text:
    STATE of Louisiana, THROUGH the DEPARTMENT OF HIGHWAYS v. Gabriel F. SHAHEEN.
    No. 11274.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Edwin R. Woodman, Jr., Baton Rouge, for Department of Highways, plaintiff appellant.
    Allen B. Pierson, Jr., Ponchatoula, for Gabriel F. Shaheen, defendant appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit by the State of Louisiana, through the Department of Highways, against Gabriel F. Shaheen seeking to expropriate two parcels of land. In conjunction with the petition, plaintiff deposited $68,699.00 into the registry of the court in accordance with the provisions of LSA-R.S. 48:441-460, inclusive. From a judgment in favor of defendant in the amount of $159,-085.00, subject to a credit of $68,699.00, together with legal interest on the difference of $90,386.00 from November 18, 1970, until paid, plaintiff has appealed.

ON MOTION TO DISMISS

The- defendant has filed in this Court a motion to dismiss the appeal based on the grounds that the time for taking an appeal had expired, LSA-C.C.P. art. 2087 and the motion for appeal was not signed by an attorney of record. LSA-C.C.P. art. 863.

Judgment in this case was signed on March 23, 1976, and the clerk mailed notice of judgment on the same day. The last day for applying for a new trial was April 1, 1976, and the last day to perfect a devolu-tive appeal was June 30, 1976.

It seems that at approximately 4:40 P.M. on June 30,1976, the trial attorney for plaintiff contacted an attorney in Hammond, Louisiana and requested that he secure an appeal in this case, and in conjunction therewith dictated an order of appeal to the secretary of the Hammond attorney who typed it and signed the plaintiff’s attorney’s name to the motion for appeal, with his consent, and placed her initials under his name. The Hammond attorney then secured the signature of the trial court judge at approximately 5:20 P.M. on June 30, 1976. It was then delivered to the chief deputy clerk of court of Tangipahoa Parish at some time between 6 o’clock and 7 o’clock P.M. at his home. In an affidavit by the deputy clerk of court, he affirms that he received the motion for appeal on June 30, but did not deposit same in the clerk of court’s office until July 1, but as was his custom on such occasions, instructed the filing clerk to backdate the document as having been filed the previous date. There is nothing wrong with this procedure, and as such the appeal was filed timely. Johnston v. Nanney, 244 La. 959, 155 So.2d 196 (1963).

It is certainly correct that the motion of appeal was not signed by the attorney of record as is required by LSA-C.C.P. art. 863, but instead the attorney of record’s signature was affixed to the motion by his expressly designated agent. Appeals are favored, and thus this Court concludes that the requirements of LSA-C.C.P. art. 863 have been met by the appellant’s attorney of record specifically requesting and authorizing a secretary to sign his name to the motion of appeal.

Therefore, the motion to dismiss the appeal is denied.

ON THE MERITS

This expropriation was deemed necessary for the purpose of facilitating travel on Route LA-US 190 through the City of Hammond by dividing the former two lane highway within the city into two one way thoroughfares of two lanes each to permit a smooth flow and an increase in the combined amount of local and through traffic. The taking in question occurred where the two one way streets converged into one street.

Two tracts of land were taken. Parcel 11-1, consisting of 20,417.9 square feet was taken out of a tract, belonging to defendant-appellee, which fronted 346.56 feet on the south side of West Thomas Street and contained 106,800.7 square feet, leaving a remainder of 86,382.8 square feet. Parcel 13-2, consisting of 17,374.17 square feet, was taken from a “L” shaped piece of defendant’s property which fronted 143.5 feet on the south side of West Thomas Street and contained 61,808.19 square feet, leaving one remainder of 38,090.82 square feet north of the taking and another remainder of 6,343.2 square feet south of the taking. The smaller remainder was triangular shaped with a depth on its western boundary line of 80.87 feet, and rapidly decreasing to no depth.

The Trial Court found the defendant entitled to compensation and damages as follows:

“Parcel 11-1
Just compensation (land & improvements) $52,695.00
Damages 43.000.00
Total Parcel 11-1 $95,695.00
“Parcel 13-2
Just compensation 44,240.00
Damages 19.150.00
Total Parcel 13-2 $63,390.00
“SUMMARY:
Total Parcel 11-1 $95,695.00
Total Parcel 13-2 63,390.00
TOTAL 159,085.00
Less previously paid 68.699.00
Due Defendant $90,386.00”

Plaintiff-appellant contends that the Trial Judge was in error in each of the above awards, both for compensation as well as damages.

Subsequent to the original petition and deposit being filed, an amended petition was filed reducing the original estimate of just compensation from $68,699.00 to $60,-868.00. As the Trial Judge points out in his written reasons for judgment, “the appraisers who signed both certificates for the Department were the same who testified for the Department at the trial.”

The Trial Judge noted confusion on the part of the Department’s appraisers in that they were unaware of a modern one story brick office building located on the remainder of defendant’s land from which parcel 11-1 was taken. Like confusion was also noted by the Trial Judge as to a loss of parking in front of this building.

This Court has thoroughly reviewed this entire record and finds no error on the part of the Trial Judge. The Trial Judge frankly admits that he relied heavily on the expert testimony of Mr. Kermit Williams who testified on behalf of defendant. He was impressed that he was being fair and correct.

In arriving at his conclusion, the Trial Judge said:

“Prior to the taking, the piece from parcel 11-1 was taken was situated in a fast growing commercial section of Hammond and had exposure to traffic in both directions. It was partially developed and was rectangular in shape. After the taking it had access to traffic in only one direction. It was no longer rectangular but had a curved front along the highway and the depth of the undeveloped portion was greatly reduced.
“In the Court’s opinion the property taken was extremely well situated and valuable. The values placed thereon by defendant’s experts are reasonable and in line with other comparable sales in the area. Adjustments to comparables made by Mr. Williams and Mr. Curtis Book, the other defendant expert witnesses, were reasonable and proper.
“Prior to this litigation defendant owned an “L” shaped parcel fronting on the highway and having frontage on Mooney Avenue of 152 feet. Seventy-five feet was previously taken from that, leaving frontages along Mooney of 35 and 42 feet. At the time of the taking forming the basis of this litigation this parcel was definitely a prime commercial site and while its shape was not as advantageous of that of defendant’s other property, this had the added advantage of side and rear access.
“After the taking, the North remainder is very irregular in shape but it does still enjoy the same access advantage it had before the taking. Defendant’s experts estimated damage to this land at 10% and the Department experts found no damage. This Court finds that there was certainly damage to the North remainder and that the estimate of 10% is fair and reasonable.
“The South remainder is so small and its depth so shallow that the property is of little if any commercial value. It could be sacrificed to the adjacent owners because of the long highway frontage but having little if any value and of itself certainly justifies a substantial award of damages for this parcel. Defendant’s experts estimated the square foot value of the South remainder before the taking and as a part of the whole at 2.50. After the taking the square foot value was estimated at 1.00 and .625 by the two defendant’s experts.
“Again, the Department’s experts saw no damages. This Court finds that the remainder on the South side of the East bound lane is practically worthless for any reasonable development and will allow the estimate of damages as computed by the defendant’s experts, Mr. Williams, it being based on good reason and well supported by the facts.
“Plaintiff’s experts attempted to reduce the square footage value which they found from comparable sales by the use of depth tables. Such tables, while they certainly have a place in property appraisals, are not appropriate here. They are useful when the depth of a parcel is much greater than its frontage so that the two are considered disproportionate for development. The parcels from which these takings were made were not disproportionate. The frontage of one exceeded its depth.
“Nor is the Court impressed with the Department’s argument that as to parcel 13-2, the rear land was taken rather than the front land. The rear land was not so removed from the front as to require a lesser value as would be the case where the frontage and depth were disproportionate.
“Plaintiff has also attempted to show special benefit to the remaining properties. This Court fails to see the logic of the experts for the Highway Department. Benefits are common to all of the property in the area and resulted from a general increase in land values caused by inflation and the continued prosperity of the whole general area.”

It would serve no useful purpose for this Court to recite in detail all of the complicated testimony of the experts, for we are convinced that defendant has proven his claim as is his burden by a preponderance of the evidence.

Therefore, for the above and foregoing reasons, the judgment of the Trial court is affirmed at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Roy CASE v. ARROW TRUCKING COMPANY et al. Dianna Cheramie ESTE et al. v. ARROW TRUCKING COMPANY et al.
    No. 11461.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Writ Not Considered July 1, 1977.
    Clark A. Richard, New Orleans, for defendant-relator Este.
    John B. Noland, Breazeale, Sachse & Wilson, Kenneth W. Cole, Joseph F. Keogh and Frank Fertitta, Baton Rouge, for Arrow Trucking.
    Perry J. Smith, Gonzales and William C. Kaufman, Baton Rouge, for plaintiff-respondent.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

These are consolidated suits arising out of the same vehicular accident.

One of the plaintiffs, Roy Case (Case), was a guest passenger in a pickup truck owned and operated by Jimmy C. Este, and was badly injured when Este ran into a large tractor-trailer unit owned by Arrow Trucking Company (Arrow). Este was killed in the accident and his wife, Dianna Cheramie Este is the administratrix of his succession.

On February 11, 1975, Case filed suit against Allstate Insurance Company (Allstate), Este’s insurer; Darrell W. Smith (Smith) driver of tractor-trailer unit; Arrow Trucking Company, Smith’s employer; and Continental Insurance Company (Continental) and Reserve Insurance Company (Reserve), Arrow’s insurers. Case did not request a jury trial. The defendants answered and filed third party demands against Dianna C. Este as administratrix. Neither the defendants nor the administra-trix requested a jury trial.

