author: LEMMON, Judge.

text:
    Mrs. Anne Stringer Meyer, wife of William Andrew MEYER v. William Andrew MEYER (two cases).
    Nos. 8777 and 9136.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.

      John M. Holahan and Janet Mary Riley, New Orleans, for plaintiff-appellee.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Max Nathan, Jr. and Robert C. Lowe, New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

' The appeal by William Meyer under Docket No. 8777 questions that part of a February, 1977 divorce judgment which granted his wife alimony under C.C. art. 160 in the amount of $600.00 per month. Issues raised in this court are (1) whether Mrs. Meyer had sufficient means for her support and (2) whether the amount of the award was within the trial court’s discretion. The trial court’s finding that Mrs. Meyer was free from fault and the award of child support at the rate of $500.00 per month for the one minor child are not contested.

I

At the time of trial Mrs. Meyer had no income and was not employed, although she had attempted to secure employment. She had earned less than $400.00 in 1976. She owned a lot of vacant ground in Mississippi, which her parents had purchased for her for $5,000.00, and the parents were still making mortgage payments, the balance being $3,500.00. She had also borrowed $3,000.00 from her parents “to help me with the divorce, the accountant and everything”.

In support of his contention that his former wife had sufficient means for her support, Mr. Meyer asserts that her share of the unpartitioned community property is worth at least $80,000.00. The principal community asset is a one-half interest in a business enterprise operated as an equal partnership by Mr. Meyer and his’ brother (along with a community interest in payments on the immovable property where the business is located), but Mrs. Meyer receives no income therefrom. Other assets are a negligible amount of cash, the cash value of life insurance, the community home and furnishings (occupied by Mr. Meyer), two automobiles, and miscellaneous movable property.

In the determination of what constitutes “means” within the contemplation of C.C. art. 160, the nature of the property is a very relevant factor. And the fact that the property is unpartitioned community property is another relevant consideration in this case.

Mrs. Meyer simply did not currently have “available resources, such as property or money, from which the wants of life may be supplied”. Ward v. Ward, 339 So.2d 839 (La.1976). She had no presently available “means” to purchase food, clothing, shelter and other basic necessities.

The consequence of liquidation is another relevant factor in determining “means” for support. Loyocano v. Loyocano, 358 So.2d 304 (La.1978), rehearing granted. Mr. Meyer’s argument that his former wife has sufficient means for her support (because she owns an interest in unpartitioned community property, although that interest produces no income to her and does not otherwise furnish her with present means for her support) implicitly contends that she must either accept his settlement offer or file for a partition by licitation in order to be entitled to alimony. But certainly she should not be denied alimony because of refusing to accept a settlement offer when the reasonableness of the offer has not been shown and is apparently subject to substantial dispute. Furthermore, denial of alimony because a wife has the right to demand a judicial partition (a right likewise available to the husband) would compel her to seek a hasty forced sale which may result in detriment to both parties.

The more prudent approach, under the circumstances of this case, is to require the husband to pay alimony to the wife sufficient for her maintenance until the community is settled or until some provision is made to provide support to her through a partial distribution of the property or an advance on the settlement.

We conclude that although Mrs. Meyer did own an interest in substantial community property, that interest was not then available as a “means” for her to purchase basic necessities and therefore did not then provide her with “means” for her support.

II

As to the amount of the award, Mr. Meyer conceded his ability to pay the amount of $600.00 demanded in the petition.

Mrs. Meyer itemized her needs based on current expenses at $844.73. While some of the items did not qualify as necessary for maintenance, we cannot say the trial judge abused his discretion in setting the alimony at $600.00.

III

The appeal under Docket No. 9136 involves a judgment denying a motion to terminate or decrease alimony.

After the February, 1977 divorce judgment which set alimony under C.C. art. 160 at $600.00 per month, Mr. Meyer filed a motion to terminate or reduce alimony on the basis that his former wife was gainfully employed.

At the July, 1977 trial of the rule Mrs. Meyer was working part-time for a florist, earning $2.00 per hour, with average weekly net earnings of $71.00. However, her expenses had also increased. She had purchased an automobile and was paying monthly installments of $131.90; her automobile insurance had increased substantially; her hospitalization insurance had risen; her medical expenses increased sharply because of an allergy requiring medical treatment and frequent medication; and her employment expenses included a license, cost of uniforms and association dues. She also testified that she had borrowed an additional $2,000.00 from her parents.

Many factors, including the relative financial positions of the parties, bear upon the determination of what amount should be awarded for the wife’s maintenance. Applying the rule of reasonableness here and noting that the original award of $600.00 was exactly the amount demanded, we cannot say that the trial judge abused his discretion in continuing alimony at $600.00 in the light of all factors and circumstances.

The judgment is affirmed.

AFFIRMED.

      . Two separate appeals from separate judgments after separate trials in the district court were consolidated for argument in this court. The appeal under Docket No. 9136, from a judgment denying a subsequent motion to terminate alimony, will be discussed separately.

      . The community property was listed in a court-ordered inventory, the valuations of which are disputed. Mr. Meyer’s assertion of an $80,000.00 valuation is founded on his rejected offer to pay her that sum in settlement of the community.
      We note that the inventory was not introduced into evidence, and the items and evaluations were not subject to cross-examination. For purposes of disposing of this appeal we rely primarily on the apparently undisputed fact that the principal asset was the interest in the ongoing business partnership.

      . Judges Redmann and Lemmon acknowledge their reasoning is influenced by the belief that (although the issue is not now before us) a husband who uses his separate funds to pay alimony pending settlement of a substantial community is really granting an advance on the settlement and thus would be entitled to a credit in the final settlement.
      This reasoning is analogous to that expressed by the Supreme Court in Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950), which emphasized the “highly inequitable” nature of the situation after a community property settlement if the wife is permitted to retain her property while the husband is required to deplete his. This observation should apply equally to theoretical depletion of one share and not the other before the community property settlement.

      . In the cases cited by Mr. Meyer which granted reduction or termination of alimony, there was evidence showing the wife’s financial position had been improved somewhat, but an important balancing factor was the husband’s limited ability to pay alimony.


source: Caselaw Access Project

author: REDMANN, Judge. LEMMON, Judge, GULOTTA, Judge,

license: Public Domain

text:
    Beatrice COLLINS v. Joseph GERACE et al.
    No. 8820.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Barbara Hausman-Smith, New Orleans Legal Assistance Corp., New Orleans, for plaintiff-appellant.
    James A. Piper, James A. McGraw, Baton Rouge, for defendants-appellees.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   REDMANN, Judge.

Appellant’s complaint is that, on the form for the decision of the unemployment compensation appeals referee, (1) the type size of the notice, at the top of the form, that appeal must be taken in ten days is so small that it does not effectively constitute notice; and (2) that a notice at the bottom of the form, that claimant desiring to exercise further appeal rights should continue to file “your claim for weekly benefits” was defective in that the quoted words were not reproduced in the duplicating process'. Appellant argues she did not have notice of the ten-day limit; and that therefore her appeal was improperly dismissed as untimely-

We affirm the dismissal for untimeliness. The ten-day limitation is not in itself unreasonable because the claim is for weekly sustenance; and, if notice other than from the statute itself is due, the notice was quite explicit in a type legible by the unaided eye. (The type size displays 15 characters in the width occupied by ten characters from the typewriter used on the notice.)

Affirmed.

LEMMON, J., assigns additional reasons.

GULOTTA, J., dissents.

LEMMON, Judge,

assigning additional reasons.

Arguably, in administrative proceedings, where the claimant is not usually represented by counsel and is not familiar with requirements of law, special efforts should be made by the agency at every critical stage to notify the claimant of his rights. But the notice procedure in this case, while subject to improvement, was reasonably sufficient to inform the unrepresented claimant that she had to appeal within ten days. Furthermore, if she was not clearly informed of her appeal rights, the very clear decision of the referee that her claim was denied should have prompted her to inquire as to further procedures for relief.

GULOTTA, Judge,

dissenting.

I dissent from the majority opinion affirming the dismissal for untimeliness. The smaller-than-usual print on the almost illegible copy explaining the necessity of taking an appeal from the decision of the appeals referee within 10 days is not sufficiently eye-catching to constitute notice. The claimant in this case is a maid and probably untrained in the thorough reading and in the understanding of quasi-judicial documents. The eye-catching “FINDINGS OF FACT” are located in a prominent place on the document but the smaller-type instructions on appeal rights are not.


author: GAUDIN, Judge.

text:
    GRETNA GLASS & MIRROR WORKS, INC. v. CRESCENT CITY BAPTIST CHURCH and Realty Resources, Inc.
    No. 8834.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.

      Jacob L. Karno, Metairie, for plaintiff-ap-pellee.
    John C. Werhan, Metairie, for defendants-appellants.
    . Before STOULIG, BEER and GAUDIN, JJ.
   GAUDIN, Judge.

Petitioner, Gretna Glass & Mirror Works, Inc., brought this action against the Crescent City Baptist Church and Realty Resources, Inc. to enforce a materialman’s lien.

Following an adverse judgment in the district court, defendants lodged this appeal.

The facts, generally not in dispute except in only one significant part, are these:

The Crescent City Baptist Church contracted with Realty Resources, Inc., whereby Realty Resources was to construct a building for the Crescent City Baptist Church. Gary P. Daigle, representing Realty Resources, called on Edward M. Kass, president of Gretna Glass, and asked for a bid on eighty-eight (88) windows. Mr. Kass submitted an oral bid, which was accepted.

