to follow the orderly processes' of the law as outlined in Louisiana Revised Statutes 48:491 et seq., and 48:731 et seq.” in establishing his right to use the road. The district court granted a temporary restraining order as prayed for and issued a rule ordering defendants to show cause why a preliminary injunction should not issue.

Defendants filed a motion to dissolve the temporary restraining order in which they alleged that plaintiff’s property was not enclosed and that the road on their property was not a public road. They also prayed for damages and attorney’s fees for the wrongfully issued restraining order.

Thereafter, plaintiff filed a “First Supplemental and Amending Petition” which alleged that plaintiff had a right to a gratuitous servitude . under C.C.'Art. 701 or, alternatively, that plaintiff “claims the right of a conventional servitude of passage as authorized by, but not limited to, Articles 699 and 700.”

Defendants filed a peremptory exception of no cause of action and then answered alleging plaintiff’s property was not enclosed because he had access to Highway 4 by two roads running south from his property.

Following hearing on the rule on January 30, 1975, the rule for preliminary injunction was made absolute pending the decision of the court on the merits. By agreement of the parties, the hearing on the rule also constituted trial on the merits. Prior to judgment on the merits, defendants filed a peremptory exception of ten and thirty years prescription to plaintiff’s claim for a gratuitous servitude under C.C. Art. 701.

The trial court handed down written reasons for judgment on February 28, 1975, which indicated that the trial court was recalling the preliminary injunction because it issued wrongfully. The trial court reasoned that injunctive power is available to protect the possession of a “real right”. Plaintiff constructed the road while he held the property under lease and when his lease expired, his right to use the road also terminated. Since plaintiff’s right to use the road was not a “real right”, the injunction was wrongfully issued and defendants were entitled to damages and attorney fees under C.C.P. Article 3608. The court found that no damage had been done to defendants by plaintiff’s use of the road and awarded attorney fees to the defendant/owners of $125 and to the defendant/lessees of $250.

The court then considered plaintiff’s claim to use the road under R.S. 48:731, et seq.; R.S. 48:491 et seq.; C.C. Arts. 699 and 700; and C.C. Art. 701.

Concerning plaintiff’s claim under R.S. 48:731 et seq., the trial court found that this statute had been declared unconstitutional in Brown v. Terry, 103 So.2d 541 (La.App. 1st Cir. 1958), and that plaintiff could not claim a right of passage under this former provision of our law.

Concerning plaintiff’s claim under R.S. 48:491 et seq., the trial court found that plaintiff had not proved by a preponder-anee of the evidence that the road had been maintained by the parish for a period of three years so as to make it a public road.

Concerning plaintiff’s claim under C.C. Art. 701, the trial court found that plaintiff had not proved by a preponderance of the evidence that a gratuitous servitude was ever owed to plaintiff’s property. Assuming that the gratuitous servitude of passage was once owed to plaintiff’s property, the trial court found plaintiff’s right to claim the servitude was lost by ten years liberative prescription.

Concerning plaintiff’s claim under C.C. Art. 699 and 700, the trial court sustained defendants’ exception of no cause of action on the ground that plaintiff did not allege in his petition that he was willing to compensate the defendants for a servitude of passage; that the passage sought by him was the shortest from the enclosed estate to a public road; that the passage should be fixed at a place least injurious to defendants.

Following the filing of written “Reasons for Judgment on the Merits” on February 28, a judgment was read and signed on March 10, 1975. The judgment recalled and set aside the preliminary injunction and assessed $125 and $250 as damages for attorney fees for the owners and the lessees, respectively. The judgment also sustained defendants’ peremptory exception of no cause of action and dismissed plaintiff’s suit at his cost.

The issues on appeal are: (1) were the temporary restraining order and preliminary injunction wrongfully issued entitling defendants to damages; (2) is plaintiff entitled to a gratuitous servitude of passage over the land of defendants under C.C. Art. 701; and (3) did plaintiff state a cause of action for a legal servitude under C.C. Arts. 699 and 700?

The first issue concerns the correctness of injunctive relief in this particular situation. Plaintiff asked for the injunction assuming that he was protecting his “real right” of passage over the land of defendants. It is readily apparent that plaintiff had not established any “real right” of passage because he did not prove that there was any agreement between the parties concerning his right of passage, nor did he prove that the right of passage had been judicially determined. In Ezernack v. Ezernack, 18 La.App. 56, 137 So. 626 (2d Cir. 1931), plaintiff sought an injunction enjoining the defendant from interfering with his use of a road on defendant’s property which plaintiff had used for some 20 years prior to the blocking of the road by defendant. In denying plaintiff’s right to an injunction the court stated:

Plaintiff nowhere in his petition alleges that the location of this road or passage has been fixed by and between him and defendant; does not allege that there has ever been any express agreement by and between them regarding the passageway or the right on the part of plaintiff to use it. Plaintiff evidently, from the allegations in his petition, relies upon an implied right to use the way by reason of the allegation that there existed the road or way, that he had been using it, therefore has the right to continue same unmolested.
In Baldwin Lbr. Co., Ltd. v. Todd, 124 La. 543, 50 So. 526, the court held, quoting syllabus by the court: “An injunction based on an implied right of passage is properly refused, where it does not appear that the alleged place and mode of passage has been fixed by consent of parties or a judgment of court.”
The court held in that case that under Civ.Code, arts. 700-703, an implied right of way cannot be exercised until it is fixed by consent of parties or judgment of court.
In Wemple v. Eastham, 150 La. 247, 90 So. 637, the court held that: “Owners of an inclqsed estate are not entitled to a right of passage unless the parties agree upon its location, and upon the compensation to be first paid, or until location of the servitude and the compensation to be first paid shall have been fixed by a judicial decree, under Civ.Code, arts. 699, 700, 702.”

We find the trial court’s judgment recalling the perliminary injunction and assessing attorney fees as damages was correct.

The next issue concerns plaintiff’s right to claim a gratuitous servitude under C.C. Article 701, which provides:

It is not always the owner of the land which affords the shortest passage who is obliged to suffer the right of passage; for if the estate, for which the right of passage is claimed, has become inclosed by means of sale, exchange or partition, the vendor, coparcener or other owner of the land reserved, and upon which the right of passage was before exercised, is bound to furnish the purchaser or owner of the land inclosed with, a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude.

Under this article, a gratuitous servitude is due to an enclosed estate only when the estate is enclosed at the time it is excised from the larger tract. We find plaintiff offered no proof establishing this fact. In fact, it appears from the evidence that when plaintiff’s property was first sold from the larger tract in the late 1800’s, the Rock Bridge Road (the main road between Shreveport and Ringgold) crossed plaintiff’s property on its southern boundary, thereby giving plaintiff’s property access to a public road. However, the use of Rock Bridge Road was abandoned many years ago.

Having failed to carry this burden of proof, plaintiff is not entitled to claim the gratuitous servitude under C.C. Art. 701. Accordingly, we need not consider defendants’ peremptory exception of prescription of ten and thirty years to plaintiff’s right to claim the servitude imposed by law under C.C. Art. 701, and express no opinion on the correctness of the trial court’s' sustaining defendants’ exception of prescription.

The final issue concerns the correctness of the action of the trial court in sustaining defendants’ exception of no cause of action to plaintiff’s demand for a servitude under C.C. Arts. 699 and 700. The trial court in its written reasons for judgment handed down on February 28, indicated the deficiencies in plaintiff’s original petition. On March 10 (the date of the signing of judgment), plaintiff filed a motion styled “Motion to Amend Pleadings after Judgment”, in which he sought to cure the defects in his original petition. The- trial court allowed the amendment and ordered it to relate back to the filing of the original petition.

The amended pleadings allege that plaintiff’s land is enclosed and has no access to a public road; that the shortest route from plaintiff’s property to a public road is over the property of defendants; that plaintiff wishes the servitude to be placed in such a manner as to be least injurious to defendants; and that plaintiff is willing to indemnify defendants for any damages occasioned by the servitude.

Defendants argue that the cases of Ezernack v. Ezernack, supra, and Martini v. Cowart, 18 So.2d 849 (La.App.2d Cir. 1944) hold that plaintiff must allege that he has offered to pay defendants for the damage occasioned by the servitude prior to filing suit in order to state a cause of action under C.C. Arts. 699 and 700.

We have read these cases and do not believe they stand for the proposition which defendants contend. These cases do hold that plaintiff must allege that he is willing to pay compensation for the damages occasioned by the servitude in order to state a cause of action under the civil code articles. While it is preferable that the parties try to resolve their differences before resorting to the courts, it is not necessary as a matter of law that they do so.

We are presented with the anomalous situation of the trial court signing a judgment in which it sustains an exception of no cause of action and dismisses plaintiff’s suit and then on the same day allowing the amendment of plaintiff’s petition to correct the defects that formed the basis of the exception and subsequent dismissal of plaintiff’s suit.

At any rate, Code of Civil Procedure Article 934 provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.

In Succession of Guidry v. Bank of Terrebone & Trust Co., 193 So.2d 543 (La. App. 1st Cir. 1966), the court held that where the defects in plaintiff's petition may be removed by amendment, the court must allow plaintiff the opportunity to cure the deficiencies before dismissing his suit. The court stated:

The provisions of LSA-C.C.P. Article 934 are unquestionably a codification of the prior jurisprudence and indeed extend the rule of the Reynolds case, . . . by mandatorily requiring that the trial court afford opportunity to amend when revision can cure or remove the grounds upon which the peremptory exception is founded. The applicable statute is couched in clear and unmistakable verbiage to the effect that the trial court shall allow amendment within a reasonable delay under such circumstances. We hold, therefore, that where the ground of the peremptory exception may be removed by amendment, no discretion is vested in the trial court to grant or deny time for amendment. In such instances the trial court must afford time for amendment. Such is the case in the matter at hand.