Separately, on July 29, 1976, Dianna Cheramie Este filed suit on her own behalf as well as her children, for the death of Jimmy C. Este, against Smith, Arrow, Continental and Reserve, and requested a jury trial. The two suits were consolidated for trial.

Then, on February 25, 1977, Case in his suit filed an amending petition joining Dianna C. Este as administratrix as a principal defendant. She answered and third parties Smith, Arrow, Continental and Reserve, and requested a jury trial as against Case and the third party defendants. The Trial Court denied her request for a jury trial as against Smith, Arrow, Continental and Reserve. This Court on March 15, 1977, issued alternative writs of mandamus, certiorari and prohibition directing the Trial Judge to grant Dianna C. Este, as admin-istratrix of the succession of Jimmy C. Este, as third party plaintiff, a jury trial as against the third party defendants, Smith, Arrow, Continental and Reserve, or in the alternative, for the Trial Judge and the respondents to show cause by brief on or before April 15, 1977, why the writ should not be made peremptory. The Trial Judge and the respondents have elected the alternative.

In taking the alternative, respondents argue that the sole purpose of the amended petition is to add the administratrix as a direct defendant, and that this is not the kind of issue referred to in LSA-C.C.P. art. 1732. This does not create a new issue because the administratrix was already in the suit as a third party defendant. They next argue that since one and one half years has transpired between the filing of all pleadings and the amended petition and request for jury trial, and the administra-trix did not request a jury trial in her answer to the third party demand, she has waived her right to a jury trial.

We appreciate respondents’ argument that the administratrix was already a defendant by the third party demand and that the negligence of the deceased was already an issue, but as our Supreme Court said in Barberito v. Green, 275 So.2d 407 (La.1973):

“We find there is no requirement in Article 1732 that the motion for a jury trial must be filed not later than ten days after the service of the last pleading raising a new issue, (emphasis by this Court) “While our holding herein is contrary to the Federal courts’ interpretation of Rule 38(B), the counterpart to our C.C.P. Article 1732, their holding is perhaps justified in the context of the federal procedure. See Moore’s Federal Practice, vol. 5, page 328.3 ¶38.41.
“There is within the provisions of the Code of Civil Procedure the necessary safeguard against any abuse of the provisions of Article 1732 by the filing of amending pleadings. The trial judge, in the exercise of discretion may not allow the filing of such amending pleadings which he finds are proffered for the purpose of circumventing the limitations in this article. See C.C.P. Article 1151.”

Therefore, even though the negligence of Jimmy C. Este was already at issue, his succession was not a principal defendant, and any pleading which makes his succession a principal defendant does present an issue triable by jury.

As to the argument of waiver of jury trial because of lapse of time, we disagree. See Barberito v. Green, supra.

Therefore, for the above and foregoing reasons, the writ issued by this Court is made peremptory. This matter is remanded to the Trial Court for further proceedings in accordance with the views expressed herein. All costs of this proceeding before this Court are taxed to respondents.

WRIT MADE PEREMPTORY.


text:
    Judy BRADDY v. TRIANGLE TIMBER, INC.
    No. 11519.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Henry A. Mentz, Jr., Hammond, for appellant.
    Charles B. W. Palmer, Amite, for appel-lee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

ON MOTION TO DISMISS

This is a workmen’s compensation suit. On March 4, 1977, the Trial Court rendered both a preliminary judgment pursuant to LSA-R.S. 23:1316 as well as a judgment on the merits after a trial. On March 9, 1977, defendant was granted a suspensive appeal and filed the requisite bond.

Plaintiff has filed a motion to dismiss the appeal only insofar as it relates to the preliminary judgment contending that it is an interlocutory decree which is not appealable citing Vidrine v. Argonaut-Southwest Insurance Company, 166 So.2d 287 (La.App.3rd Cir. 1964); Naquin v. Coal Operators Casualty Co., 157 So.2d 276 (La.App.3rd Cir. 1963); and Griffith v. Wyatt Lumber Co., 193 So. 257 (La.App.2nd Cir. 1939).

In Vidrine, after a preliminary judgment had been rendered, the suit was dismissed as being premature, and thus with the dismissal fell the preliminary judgment. The Court in passing merely noted “that a preliminary judgment rendered in a workmen’s compensation suit under the provisions of LSA-R.S. 23:1316 is not a final judgment but is interlocutory in nature.”

In Naquin, the Court held that an order setting aside two previously granted preliminary judgments was interlocutory and nonappealable.

Similarly in Griffith the Court held that an order denying a preliminary judgment was interlocutory and nonappealable.

Generally appeals can only be taken from final judgments or “from an interloeu-tory judgment which may cause irreparable injury.” LSA-C.C.P. art. 2083. Therefore, conceding arguendo that a preliminary judgment pursuant to LSA-R.S. 23:1316 is interlocutory rather than a final judgment, it could only be appealed if it may cause irreparable injury. However, we note that LSA-R.S. 23:1351 in part provides:

“Either party may appeal to the proper appellate court from any judgment rendered as provided in R.S. 23:1035 and in Part IV of this Chapter. * * *.” (emphasis supplied)

The chapter that is referred to is Chapter 10 of Title 23, Labor and Workmen’s Compensation. Part IV of Chapter 10 includes LSA-R.S. 23:1316, preliminary judgments. Therefore, the conclusion must be reached that even though generally interlocutory decrees are not appealable, a preliminary judgment pursuant to LSA-R.S. 23:1316, whether interlocutory or not, is appealable. As between a general and a special law, the special law controls. We therefore conclude that there is no merit to plaintiff-appellee’s argument that this is not an appealable judgment.

Therefore, for the above and foregoing reasons the motion to dismiss is denied. All costs of this proceeding before this Court are taxed to plaintiff-appellee.

MOTION DENIED.


author: ELLIS, Judge.

text:
    Kenneth DUNCAN v. Judy Foret DUNCAN.
    No. 11289.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Johnny X. Allemand, Thibodaux, for plaintiff and appellee.
    Donn Moss, Baton Rouge, for defendant and appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This suit was filed by Kenneth Duncan against his wife, Judy Foret Duncan, seeking a separation from bed and board on the ground of abandonment. Mrs. Duncan answered and reconvened, seeking a separation on the ground of cruel treatment, custody of their minor daughter, plus alimony and child support. After trial on the merits, judgment was rendered awarding a separation to Mr. Duncan, and granting custody of the minor child to Mrs. Duncan. The judgment denied alimony, but awarded child support. Mrs. Duncan has appealed.

It is not contested that Mrs. Duncan left the matrimonial domicile on June 15, 1975. She alleges that she left because her husband “had been frequently seen in the company of other women” and “maintained hours outside of the matrimonial domicile into the early morning hours frequently, without explanation.”

In a supplemental pleading, Mrs. Duncan alleged that, during the efforts to reconcile following the February separation, Mr. Duncan admitted an adulterous affair with JoAnn Crum McHugh, his secretary, but said that the affair was terminated, and that Mrs. McHugh would be seeking other employment in the near future. She further alleged that she agreed to a reconciliation on the strength of her husband’s representations relative to the termination of the affair with Mrs. McHugh, but learned after the reconciliation that he was continuing to see her outside of office hours.

The record reveals that Mr. and Mrs. Duncan reconciled on May 18, 1975, after having separated on February 25, 1975. From hearsay evidence in the next two weeks, Mrs. Duncan began to suspect that her husband was continuing to see Mrs. McHugh after office hours. On May 31st, they had an extended quarrel over the matter, at which time Mrs. Duncan told her husband that if he did not fire Mrs. McHugh that their marriage would be over. Mr. Duncan refused to do so.

Mrs. Duncan testified that they continued to reside together, and had sexual relations after that time. Mr. Duncan denied having sexual relations after May 31st.

In any event, on June 11, 1975, Mr. Duncan went to Wichita Falls, Texas, with Mrs. McHugh, where they stayed at the same motel for about a week. When Mrs. Duncan learned of this she left the matrimonial domicile, and has not since returned.

At the trial the judge refused to permit testimony relative to the cause of the first separation and the circumstances of the reconciliation. He ruled that Mrs. Duncan would first have to prove acts on the part of Mr. Duncan, subsequent to the date of the reconciliation, which would constitute cruel treatment. He was of the opinion that the conduct of Mr. Duncan prior to the reconciliation had been forgiven and evidence thereof could be used to corroborate a new cause of action only after proof thereof.

Articles 152 and 153 of the Civil Code provide:

“Art. 152. The action of separation shall be extinguished by the reconciliation of the parties, either after the facts which might have given ground to such action, or after the action has been commenced.” “Art. 153. In either case the plaintiff shall be precluded from bringing his action; but he shall be at liberty to bring a new suit for causes arising since the reconciliation, and therein make use of the former motives to corroborate his new action.”

In this case, the past misconduct of the husband, and the circumstances of the reconciliation are essential elements in the cause of action alleged by the wife. Evidence thereof should have been received— not to corroborate subsequent acts of cruelty, but to show that those acts were, in fact, sufficient to render their living together insupportable.

As a result of the erroneous ruling of the trial judge, all of the evidence relative to the circumstances of the first separation and reconciliation were introduced by proffer under Article 1636 of the Code of Civil Procedure. Unfortunately, a good bit of evidence which would have been admissible even under the ruling of the trial judge was included therewith, and therefore not considered by him in reaching his conclusion below. We also note that the trial judge would not permit Mrs. Duncan to use her own handwritten notes for the purpose of refreshing her memory as to various events which took place after the reconciliation.