Gretna Glass assembled the windows in aluminum frames and delivered them to the construction site. Subsequently, the contractor refused to accept and use the windows as the frames were of aluminum and not steel, and did not meet building code standards.

The prime issue for adjudication was whether the plans and specifications given to Mr. Kass by Mr. Daigle called for aluminum windows.

At the trial, several sets of plans and specifications were produced, including one set that clearly specified aluminum windows. Mr. Kass testified that this was the set presented to him by Mr. Daigle, while Mr. Daigle said that another set had been used.

The trial judge resolved this factual dispute in Gretna Glass’ favor, and we find no manifest error.

Defendants further contend that a person of Mr. Kass’ experience should have realized that aluminum windows would not meet building code requirements.

However, the testimony showed Mr. Kass’ expertise to be in the field of glass windows. He had no special knowledge with regard to the fire-resisting differences between aluminum and steel, and he had no unusual awareness of building code specifications.

If the plans and specifications given to Mr. Kass were erroneous, and obviously they were, he was under no duty to check further. The law imposes no such duty even on an experienced contractor receiving plans from an owner. See LeBreton v. Brown, La.App., 260 So.2d 767; Sisters of the Good Shepherd v. Quinn Const. Co., La.App., 225 So.2d 225; Pittman Construction Co. v. City of New Orleans, La.App., 178 So.2d 312; and also LSA-R.S. 9:2771.

When the contractor learned that aluminum windows couldn’t be used, he directed Gretna Glass to take them back.

The trial judge awarded the amount of the verbal contract, minus a salvage value.

We affirm.

AFFIRMED.


author: GARSAUD, Judge.

text:
    Joanne JONES v. Delores MEINKE et al. Mrs. Lynell ALLEN et al. v. Belinda MEINKE et al.
    No. 8863 Consolidated with No. 8864.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Carl & Roussell (Robert T. Hughes), New Orleans, for Joanne Jones, plaintiff and appellant.
    Kernan A. Hand, Kenner, for Lynell Allen, Ronald Allen, Joyce Allen & Theresa Green, plaintiffs and appellants.
    Porteous, Toledano, Hainkel & Johnson (Henry Leon Sarpy); New Orleans, for Cu-mis Ins. Society, defendant and appellee.

      Christovieh & Kearney (W. K. Christo-vich), New Orleans, for Delores Meinke, Belinda Meinke & Old Reliable Fire Ins. Co., defendants and appellees.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   GARSAUD, Judge.

These consolidated cases arose as a result of a two-car accident on Causeway Boulevard between Jefferson Highway and Airline Highway on October 5,1975 at approximately 10:45 P.M. The accident occurred when the vehicle driven by Mrs. Lynell Allen, one of the plaintiffs, was struck from the rear by the vehicle driven by Belinda Meinke and owned by her mother, Delores Meinke. Plaintiffs-appellants Joyce Allen, Theresa Green and Joanne Jones were passengers in the Allen automobile. As a result of the accident, the Allen vehicle was completely destroyed and all the occupants were injured. Plaintiffs Lynell Allen, Joyce Allen and Theresa Green brought suit against Belinda Meinke and her insurer, Old Reliable Fire Insurance Company. Joanne Jones brought suit against Delores Meinke, Belinda Meinke and their insurer, Old Reliable Fire Insurance Company, and against Lynell Allen, the driver of the first vehicle, and her insurer, Cumis Insurance Society.

The cases were consolidated for trial, after which judgment was rendered in favor of all defendants, dismissing plaintiffs’ suits at their cost. The trial court concluded that the accident occurred solely as the result of the action of an unknown third party not joined in this suit. All plaintiffs have appealed.

The essential question herein is whether the defendant was able to exonerate herself from the presumption of negligence as an operator of the following vehicle involved in a rear-end collision by showing that the accident occurred as the result of a sudden emergency which prohibited her completely executing a maneuver which was designed to avoid and could have avoided the collision.

The initial inquiry in any rear-end collision must begin with the provisions of R.S. 32:81, which states, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” As the courts of this state have established, a presumption of negligence or a presumption of a breach of the standard of conduct imposed by the statute arises when a motorist strikes the rear of a preceding vehicle. The following motorist must then overcome the respective presumption. Eubanks v. Brasseal, 310 So.2d 550 (La.1975); Leftwich v. Molony, 322 So.2d 438 (La.App. 4th Cir. 1975); Neese v. Guillory, 310 So.2d 660 (La.App. 1st Cir. 1975); Layfield v. Altazan, 255 So.2d 363 (La.App. 1st Cir. 1971).

We now apply these rules to the facts of this case.

The defendant Meinke’s version of the accident is that as she came out of the turn on the overpass from Jefferson Highway onto Causeway Boulevard, she first spotted the plaintiff Allen’s car in front of her in the right lane approximately two car lengths ahead. She then followed the car on the flat-surface road that is found immediately before the incline to the major overpass on Causeway Boulevard at its intersection with Airline Highway. At that point both cars were moving at about 30-35 m. p. h. According to the defendant, as a result of the Allen car slowing or stopping, she closed the gap to within about a car length, at which time she signalled to move into the left lane, which she proceeded to do, and which she testified she could have done without any difficulty. It was at this moment that an object which was thrown from the side of the road hit the Meinke windshield, completely shattering it. At this instant the defendant was unable to see and attempted to apply her brakes, after which she collided with the Allen vehicle.

The plaintiffs’ testimony is that Lynell Allen was travelling along at a steady rate of speed at about 30 miles an hour, and was struck from the rear. None of the plaintiffs believe that Lynell Allen slowed or stopped; and she denied doing so. However, two plaintiffs, including the driver of the forward vehicle, Lynell Allen, testified that something had hit their car at the very same point on Causeway Boulevard at which the Meinke car also was hit by some object. Evidence in the record also indicated that a petition filed in a subrogation action by her insurer alleges that Lynell Allen had slowed her car as a result of its being struck by some foreign object. On cross-examination, she was unable to recall advising her insurer of this fact.

Further testimony of plaintiffs’ witnesses which is of relevance indicates that while the parties in the first car were engaged in conversation, the plaintiff in the passenger seat, Ms. Jones, looked back and saw the defendant’s vehicle about 15 car lengths away proceeding “sort of fast.” She also indicated that at this point the car was straddling the center line. At this moment Ms. Jones exclaimed something about the rear vehicle. This caused passenger Green to look back and her testimony was that she felt that the car was not proceeding very fast and felt that they were in no danger. Ms. Jones herself testified there was no reason why the following vehicle could not move into the left lane, and she felt that they were in no danger.

Under R.S. 32:81, the requirement is, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” As there were no other cars on the highway (the evidence is unanimous on this) and the evening was clear, defendant Meinke was not following plaintiff’s vehicle more closely than was reasonable and prudent, especially since she was in a position to execute a maneuver which would have permitted her to safely pass the plaintiff’s vehicle. The defendant was confronted with a sudden emergency over which she had absolutely no control, and there was nothing more she could do that she failed to do, or no other duty owed to the plaintiff that she did not meet. Defendant’s reasonable expectation under these circumstances, on seeing the forward vehicle slow down, was that she would be able to pass on the left without any difficulty. Apparently this was a normal maneuver, as the defendant was following plaintiff’s car at a reasonable distance, and when she noticed the space was closing between the two, either because the plaintiff’s car slowed down or for some other reason, she executed the normal change-of-lanes maneuver in order to pass the plaintiff’s vehicle. She' admits that if she had continued on, she would not have been able to stop timely, as the plaintiff’s vehicle was either stopped or coming to a stop. However, there was a safe maneuver still available to her to avoid any collision, which she proceeded to undertake. It was at this moment that an object thrown by an unknown third party struck her vehicle, which caused the accident. There was no manifest error in the trial court’s conclusion that the primary cause of the accident was the unknown third party and that the defendant overcame the presumption of negligence, and we sustain that finding. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976).

A second issue which must be resolved is the suit by plaintiff Joanne Jones, a passenger in the Allen vehicle, who contends that as an innocent third party she is entitled to recovery under the rule of Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970), wherein it was held that when an innocent third party is injured as a result of the concurrent acts of two parties under circumstances where one or the other must have been at fault, the burden of proof is shifted to those parties to exculpate themselves from negligence. It is our view in this regard that under these circumstances there has been no showing that one of the drivers must have been at fault. We believe the applicable rule here was stated in Michel v. State Farm Mutual Automobile Insurance Co., 314 So.2d 535 (La.App. 1st Cir. 1975):

“[O]ne of the elements of proof required to invoke the rule is that plaintiff prove facts and circumstances that show one or the other of the defendants must be at fault, a finding of negligence on the part of at least one defendant is mandated by logic. . . In no case can a trial court find that both defendants exculpated themselves, because it is basic to an application of the rule that one or the other of the parties must have been at fault. If both parties were innocent, then the rule was not applicable in the first place.” 314 So.2d at 538, 539.

We have already concluded that the defendant Meinke was not negligent in this incident, and it is clear that the defendant Lynell Allen, under either version of the testimony (/. e., that she never slowed down, or that she slowed down due to objects hitting her car) was not negligent. This case is simple, really: the accident would not have occurred if it were not for the unfortunate incident of objects being thrown at the vehicles. Neither driver could have anticipated this, and neither was negligent.

For these reasons, the decision below is affirmed.

AFFIRMED.

      . There is some evidence to indicate that earlier in the evening, objects had been thrown at the Meinke vehicle when it was proceeding on Causeway Boulevard at the same area, but in the opposite direction. However, there is no specific proof showing that objects were in fact thrown, nor is there anything to indicate that she should have anticipated these actions to continue to the time she returned on Causeway Boulevard.


text:
    Ernestine PERRILLOUX v. Rose Ann Cook, wife of Arizona BATISTE.
    No. 8894.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.