We find that plaintiff’s amended petition stated a cause of action under C.C. Arts. 699 and 700, and therefore reverse the trial court’s dismissal of plaintiff’s suit. The trial court was bound by C.C.P. Art. 934 to allow plaintiff the opportunity to cure the defects in this petition before dismissing his suit.

The court below referred the exception of no cause of action to the trial on the merits. Having reversed the sustaining of the exception, we will now consider the merits of plaintiff’s claim to a servitude under C.C. Arts. 699 and 700 to the extent possible on the record before us. The Civil Code articles provide:

Art. 699
The owner whose estate is enclosed, and who has no way to a public road, railroad, or a tramroad may claim the right of passage on the estate of his neighbor or neighbors to the nearest public road, railroad, or a tramroad and shall have the right to construct a road, railroad or tramroad according to circumstances and as the exigencies of the case may require, over the land of his neighbor or neighbors for the purpose of getting the products of his said enclosed land to such public road or railroad, tramroad or for the cultivation of his estate, but he shall be bound to indemnify his neighbor or neighbors in proportion to the damage he may occasion.
Art. 700. The owner of the estate, which is surrounded by other lands, has no right to exact the right of passage from which of his neighbors he chooses.
The passage shall be generally taken on the side where the distance is the shortest from the inclosed estate to the public road.
Nevertheless, it shall be fixed in the place the least injurious to the person on whose estate the passage is granted.

Before a servitude is owed from one estate to another, it must be shown that the property seeking the servitude is enclosed and that the right of passage sought is “generally taken on the side where the distance is shortest from the inclosed estate to the public road.”

The main factual issue at trial was whether plaintiff’s property was enclosed. No less than 26 witnesses testified at trial concerning the means of access to plaintiff’s property. Plaintiff’s witnesses testified that the property did not have access to a public road, while defendants’ witnesses testified with equal fervor that plaintiff had access to either Highway 4 or Highway 154 by any one of several roads.

This court has thoroughly examined the testimony and evidence in the record. Without going into each witness’ testimony in detail in this opinion, we find that plaintiff’s property is enclosed. The roads which defendants allege provide access to public roads are in low-lying areas and are impassable part of the year due to flooding from Loggy Bayou.

The second requirement for a legal servitude under the code articles is that the servitude generally be taken where the distance is shortest to the public road. In Vermilion Parish School Board v. Broussard, 263 La. 1104, 270 So.2d 523 (1972), the supreme court, in considering a right of passage under C.C. Arts. 699 and 700, stated:

In Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1970), we recognized the importance of this servitude for the benefit not only of the landowner by permitting full utility of his land but also of the public by keeping valuable property in commerce. More important to this case, we acknowledged in conformity with the Code articles that the nature of the passage was to be governed according to the circumstances and as the exigencies of the case might require, and that the right of passage was to be to the nearest public road.
Article 700 clearly provides that the owner of the landlocked estate cannot choose from which of his neighbors’ estates he will exact a right of passage, but that it “shall be” where the distance is the shortest from the enclosed land to the public road. The mandatory language of that article is modified by the term “generally” as an acknowledgment of certain exceptions which, so far as the record shows, have no application to the case we consider.

The route through defendants’ property is not the shortest distance to the public road. The shortest distance to Highway 154 is directly north of plaintiff’s property, whereas the route over defendants’ property lies northwest of plaintiff’s property and is slightly longer than the other route. However, the land directly north of plaintiff’s property is in a low-lying area and is impassable during part of the year due to flooding. This fact brings this case within the Supreme Court’s “certain exceptions” to the general rule that the passage shall be taken on the side where the distance is shortest to the public road. We find that the shortest route to a public road which is passable at all times of the year lies over defendants’ property.

Since we find both that plaintiff’s property is enclosed and that the shortest route which is passable at all times of the year lies across defendants’ property, plaintiff is entitled to a legal servitude of passage over defendants’ property under the authority of C.C. Arts. 699 and 700.

However, we must remand the case to the district court to fix the servitude of passage at a place least injurious to defendants (if that differs from the position of the road at present) and to assess the amount of compensation plaintiff owes defendants, Thomas and Culpepper, for the servitude across their property.