Ordinarily, we would consider the proffered testimony and render judgment based thereon. However, considering the disjointed and confused character of the record, the importance to the ultimate decision of the credibility of the parties hereto, the necessity of considering all of the testimony of the witnesses, and the fundamental misunderstanding of Mrs. Duncan’s cause of action by the trial judge, we are of the opinion that the ends of justice will best be served by remanding the case to the trial court for a new trial on its merits and for a decision in accordance with the principles herein, expressed.

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court for a new trial. All costs of this appeal shall be paid by the plaintiff. All other costs shall await the final determination of the case on its merits.

REVERSED AND REMANDED.


text:
    GILLETTE TIRE DISTRIBUTORS, INC. v. CITY/PARISH OF EAST BATON ROUGE.
    No. 11301.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Stanford 0. Bardwell, Jr., Baton Rouge, of counsel for plaintiff Gillette Tire Distributors, Inc., appellant.
    Joseph F. Keogh, Parish Atty., Clinton Hyatt, Jr., Asst. Parish Atty., Baton Rouge, of counsel for defendant City/Parish of East Baton Rouge, appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is an appeal by plaintiff Gillette Tire Distributors, Inc. from a judgment sustaining an exception of no cause of action filed by defendants, the City of Baton Rouge and the Parish of East Baton Rouge.

Plaintiffs petition and amended petition allege that between the dates of May, 1970, and April, 1975, it inadvertently overpaid the sales tax due to defendants by $30,-515.58. It is further alleged that the defendants voluntarily refunded the overpay-ments made from June, 1973, to April, 1975, but have refused to refund the balance of the overpayments.

The exception of no cause of action filed by defendants is based on the general proposition of law that taxes voluntarily, but erroneously, paid, whether because of mistake of fact or law, cannot be recovered in the absence of special statutory authorization. A. Sulka & Co. v. City of New Orleans, 208 La. 585, 23 So.2d 224 (1945); Simpson v. City of New Orleans, 133 La. 384, 63 So. 57 (1913); Parish of East Baton Rouge v. Varnado, 153 So.2d 100 (La.App. 1st Cir. 1963).

The only statutory authority for the refund of sales taxes paid in error, without protest, is Title 9, Section 144 of the Code of Ordinances for the City of Baton Rouge and the Parish of East Baton Rouge, which provides:

“Where no question of fact or law is involved, and it appears from the records of the Parish of East Baton Rouge that any monies have been erroneously or illegally collected from any dealer, or have been paid by any dealer under a mistake of fact or law, the director of finance may, at any time within two (2) years of payment, upon making a record in writing of his reasons therefor, certify that any dealer is entitled to such refund, and thereupon, the director of finance shall authorize the payment thereof from any appropriation available for such purposes.”

Pursuant to the foregoing provisions, the Director of Finance made a refund of the overpayments for the two year period prior to the discovery of the error. It is clear that the Director has no discretion to make refunds of overpayment made more than two years prior to the request for refund.

We find no procedure in the Code of Ordinances to compel the refund of amounts erroneously paid under the circumstances of this case. Sections 133 and 142 of Title 9 deal with payment made under protest, when there is a dispute as to the validity or applicability of the law, or as to the propriety of an assessment of tax made by the Director of Finance. Section 130 of Title 9 provides for refund when an article has been returned to the dealer. Nowhere does the Code of Ordinances provide for the recovery, by suit or otherwise, of overpay-ments made in error more than two years prior to the date of the claim. We think that the trial judge properly applied the general rule in finding that plaintiff had no cause of action.

Plaintiffs arguments that various provisions of the Civil Code are applicable are without merit. It is settled that laws regulating the collection of taxes or licenses are sui generis and constitute a system to which the general provisions of the Civil Code have little, if any, application. City of New Orleans v. Jackson Brewing Co., 162 La. 121, 110 So. 110 (1926); Lisso & Bro. v. Police Jury, 127 La. 283, 53 So. 566 (1910).

It is not suggested by plaintiff that it can allege any additional facts which would cure the fatal defect in its petition. The fact is that plaintiff, with full knowledge of the facts, and presumed knowledge of the law, overpaid the sales tax due the defendants, and that the law provides no remedy for the recovery of overpayment made more than two years prior to the request for refund.

The judgment appealed from is therefore affirmed at plaintiffs cost.

AFFIRMED.


text:
    Cecile Bridges DENBO v. Robert Thomas DENBO.
    No. 11308.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Gerard E. Kiefer, Baton Rouge, of counsel for the plaintiff appellant.
    Emile M. Weber, Baton Rouge, of counsel for the defendant appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a suit for a separation from bed and board brought by Mrs. Cecile Bridges Denbo against her husband, Robert Thomas Denbo. Mrs. Denbo also seeks alimony for her support. Mr. Denbo reconvened, asking that he be awarded a separation from his wife. After trial on the merits, judgment was rendered awarding a separation to plaintiff, and containing the following language:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the judgment is based upon a newly enacted legislative act relative to mutual fault (Civil Code Article 141) and the Court does find herein mutual fault barring the plaintiff herein from permanent alimony following a divorce judgment.”

Mrs. Denbo has appealed from the findings of mutual fault made by the trial judge. Defendant has neither appealed nor answered the appeal by plaintiff.

Mr. and Mrs. Denbo were married in 1943, and are the parents of three children, all of whom are of the age of majority. In the mid ’60’s, Mr. Denbo moved out of their bedroom into another room in the house, and the parties since that time have not cohabited. They seldom communicated or enjoyed any social activity together thereafter. Mr. Denbo testified that he moved out of their bedroom because his wife refused his sexual advances, and that he had stopped approaching her about seven years before they separated in April, 1976.

Mrs. Denbo testified that her husband told her that he was moving out of the bedroom because of her snoring, and that he had never requested or demanded sexual intercourse since that time.

In 1971, Mrs. Denbo was packing up to leave her husband, and Mr. Denbo entreated her not to do so. Mrs. Denbo relented and remained in the family home. Their relationship did not change, however, and neither of them made any demands on the other. Mr. Denbo testified that he asked Mrs. Denbo to remain with him because of their youngest child, who was then in her early teens.

On April 12, 1976, without any forewarning, Mr. Denbo advised his wife that he was moving out, and did so.

This suit was filed by Mrs. Denbo, alleging the abandonment by her husband as the sole ground for the separation. Mr. Denbo reconvened for a separation, alleging that Mrs. Denbo denied him sexual relations for the last ten years of their marriage, and that she treated him like a boarder in his own home. In her answer to the reconven-tional demand, Mrs. Denbo alleged that Mr. Denbo had treated her as a “mere housekeeper”.

As pointed out above, the trial court found both parties to be mutually at fault, but pursuant to the provisions of Article 141 of the Civil Code (Act 495 of 1976), granted a judgment of separation.

In this court, plaintiff alleges that the trial court erred in finding mutual fault, precluding plaintiff from getting permanent alimony.

Prior to the adoption of Act 495 of 1976 as Article 141 of the Civil Code, parties to a separation or divorce suit, who were mutually and equally guilty of fault sufficient to constitute grounds for a separation or divorce, were denied that relief under the doctrine of comparative rectitude. Grappe v. Grappe, 315 So.2d 866 (La.App. 3rd Cir. 1975).

This suit was filed by the plaintiff on May 6, 1976. Act 495 of 1976 became law on October 1,1976. Since the act is not remedial in nature, conferring, as it does,, a substantive right on those falling within its purview, it can have no application to this case. Article 8, Civil Code. Therefore, if there was mutual fault, the judgment of separation was improvidently granted. However, since Mr. Denbo neither appealed nor answered the plaintiffs appeal, the judgment granting the separation has become final as to him, and we are without authority to alter that aspect thereof, even though it is based on an erroneous legal premise.

Since Mr. Denbo admittedly abandoned the matrimonial domicile, he must prove, by a preponderance of the evidence, that the abandonment was legally justified. He must show that Mrs. Denbo was guilty of conduct which would form grounds for a separation from bed and board.

Cruel treatment by one spouse is ground for a separation only if it is of such a nature as to render living together insupportable for the other. Article 138, Civil Code. Thus, prolonged denial of sexual intercourse constitutes cruel treatment, provided the nature of the offended spouse is such that the denial thereof does render the marriage relation insupportable, and provided there is no consent thereto. See Phillpott v. Phillpott, 285 So.2d 570 (La.App. 4th Cir. 1973).

However, we do not believe it can be said that a course of conduct which has been consented to by both spouses over a long period of time during which they resided together, is such as to render their living together insupportable. We do not find mutual fault in such a situation, but .rather an absence thereof, because of mutual consent. See Burnett v. Burnett, 324 So.2d 622 (La.App. 2nd Cir. 1975).

We do not believe that Mr. Denbo has carried his burden of proof in this case. His own conduct, in remaining with his wife despite her alleged refusal of sexual relations, does not reflect that their living together under those circumstances was insupportable. He begged Mrs. Denbo to remain with him, unconditionally, when she was packing to leave in 1971, when he had allegedly been denied his connubial rights for seven years. Mrs. Denbo testified that he made no demands on her once he moved out of their bedroom.

We therefore hold that the trial judge erred in finding Mrs. Denbo guilty of fault sufficient to deprive her of the right to permanent alimony. We are of the opinion that Mr. Denbo abandoned his wife "without legal cause, and that Mrs. Denbo would have been entitled to a separation from bed and board for that reason, and therefore was legally free from fault.

The judgment appealed from is therefore amended so as to remove therefrom the finding of mutual fault barring plaintiff from permanent alimony, and, as amended, it is affirmed, at defendant’s cost.