      Kliebert & Landry, Gramercy, Michael K. Heltz, Baton Rouge, for plaintiff-appellant.
    Donald J. Cicet, Reserve, for defendant-appellee.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   GARSAUD, Judge.

This is an appeal from the dismissal of plaintiff Ernestine Perrilloux’s suit by the maintenance of an exception of no cause of action in the trial court. Defendant Cook had filed exceptions of no cause of action and no right of action in this matter. The trial court held that plaintiff’s petition disclosed no cause of action for which relief can be granted, and that the plaintiff’s petition did not conform with the requirements of Article 891 of the Code of Civil Procedure. This latter reason was not asserted by the defendant at the trial court level. The exception of no cause of action was maintained, thus no ruling was necessary on the exception of no right of action.

This suit for defamation was brought by plaintiff-appellant against defendant for a remark made by the defendant on the witness stand in the courtroom of the Honorable C. William Bradley, 29th Judicial District Court. Defendant Rose Ann Cook was apparently a criminal defendant in Judge Bradley’s court. Plaintiff Perrilloux was present in the courtroom at the time that the defendant was testifying. According to plaintiff’s allegations, while on the witness stand defendant looked straight at petitioner and said, “Your Honor- — that whore — I caught her in bed with my husband.” As a result, plaintiff has filed suit seeking $30,-000 in damages on behalf of herself and members of her family for embarrassment arising out of the alleged malicious slandering of plaintiff in the presence of her friends, relatives, and others. Subsequently, plaintiff amended her petition to allege that the defamatory statements were made with knowledge of their falsity and/or with reckless disregard for the truth, and asked an additional $30,000 for punitive damages.

With regard to defendant’s exception of no right of action, which was based on plaintiff’s claimed damages on behalf of members of her family for their alleged embarrassment, the trial court did not reach the issue, as his maintaining the exception of no cause of action made the question moot. It is sufficient here to say that plaintiff is not entitled to sue for damages for embarrassment to other members of her family unless she is suing in a representative capacity on their behalf. Such representative capacity was not alleged.

The sole issue, therefore, on this appeal is whether the trial court erred in maintaining the exception of no cause of action.

Since, for purposes of an exception of no cause of action, all allegations contained in the plaintiff’s petition must be accepted as true, plaintiff’s petition does establish the essential elements of defamation sufficiently to state a cause of action. These essential elements are (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) injury. Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2d Cir. 1975). Perhaps the trial judge felt that as there was no certainty with respect to the person defamed in that the defendant did not use any name, it was sufficient to defeat the cause of action. It is our view that the petition sufficiently suggests the individual about whom the allegedly defamatory remarks were addressed when it states, “. . . while looking straight at petitioner.” Whether the defendant was in fact specifically referring to plaintiff is a question which must be examined and determined at a trial on the merits. For example, the question of whether some or all of the other persons in the courtroom understood that the remarks were being directed to the plaintiff may establish that the remarks were made specifically about her. Further, as one of a small group of women in the courtroom that day, to which by definition the defamation was addressed, the plaintiff has by her allegation at least established a cause of action.

With respect to the trial court’s reference regarding the plaintiff’s failure to comply with the requirements of C.C.P. Art. 891, the trial court gives no reason in explanation of the failure to comply with the article. Whatever the deficiency would be, it would seem that such deficiency could be cured by an amendment, and such amendment should have been ordered. C.C.P. Art. 934.

Accordingly, for the reasons stated, we reverse the trial court’s maintenance of the exception of no cause of action, and remand for a trial on the merits consistent with this opinion.

REVERSED AND REMANDED.


author: SCHOTT, Judge.

text:
    Chaffie BROWN v. DELTA AIRLINES, INC. and Argonaut-Southwest Insurance Company.
    No. 8895.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.

      George V. Perez, Jr., Slidell, for plaintiff-appellee.
    Daniel E. Becnel, Jr., in pro per.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   SCHOTT, Judge.

This is an appeal by Daniel E. Becnel, Jr., an attorney at law, from a judgment which amended a previous order of the court fixing his attorney’s fee for representing Chaffie Brown in a workmen’s compensation proceeding.

On July 11,1975, Becnel, who represented Brown, filed a motion in which he recited that the original defendants had agreed to pay all past due benefits and he requested authority to pay his attorney’s fee in the amount of $3750 out of the initial proceeds of $5481.09, so that Brown could receive all future compensation checks directly from the defendants. He also requested authority to pay the costs of the physicians for services and treatment out of these initial proceeds, with the remainder of the funds to be transferred to Brown after proper accounting was given to him. He obtained an ex parte order granting the motion.

In September, 1975, Becnel moved that the original defendants be held in contempt for failing to pay court costs, and he alleged that they had failed to pay witness fees for nine physicians who testified at the trial and to reimburse him and Brown for various medical bills which Brown incurred. Prior to the hearing on the motion for contempt, the original defendants paid a number of the bills and the trial of the motion was apparently continued indefinitely. On November 17, 1975, Brown, now represented by present counsel, George V. Perez, Jr., filed a motion to schedule a hearing on this motion for contempt previously filed by Becnel, and the contempt proceedings were scheduled for and tried on December 29, 1975.

The transcript of those proceedings begins with a statement by the trial judge that Perez and defendants’ attorney, Robert L. Morris, were late and because Becnel had a jury trial the court could not hold him. However, Becnel had submitted to the court a copy of a letter he wrote to Brown on December 19 in which Becnel stated that he had received a check from the defendants in June for $5481.09 and some additional checks in September and December. Out of these funds he paid medical expenses for Brown and court costs incurred in his behalf in the amount of $3923.21, of which he had been only partially reimbursed by defendants so that he was still short $385.98 on his fee of $3750. However, it developed at the hearing that the defendants had duplicated a number of the payments made to the doctors by Becnel, and the defendants denied liability for some of the medical expenses for which Becnel was claiming reimbursement. During the course of these proceedings Becnel returned to the courtroom, and after lengthy discussion among counsel and the court it was understood that the question of the amount for which Becnel was entitled to be reimbursed by defendants would be calculated by the court.

At this point, Perez raised the question of Becnel’s entitlement to a full fee of $3750 computed on a full recovery of $32,500 in the event that the defendants brought Brown into court at some future date to determine if he was still disabled and still entitled to compensation benefits.

The court took the matter under advisement but reopened it for additional hearing on May 5, 1976.

At this time only Perez and Morris were present and Morris advised the court that all of the problems concerning duplication of payments and proper reimbursement to Becnel had been resolved. The only thing remaining was Becnel’s disposition of the $5841.09 he received in June to cover the back compensation due Brown plus accrued interest. (85 weekly payments of $65 plus $316.09 interest). Perez suggested that Becnel was a necessary party to the proceedings since the issue was Becnel’s entitlement to full fee on the total amount of future payments when the claimant is limited by law in a lump-sum settlement to a discounted amount for the current value of future dollars. On the basis of this hearing and despite Becnel’s absence the trial judge rendered the judgment which is now on appeal.

In his reasons for judgment the court referred to R.S. 23:1141 providing that attorney’s fees be paid from the award in the manner fixed by the court, and observed that, while the award is for the maximum time period there is the possibility that the duration of the injury would be for a lesser period, in which case the full award would not be realized by the claimant. He decided that it was error to fix the attorney fee on future payments and limited Becnel’s fee to an amount based on the total compensation payments made to Brown as of the date of the judgment, i. e., $8,961.09. Thus, he awarded Becnel an attorney’s fee at 20% of the first $5,000 and 10% of the balance, for a total of $1396.11.

The first issue is whether or not the proper procedure was followed in May, 1976, for a reduction of Becnel’s fee from the amount set in July, 1975. The record shows that the July ex parte order was not a final judgment so that it was not res judicata and was subject to amendment. But, Becnel was never served with any pleadings to suggest that Brown was seeking to amend the July order and reduce his fee. When Becnel made a brief appearance in court in December, 1975, the attention of the parties was directed primarily to the problem of the payment of medical expenses and court costs as between Becnel and the defendants. When the trial court made his decision in May, which led to the judgment appealed from, Becnel was not present and was given no opportunity for a hearing on the reduction of his fee.

In this court Becnel has stated that the idea of taking his fee based on all future payments out of the first monies paid by defendants to Brown was Brown’s idea. According to Becnel, Brown wanted the future payments to come directly to him intact and without any liability for attorney’s fees. We have concluded that the case should be remanded to the trial court so that Becnel may have an opportunity to respond to and have a hearing on Brown’s proposal to reduce the fee. However, it is appropriate to mention in this opinion certain restrictions under the law with reference to Becnel’s attorney’s fee and to suggest some of the issues which need a resolution.

R.S. 23:1141 provides that claims of attorneys for legal services in connection with any workmen’s compensation claim shall not be enforceable unless approved by the court. It provides further that such claims shall be paid only in the manner fixed by the court, and it places a maximum of 20% of the first $5,000 and 10% of any part of the award over $5,000.

In this case, Brown was awarded maximum compensation of $65 per week for 500 weeks, and the trial judge originally awarded the $3750 attorney’s fee based on a maximum recovery of $32,500 by Brown at a time when Brown had received only 133 weekly payments. R.S. 23:1274 provides that the amounts payable to the claimant as compensation may be commuted to a lump-sum settlement by agreement of the parties. Thus, Brown will continue to receive the weekly payments unless he and the defendants agree to a lump-sum settlement, in which case the settlement would be a discounted amount considerably less than $32,500.