For the reasons assigned, the judgment of the trial court recalling and setting aside the preliminary injunction and casting plaintiff in judgment for attorney fees for defendants, Thomas and Culpepper, in the amount of $125 and for attorney fees for defendants, E. O. McCoy, Mark Allen McCoy, and Marlin Margene McCoy in the amount of $250 is affirmed.

The judgment of the trial court sustaining the exception of no cause of action is reversed, and the case is remanded to fix the location of the servitude on defendants’ land and to calculate the compensation due from plaintiff to defendants, Thomas and Culpepper, for the servitude.

Costs of this proceeding shall await final determination of the case.


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. OIL MARK CORPORATION, Defendant-Appellee.
    No. 12774.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    En Banc. Rehearing Denied Jan. 16, 1976.
    Writ Refused Feb. 17, 1976.

      D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Robert L. Ledoux, Johnie E. Branch, Jr., Baton Rouge, by Jack C. Frugé, Sr., Ville Platte, for plaintiff-appellant.
    Holloway, Baker, Culpepper & Brunson, by William H. Baker, Herman A. Castete, Jonesboro, for defendant-appellee.
    Before PRICE, GLADNEY and MARVIN, JJ.
   PRICE, Judge.

In this highway expropriation proceeding brought by the Department of Highways under the “quick taking” statute, the landowner contests the amount deposited by the State as just compensation for the property taken.

Oil Mark Corporation owns a tract of land fronting on the east side of Louisiana Highway 167 near the northerly corporate limits of Jonesboro. This tract is situated in the southeast corner of the intersection of Jeffries Street and Louisiana 167.

A self-service gasoline station is operated by Oil Mark on a portion of the tract at the corner of the intersection. The petition for expropriation and attached exhibits show the area taken by the State as a small triangular area in the intersection measuring 300 square feet. The State deposited the sum of $919 in accord with the expropriation statute as the amount of just compensation due the landowner for the property taken. Oil Mark answered the petition contesting the amount of property being taken and requesting the amount of just compensation be increased substantially beyond that deposited by the State.

After a trial on the merits, the district court found the area being taken by the State was 3,123 square feet rather than the 300 square feet alleged by the State. The court found the property being taken to have a value of $2.15 per square foot or a total of $6,714.66. The court further found the severance of the part taken caused damage to the remainder of the property in the sum of $18,323.90. Judgment was therefore rendered awarding Oil Mark the total sum of $25,038.56 as just compensation for the taking of its property.

The State has appealed contending the trial court committed the following errors:

1. In determining the amount of land taken;
2. In finding the subject tract had a value of $2.15 per square foot as commercial property at the time of the taking rather than a unit value of $1.20 per square foot;
3. In failing to use the cost to cure method of awarding severance damages;
4. In awarding an unreasonable amount for expert witness fees to defendant.

Quantity of Land Taken

The dispute in the amount of land being taken results from a contention by Oil Mark that the State had no right-of-way for Highway 167 at the time of the taking beyond the paved edge of the roadway. Therefore, under this position, there is a strip presently being used as a wide shoulder of the highway along the entire frontage of Oil Mark’s property containing approximately 2,823 square feet which forms the area in dispute.

Oil Mark presented the testimony of Richard E. Crawford, a civil engineer, who testified he made a search of the public records of Jackson Parish and could not determine that the State had a recorded right-of-way for Highway 167 as it abuts the Oil Mark property. Crawford surveyed the entire tract belonging to defendant and prepared a plat which relates the property to the existing paved roadway of Highway 167. It is from his testimony and plat that the trial judge determined the area being taken to exceed 3,000 square feet rather than 300.

The State offered into evidence a certified copy of a right-of-way deed from J. P. Peevy, recorded December 17, 1929, which grants the State a total right-of-way of 100 feet through his properties in Jackson Parish for the location of a highway described as the Jonesboro-Hodge State Highway. The record reflects Peevy acquired all of the SW of the SW 54 of Section 30, T15N, R3W prior to granting this right-of-way to the State. The subject property lies within this quarter section above described. Defendant contends the right-of-way instrument relied on by the State does not describe the location of the highway with sufficient specificity to relate it to the present location.

We do not find it necessary to resolve this contention advanced by defendant as the record reflects it has no title to any of the disputed right-of-way area.

Oil Mark acquired ownership of its property abutting Highway 167 in two separate transfers on September 16, 1969. It acquired a small tract in the1 immediate corner of the subject intersection from Or-lan Gilbert which is the area on which the service station facility was constructed. This tract was conveyed by a metes and bounds description as follows:

“Beginning at the NE/c of the SW/4 of SW/4 of Section 30, Township 15 North, Range 3 West, and running West 30 feet, thence running South 822 feet, or to the South line of a paved street, running East and West through the said forty, thence run West 370 feet to the East Right of Way line of U. S. Highway No. 167 as now located and paved for a starting point: Thence run Southeasterly along and with said Highway Right of Way 54 feet 3 inches, thence run Northeasterly 62 feet 8 inches, thence run Northerly 29 feet, thence run West 83 feet to the starting point, together with all of the improvements thereon and appurtenances thereunto belonging, located in Jackson Parish, Louisiana.”