AMENDED AND AFFIRMED.


author: CHIASSON, Judge.

text:
    Stanley ORTEGO and Ruth Ortego v. HOWARD TRUCKING AND CONSTRUCTION COMPANY, INC., et al.
    No. 11294.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Chris J. Roy, Gravel, Roy & Burnes, Alexandria, for plaintiff.
    Dale P. Martin, Lippman, Hunter & Rawls, Morgan City, for King Trucking, Inc. and Willie Henderson.
    Michael T. Pulaski, Provosty & Sadler, Alexandria, for Texaco, Inc.
    Robert B. Acomb, Jr., and John C. Combe, Jr., Jones, Walker, Waechter, Poi-tevent, Carrere & Denegre, New Orleans, and James A. Hayes, Lafayette, for third party defendant Alexander & Alexander, Inc.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a summary judgment dismissing the suit of Stanley and Ruth Ortego, plaintiffs-appellants, against Texaco, Inc., defendant-appellee.

The appellants’ son, Michael Ortego, was killed in an industrial accident at the Texaco yard in Morgan City on September 14, 1974. Michael Ortego’s death is alleged to have occurred in the course and scope of his employment by Howard Trucking and Construction Company, Inc.

The accident occurred when pipe owned by Texaco rolled off a truck owned by King Trucking Company while it was being loaded onto the truck by a crane owned and operated by Howard Trucking.

Among other actions, the appellants filed a tort suit against Texaco. Texaco filed a Motion for Summary Judgment on which no further action appears to have been taken and an Exception of No Cause of Action which was denied after a hearing.

Texaco then filed another Motion for Summary Judgment with supporting affidavit. After a hearing judgment was rendered by the District Court dismissing appellants’ suit against Texaco. It is this judgment which has been appealed.

The errors complained of by appellant are:

1. The Honorable Sixteenth Judicial District Court erred when it granted the motion for summary judgment on behalf of Texaco, Inc. because the affidavits filed in support of the motion failed to comply with the Code of Civil Procedure and failed to meet the test as set forth in Written v. St. Mary Parish Police Jury, 297 So.2d 708.
2. Assuming arguendo,. Judge Robert Fleming was correct in his granting summary judgment to Texaco, he erred in failing to grant the motion for partial summary judgment filed by King Trucking Company.
3. The Honorable Sixteenth Judicial District Court erred in failing to conclude that Willie Henderson was an omnibus insured and thus covered by the insurance issued by Hartford Accident and Indemnity Company notwithstanding that the trailer was inadvertently not insured.

The requirements for affidavits filed in support of a motion for summary judgment are set forth in C.C.P. Art. 967 which provides in part:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein . .
The affidavit filed by Texaco states: “BEFORE ME, the undersigned authority, duly commissioned and qualified in and for the State and Parish aforesaid, personally came and appeared Biliy R. Wilson, a resident of the Parish of St. Mary, State of Louisiana, who, being first duly sworn, did depose and say:
1.
“That Mr. B. R. Wilson, affiant, is employed by Texaco, Inc., defendant herein, as Asst. Dist. Supervisor (Materials & Supplies), that he is, therefore, competent to testify to the facts herein set forth, and that he knows the facts herein set forth of his own personal knowledge.
2.
“Texaco, Inc. is in the general oil field business, including but not limited to, roustabouting, pipe loading and unloading and pipe hauling and transportation.
3.
“In order to accomplish its general oil field services in its Morgan City Yard, Texaco, Inc. has entered into a miscellaneous work agreement with Howard Construction Company, Inc., dated March 3, 1969, a copy of said agreement being attached hereto and made a part hereof.
.4.
“The above referred to miscellaneous work agreement between Texaco, Inc. and Howard Construction Company, Inc. was in effect on or about September 17, 1974, and covered work to be performed in Texaco, Inc.’s Morgan City Yard.”

The above affidavit does not fulfill the requirement set forth in C.C.P. Art. 967 that the affidavit show affirmatively that the affiant is competent to testify to the matters contained therein. This requirement is met when the affidavit sets forth facts which would enable a Court to make a determination as to the competency of the affiant as a witness to the material facts at issue. Benoit v. Burger Chef Systems of Lafayette, Inc., La.App., 257 So.2d 439 (1st Cir. 1972). The statement that the affiant is “Asst. Dist. Supervisor (Materials & Supplies)” for Texaco, Inc. is not, by itself, evidence by which a Court could determine whether or not the affiant is competent to testify to the facts contained in the affidavit.

The remaining errors alleged by the appellants do not relate to the judgment which has been appealed and cannot be considered by this Court.

For the above reasons, the judgment appealed from is reversed and the matter remanded to the District Court for further proceedings. Costs of this appeal to be paid by appellee.

REVERSED AND REMANDED.


text:
    Loretta BOSS et al. v. Nathaniel TWILLIE, and Allstate Insurance Company.
    No. 11302.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Wayne H. Carlton, Jr., Orlando G. Benda-na, New Orleans, for plaintiff-appellants, Loretta Boss and Wanda J. Davis.
    John W. Anthony, Bogalusa, for defendants-appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of the amounts awarded by the Trial Judge to Wanda J. Davis and Loretta Boss, plaintiffs-appellants, for the pain and suffering they sustained as the result of an automobile accident.

Following a trial on the merits, the Trial Judge awarded Wanda J. Davis, who suffered a strained shoulder, $250.00 and Loretta Boss, who suffered a strain of the mid-back, $750.00.

Before the Court of Appeal can disturb an award made by a Trial Court the record must clearly reveal that the trier of fact abused its discretion in making the award. Coco v. Winston Industries, Inc., La., 341 So.2d 332 (1976).

The accident occurred on April 14, 1974. Wanda J. Davis, who complained of intermittent pain, was examined by Dr. William Fisher on May 8, 1974. Dr. Fisher’s only finding was tenderness in the area of the thoracic trapezius muscle. Dr. Fisher concluded that the appellant had suffered a strain of the left shoulder as a result of the accident. He prescribed local heat, a muscle relaxer and a tranquilizer. On June 7, 1974, following a week without pain, Dr. Fisher discharged the appellant.

On May 8, 1974, Dr. Fisher also examined Loretta Boss. The appellant’s chief complaint was a continuous aching pain in the lower back. Dr. Fisher’s examination revealed a moderate loss of lumbar lordosis; a severe limitation of flexion, hyperextension, right and left lateral flexion at the waist; and tenderness from the level of the T-10 to L-l vertebrae bilaterally with no muscle spasm. Dr. Fisher concluded that the appellant had suffered a strain of the mid-back as a result of the accident and that this was complicated by the fact the appellant was five to six months pregnant. He recommended that the appellant sit in a tub of hot water for half an hour each day, sleep on a firm mattress, lift no heavy objects, be careful in her movements and wear a special type of corset during the day. He prescribed medication to achieve muscle relaxation. The appellant was seen by Dr. Fisher for approximately one month and progressed satisfactorily. There was no indication that the appellant’s pregnancy was not following a normal course.

The record also indicates that Loretta Boss suffered some pain at the time of the accident. She was taken to Slidell Memorial Hospital, examined and released with instructions to go to Charity Hospital in New Orleans. The appellant went to Charity and medication was prescribed.

Based on the above facts, we cannot say that the award of the Trial Judge was an abuse of his discretion. Therefore, the award of the Trial Judge is affirmed at appellant’s cost.

AFFIRMED.


text:
    A. F. BLAIR COMPANY, INC. v. M & H ENGINEERS AND CONSTRUCTION COMPANY et al.
    No. 11407.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      G. William Jarman, Baton Rouge, for appellant.
    John I. Hulse, IV, New Orleans, for plaintiff-appellee M & H Engineers & Const. Co.
    Gordon R. Crawford, Gonzales, for defendant-appellee Hanna.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This matter is before this Court, ex pro-prio motu, on a rule to show cause why the appeal of Robert C. Mason and M & H Engineers and Construction Company, defendants-appellarits, should' not be dismissed for failure to timely file an appeal bond.

The District Court judgment was signed on October 26, 1976. Code of Civil Procedure Article 2087, as amended by Act 201 of 1976, provides that a devolutive appeal may be taken, and security therefore furnished, within sixty days after the expiration of the delay for applying for a new trial where no application for a new trial has been filed timely. Act 201 of 1976, which became effective on October 1, 1976,- reduced the delay for perfecting a devolutive appeal from ninety to sixty days.

An appeal was taken by the appellants on December 15, 1976, and security was furnished on January 24,1977. Under Act 201 of 1976 the appellant had until January 3, 1977 to perfect his appeal. To perfect an appeal the appellant must both obtain an order of appeal and post a bond before the expiration of the allowed delay. The appellant did not post a- bond within the allowed delay. Therefore, we must dismiss the appeal for lack of jurisdiction.

The sixty day delay provided by Act 201 of 1976 governs in this case because the District Court judgment was signed after the effective date of the act and a right of appeal does not exist until after the rendition and signing of a judgment.

For the above reasons, the appellants’ appeal is dismissed. Costs to be paid by appellants.

APPEAL DISMISSED.

      . Appellants’ security was furnished within the 90 day delay allowed previously.


text:
    ALEX THERIOT, JR., INC. v. LAGER, INC. et al.
    No. 11415.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Bobby L. Forrest, Baton Rouge, for appellants.
    Calvin C. Fayard, Jr., Denham Springs, for appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This matter is before this Court on a Motion to Dismiss Appeal filed by Alex Theriot, Jr., Inc., plaintiff-appellee. On December 10, 1976, judgment was rendered by the District Court dismissing the peremptory exceptions of prescription and no right of action and the declinatory exceptions of lis pendens, improper venue, lack of jurisdiction over the person and lack of subject matter jurisdiction filed by Lager, Inc., A. R. Guglielmo, Inc., Bill Day, Bobby Forrest, Frank G. Sullivan, Jr., A. R. Guglielmo and Roberts Apartment Agency, Inc., defendants-appellants.