If the claimant who elects to receive a lump-sum settlement is paid a discounted amount which is considerably less than he would receive over the duration of 500 weeks, it follows that the attorney who elects to receive a lump-sum fee in lieu of a percentage of the future payments should be limited to the discounted percent value of those future payments to him. Accordingly, the initial award of $3750 to Becnel was excessive.

We have further considered the argument made by Brown that the defendants may succeed in cutting off his compensation in the event that they can prove that he is no longer disabled, in which case Bec-nel should not be entitled to a fee based on the full amount. According to Becnel, Brown made the agreement with him in the first instance because he thought it would be more convenient to receive the full amounts of the weekly payments. If the trial court finds that they entered into a binding contract to that effect it is the law between the parties unless contrary to law. LSA-C.C. Arts. 11 and 1901. We are not aware of any prohibition against such an agreement which would make it unenforceable.

It will be necessary for the trial court to decide whether or not such an agreement was made between Becnel and Brown. If the court finds that such an agreement was made Becnel is entitled to a full fee computed in accordance with R.S. 23:1141 on all compensation payments made to Brown as of the date of the agreement plus the discounted value of what his full fee would be on the remaining payments.

Accordingly, the judgment appealed from is reversed and set aside, and the case is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Brown had been awarded a judgment on June 2, 1975, for $65 per week for 500 weeks for total and permanent disability. Becnel’s fee was based on $32,500 and computed at the maximum amount permitted by LSA-R.S. 23:1141.


text:
    Sonya A. ARELLANO and Linda L. McCarthy v. Harry HENLEY and Libby Levin, d/b/a Antebellum Antiques and XYZ Insurance Company.
    No. 8898.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.

      Murray, Murray, Ellis & Braden, Julian R. Murray, Jr., New Orleans, for plaintiffs-appellees.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Lawrence S. Kullman, New Orleans, for defendant-appellant, Harry Henley.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   GARSAUD, Judge.

This suit for false arrest was brought by plaintiffs-appellees Sonya Arellano and Linda McCarthy, against defendants Harry Henley and Libby Levin. Defendant Levin filed a reconventional demand against the plaintiffs for defamation. After a trial on the merits, judgment was rendered in favor of plaintiff Arellano for $1,000 and in favor of plaintiff McCarthy for $500, both against defendant Harry Henley. Plaintiffs’ claims against Libby Levin were dismissed, as was Levin’s reconventional demand against plaintiffs. Defendant Henley has appealed from the trial court’s judgment.

This is an action for damages under Article 2315 of the Civil Code, alleging fault on the part of the defendant in causing the plaintiffs’ false arrest by police officers of the City of New Orleans. There is no question that under these circumstances, plaintiffs were falsely arrested by officers of the New Orleans Police Department. “When there is no warrant, police may arrest only when the one arrested has committed a felony, or has committed a misdemeanor in his presence, or at least ‘has reasonable cause to believe that the person to be arrested has committed an offense.’ C.Cr.P. 213.” State v. Finklea, 313 So.2d 224 (La.1975). On the basis of the information available to the policemen, and in particular the testimony elicited from the two plaintiffs when the police visited their home to get their version of the incident, the police did not have probable cause to make an arrest without a warrant. In fact, this Court wonders whether any magistrate or district judge would have issued an arrest warrant on the facts of this case. It is noted that the District Attorney refused to accept charges in this instance. It is dismaying that the plaintiffs had to experience the degrading and humiliating arrest and subsequent police booking procedures at Central Lockup, including crude and totally unnecessary sexual references made by a police officer. Nevertheless, the question here is not the liability of the police, but the liability of the defendant, who provided certain information to the police which, for reasons known only to the officers, prompted their arrest of the plaintiffs.

Plaintiffs’ false arrest stemmed from a visit they paid to defendant Henley’s place of business, Antebellum Antiques, on November 8, 1975. A substantial number of the facts relating to this shopping visit to Antebellum Antiques are not disputed. The defendant Henley showed the plaintiffs a number of bracelets for their consideration. Plaintiffs ultimately purchased several bracelets. In considering their purchase, the plaintiffs were quite interested in a certain silver bracelet priced at about $45, which they eventually decided not to purchase due to its cost. After paying for the bracelets, by check on the part of one plaintiff and by cash on the part of the other plaintiff, the young women returned to their apartment only to receive a telephone call from Henley asking whether they had accidentally or by mistake taken the $45 bracelet. They both indicated to the defendant that they had not taken the bracelet.

Facts at issue between the parties deal with certain events while plaintiffs were viewing the jewelry in the store. All parties agree that one of the bracelets purchased had a broken catch on it, which Henley repaired. Plaintiffs’ version is that Henley left the counter to go back to another area of the store to retrieve his tools in order to repair the catch and then returned, all of which occurred prior to his showing them the bracelet in question. Henley’s version is that he showed the bracelet to the plaintiffs prior to going to the other part of the store for his tools, and thus plaintiffs were left alone at the counter with the $45 bracelet in full view. Plaintiffs testified that they left the store casually, in fact looking at an antique baby carriage for one or two minutes at the door entrance before leaving. Henley testified that they left hurriedly. The third point of difference is that plaintiffs testified that there was a woman customer in the store at the time the plaintiffs were there viewing the bracelets. This fact was not brought out in the investigation, as plaintiffs were not asked the question nor did they volunteer it. This latter failure was attributed to their total distress at the time. Henley testified that there was no other person in the store at that time, but that a male customer came in just as the two plaintiffs were leaving, and the male customer spent a few minutes in the store in full view of Henley and then left. Defendant’s version of the incident is reflected in the investigating officer’s report.

After his phone call to the plaintiffs, Henley searched the entire store with Ms. Levin’s help for about 20 to 30 minutes, and could not find the bracelet; after which he phoned the police to report the loss. Henley indicates that his major reason for reporting the loss was for purposes of his tax records as well as for filing an insurance claim. When the police arrived, Henley specifically indicated that he did not know who stole the bracelet. In answer to the question, “Was there anyone in the store at the time?” Henley said, “There were two girls in the shop.” The investigating officer then asked, “Was anyone else in the shop?,” and Henley replied, “No, there wasn’t.” At trial, in response to the question, “Did you tell the police that you had seen these girls take the bracelet?,” Henley’s answer was, “No, sir, I made a point of telling him that I could not accuse them of taking the bracelet because I did not physically see them take it.” The record further indicates that Mr. Henley did not swear out a complaint for their arrest, nor did he encourage their arrest in any other fashion.

We are called upon to decide whether these actions on the part of the defendant constituted fault under Article 2315 so as to entitle these plaintiffs to damages for the injuries which they have certainly suffered. This court in Jones v. Simonson, 292 So.2d 251 (La.App. 4th Cir. 1974), aptly set forth the applicable considerations:

“Great caution is necessarily demanded in determining ‘fault’ in the context of society’s efforts to suppress crime. Our Civil Code does not intend, and society could not tolerate, that reasonable efforts towards crime suppression be punished, and therefore curtailed, by civil liability for simple mistake. However, the efforts must be reasonable; the individual remains obliged to act as a reasonable person would, taking into consideration all of the circumstances. ‘Falseness’ and ‘malice’ serve conceptually to emphasize that not every mistake in defending one’s self or community against crime is actionable ‘fault,’ but only such mistake as is not reasonably justified by the surrounding circumstances.” (Emphasis added.) 292 So.2d at 253.

Whether the defendant acted reasonably depends upon whether he breached his duty to plaintiffs not to so mislead the police by information he gave as to make the police believe they had probable cause under the circumstances to arrest the plaintiffs. We do not believe he breached that duty in his recitation to the investigating officers, as he did not reasonably provide probable cause for the arrest that was made subsequent to the questioning of the plaintiffs.

There is no denying that his merchandise disappeared, which he had a right to report to the police department. If mistakes were made in his recitation of the facts, as found .by the trial court, the mistakes were not the critical factors which would have reasonably caused the police to pursue the matter to arrest. As was recently stated by the Second Circuit,

“Reasonable efforts by a citizen toward suppression of crime, even where a simple mistake exists, do not automatically impose civil liability, if all the circumstances indicate the efforts were reasonable. The law should, and does, encourage citizens to report suspected criminal activity to proper authorities.” Sapp v. J. A. West Co., 352 So.2d 268, 269 (La.App.2d Cir. 1977).

The decision to arrest was totally independent of defendant’s actions. Defendant did not himself file an affidavit against these plaintiffs; in fact, as the evidence clearly shows, he told the policemen that he could not accuse the plaintiffs of taking the bracelet because he did not see them take it. The reason the plaintiffs were arrested falsely was because the police made an independent decision to effect the arrest.

“In general, the distinction upon which the liability of a defendant turns in such cases is the distinction between his merely reporting to a police officer what he has seen or heard, leaving the officer to act on his own investigation or judgment, and actively inducing the arrest or participating in it. [Citation omitted.] . The distinction is between merely giving information to the police, leaving them to take such action as they think proper, and directing or participating in the arrest. [Citation omitted.]” Annot., 21 A.L.R.2d 643, 695-696 (1952).

There is no showing that the defendant purposely misled the police into believing, albeit incorrectly and unreasonably, that these plaintiffs took the missing merchandise. It was not shown that the defendant knowingly gave false information to a police officer. The fact that the defendant indicated that there was another customer in the store who came in immediately following the plaintiffs’ departure, entering the store before the bracelet would have been replaced in the display case, supports the view that the defendant did not wrongfully attempt to have these plaintiffs arrested. The defendant cannot be held responsible for the police’s poor judgment in weighing all the evidence before making an arrest.