On the same date Oil Mark acquired an L-shaped tract which surrounds the above described plot on which the station is located. This transfer from Elbert A. Wals-worth and wife was also by metes and bounds as follows:

“Beginning at the NE/c of SW/4 of SW/4, Section 30, Twp. 15 North, Range 3 West, Jackson Parish, Louisiana, thence run West along and with the North boundary line of the SW/4 of SW./4 Section 30, Twp. 15 North, Range 3 West a distance of 30 ft., thence run South a distance of 822 ft., thence run West a distance of 231 ft., to the point of beginning, thence continue and run West a distance of 169 ft. or to the East right of way line of U. S. Hwy. No. 167, thence run in a Southeasterly direction along and with the right of way line of U. S. Hwy. 167 a distance of 98.38 ft., thence run East a distance of 125 ft., thence run North a distance of 88 ft. to the point of beginning, together with all improvements and appurtenances thereunto belonging, Less and except the following described property, to-wit:
Beginning at the NE./c of the SW/4 of SW/4 of Section 30, Township 15 North, Range 3 West, and running West 30 feet, thence running South 822 feet, or the South line of a paved street, running East and West through the said forty, thence run West 370 feet to the East Right of Way line of U. S. Highway No. 167 as now located and paved for a starting point; Thence run Southeasterly along and with said Highway Right of Way 54 feet 3 inches, then run Northeasterly 62 feet 8 inches, thence run Northerly 29 feet, thence run West 83 feet to the starting point, together with all of the improvements thereon and appurtenances thereunto belonging, located in Jackson Parish, Louisiana.”

The property descriptions contained in the two foregoing transfers when related to the plat of the survey made by defendant’s own surveyor, Richard E. Crawford, show the physical boundaries of the Oil Mark tract to be entirely outside and to the east of the right-of-way area in dispute as also shown on the plat.

The Crawford survey plat and the Highway Department survey attached to the expropriation petition each show the northwest corner of the Oil Mark lot as being the same as the northwest corner of the triangular plot expropriated, and that the east boundary of Highway 167 adjacent to the west boundary of defendant’s lot coincide.

We therefore find the trial court erred in requiring the State to compensate the defendant for property it did not own.

Value of Land Taken

The record shows that all witnesses who appraised the subject property considered its highest and best use to be as presently being utilized as part of a commercial tract. There is a substantial difference, however, in the opinions of the State appraisers from those employed by defendant as to the per square foot value of defendant’s property for this purpose.

Dan Carlock, a real estate appraiser of Baton Rouge, testified on behalf of the State. Using the market data-comparison method, he found the value to be $1.20 per square foot at the time of the taking.

It was stipulated that the testimony of L. J. Roy, also an appraiser of Baton Rouge, would be substantially the same as Carlock if he were called to testify.

Carlock considered several market transactions, but relied primarily on the prior sale of the subject property to Oil Mark with necessary adjustments for time in establishing his estimate of market value. Oil Mark paid $.99 per square foot in 1969 for the two tracts which now comprise its single ownership at the subject location. Carlock also gave consideration to two other sales of commercial property within an estimated eight blocks on the same highway. The sale from Hearne to Traína in 1971 for $.87 per square foot, and Hearne to Wilson in 1972 for $.95 per square foot. These sales were each updated for time and according to Carlock’s testimony confirmed the rate of appreciation in value applicable to properties in this area.

Defendant offered the testimony of Darrel V. Willett of Alexandria, and O. L. Jordan of Shreveport, both real estate appraisers. It was stipulated that if H. L. Bass of Jonesboro testified, his conclusions would be substantially the same as those of Jordan in respect to market value and severance damages. The same stipulation was made in regard to the testimony of Hab Monsur of Alexandria reflecting similar conclusions as testified by Darrel Willett.

Using the same method as used by the State appraisers, Willett determined the property of Oil Mark to have a value of $2.09 per square foot. On the same basis, O. L. Jordan concluded the unit value of the property was $2.25 per square foot.

The primary difference in the opinions of the State appraisers and those of the defendant results from the adjustments made to the comparable sales selected to reflect market value. Willett and Jordan made adjustments for time, location, and utility which in effect raised their estimates on subject property to more than double the unit price of the sales found comparable. For example, the Hearne to Wilson sale in 1972 which was also used by the State appraisers was adjusted from $.99 per square foot to achieve estimates of $2.09 and $2.25 per square foot for the subject property.