The appellants have appealed the judgment insofar as it dismisses, with prejudice, their exceptions of prescription, lis pendens, improper venue and lack of personal jurisdiction. The appellee contends that the judgment of the District Court dismissing these exceptions is an interlocutory judgment and therefore, not appealable.

C.C.P. Art. 2083 provides:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

C.C.P. Art. 1841 provides:

“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
“A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
“A judgment that determines the merits in whole or in part is a final judgment.”

The judgment of the District Court dismissing the appellants’ exceptions was not a determination in whole or in part of the merits of the appellee’s action, but rather, a determination that the District Court would consider the merits of the appellee’s claim. The judgment dealt with preliminary matters in the course of the action and is therefore an interlocutory judgment.

The only irreparable injury alleged by the appellants is that their rights in a suit filed in East Baton Rouge Parish would be impaired or' lost. The right alleged to be impaired is a reconventional demand. The rights alleged to be lost are the exceptions of non-joinder of an indispensable party, prescription and no right of action. The appellants have raised the issues of prescription and no right of action in the present case. The allegedly indispensable party is a party to the present suit. There is no indication as to what the irreparable harm to the appellants would be with regard to their reconventional demand. There has been no showing of irreparable injury by the appellants and the judgment of the District Court is therefore not ap-pealable.

For the above reasons, the appeal is dismissed and the case remanded to the District Court for further proceedings. The appellants are to pay all cost of this appeal.

APPEAL DISMISSED AND CASE REMANDED.


author: PONDER, Judge.

text:
    WASHINGTON BANK & TRUST COMPANY v. CITY OF BOGALUSA SCHOOL BOARD and Parish National Bank.
    No. 11252.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Dale E. Branch, of Seal, Lee, Branch & Brown, Bogalusa, France W. Watts, III, of Watts & Cassidy, Franklinton, for plaintiff.
    Charles M. Hughes, of Talley, Anthony, Hughes & Knight, Bogalusa, for Parish National Bank.
    Woodrow W. Erwin, Dist. Atty., Frank-linton, for City of Bogalusa School Bd.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit to have a fiscal agency contract declared null, and to have issued a writ of mandamus directing that plaintiff be awarded a portion of the contract. The trial court granted judgment in favor of the plaintiff.

Defendants claim the trial court committed the following errors:

1. Issuing a writ of mandamus even though the awarding of the contract was not purely ministerial in nature;

2. Holding that the bids by the two banks were identical; and

3. Failing to hold that a deficit of one-fourth per cent interest on certificates of deposit was a disqualifying factor for a bid.

We reverse and render.

The Bogalusa School Board advertised for bids on its fiscal agency contract, to be based on nine specifications. Washington Bank & Trust Company, Parish National Bank and a third bank entered bids. Parish National Bank was awarded the contract by the School Board, as having submitted the best bid.

The trial court found that the bids were legally identical, and issued the mandamus requiring the school board to award the contract to both banks.

A writ of mandamus will issue to compel performance of a ministerial duty required by law. LSA-C.C.P. Art. 3863. The Fiscal Agency law has not removed all discretion in the awarding of a fiscal agency contract. West Carroll National Bank of Oak Grove v. West Carroll Parish School Board, 136 So.2d 699 (La.App. 2nd Cir. 1961). A mandamus was issued however, when the school board had no discretion. Parish National Bank v. Bogalusa School Board, 256 So.2d 763 (La.App. 1st Cir. 1971) writ refused 260 La. 1120, 258 So.2d 375 (1972). To decide the propriety of the use of mandamus, we must first decide whether or not the bids were identical and the Board was without discretion.

Under Specification number three, Washington Bank and Trust Company offered, at negotiated interest and terms, to make loans for purchasing immovable property, for constructing capital improvements and for adding to capital improvements. Parish National Bank offered to make loans for these purposes at zero percent interest and for maximum legal terms. The bids were otherwise identical.

The court reasoned that some of the loans were covered by another specification and that the ones not covered were not properly included in a fiscal agency contract bid.

The statutes governing local depositories are contained in LSA-R.S. 39:1211-1235. Section 1214 requires written notices to each bank in the parish of the intention of the local depositing authority to select a fiscal agency. The notice “shall specify * * * the conditions and terms of the fiscal agency contract proposed;” and ask for bids “under the terms and conditions of the proposal.” LSA-R.S. 39:1220(4) requires that the local authority be allowed to borrow up to three-fourths of the average deposit at interest not over six per cent. Although other requirements are made by the applicable statutes, nowhere do we find any provision prohibiting terms and conditions in addition to those required. Such an intent could very easily have been expressed had it existed.

The court further reasoned that, since LSA-R.S. 39:554 limits the purposes for which school boards may incur debt and LSA-R.S. 47:1803 requires the approval of the State Bond and Tax Board, specifications as to loans regulated by these statutes could not be included in the bid. However, we believe neither of these statutes are so inconsistent with the provisions of the fiscal agency statutes as to prevent the inclusion of Specification three.

The interest rate charged on loans for purchasing immovable property and for capital improvements was of interest to the board, even though approval of the Bond Commission and of the electorate were needed to make such commitments. If such expenditures were approved by the'proper authority, the school board would have every need to know the interest rates to be charged. We think that Specification number three was properly included in the bid.

As a result, we conclude that the bids were not identical, either in fact or by operation of law. The School Board was correct in awarding the contract to Parish National Bank. It follows that the writ of mandamus was improperly issued.

Appellant contends that the oral offer by Parish National Bank to pay seven percent on certificates of deposit made the six and three-fourths oral offer of Washington Bank and Trust Company a disqualifying or disadvantageous factor. Parish National Bank v. Bogalusa School Board, supra. In view of our decision above, it is unnecessary to consider this point.

For the above reasons, the judgment of the trial court is reversed. The alternative writ of mandamus is hereby recalled and set aside, and the fiscal agency contract awarded by the City of Bogalusa School Board to Parish National Bank is declared valid. All costs are assessed to the plaintiff.

REVERSED AND RENDERED.


text:
    Billy J. TAYLOR v. George A. BROOM, Sheriff of St. Tammany Parish.
    No. 11291.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Byron D. Magbee, Baton Rouge, for plaintiff-appellant.
    William N. Faller, Baton Rouge, for defendant-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a personal injury suit. Plaintiff has appealed the dismissal.

The only issue is the alleged manifest error in finding that plaintiff failed to prove his case.

We affirm.

Plaintiff, while a prisoner in jail, was beating on the steel wall of his cell and screaming. The judge holding court on the lower floor complained of the disruption. After the deputies made several unsuccessful efforts to quieten the plaintiff, the judge ordered the deputies to do whatever was necessary to stop the noise.

Plaintiff’s version is that several deputies, after beating and kicking him, chained him to his cell window. He neither provoked nor resisted the deputies. Three fellow inmates called as plaintiff’s witnesses corroborated plaintiff’s story of mistreatment but had major differences not only among themselves but also with plaintiff.

The deputies and former deputies, witnesses for the defense, testified that plaintiff was handcuffed to the bars of his cell window without any mistreatment or undue difficulty. Although there were some variances in their accounts, each stated positively that he neither struck plaintiff nor saw him struck by any other deputy.

The trial judge said that plaintiff’s witnesses had been completely discredited because of the inconsistencies among themselves and with plaintiff. The case therefore depended on plaintiff’s credibility as opposed to that of the deputies. He held that plaintiff failed to prove his case by a preponderance of the evidence. We cannot say that he committed manifest error. Canter v. Koehring, La., 283 So.2d 716 (1973); Billiot v. Bourg, La., 338 So.2d 1148 (1976).

The judgment is therefore affirmed; appellant is cast with all costs.

AFFIRMED.


text:
    Peter LAMONTE v. Robert C. MASON.
    No. 11303.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Cyrus J. Greco, Baton Rouge, of counsel, for plaintiff-appellant.
    G. William Jarman, Baton Rouge, of counsel, for defendant-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for rental of a tractor and for damages for necessary repairs. The trial court granted the rental but rejected the cost of repairs. Plaintiff appealed.

The only issue is whether the trial court committed manifest error in finding that plaintiff had not proved the damages by a preponderance of the evidence.

We affirm.

Plaintiff orally rented a tractor to defendant, who used it for several hours before it developed a problem in the fuel system and stopped. After plaintiff and his mechanic came to defendant’s place and remedies the problem, the mechanic noticed that the clutch could not be adjusted properly. An internal inspection conducted at plaintiff’s place either one of two days later revealed extensive damage to the clutch plate.

The trial judge concluded that the plaintiff had not shown by a preponderance of the evidence that the clutch was damaged by the negligent and abusive operation of the defendant. In order to secure a reversal, plaintiff must show there is no credible evidence in the record to support the conclusion. Canter v. Koehring, La., 283 So.2d 716 (1973).

Plaintiff testified that the tractor had been used for two days prior to its rental to defendant without indication of clutch malfunction; defendant testified that it was used by him and his son for about three hours without problem.

The expert mechanic said the clutch was torn apart, not burned out. This damage could occur only by suddenly engaging the clutch while pulling the tractor, or by attempting to pull the tractor with its own power after it had become stuck. He testified he saw two sets of tire marks at defendant’s place one from a truck and another from a tractor.