It would be self-defeating for society to impose civil liability on a citizen for inaccurately reporting criminal conduct with no intent to mislead. If the risks to the citizen are too high, a fertile field for criminal suppression will have disappeared.

For these reasons, the judgment of the trial court against Harry Henley is reversed and the petition of Sonya Arellano and Linda McCarthy is dismissed at plaintiffs’ cost.

REVERSED.

      . As the trial court provided no specific finding of fact, we cannot presume which specific facts were found in plaintiffs’ favor, although the preponderance was obviously found to be in their favor.


text:
    Robert S. ROBICHAUX, Sr. v. Michael CADE and the Travelers Insurance Company.
    No. 8899.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.

      William F. Ryan, New Orleans, for plaintiff-appellant.
    Paul P. Rutledge, Metairie, for defendants-appellees.
    Fernand F. Willoz, III, in pro per.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment claiming that the general damage award of $6,000 and $1,704 for loss of earnings for 13 weeks were inadequate. There is also an issue raised by way of an intervention into these proceedings by the attorney who represented^, plaintiff in the trial court and whose employment was terminated after the judgment was obtained.

Plaintiff sustained the injury in an accident which occurred on April 5, 1971. By the time of the trial in January, 1977, he testified that he was and had been since the time of the accident in constant pain, and attempted to prove that his suffering was a result of the accident. It was established that plaintiff had a moderate to severe cervical strain. The trial judge concluded that this had been resolved within six months after the accident, but plaintiff contends that he suffered a permanently disabling aggravation of arthritis in his cervical spine which has caused him so much pain.

On the day after the accident plaintiff saw his own general physician, Dr. Casimir A. DiCristina, who found spasm and associated pain in his neck. He treated plaintiff with medication and heat treatments until July, 1971, when he felt that plaintiff improved satisfactorily, would gradually become free of symptoms and discharged him, although plaintiff was still complaining of such pain.

In May, 1971, plaintiff was examined by Dr. G. Gernon Brown, Jr., an orthopedist, who found no spasm, a normal lordotic curve and full range of motion although plaintiff complained of pain on motion and when pressure was applied to the back of his neck. However, there was evidence of spondylosis or arthritis of the cervical spine which Dr. Brown felt was unrelated to the accident and of many years standing. He did allow that it was possible for a patient to have such a condition with no symptoms and to have symptoms develop after a trauma.

Plaintiff saw Dr. George Byram, an orthopedist, in July, 1971, and he found limitation of motion with muscle spasm in plaintiff’s neck. He also found the evidence of arthritis which he thought pre-dat-ed the accident. In his opinion the accident aggravated the arthritis and conversely the arthritis delayed his recovery to some extent. He did not think it was unusual for injuries such as this to take three to six months, or even longer, to clear up, but he thought that plaintiff would have no permanent damage “although he may have some slight difficulty with his neck from time to time.”

On August 18, 1971, plaintiff went to a chiropractor who reported in September that “adjustments” were being given to him on a continuing basis. This chiropractor did not testify.

In April, 1974, plaintiff saw Dr. Don Lee Bradke. He took a history of dizziness, headache and stiffness from plaintiff who related these to the accident three years earlier. He found limitation of motion in the neck and stiffness in the muscles, and X-rays showed the aging of the cervical spine. He put plaintiff in the hospital from May 8 to May 16 where a myelogram was performed. This revealed the arthritis in his cervical spine for which conservative treatment, such as sedation, traction, neck exercises, muscle relaxants and analgesics were prescribed. Plaintiff was not seen again by this doctor after May, 1974. The doctor admitted the possibility that the patient would have no subjective symptoms from this kind of arthritis prior to an accident and that such an accident would aggravate the condition to the point where he suffered pain, but in the final analysis any opinion would rest largely on the patient’s own statements as to whether he was in pain before the accident or not.

In evaluating the adequacy of plaintiff’s award, his case depends in large measure on his own testimony which the trial court found to be exaggerated. For instance, plaintiff testified that he regularly handled as a butcher sides of meat weighing in excess of 150 pounds, but his supervisor testified that if this happened it was on rare occasions because of his age (63 at the time of the accident) and he did not ask plaintiff to do any heavy work. The trial judge detailed at some length the exaggerations and misstatements made by plaintiff while on the witness stand, and he was influenced by this behavior. Our review of the testimony leads us to agree completely with the trial judge on this point. In the final analysis, the question of whether plaintiff was suffering any pain before the accident or not can only be resolved from his own testimony.

Especially considering the testimony of his treating physician and Dr. Brown, the orthopedist, we cannot say that plaintiff carried his burden of proving that he suffered an aggravation of pre-existing arthritis which caused the amount of pain he claimed to be suffering at the time of the trial and in the interlude between the date of the accident and the date of the trial. The trial judge concluded that plaintiff had a six month injury and we agree. We cannot say that the $6,000 award was an abuse of the court’s discretion. Anderson v. Welding, Testing Laboratory, Inc., 304 So.2d 351 (La.1974), Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

On loss of wages, the trial court awarded $1,704.56 which was based on his full pay with overtime for 13 weeks or three months. The trial court made this award on the basis of the fact that Dr. DiCristina discharged plaintiff after three months and he concluded that had plaintiff been motivated to do so he could have performed the type of light work he was doing before the accident. It should be pointed out here that plaintiff was already 63 years old at the time of this accident and his supervisor made it clear that he was not expected to work as hard as a younger man. He was assigned as a saw operator and was never expected to lift heavy things and to do the work of a younger man. To read plaintiff’s testimony you would think he had performed extremely heavy work before the accident, but his testimony on this point was completely contradicted by his supervisor. Furthermore, this supervisor indicated that in the nine months that he worked at the meat market there was some talk at one time with the manager about discharging plaintiff because he was not doing his job properly. The plaintiff produced an economist who testified that plaintiffs work life expectancy as a butcher in this accident at age 63 was 11.1 years and projected loss of earnings on that basis. Aside from the fact that plaintiff did not prove that he was unable to go back to the kind of work he was doing before the accident three months thereafter, we cannot accept the testimony of this economist that this man who had such a severe case of arthritis that he was already limited in his work ability before the accident would probably work until he was 74 years old. We see no error in the trial judge’s conclusion with respect to lost wages.

The final issue before us in the intervention of plaintiff’s former attorney. Fer-nand Willoz, III.

The record shows that plaintiff’s suit was filed in January, 1972, by his first attorney who was replaced by a second attorney in November, 1974. In the meantime, the case was scheduled for trial in May, 1974, witnesses were subpoenaed but the case was continued indefinitely on that day. The second attorney represented plaintiff until August 31, 1976, when Mr. Willoz became attorney of record. In the meantime, the case had been scheduled for trial on April 2, June 18 and November 20, 1975, when it was continued indefinitely. Mr. Willoz tried the case on January 5 and 6,1977, and in March was replaced by the present counsel who perfected this appeal. When the motion to substitute counsel of record was filed in the trial court Willoz reserved his rights to his attorney’s fee and filed in the record a contingent fee contract between him and plaintiff, dated April 19, 1976, wherein he was employed to represent plaintiff on the contingent fee of Vs of any sums recovered by settlement, compromise or judgment.

After the appeal was lodged in this court Willoz filed a petition of intervention, asking that we recognize his right to be paid the fee of Vs stipulated in the contract along with the court costs expended by him. He also prayed alternatively that the case be remanded to the district court for further proceedings in connection with his fee. We have concluded that Willoz was entitled to intervene considering LSA-C.C.P. Art. 1091 which provides:

“A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action . . ."

See also C.C.P. Art. 2086.

However, in October plaintiff addressed a long letter to this court contesting Willoz’ right to the fee, and we have concluded that plaintiff is entitled to a hearing in order to assert whatever defenses he may have to the claim for the attorney’s fee. Consequently, the intervention will be remanded to the district court for trial. In the meantime, it appears that Willoz has complied with the provisions of LSA-R.S. 37:218 in order to protect the privilege he has under R.S. 9:5001 on the amount ultimately recovered by plaintiff in these proceedings.

Since Willoz’ claim is limited to one-third of the amount of the judgment plus costs, defendants may deposit this amount in the registry of the district court and pay the difference to plaintiff after his judgment becomes final.

Accordingly, the judgment appealed from is affirmed. The intervention of Fernand Willoz, III, is remanded to the trial court and his privilege on plaintiffs judgment is recognized and maintained pending the establishment of his claim for an attorney’s fee against plaintiff at the trial of the intervention.

AFFIRMED

ATTORNEY’S PRIVILEGE RECOGNIZED

REMANDED FOR TRIAL OF INTERVENTION


author: LEMMON, Judge. GULOTTA, Judge,

text:
    Johnnie Mae Ryans, wife of and Lee RYANS v. EMPIRE FIRE AND MARINE INSURANCE COMPANY, Lowell Don Powell and David Throgmorton and New Orleans Public Service, Inc. and Charity Hospital of Louisiana at New Orleans (consolidated with No. 9118, Willie Thomas v. David S. Throgmorton, Summer High Distribution Company, Empire Fire and Marine Insurance Company and New Orleans Public Service, Inc.).
    No. 9117.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Drury, Lozes & Curry, James H. Drury, New Orleans, for defendants-appellees.
    James Maher, III, New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

Both sets of defendants have appealed from a judgment holding them liable in solido for the damages sustained by two passengers on a public service bus in a two-vehicle collision. The two suits were consolidated for trial in the district court and for argument in this court, where all parties have stipulated that liability is the only issue to be decided.