Although we recognize the discretion accorded the trial judge in fixing market value in his determination of just compensation, we find the adjustments made by defendant’s appraisers and accepted by the court are somewhat excessive when weighed in conjunction with the testimony of Carlock and Roy.

In other recent appeals from expropriation cases in this same area, the unit price of commercial property has been found to range from $.73 to $1.75 per square foot. See State, Department of Highways v. DeJean, 322 So.2d 265 (La.App.1975); State, Department of Highways v. Bounds, 319 So.2d 549 (La.App. 2nd Cir. 1975); State, Department of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886 (La.App. 2nd Cir. 1975); State, Department of Highways v. Whitman, 313 So.2d 918 (La.App. 2nd Cir. 1975); State, Department of Highways v. Model Development Corporation, 322 So.2d 270 (La.App.1975).

Assuming the subject property has some advantage over some .of the comparables selected and relied on by the experts who testified for either party, we find a fair market value of the property taken at the time of expropriation would be $1.80 per square foot. Thus the award for 300 square feet taken should be $540.

Severance Damages

It is undisputed that the taking of the 300 square foot area by the State to round out the corner of this intersection will result in the necessity to relocate a portion of the improvements on defendant’s property. The State admits the pump islands, canopy, and advertising sign must be moved back a short distance. It contends the small service station building in which rest rooms and merchandise are maintained will not have to be moved. An estimate of cost of relocation amounting to $3,600 was prepared by a contractor employed by the State. Relying on this cost estimate, Car-lock and Roy were of the opinion this cost of relocation of improvements was the extent of the severance damages sustained by defendant’s property.

Willett and Jordan approached the evaluation of damages to the remainder by making an appraisal of the market value of the entire property prior to the taking and of the property as it will exist after the construction project has been completed. This method resulted in substantially higher estimates of severance damages as Wil-lett found the property will be reduced in value by $24,896 and Jordan by $23,095.

Neither of these experts made any attempt to procure -estimates of actual costs of relocation of improvements. They were of the opinion this method of evaluation of severance damage was not appropriate under the circumstances. Both experts com-cluded all of the improvements including the building would require relocation on the remainder to enable the property to continue to have a reasonable utility as a service station. In their opinion most of the equipment would necessarily have to be replaced and the cost of relocation would be too great to justify using this approach to determine severance damages.

On this appeal the State contends that as the defendant’s experts gave no consideration to the “cost to cure” approach in their appraisal of damages to the remainder, the trial judge was in error in accepting their testimony on this issue.

The applicability of the “cost to cure” approach rule in determining severance damages is concisely stated by the Supreme Court in State, Department of Highways v. Mason, 229 So.2d 89 (La.1969), as follows:

“If such an approach has relevance to the measure of damages, it should only be employed to demonstrate a diminution in market value resulting from the partial taking, for we find no sound basis in this Court’s jurisprudence for the application of this method of assessing severance damages, save in the most unique situation . . . wherein the ascertainment of market value of the facility is not possible.”

We find no error in the refusal of the trial judge to award severance damages solely on the basis of the testimony of the State’s experts who followed the “cost to cure” approach in their determination of damages.

Both parties point out in brief to this court that the trial court made certain errors in mathematical calculations in arriving at the $18,323.90 awarded as damages.

As we conclude the total amount awarded for this purpose is excessive, it is not necessary to discuss these errors in detail.

While we recognize the improvements have been substantially damaged by the taking and that some damage will accrue to the remaining land, we do not find the percentage of damage to the land as estimated by defendant’s experts to be reasonable.

In making his determination, Jordan used a fifty per cent reduction in value to the remaining land and the improvements. The stipulated value of depreciated improvements was $17,500. Willett found the improvements to have been damaged in the amount of $12,249, and $12,122 to the remaining land. We find these estimates on the damages to the improvements reasonable, and we accept the sum of $12,249 as the damage to the improvements.

The basis for defendant’s appraisers’ opinion on the reduction in market value of the land remaining after the taking results primarily from the effect they envision on convenient access because of barrier curbs planned in the construction project. These curbs will reduce the access from Highway 167 to the property from its present 97.96 feet to 57.22 feet. Also, they contend the improvements will lose a sight advantage now enjoyed which will no longer exist after the relocation.

We can see that some devaluation of the remaining tract will occur because of these factors, but it is difficult to understand that the measure of damage will be as great as estimated by defendant’s appraisers.

There is no substantial change in lot size or frontage on the highway. The sole detriment to value is the limitation on access caused by the barriers. We are of the opinion the remaining land has suffered no greater reduction than $3,000 and an award in this amount would adequately compensate defendant for this purpose. To' recapitulate, we find defendant entitled to severance damages of $15,249.