Defendant, however, testified that although he and his son pulled the tractor from the field after it stopped, he did not “pop” the clutch or do anything else that could be considered harmful to the clutch.

When the evidence is conflicting, the trial court must make a determination as to credibility. We can not say the determination made here was unreasonable.

Plaintiff claims the trial court applied an incorrect burden of proof, citing U-Drive-It, Inc. v. Ernst, 23 So.2d 665 (Orl.La.App.1945). We find the case inapplicable because defendant there had acknowledged receipt of the car in good condition and agreed to return it in like condition. Plaintiff sued him for breach of contract.

In the present'case, plaintiff has affirmatively alleged negligent and abusive use. The trial court required him to prove the case he alleged.

We cannot say the court was manifestly erroneous in finding that plaintiff had not borne his burden of proof. Billiot v. Bourg, La., 338 So.2d 1148 (1976).

The judgment of the trial court is affirmed; plaintiff is cast with the costs of this appeal.

AFFIRMED.


text:
    Otis CESARIO et al. v. Bob DAWSON d/b/a Friendship Homes.
    No. 11496.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    A. L. Carbonette, Baton Rouge, for appellants.
    Joel B. Dickinson, Baton Rouge, for ap-pellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This case is before us on a rule to show cause why defendant’s appeal should not be dismissed because the bond was not timely filed.

A judgment in favor of the plaintiff was signed on November 30, 1976. The defendant made a timely application for a new trial, which was denied on December 17,1976. The motion and order for a devol-utive appeal was filed on February 2, 1977, but the appeal bond was not filed until March 28, 1977.

The appeal must be dismissed.

LSA-C.C.P. Article 2087 as amended by Act 201 of 1976 states in part:

“Except as otherwise provided in this article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, within sixty days after:
(2) the court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; ”

The order of appeal and the appeal bond must be filed within the sixty day period allowed by Article 2087. Master Builders of Slidell, Inc. v. Adams, 342 So.2d 1169 (La.App. 1st Cir. 1977). Because the bond was not timely filed, this court is without jurisdiction. LSA-C.C.P. Article 2088.

Defendant claims that Article 2087 as amended is in violation of Article 1 Sections 19 and 22 of the Constitution of 1974. This contention was disposed of in Something Irish Co. v. Rack, 333 So.2d 773 (La.App. 1st Cir. 1976). We adopt the reasoning of the court in that case.

This appeal is therefore dismissed at defendant’s cost.

APPEAL DISMISSED.

      . Article 1 Section 19. Right to Judicial Review
      “No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the 'judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.”
      Article 1 Section 22. Access to Courts
      “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”


text:
    AIRTROL ENGINEERING COMPANY, INC. v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
    No. 11310.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      John S. Thibaut, Jr., Baton Rouge, of counsel for plaintiff Airtrol Engineering Co., Inc., appellee.
    Ben Louis Day, Baton Rouge, of counsel for defendant United States Fidelity and Guaranty Co., appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff sued defendant, a bonding company, for the added amount plaintiff paid for completion of a subcontract when the principal on the bond defaulted. Defendant appealed the allowance of the claim.

Defendant asserts the lower court erred in:

1. Finding payments made by plaintiff to the principal were not advance payments prejudicial to defendant;

2. Finding the contract between plaintiff and the principal contained no restrictions against payments such as those made by plaintiff;

3. Construing the contract so as to violate the “best evidence rule.”

We reverse and render.

Plaintiff was an air conditioning subcontractor on an LSU building. A-l Roofing and Metal Works, Inc., contracted to provide plaintiff the required sheetmetal and duct work, the contract consisting of a purchase order with the words “F.O.B. jobsite installed” typed in. Defendant executed the performance bond for A-l. About two weeks later A-l billed plaintiff for $15,-000.00, representing the invoice to be for labor and materials expended in partial performance. Seven months later, A-l presented another invoice for $9,400.00, representing the cost of additional labor and materials. Plaintiff paid both invoices.

From February to December, 1973, plaintiff gave defendant a series of status reports showing no work done in February, three per cent completed in May, five percent completed in August, September and December.

Subsequently, A-l defaulted and underwent involuntary bankruptcy proceedings. Plaintiff entered into another contract for completion of the work, at a cost of $460,-000.00, plus the cost of the surety bond.

The trial court found that plaintiff had spent a total of $484,400.00, the second contract price plus the $24,400.00 paid to A-l Roofing. Since A-l Roofing had contracted to do the work for $474,200.00, the court awarded plaintiff $10,200.00.

Defendant contends that the payments made by plaintiff to A-l Roofing were advance payments which operated to its detriment, and it should therefore be relieved of the entire suretyship obligation or alternatively pro tanto. The trial judge found that the payments made by Airtrol were based on drawings, materials purchased and work performed by A-l, and were not advance payments.

The trial court also found that the payments by plaintiff to A-l were not contrary to contractual provisions. Defendant’s contrary argument is based on the theory that “F.O.B. jobsite installed” is a requirement that the materials be in place and installed before invoices could be paid.

Plaintiff’s president testified that “F.O.B. jobsite installed” was automatically typed in on all contracts, because on federal government contracts all materials must be in place before payment can be made. This provision was not required on the LSU contract. However, the plans and specifications were not introduced and the failure was not explained. Furthermore, the “job-site installed” provision was a part of the contract when defendant issued its bond. The cavalier attitude that the plaintiff had the prerogative to comply with or ignore the provision is not valid, once another entity, the bonding company, becomes a necessary participant.

The bonding company is entitled to expect that payments will be made in accordance with the contract. In Talbert v. Bounds & Allen, 123 So.2d 815 (La.App. 2nd Cir. 1960), a surety was discharged to the extent of premature payment by the owner. The court emphasized that the owner had violated strict provisions of his contract with the contractor by failing to retain a percentage of each progress payment, to be disbursed following completion of the contract. In Walters Air Conditioning Company, Inc. v. Firemen’s Fund Insurance Company, 252 So.2d 919 (La.App. 2nd Cir. 1971), a surety was discharged to the extent of premature payments made by an owner pursuant to a judgment. The contract required that payments were to be made only after the work had been approved and accepted. The surety had also advised the owner that it objected to payments in violation of the contract.

The court below was of the opinion that the payments made by plaintiff were based on drawings, materials purchased and other work done by A-l. Plaintiff contends that the shop drawings, which were used by the second contractor, became “job-site installed,” when they became finished. Even if we accept this contention it certainly does not apply to the bond premium. As a matter of fact, the bond premium, positively stated by plaintiff’s president to be in the first payment, was not included within the protection of the bond at all. The amount of $3,432.00 will be deducted from the $15,000.00, leaving $11,568.00 covered by the bond.

We cannot agree that the labor and materials of the second invoice were “job-site installed.” The only testimony supporting the payment at all is some vague statements of raw materials being in the shop. It follows that the payment of $9,400.00 was in violation of the terms of the contract.

Plaintiff’s contention that the bond covered the entire bid price which included overhead, intangibles and profits and that therefore payments for these were properly made flies is the fact of the contractual requirement of “jobsite installed,” and is therefore without merit.

We hold that the lower court erred in finding that the payment of $9,400.00 was not in derogation of any contractual restrictions and that the payment of $3,432.00 of the $15,000.00 payment was covered by the bond. The second contract price of $460,-000.00 plus the $11,568.00 covered by the bond amounted to less than the original contract price. The defendant therefore can have no liability.

Our holding obviates the necessity of considering the possible violation of the “best evidence” rule.

For these reasons the judgment of the lower court is reversed and there is judgment herein dismissing plaintiff’s suit at its costs.

REVERSED AND RENDERED.


author: CULPEPPER, Judge.

text:
    Leonard GUILLORY, Plaintiff and Appellant, v. PITRE FORD COMPANY et al., Defendants and Appellees.
    No. 5968.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    J. Harold Fontenot, Opelousas, for plaintiff-appellant.
    Lewis & Lewis by James T. Guglielmo, Opelousas, Fusilier, Pucheu & Soileau by J. Wendel Fusilier, Ville Platte, for defendant-appellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   CULPEPPER, Judge.

The plaintiff, Leonard Guillory, Jr., filed this suit to rescind the sale of a Ford automobile for redhibitory defects. Named as defendants are the seller, Pitre Ford Company, and the manufacturer, Ford Motor Company. The district judge rejected plaintiff’s demand to rescind the sale, but rendered judgment against Ford Motor Company for $500, on the basis of reduction of the purchase price. There is no judgment against Pitre Ford Company. Plaintiff appealed, seeking rescission of the sale and damages and attorney’s fees. In the alternative, plaintiff seeks an increase in the reduction in price. Plaintiff does not complain on appeal of the failure to render judgment against Pitre Ford Company.

The facts are that on February 21, 1975, plaintiff purchased a new 1975 Ford Maverick from Pitre Ford Company for the price of $4,100, of which $1,100 was paid in cash and the deferred payments were $130.30 per month. Five or six weeks after the sale, and after the vehicle had been driven about 600 miles, plaintiff was driving in a hard rain and the car started leaking from under the dashboard on the passenger’s side.

Plaintiff took the car back to Pitre Ford during the first part of April of 1975, and they resealed the windshield. However, about two weeks later while driving the vehicle in another hard rain, it leaked again in the same place. Plaintiff took the car back to Pitre Ford Company, and they again resealed the windshield.