The accident, which involved a public service bus and a tractor-trailer unit, occurred on the elevated Claiborne Avenue overpass in the City of New Orleans. The drivers of the vehicles gave conflicting versions of the occurrence.

The bus driver testified that he entered the overpass by means of an on-ramp from Poydras Street, at which point Claiborne Avenue was elevated and consisted of three lanes of traffic; that the on-ramp from Poydras Street merged into the left traffic lane of Claiborne, from which point, after determining that there was no traffic in the middle or the right lane, he gradually crossed both lanes and entered the right lane of traffic; that after he traveled about 100 yards in the right lane of traffic at a speed of 15 to 25 miles per hour (in a 30 mile per hour zone) he approached another on-ramp to his right onto the elevated overpass; that as he approached the on-ramp to his right, he saw no traffic entering Claiborne from the on-ramp and proceeded past it; and that when about three-fourths of his bus had passed the on-ramp he heard a horn to the right and behind him and then felt the impact of a collision on his right rear.

On the other hand, the truck driver testified that he first saw the bus when “I was just entering the right-hand lane (of Claiborne Avenue), and I noticed the bus in the center lane”, observing in his side rearview mirror that the bus was about 20 feet from the left side of his tractor; that he anticipated the bus would remain in the center lane and continued out into the clear right lane, without stopping for the yield sign; that the bus suddenly and without warning began to change from the middle lane to the right lane; and that with about half of his tractor into the right lane he braked immediately and went upon the rim of the side railing of the overpass, but the right end of the. bus collided with the left front of the stopped tractor.

The damage to the bus was at the extreme rear on the right side, behind the right rear tire, and the damage to the tractor was on the extreme left front corner.

One plaintiff completely corroborated the version presented by the bus driver, and the testimony of the other plaintiff, who had not seen the accident occur, is of little value in the determination of liability except for his statement that the bus had been in the right lane “for a while” prior to impact. Another passenger, who was not a party to either suit, also testified substantially in accordance with the version related by the bus driver. Significantly, both the one plaintiff and the independent witness testified positively that the truck continued moving until the collision, the latter stating that she remarked to another passenger that the truck was not going to yield to them.

The trial court held that both drivers were liable for the accident. In reasons for judgment the court apparently imposed a duty on the driver not to move into or remain in the right lane as the bus approached the on-ramp, stating that “a prudent driver would have considered the fact that other vehicles would have been coming on to the overpass from the up-ramp” and that the bus driver “had ample time to move to his left”. The court concluded that each driver could have seen the other vehicle and could have avoided the accident.

Imposition of this duty on the right of way motorist was an error of law. If the bus was in the right lane for a substantial period of time prior to reaching the on-ramp (as assumed in that part of the discussion in reasons for judgment), then the bus driver (while he perhaps could have seen the truck if they both approached that point at the same time, by looking down the on-ramp) had no duty under the circumstances to anticipate then that the truck would violate the yield sign. Furthermore, the bus driver (still assuming the correctness of his version as to being in the right lane) had no duty then to take evasive action until the truck gave some indication that it would violate his right of way. And since (under the bus driver’s version) the front of the truck did not come out of the on-ramp until the bus had virtually completed passing this area, acceptance of this version compels the conclusion that the truck driver was solely negligent.

On the other hand, under the version presented by the truck driver, the bus driver was solely negligent in changing lanes improperly when it was unsafe to do so because the truck was already entering the right lane.

The trial court apparently rejected the truck driver’s version on the facts and found that he was negligent in failing to yield the right of way. The record overwhelmingly supports such a finding of fact.

As to the bus driver, the only basis for imposition of liability would be a factual finding that the bus driver moved from the center lane into the right lane in front of the truck just as the truck was entering the overpass. Yet the reasons for judgment do not even hint at such a finding of fact. Rather, the reasons for judgment assume that the bus driver was in the right lane and then improperly place liability on the bus driver because he could have moved into the middle lane, although there was no duty on the bus driver to refrain from continuing in the right lane because the bus was approaching an on-ramp.

Furthermore, the bus driver’s version was supported by both plaintiffs and the other passenger who witnessed the accident, and there was no reason for these witnesses to favor either party. Indeed, the trial court had to accept the credibility of the plaintiffs in rendering relatively sizeable award for injuries sustained in a minor collision.

We therefore conclude that the truck driver was solely negligent in this case.

Accordingly, we reverse the judgment of the trial court insofar as the judgment was rendered against New Orleans Public Service, Inc., and it is now ordered that plaintiffs’ suit be dismissed as to that defendant. In all other respects the judgment is affirmed. All costs in both courts are assessed against Summer High Distributing Company and Empire Fire and Marine Insurance Company.

REVERSED IN PART, AFFIRMED IN PART.

GULOTTA, J., concurs and assigns reasons.

GULOTTA, Judge,

concurring.

I concur with the result. Whether the bus driver was traveling in the center lane or right lane, he has a right to anticipate that traffic entering the expressway from the on-ramp (the truck) would yield the right-of-way. The only basis upon which the bus driver could have been found negligent would be a factual finding that the bus driver, while traveling in the center lane, pulled into the right lane in front of the truck as the truck was entering the expressway. The trial judge made no such finding of fact. Under these circumstances, I find no violation of any duty on the part of the bus driver. Nor am I prepared to make a factual finding that the bus moved from the center lane to the right lane in front of the truck as the truck was entering the expressway. As a matter of fact, it would be easier to reach a factually different result based upon the bus driver’s testimony corroborated by the passengers. Accordingly, I concur.

      . The Claiborne Avenue overpass is elevated, but this on-ramp (which is an exit from the interstate highway that crosses the Claiborne overpass) comes into Claiborne from above at a very slight angle after making several curves between the interstate highway and Claiborne.

      . The truck driver admitted that he did not see the bus by looking to the left or to the rear, but first saw the bus in the rearview mirror, when he was at the edge of the Claiborne Avenue roadway, indicating that his truck was virtually into the right lane and still moving when he first saw the bus approaching from behind him.

      .This error of law apparently stemmed from allowing into evidence an illustration from a driver’s license manual, advising license applicants that it is courteous to move into the left lane of an interstate highway (if it is clear) when traffic is attempting to merge into the right lane. No law obliges a motorist in the right lane to do so, and indeed the yield sign obliges the merging motorist to yield the right of way to traffic in the right lane.
      Furthermore, the legal test for liability on a right of way motorist is not whether he could have seen the other vehicle and avoided the accident, but whether the other vehicle’s actions were such as to alert him that he could no longer rely on his right of way and whether he had sufficient time thereafter to avoid the accident.

      . There is no indication in the record (except the truck driver’s testimony) or in the numerous photographs of the on-ramp and the general area that would suggest that the front of the truck was visible to the bus driver if he approached the area of the on-ramp ahead of the truck, which would have been above and behind him.

      . Certainly, in the exercise of the highest degree of care required of a common carrier, the bus driver could not have disregarded a vehicle coming out of the on-ramp ahead of him into his path, in violation of the yield sign, but acceptance of such facts (as related by the truck driver) requires rejection of all other witnesses.


text:
    Willie THOMAS v. David S. THROGMORTON, Summer High Distribution Company, Empire Fire and Marine Insurance Co. and New Orleans Public Service, Inc. (consolidated with No. 9117, Johnnie Mae Ryans v. Empire Fire and Marine Insurance Co., et al.).

    No. 9118.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Drury, Lozes & Curry, James H. Drury, New Orleans, for defendants-appellees.
    James Maher, III, New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

For the reasons assigned in No. 9117, Ryans v. Empire Fire and Marine Insurance Company et al., La.App., 357 So.2d 853, the judgment of the trial court is reversed insofar as the judgment was rendered against New Orleans Public Service, Inc., and it is now ordered that plaintiff’s suit be dismissed as to that defendant. In all other respects the judgment is affirmed. All costs in both courts are assessed against Summer High Distributing Company and Empire Fire and Marine Insurance Company.

REVERSED IN PART, AFFIRMED IN PART.

GULOTTA, J., concurs and assigns reasons.

GULOTTA, Judge,

concurring.

For the reasons assigned in No. 9117, Ryans v. Empire Fire and Marine Insurance Company et al., La.App., 357 So.2d 853. I concur.


author: LEMMON, Judge. BEER, Judge,

text:
    Mrs. Betty Betat, wife of Herbert S. DIXON, Jr. v. Herbert S. DIXON, Jr.
    No. 9132.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.

      D. A. McGovern, III, New Orleans, for plaintiff-appellant.
    Kiefer, Glorioso & Fleming, Anthony L. Glorioso, New Orleans, for defendant-appel-lee.
    Before LEMMON, SCHOTT and BEER, JJ.
   LEMMON, Judge.

Mrs. Herbert Dixon filed this suit for separation grounded on abandonment, and her husband filed a reconventional demand based on cruelty. The judgment, in addition to granting the wife a separation, also recited:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff, Mrs. Betty Betat, wife of Herbert S. Dixon, Jr., is found to be not without fault.”

The reasons for judgment further stated “(t)he court finds mutual fault between the parties in granting the separation”. Mrs. Dixon has appealed, questioning the finding that she was not without fault, although the separation was granted in her favor.

At trial Mr. Dixon admitted that he moved out of the matrimonial domicile on March 29, 1976 and does not intend to return, but explained that they had not had sexual relations in over three months; that his wife had refused sex to him many times; that she resisted his showing of any affection, such as kissing when he came into the house after work or sitting close to him in an automobile; and that she “many times” stayed out until 4:00 or 5:00 a. m. and refused to let him know where she was, responding that she was old enough to take care of herself.