Expert Witness Fees

The State contends the amounts awarded defendant for the fees of experts testifying on its behalf are unreasonable and excessive. The trial court awarded the amount charged the defendant by each of these witnesses which is as follows:

Darrel Willett $1,725.00
O. L. Jordan 1,700.00
Richard Crawford 300.00
Lavelle Nunn 476.64
A. Ray Bond 300.00
Hab Monsur 1,725.00
H. L. Bass 1,950.00

We have previously considered this identical issue in several recent cases before this court arising out of the highway construction undertaken by the State in the Jonesboro-Hodge area. See State, Department of Highways v. United Pentecostal Church of Hodge, supra; State, Department of Highways v. Whitman, supra; State, Department of Highways v. DeJean, supra; State, Department of Highways v. Bounds, supra; State, Department of Highways v. Model Development Corporation, supra; State, Department of Highways v. Coblentz, 322 So.2d 276; State, Department of Highways v. Hammons, et al., 322 So.2d 280 (La.App.1975).

The same witnesses as called in this case were used by the landowner in the above cited cases where we found the amount awarded by the trial court to be excessive and reduced the award.

Defendant argues on this appeal that the instant case differs from the foregoing cases as the basis of this court’s determination in the previous decisions was an absence in the record of specific testimony by the expert witnesses of their time spent and other costs factors to justify their charge. Defendant argues the record does show an estimate of time consumed by each witness in this case.

The amount of time consumed and the amount charged the landowner are only some of the factors to be given consideration in determining the fee of an expert.

We find the expression of the court in State, Department of Highways v. Donner Corporation, 236 So.2d 841 (La.App. 3rd Cir. 1970), to be the appropriate rule and we quote as follows:

“We find no merit to plaintiffs contention that the expert witness fees should be eliminated completely. We are convinced, however, that the amounts fixed by the trial court as expert witness fees in the instant suit are unreasonably excessive, and that they are out of line with allowances made in other similar cases. We think the trial court in fixing expert witness fees should consider the value of the property or severance damages involved, as well as the amounts allowed in other cases as witness fees. Here the expert witness fees allowed for two out of the five expert witnesses who testified amount to almost one-third of the total amount involved in this suit. We agree that the defendant landowner should be compensated for the expenses which he reasonably must incur in obtaining expert testimony for trial, but he is not entitled to compel plaintiff to pay an unreasonable amount.”

In this instance it is apparent the trial judge placed the most emphasis on the amount charged the landowner by the expert.

After giving due consideration to the testimony in the record, the lack of any complex problems connected with this appraisal and the amount in controversy, we find the fees awarded to be excessive and they are reduced as follows:

Darrel V. Willett $700
O. L. Jordan 700
H. L. Bass 250
Hab Monsur 250
Richard Crawford 250

We do not find from the evidence in the record that A. Ray Bond was ever accepted as an expert nor were his qualifications as such stipulated. He did not testify and the State objected to the introduction of his bill for services rendered to defendant. For the same reasons given in the case of State, Department of Highways v. United Pentecostal Church of Hodge, supra, we disallow the fee awarded for Bond and also the award for the services of Lavelle Nunn, a photographer engaged by defendant.

For the reasons assigned, the judgment of the trial court is amended to reduce the total amount awarded for just compensation to the sum of $15,789 and to fix expert witnesses’ fees as above set forth.

Amended, and as amended, Affirmed.


author: DENNIS, Judge.

text:
    Vernon H. MULLINS and Harvie Jean Mullins v. The TRAVELERS INSURANCE CO. and Grady W. Smith.
    No. 12746.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.

      Massey & Robinson by Charles W. Robinson, West Monroe, for plaintiffs-appellants.
    Theus, Grisham, Davis & Leigh by Ronald Lee Davis, Jr. Monroe, for defendants-appellees.
    Before HALL, DENNIS and BURGESS, JJ.
   DENNIS, Judge.

Plaintiffs, Mr. and Mrs. Mullins, appeal from a judgment rejecting her demands for personal injuries and his demands for vehicle damage and her medical expenses arising out of an automobile accident on Louisiana Highway 593 in Morehouse Parish. A state police patrol car being driven by a defendant, Trooper Grady Smith, was involved in the accident. Other defendants are the Dept, of Public Safety, Division of State Police, and its insurer, Travelers Insurance Company. We affirm the judgment of the trial court rejecting plaintiffs’ demands.

Louisiana 593 is a two-lane black-topped highway running northerly and southerly. About two-tenths of a mile north of the site of the accident there is a slight curve. At the time of the accident around 4:10 p. m., the road was wet because of an earlier rain. There were three vehicles proceeding southerly some distance in front of the state trooper prior to the accident. Mrs. Mullins was in the third automobile. The second automobile was being driven by an unknown driver, and the first automobile was being driven by Mrs. Mullins’ mother.