While driving the car in Texas during a hard rain in May of 1975, the car started leaking again. Plaintiff took the car to a dealer in Texas, but apparently they were unable to fix the leak. In August, plaintiff took the car back to Pitre Ford Company in Ville Platte, Louisiana. They notified the Ford Motor Company in September and the manufacturer sent one of its representatives to determine the cause of the leak and accomplish the necessary repairs. During the latter part of September, the representative from Ford Motor Company decided that a weld in one of the seams on the right front portion of the ear must have broken, and this allowed vibrations which continued to break the seals on the windshield. On instructions from the manufacturer’s representative, Pitre Ford Company removed the fenders, the hood and the evaporator, thus exposing all of the welded seams on the front section of the vehicle, and they replaced the cowl and then replaced and resealed all of the other parts. Following these extensive repairs on about October 3, 1975, the vehicle was tested by Pitre Ford Company, and it still had a small leak, about six drops, in the corner of the windshield on the right side. This was repaired. On a return visit by the representative of the manufacturer on about October 25, 1975, they tested the vehicle again and it did not leak.

Pitre Ford notified plaintiff some time during October of 1975 that his car was repaired and requested that he pick it up. Plaintiff refused, advising Pitre Ford that he did not want to take the car back. By this time the vehicle had been driven about 11,000 miles and plaintiff had made seven of the installment payments. When plaintiff failed to make any further payments, foreclosure was instituted by Pitre Ford and the vehicle was sold at a sheriff’s sale on December 16, 1975 for the price of $3,593. The purchaser was plaintiff’s father, Leonard Guillory, Sr. During his testimony at the trial, the plaintiff admitted that his father had experienced no trouble with the car since purchasing it.

Part of the applicable law is succinctly set forth in the recent case of Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La.App. 2d Cir. 1975) as follows:

“In Louisiana sales, the seller is bound by an implied warranty that the thing sold is free of hidden defects and is reasonably fit for the product’s intended use. C.C. Arts. 2475, 2476, 2520; Rey v. Cuccia, 298 So.2d 840 (La.Sup.Ct.1974). A redhibito-ry defect entitling the buyer to annul the sale is a defect in a thing sold ‘which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.’ Article 2520.”

If the defect appears within three days following the sale, it is presumed to have existed before the sale, but where the defect appears more than three days after the sale, the plaintiff bears the burden of proving that the defect existed before the sale was made to him, LSA-C.C. Article 2530.

Even though the plaintiff seeks the rescission of the sale for redhibitory defects, the judge may decree merely a reduction of the price. LSA-C.C. Article 2543. As a general rule, the measure of the amount of price reduction is the difference between the value of the thing as warranted by the seller and the value of the thing as it actually was. In most cases, this is the cost of repairing the defects. However, much discretion is left to the trial judge in determining the amount. Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir. 1972).

As to attorney’s fees, the Civil Code makes a basic distinction between sellers with and sellers without knowledge of the defects at the time of the sale. Article 2531 provides that the seller without knowledge is bound only to restore the price (or pay the reduction in value). Article 2545 provides that the seller with knowledge of the defects at the time of the sale must pay damages and a reasonable attorney’s fee.

In Rey v. Cuccia, La., 298 So.2d 840 (S.Ct. 1974) the court held the manufacturer is presumed to know the defects in the thing made by him, and that the manufacturer is liable in a redhibitory action for damages and attorney’s fees in the same manner as the seller.

In applying these rules to the present ease, we take particular note of the rule of appellate review that the findings of fact by the trial judge should be sustained where there is a reasonable evidentiary basis to support those findings. As to the threshold issue of whether the defect complained of was such that it rendered the car “either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice”, the district judge held that the defect did not warrant rescission of the sale. There is reasonable evidentiary basis to support this finding of fact. The defect was an inconvenience, but this occurred only when it rained, and it did not render the vehicle absolutely useless. It is true that plaintiff placed the vehicle in repair shops on several occasions. But after plaintiff had used the vehicle seven months and driven it 11,000 miles, the leak was finally completely repaired. We conclude the trial judge’s refusal to rescind the sale must be affirmed.

As to the amount of the award of $500 for reduction of the purchase price, the evidence shows that this is approximately the cost of repairing the leak. This finding of fact by the trial judge is also affirmed.

As to the attorney’s fees, the issue of fact here is whether the manufacturer knew of the defect at the time of the sale. The defect did not appear within three days after the sale, and therefore there is no presumption under LSA-C.C. Article 2530 that it existed at the time of the sale. An inference could be drawn that since the leak first occurred five or six weeks after the sale during a hard rain, it must have existed at the time of the sale. However, an equally reasonable inference could be drawn that under the testimony of Ford Motor Company’s expert, that the cause of the leak was probably a break in one of the welds, this could have occurred more than three days after the sale. Under these circumstances, we find the evidence reasonably supports the finding of fact by the trial judge that the defect did not exist until more than three days after the sale. Under this finding of fact the manufacturer had no knowledge of the defect at the time of the sale and is not liable for damages or attorney’s fees.

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

AFFIRMED.


author: HEARD, Judge.

text:
    James G. JOHNIGAN, Jr., et ux., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5969.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Ford & Nugent by Howard N. Nugent, Jr., Alexandria, for plaintiffs-appellants.
    Gist, Methvin & Trimble by David A. Hughes, Alexandria, for defendants-appel-lees.
    Before WATSON, FORET and HEARD, JJ.
   HEARD, Judge.

James G. Johnigan, Jr. and his wife, Deborah Johnigan, brought this suit on their own behalf and on behalf of their minor son, James G. Johnigan, III, to recover damages for personal injuries allegedly received by James G. Johnigan, Jr., his wife, Deborah Johnigan, and his son, James G. Johnigan, III, and damages incurred by the community of acquets and gains resulting from an automobile accident on November 2, 1975 about one mile north of Natchez, Louisiana on Highway 1. Named defendants in the suit are John Richard McCann and his insurer State Farm Mutual Automobile Insurance Company.

Defendants answered denying any liability and expressly averred in the alternative the contributory negligence of James G. Johnigan, Jr. A trial on the merits resulted in a judgment in favor of the defendants. The trial court found that the plaintiff was confronted with a sudden emergency not of his own making which was the cause of the accident. The plaintiffs have appealed the judgment of the trial court.

The plaintiffs assert that the trial court erred in: (1) Failing to impose a legal presumption of negligence upon the defendant, McCann, (2) finding that McCann exculpated himself from ordinary negligence and that the trespassing motorist had satisfied the burden, by convincing proof by showing that he wasn’t guilty of any dereliction, however slight, which may have had a casual connection to the accident, and (3) failing to award damages to the plaintiffs.

The record reveals that defendant McCann was traveling north on Highway 1 approximately one mile north of Natchez, Louisiana on November 2, 1975, at approximately 2:45 P.M. Traveling in front of him was a tractor-trailer unit, commonly known as an “18 wheeler”. In front of the “18 wheeler” was a pickup truck towing a trailer used in hauling cotton. James G. Johni-gan, Jr., his wife, Deborah, and their minor son, Johnigan III, were returning to Alexandria, Louisiana from Shreveport via Highway 1 South. They were unfamiliar with Louisiana highways so they pulled off the highway on the shoulder of the road to consult a road map. At the time of the accident, the weather was clear and visibility was good. The defendant followed the 18 wheeler for some distance at a slow rate of speed until the southbound lane cleared of oncoming traffic and the highway straightened. The defendant McCann observed the Johnigan vehicle parked on the side of the road but it was off the highway and there was room to pass the tractor-trailer unit in front of him. McCann put on his left blinker and attempted to pass the 18 wheeler. When his vehicle was one-half to one-third past the trailer unit, the operator of the tractor-trailer combination, in attempting to pass the vehicle preceding it, pulled into the southbound or passing lane. McCann, in order to avoid a collision with the 18 wheeler, simultaneously applied his brakes and sounded his horn, and was forced off the highway where his automobile immediately collided with the Johnigan vehicle, causing the injuries complained of in this action.

The plaintiff asserts that the trial court failed to impose a legal presumption of negligence upon the defendant McCann.

In stating the duties of a motorist traveling on the right side, overtaking and passing, the Highway Regulatory Act of the State of Louisiana LSA-R.S. 32:71, 32:73 and 32:75 read as follows:

“71. Driving on right side of road; exceptions
A. Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
(1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;
73. Passing on the left.
'A. The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated;
(1) Except when overtaking and passing on the right is permitted, the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass on the left side thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaking vehicle;
(2) Except when overtaking and passing on the right side is permitted, the driver of the overtaking vehicle shall give way to the right in favor of the overtaking vehicle on audible signal, and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.
75. Limitations on passing to the left.
No vehicle shall be driven on the left side of the center of the highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the righthand side of the roadway before coming within one hundred feet of any vehicle approaching from the opposite direction.”

The law is clear that when a driver on his wrong side of the road collides with another car the driver is required to exculpate himself of any fault, however slight, contributing to the accident. Simon v. Ford Motor Co., 282 So.2d 126 (La.1973); Rizley v. Cutrer, 232 La. 655, 95 So.2d 139 (1957); Noland v. Liberty Mutual Ins. Co., 232 La. 569, 94 So.2d 671 (1957). In the case of Rizley v. Cutrer, supra, Justice McCaleb stated:

“Here, the situation is different because Cutrer, having caused the accident by leaving his own traffic lane, is presumed guilty of negligence and the onus rested on him to demonstrate that the accident resulted from such a state of unforeseeable circumstances beyond his control (and to which he did not contribute) that he could not extricate himself, despite the efficient use of all protective measures at his command. In other words, it was his burden to show that he was not guilty of any dereliction, however slight, which may have had causal connection with the accident. We say this because it seems only reasonable to resolve that a motorist owes to the traveling public the duty of remaining in his own lane of traffic and, when he undertakes to enter the lane devoted to approaching traffic, he must be held strictly accountable for all damages resulting therefrom unless he clearly exhibits that his conduct in no wise contributed to the accident.”