On the other hand, Mrs. Dixon denied that she had ever refused her husband sexual relations. She stated his complaints were that she was unable to “satisfy him as a woman”, although she had tried to the best of her ability to do so. She stated that she worked during the day as a key punch operator and sometimes worked at night in the real estate business, and additionally on occasions she went to a friend’s house and stayed until early in the morning, helping her to make costumes during the carnival season, but that her husband always knew her whereabouts. She further testified that she loved him and desired his return.

Since Mrs. Dixon did not allege or attempt to prove any conduct by Mr. Dixon which could constitute grounds for separation except abandonment, this record could only support three possible conclusions: (1) the husband abandoned the wife without lawful cause; (2) the wife was at fault in the separation; or (3) the parties were simply incompatible, and neither proved fault which constituted grounds for separation.

C.C. art. 141, as reenacted in 1976, now authorizes the granting of a separation “although both spouses are mutually at fault in causing the separation”. The article does not create a new ground for separation; rather, the fault contemplated by the article is fault which constitutes an existing independent ground for separation under C.C. art. 138. Therefore, if the evidence in a suit for separation does not establish “fault” on the part of each party but merely shows mutual incompatibility, then there is no codal authority for rendition of a judgment of separation, and the parties must either assert new grounds or wait for the required period of living separate and apart.

The record in the present case does not support a judgment of separation based on mutual fault under C.C. art. 141 (although the record would support a finding of mutual incompatibility). Accordingly, the rendition of the judgment in favor of the wife is inconsistent with the judgment’s wording that the wife “is found to be not without fault”.

We resolve this inconsistency by reference to the specific holding in the judgment that the wife was not without fault. This double negative finding of fault sufficient to constitute grounds for separation is amply supported by the record evidence provided by the husband as to the wife’s denial of sex and other mental cruelty, which was apparently found credible by the trial court. However, acceptance of such evidence precludes a finding of abandonment without lawful cause (which, as previously stated, was the only fault the wife alleged and attempted to prove).

Had the husband appealed, we would reverse and render the judgment of separation in his favor. On the present posture of this appeal by the wife, complaining of the' finding of fault on her part, we merely affirm.

The judgment is affirmed.

AFFIRMED.

BEER, J., concurs and assigns reasons.

BEER, Judge,

concurring.

Unwilling to approve the method by which the majority resolves the inconsistency of the district court judgment, I, nevertheless, agree with the result. Even so, I feel obliged to express my basic dissatisfaction toward the existent jurisprudential preoccupation with production line fault determination in domestic relations cases.

Progress appeared to have been achieved by the codification of Article 141 since it seemed to provide a more realistic approach to the obtaining of separation from bed and board. However, its usefulness is frustrated by the inclusion of an automatic mutual fault determination. While correctly acknowledging that many separations are the result of mutual failure on the part of husband and wife, the article requires absolute, unequivocal and irrevocable disallowance of alimony when it (the article) is used as the basis for obtaining a judgment of separation. Parties to a wretchedly unhappy marriage, each of whom honestly acknowledges their own failings, must be reluctant to invoke Article 141 because of its absolute fault finding provision. Thus, except for shortening the time requirements, Article 141 is not really much of an improvement over the ordinary abandonment type separation suit.

I believe that the underlying problem results from preoccupation with fault determination concurrent with judgment rendition in domestic relations cases. I question the usefulness and validity of those decisions which have generated such preoccupation.

      . In full text the reenacted C.C. art. 141 provides:
      “A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such instances, alimony pendente lite may be allowed but permanent alimony shall not be allowed thereafter following divorce.”

      . It is indeed unfortunate that a spouse, who is separated because of incompatibility, must file a suit alleging fault in order to maintain an ancillary action for support, since such a suit seriously impairs any chances for reconciliation. Furthermore, present jurisprudence makes a default judgment of separation an absolute bar to subsequent litigation of fault, if alimony is sought after divorce. Thus, when one spouse is required to allege fault in order to obtain support and the other is required to defend the allegations in order to avoid a conclusive judgment on the issue of fault, the needless litigation at the separation level probably eliminates any possibility of separation thereafter.

      .Perhaps a judgment based on mutual fault should not be rendered in favor of either party.


author: JOHNSON, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Rose Ferguson GORMLEY et al., Defendants-Appellees.
    No. 6308.
    Court of Appeal of Louisiana, Third Circuit.
    March 15, 1978.
    Rehearing Denied May 9, 1978.

      Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
    Cabra, Leach & Tilley by William E. Til-ley, Leesville, for defendant-appellee.
    Before: GUIDRY, FORET and JOHNSON, JJ.
   JOHNSON, Judge.

This is an appeal from a judgment of expropriation. The State of Louisiana, Through the Department of Highways, (hereinafter referred to as Department) expropriated a tract of land owned by defendants, Rose Ferguson Gormley, et al., in Leesville, Vernon Parish, Louisiana. The general purpose was to relieve congestion of traffic on Highway 171 in the City of Leesville. Highway 171, which was formerly a two-way street in Leesville for traffic going north and south, was to be reconstituted as a one-way street with two lanes for traffic headed north. To the west one block, what was formerly 6th Street, was to be developed as Highway 171 South with two lanes for south bound traffic. In other words, Highway 171 would be divided thereby increasing and speeding up the flow of traffic on this highway through Leesville.

As stated, this was the general objective. In order to effectuate this objective, it was necessary for the Department to build an access street west of and parallel to new 171 South. .734 of an acre of defendants’ property was expropriated to build this access street. This appeal is by the Department from a judgment in favor of the ap-pellee-landowner-defendant.

The parties stipulated and agreed that the value of the land taken was $8,840.00. The parties also stipulated that the agreement as to land value was not to be binding with respect to any other portions of the case. In other words, the agreement as to land value was not to be binding or controlling with respect to the issue of severance damages or any other issues herein. The trial court granted $22,496.00 as severance damages. The Department-appellant denies any severance damage. It alternatively alleges that, if there is any severance damage, it is far outweighed by special benefits accruing to the property. The Department also appeals from an award of $1,450.70 to T. J. Stephens for an appraisal fee as appraiser for the landowner. The Department also objects to the allowance of $100.00 as compensation as expert fees for two realtors who testified. The trial court accepted them as expert realtors who knew land values in the area.

The Court finds that counsel for the Department has concisely and accurately set forth the factual situation herein and takes the liberty of adopting its statement of facts.

“Leesville, Louisiana, in Vernon Parish is located on State Route La-US 171, between Lake Charles and Shreveport, Louisiana. La-US 171 is the primary highway between the two latter cities and coupled with the presence of nearby Fort Polk, the automobile traffic through Leesville is extremely heavy. Because La-US 171 ran through the middle of Leesville and was only a two-lane highway, the increasing traffic problem had to be alleviated. The cost and expected • impact of acquiring additional right of way adjacent to this highway in part of Leesville was prohibitive.”
“In order to relieve the situation, it was determined, by those charged with the duty, to make the present right of way of La-US 171 two lanes going north and to branch off north of Leesville with two lanes going south, tying back in with the new four-lane portion in south Leesville. A portion of this southerly route will proceed along the city right of way of North 6th Street.”
“Just north of where North Sixth Street connects with Havana Street, the Kansas City Southern Railway is located, thus necessitating construction of an underpass to accomodate the two-lane southerly route. This entails excavating an incline reaching approximately eighteen feet in depth below the original surface. Whereas the residences facing east on North Sixth Street had ground-level egress and ingress, the greatest number of them between the intersection of Havana Street and the intersection of West Mechanic Street to the south are now left facing a bluff because of the excavation. These residences were completely deprived of all means of egress and ingress.”
“Havana Street, formerly connecting with North Sixth Street, has become dead-end at that location. Consequently, a large black community, known as the Crossing, was deprived of access to North Sixth Street, requiring a very circuitous route to get out of the community.”
“To relieve this problem, a paved street fifty feet wide and running parallel to and west of North Sixth Street between Havana and West Mechanic Streets has been constructed. The residences and the black community now have a means of access.”
“This street, designated as Street A, was built as a part of the project of improving North Sixth Street. Simply stated, the highway underpass created a problem and construction of Street A has relieved that problem. In this case, Street A is variously referred to as an “access” street. More properly, it could be termed a “relief” street. Fortunately, the property which is the subject of this suit is not affected by the North Sixth Street construction, all of this improvement being constructed within the bounds of the existing right of way and removed from the excavation area.”

We take the liberty of making a part hereof Exhibits “A” and “B” attached to plaintiff’s brief. Exhibit “B” is a small scale copy of the map depicting this property and the property expropriated for the access street. Exhibit “A” is a portion of the city map of Leesville. The Court attaches its own “Court Exhibit C” showing the property involved. The streets as they existed previously on “Court Exhibit C” are shown in solid lines. The new Highway 171 South and Street A (access street) are delineated in dashed lines. These exhibits, along with the Department’s outline of the problem hereinabove, make clear what is involved herein.

The trial court in its Reasons for Judgment discussed the comparable sales offered by the Department’s appraiser, Mr. Futrell and by the defendants’ appraiser, Mr. Stephens. Apparently, the sales used by both of the appraisers were not truly compara-bles in the opinion of the court. The Court did discuss a commercial offer testified to by the “expert lay witnesses” in this case. These were witnesses for the defendant landowner who were realtors in Leesville. They were familiar with land appraisals in the general area. There is legal precedent for accepting such witnesses’ testimony. State, Department of Highways v. Gielen, 184 So.2d 737 (La.App. 3 Cir. 1966) and Lafayette Airport Commission v. Roy, 265 So.2d 459 (La.App. 3 Cir. 1972).