Mrs. Mullins’ home is east of Louisiana 593, and there is a private driveway from the home perpendicular to the highway at the accident site. Mrs. Mullins’ mother turned left into the Mullins driveway, and the second automobile immediately in front of Mrs. Mullins continued southward. Mrs. Mullins testified that as she came out of the curve, which is north of her home, she was driving approximately 35^-0 miles an hour when she saw the two vehicles ahead of her. She testified that she turned on her left turn signal and that she checked her rearview mirror approximately 425 feet from her driveway and applied her brakes, slowing down, and again checked in her mirror when she was approximately 130 feet from her driveway. She says on neither occasion did she observe in the rearview mirror of her automobile the trooper’s vehicle approaching from the rear. She said that she had intended to look into her mirror once again before making her left turn but that she was unable to do so before the accident occurred.

The officers who investigated the 'accident testified as to the position of the automobiles after the impact and as to the location of debris on the highway indicating the point of impact on the highway. The lower court found that the left wheels of Mrs. Mullins’ automobile were approximately one and one-half feet across the center line of the highway in the northbound lane when the accident occurred approximately 35-40 feet north of the Mullins’ driveway.

Trooper Smith testified that he was on his way to the scene of an accident some six miles south of the driveway but there was no emergency, he was not speeding or using his siren or emergency lights. He said that just before reaching the curve north of the Mullins residence, he began following the three vehicles at some distance. As cars were traveling out of the curve at approximately IS or 20 miles per hour, he reduced his speed to coincide approximately with the speed of these vehicles. He says he was behind Mrs. Mullins’ vehicle approximately 45 or SO feet and that he observed Mrs. Mullins’ mother’s vehicle turn into the driveway when he was about 2S0 feet from the driveway. Mrs. Mullins, at this time, was still traveling at a slow speed and had not signaled for a left turn, according to the trooper. After the first vehicle completed its left turn into the Mullins driveway and the other two. vehicles in front of him were slowly continuing southward, Trooper Smith began his passing maneuver. He says he was about 150 feet from the driveway, accelerating and sounding his horn, signaling his intent to pass when he was fully into the passing lane. He says he saw the left rear light on the Mullins vehicle come on when he was 45 or 50 feet from the driveway, and only a few feet from Mrs. Mullins’ vehicle. The trooper says the left rear light simply came on and did not begin flashing in the fraction of a second before impact.

Trooper Smith says that Mrs. Mullins’ car drifted or angled across the center line of the highway and that he attempted to avoid the collision, but without , success, the right front of his car striking the left rear of the Mullins car when the Mullins car was partially in the passing lane.

The trial court accepted the trooper’s version of the accident and rejected plaintiffs’ demands. The lower court found the trooper was not negligent and that the accident was caused by Mrs. Mullins’ actions in improperly executing a left turn. The lower court went into considerable detail in written reasons for judgment stating his basis for accepting the defendant’s version of the accident rather than the plaintiffs’ version.

In Bamburg, the duty of the left turning driver to maintain a lookout for rearward approaching traffic, was imposed not only on the left turning driver who had discovered the approaching traffic, but as well, on the defendant turning driver who had not discovered the approaching traffic. The court naturally concluded that looking but not seeing what was there to be seen is tantamount to not looking at all. See also Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963).

Appellants also contend applicability of the last clear chance or discovered peril doctrine. Accepting the lower court’s version of the accident in the absence of manifest error, the trooper did not discover Mrs. Mullins’ position of peril in time to have taken action to avoid the collision. Johnston v. Boston, 293 So.2d 655 (La.App., 2d Cir. 1974); Burge v. Doty, 279 So.2d 273 (La.App., 2d Cir. 1973).

The lower court further found Mrs. Mullins failed in her duty to observe the approaching vehicle before she began her left turn. The variance in the testimony presented credibility questions and we do not disturb the lower court’s judgment in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Mrs. Mullins admitted that she did not attempt to observe rearward traffic during the last 130 feet she traveled. This admission, together with some of her pretrial statements, physical evidence at the accident site and the testimony of defendants’ witnesses, leads us to conclude the trial court did not manifestly err in its finding.

The proffer of testimony by plaintiffs in rebuttal to the testimony of Trooper Smith regarding his speed is in the record. Assuming, but not holding that the proffered rebuttal should have been allowed and considered by the trial court, we have considered the statement of what the rebuttal tes-' timony would have been and have weighed this with the record and the lower court’s finding. The result is not changed. Mrs. Mullins was negligent in making a left turn under the circumstances, even if it be assumed the trooper was negligent by either or both, traveling at an unreasonable rate of speed and not sounding his horn.

At appellants cost, the judgment is

Affirmed.

      . Bamburg v. Nelson, 313 So.2d 872 (La.App.2d Cir. 1975). See also Ardoin v. Chachere, 207 So.2d 574 (La.App.3d Cir. 1968).