The trial court found that the defendant John McCann was confronted with a sudden emergency and as a result could not be expected to act with the same sound judgment that he would under normal circumstances. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385.

In the case of Dick v. Phillips, 253 La. 366, 218 So.2d 299 (1969), the court stated:

“Although Phillips invokes the doctrine of sudden emergency to exculpate himself from a charge of negligence, the doctrine is not available to him. The rule of sudden emergency cannot be invoked by one who has brought about that emergency on himself by his own wrong or who has not used due care to avoid it. The sudden emergency doctrine is applicable to the standard of conduct of a motorist after an emergency has arisen, it does not apply to lower the standard of care required of motorist before the emergency occurs. 2 Blashfield, Automobile Law and Practice § 102.28 (3rd ed. 1965). See also Noland v. Liberty Mutual Insurance Company, 232 La. 569, 94 So.2d 671 (1957).”

It is not disputed that when the defendant McCann pulled around the 18 wheeler to pass, he saw the plaintiff Johni-gan’s automobile facing him on the shoulder of the highway. He, by his observations, knew he would have to drive between the Johnigan automobile and the 18 wheeler. Mr. McCann further stated that as he pulled into his left lane to pass, he didn’t see or know how many vehicles he was passing. He stated further he failed to see the 18 wheeler pull to the center line although there was nothing to prevent him from seeing the 18 wheeler beginning to pull over. Mr. Johnigan testified that as Mr. McCann drove up beside the 18 wheeler, the driver turned on his left turn blinker light to pass the pickup truck and trailer in front of him. McCann, by continuing to drive forward, contributed to the emergency. We find that the defendant McCann failed to exculpate himself from fault contributing to the accident. In finding that the defendant McCann did not contribute to the emergency, we think the trial court committed manifest error.

Dr. Robert B. Curry, an orthopedist at England Air Force Base, testified that Mr. Johnigan was examined at England on November 3, 1975. The report stated that he was complaining of pain on his left side and in his lower back. On examination he was found to have tenderness in his left flank. A back examination was negative. The doctor stated that his examination was negative to any objective findings.

Dr. Humphrey Hardy saw Mr. Johnigan on September 3, 1976. He stated that his examination revealed an area of tenderness that was fairly well localized over his low back on the left in the region of the sacroiliac joint.

Major Dennis Radke, a dentist at England Air Force Base, stated that Mr. Johnigan lost one front tooth and because of complications, the adjoining tooth was loose and would require extraction in the future. For the plaintiff’s, Mr. Johnigan’s, injuries we think $8,000.00 would be adequate.

Mrs. Johnigan testified that her injuries consisted of a muscle strain in her shoulder and soreness. We believe that $700.00 would compensate her for her injuries.

The testimony revealed that the only injuries received by James G. Johni-gan, III, were cut lips and loss of a baby tooth. We believe that $300.00 is adequate for these injuries.

The bill of United States of America in the amount of $442.00 is stipulated as well as the damages to the automobile in the amount of $1,150.00. Expert witness fees for Dr. Humphrey Hardy, Dr. Robert Curry, and Dr. Dennis Radke are fixed at $100.00 each and taxed as costs.

For the foregoing reasons the judgment of the trial court is reversed and there is judgment in favor of James G. Johnigan, Jr. in the full sum of $8,000.00 and the further sum of $1,592.00, and on behalf of their minor son, James G. Johnigan III, in the sum of $300.00, and in favor of Mrs. Deborah Johnigan in the sum of $700.00, all with legal interest from judicial demand until paid, and against John Richard McCann and State Farm Mutual Automobile Insurance Company in solido. All costs of this appeal are to be paid by defendant-appellees.

REVERSED AND RENDERED.


author: FORET, Judge.

text:
    SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORP., Plaintiff-Appellant, v. P. ROY DUPUIS, Defendant-Appellee.
    No. 5971.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Davidson, Meaux, Sonnier & Roy by J. J. Davidson, III, Lafayette, for plaintiff-appellant.
    Bean & Rush by James W. Bean, Lafayette, for defendant-appellee.
    Before WATSON, FORET and HEARD, JJ.
   FORET, Judge.

This case involves an expropriation by the Southwest Louisiana Electric Membership Corp., also known as SLEMCO, of a servitude one hundred (100') feet in width (an H-framed transmission line formed of two poles with a cross arm and X-braces between them) from defendant Dupuis’s 173-acre tract of land situated in Lafayette Parish, Louisiana, the front portion of which was undeveloped and had a frontage of approximately fourteen hundred (1400') feet along U.S. Highway 167, and the rear portion of which was composed of lots and streets of a subdivision called Bellevue Plantation. The transmission line traversed that portion of defendant’s property situated between the Bellevue Plantation and U.S. Highway 167. SLEMCO and Du-puis agreed as to the plaintiff’s right to expropriate, as to the amount of acreage expropriated (7.32 acres), as to the highest and best use (commercial), and value ($20,-000.00 per acre), of the front portion of the subject tract, and as to the highest and best use (residential) of the rear portion of the subject tract. Thus the only contested issues were those of the value of the rear portion of the subject tract and severance damages, which issues the trial court resolved by ruling that defendant was entitled to $82,656.00 ($12,000.00 per acre for the rear portion) as just and adequate compensation for the servitude taken and to $70,368.00 as severance damages to the remaining acreage, particularly to that portion of defendant’s subject tract lying within two hundred feet of the outer perimeters of the servitude (which the trial court found to have suffered a 30% loss of value). From these rulings, SLEMCO perfected this appeal. We affirm.

I

VALUE OF REAR PORTION OF SUBJECT TRACT

On trial of this matter, five expert appraisal witnesses' — Misters Gene N. Cope, George Baker, Preston Babineaux, J. Y. Foreman, and Jesse Guidry — the former two on behalf of SLEMCO, and the latter three on behalf of defendant Dupuis, testified. Cope and Baker appraised the rear portion from $7,600.00 to $8,000,00 per acre and Babineaux, Foreman and Guidry from $12,000.00 to $14,000.00 per acre.

Defendant’s appraisers used the market data approach, a method by which fair market value is determined from a study of the sales of properties similar in characteristics to that of the subject tract. Their studies were conducted using comparable properties — those possessing like terrain, topography, location, size, frontage — and sales very recent in times to the date of the expropriation.

The award of the trial court of $12,000.00 per acre for the rear portion of defendant’s subject tract was thus based upon substantial facts, expert testimony, and was within the range of values as given by all of the experts who testified. For those reasons, we affirm this ruling of the trial court. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

II

SEVERANCE DAMAGES

At trial, defendant’s experts, Babineaux and Guidry, estimated that the value of the subject tract after the taking was some $70,000.00 less due to severance damages. They testified that, based upon their experience in buying and selling properties, these damages were attributable to loss of frontage along U.S. Highway 167, of desirability, and of utility (loss of one tier of lots) of the subject property. SLEMCO’s appraisers, Cope and Baker, testified that the subject property suffered very little in the way of severance damages. Cope seemed to agree with the opinion of Babineaux and Guidry as to loss of desirability when he stated:

. The easiest [unencumbered or encumbered property] property to sell would be the one without the transmission line, or any other servitude on it.”

SLEMCO argues that Dupuis contends that severance damages are due as a matter of law to defendant; that its witnesses at trial produced photographs illustrating that residences are built in close proximity to transmission lines; and that none of the expert appraisal witnesses of defendant Du-puis produced comparables from which one could determine the amount of severance damages suffered due to an expropriation of a transmission line servitude.

In the case of Southwest Louisiana Electric Membership Corp. v. Huval, 317 So.2d 264 (La.App. 3 Cir. 1975), writ refused 320 So.2d 913 (La.), the facts were very similar to the case at hand. Photographs illustrating the existence of residences in close proximity to a transmission line were presented on behalf of SLEMCO; Cope, expert appraiser for SLEMCO, testified that given a choice to purchase one of two properties, one on which a transmission line servitude existed, and another in which it did not, he would choose the latter; Babi-neaux testified on behalf of the defendant-landowner; evidence was adduced that Cope had limited experience in the field of the sale and purchase of property whereas Babineaux had much experience in those endeavors. Reaching those factual conclusions, this Court stated:

“The testimony of these experts confirms the obvious, that the immediate proximity of high voltage electric lines reduces the desirability and value of property for residential purposes.” Huval, supra, at page 266, and citation omitted.

In the case of SLEMCO v. Beck, 299 So.2d 411, 414 (La.App. 3 Cir. 1974), writ refused 302 So.2d 30 (La.), this Court commented as follows upon the adequacy as evidence of similar photographs used as against the argument for severance damages:

“The fact that certain persons, due to insufficient finances or poor economic status, must purchase adjacent to certain servitudes does not offset or overcome the fact that the property adjoining and affected by transmission lines is usually rendered less valuable. In reality, persons choose to live near such servitudes only because they are unable to afford better and more expensive homesites.”

The clear weight of evidence adduced at the trial at hand was to the effect that the transmission line was of such dimensions so as to be readily apparent and unsightly to a prospective purchaser of a residential lot in the Bellevue Plantation subdivision; that its existence reduced the market value of the subject property in close proximity thereto; and that, accordingly, the subject property sustained a substantial loss as a result of the expropriation of the transmission line servitude.

For the foregoing reasons the judgment of the trial court is affirmed.

All costs of this appeal are to be borne by plaintiff-appellant, SLEMCO.

AFFIRMED.