The trial court took judicial notice of the type of traffic which could be expected to flow across the subject property by reason of opening it up to traffic from the Havana Street section. The Court found that the Havana Street section was an area of cheap night clubs. It took judicial notice, after the trial of the case, of the fact that quite a number of prosecutions for the use of drugs and other criminal activity had resulted from activities in this general area of Havana Street. This area was known as the “Crossing”.

Counsel for the Department strenuously objects to the fact that the trial court took judicial notice of the various criminal prosecutions arising from the area known as the “Crossing”. The trial judge presided in quite a number of these prosecutions. Counsel for the Department maintains that it is not proper for the trial court to consider other judicial records concerning which no mention has been made during the trial. He also objected to having these other records in criminal matters made a part of the record after the trial of this case. They complain that this evidence which is brought in by the court on its own motion, after the case has been submitted, is completely improper. Counsel for the Department maintain that the court is in effect substituting its opinion for that of the experts who testified at the trial. It is true that several of the witnesses for the defendant landowner did make mention of the type of traffic from the “Crossing” section through the new Street A (access road).

While there may be merit to the contentions of counsel for the Department, we do not find it necessary to consider these objections, in that we find manifest error in the trial court’s conclusion, toward severance damages even if this objectionable evidence is considered.

The trial court’s conclusion to award severance damages is based, almost entirely, upon the fact that following completion and opening of the access street undesirable traffic from the “Crossing” section will flow through the subject property. Prior to the four laning of Highway 171, this very same traffic traveled in front of the subject property on North 6th Street and along side the subject property on West Mechanic Street.

The measure of severance damages is the difference between the market value of the remaining property before and after the expropriation. A difference in value occurs when some detrimental or devaluing condition, which did not exist prior to the taking comes into existence as a result of the expropriation. In the instant case, the asserted devaluing or detrimental condition existed prior to the taking. We are at a loss to understand why this same traffic, which will proceed through the subject property, is any more detrimental, onerous or burdensome than the prior traffic from the same section which proceeded along side and in front of the subject property.

In any event, the record clearly reflects that any minimal severance damage which may have been suffered is far outweighed and offset by the special benefits accruing to the subject property as a result of the construction of this modern street.

We are not concerned in this case with any benefits which might accrue to the landowner by reason of the building of Highway 171 South in front of his property. We are only concerned with the benefit or detriment that Street A might have to this property. As stated by this court in State, Department of Highways v. Eubanks, 345 So.2d 533 (La.App. 3 Cir. 1977), we are only concerned with any advantages which accrued to this property as a special or peculiar benefit. The matter of special benefits is defined in Eubanks on page 534 as follows, and I quote:

“[1] In discussing this issue, we must consider whether or not any special benefits accrued to defendant-appellee’s remaining property as a result of the taking. We have little difficulty in finding that special and peculiar benefits, as distinguished from general benefits, accrued to the remainder of defendant-appellee’s property. Special benefits have been defined in our jurisprudence as:
“ ‘. . . those affecting a particular estate by reason of its direct relationship to the improvements. If, as a result of constructing any new work, the remaining land or part of it is left fronting on a road or street, and the land fronting the road or street is more desirable and more valuable because of the frontage, the advantage thus gained is a special or peculiar benefit, and damages to the remaining property may be offset by such benefits.’
“Louisiana Highway Commission v. Grey, 197 La. 942, 2 So.2d 654, at 660-661 (1941), and cases cited therein; LSA-R.S. 48:453; State Dept. of Highways v. Davidson, 319 So.2d 808 (La.App. 1 Cir. 1975); State Dept. of Highways v. Genest, 218 So.2d 114 (La.App. 3 Cir. 1968).”

The State had as its expert appraisal witness, one Perry Futrell. His testimony is to the effect that this property especially benefited from the taking of the road necessary to the construction of Street A, see Exhibit “B” and Court Exhibit “C”. As can be seen from the map, and from considering the evidence herein, this property now has a paved street with rollover curbs measuring approximately 555 feet on either side. This street is approximately 220 feet West of and parallel to the new highway one block to the East. There is considerable amount of testimony by the various experts as to the highest and best use of this land. It is apparent to us from the evidence that the east remainder of this property, consisting of some 2.263 acres, has become prime commercial property, located as it is with improved streets on three sides thereon, and located in downtown Leesville. The west remainder of the property consisting of some 6.30 acres cannot but be greatly benefited by the frontage of some 555 feet of a 50 foot paved street with roll-over curbs. This is true irrespective of whether this property is used for residential or commercial purposes. The Court has reviewed the evidence and reviewed the reports of the various appraisers. It is frankly at a loss to understand how an appraiser could arrive at a conclusion that this property has been diminished in value as a result of the construction of this modern street through this property.

The Court has reached the conclusion that the Department appraiser, Futrell, has correctly appraised the special benefits accruing to this property as a result of the construction of this street. We reproduce herein the written report of Perry Futrell showing his assessment of the monetary value of the special benefits accruing to the property as a result of the taking and improvement of this street. We label the same “Court Exhibit D”.

We consider that there might be some slight severance damage caused by the taking. We hold, however, that any such severance damage is far outweighed by the special benefits accruing to this property. An example of some slight severance damage is the northern portion of the east remainder which is only left with a depth of approximately 90 feet.

We find that appraiser, Futrell, has correctly determined the special benefits herein.

We find that the trial court committed manifest error by awarding severance damages in the amount of $22,496.00. We hold that the defendant is entitled to no severance damages herein and we therefore reverse that portion of the judgment of the trial court.

The next question for consideration is whether or not the award of $1,450.70 to T. J. Stephens as an appraiser for defendant is excessive. The Court awarded this appraiser the exact amount of his bill. We feel that the law with respect to the question is well set forth by our decision, State, Department of Highways v. Gordy, 322 So.2d 418, on pages 423 and 424 (La.App. 3 Cir. 1975) and I quote:

“[6,7] The parties to an expropriation suit may engage appraisers of their choice, and they may agree to pay those experts specified fees for their services. The experts may also testify as to the time they spent in preparatory work and in testifying. However, an agreement entered into by a party as to the fee which an expert appraiser is to receive, or the statement of the expert as to his charges or even the actual payment of such a fee to the expert, are not binding on the court and are not criteria to be used by the court in fixing the expert fees which are to be assessed as costs in the suit. LSA-R.S. 13:3666; State v. Donner Corporation, 236 So.2d 841 (La.App. 3 Cir. 1970); Recreation and Park Commission v. Perkins, 231 La. 869, 93 So.2d 198 (1957); State Department of Highways v. Black, 207 So.2d 583 (La.App. 3 Cir. 1968).” . . .
“[9] In determining whether the fee allowed an appraiser and taxed as costs in an expropriation suit is reasonable, we think consideration must be given to the question of whether the preparatory work down by the appraiser was reasonably necessary, whether it actually tended to show the value of the property taken or severance damages, and whether the conclusions he reached based on that preparatory work were of some usefulness in determining the award which should be made. . . . ” (Emphasis ours)

The Department complains of the allowance of a fee $1,450.70 for the landowner’s appraiser, T. J. Stephens. This was the exact amount of the bill of appraiser Stephens. We do not consider that the court is bound under the new constitution to pay the exact amount of a bill submitted by an appraiser. This exact question was considered by this court recently in State of Louisiana, Through Department of Highways v. Champagne, 356 So.2d 1136, and I quote:

“We do not construe the constitutional requirement that a condemnee be compensated “to the full extent of his loss” as divesting courts of some control over the assessment of costs in expropriation matters, and specifically in the assessment of reasonable sums to compensate the landowner for the fees of experts retained on his behalf. Rather, we believe that the jurisprudence which declares that such fees must be reasonable and based upon appraisals which were necessary and useful in assisting the trial court in making its determination of the proper award is still viable. Even under the provisions of the 1974 Constitution, inflated claims for appraisal fees, made in bad faith and for the purpose of driving up the ultimate amount of court costs must be disallowed. We conclude that this Court retains the power to review and alter awards for appraiser’s fees as necessary.”

In this case, we do not find that the trial court abused this much discretion in awarding such a fee to T. J. Stephens. It was necessary for the landowner to employ an appraiser in order to prosecute his claim for compensation. Mr. Stephens spent a great deal of time and effort, as the record will show, in making appraisals and studying the records for comparable sales. He also prepared a lengthy report for consideration by the court in addition to his court appearance. Even though we disagree with the finding of Mr. Stephens, we do acknowledge the considerable amount of work that he performed. We find that his fee is reasonable and in line with awards' made by other courts in similar cases. See State, Department of Highways v. Gordy, supra. We also approve the fees of $100.00 each to the witnesses B. J. Lewis and J. S. Burnley.

For the above and foregoing reasons, the judgment appealed from is amended in the following respect: The judgment in favor of defendant and against plaintiff is reduced from $31,334.00 to the sum of $8,838.00, less the amount deposited by plaintiff in the registry of the court, with legal interest on the balance due from December 30, 1974 until paid, and all costs of these proceedings. Except as herein amended, the judgment appealed from is affirmed.

Costs of this appeal are to be borne one-half by appellant and one-half by appellee.

AMENDED AND AFFIRMED.

EXHIBIT A

EXHIBIT B

EXHIBIT C

EXHIBIT D