author: MARVIN, Judge.

text:
    HUMBLE OIL & REFINING COMPANY v. William W. McCASLAND.
    No. 12710.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    Rehearing Denied Dec. 9, 1975.
    Mecom, Scott & Woods by Leroy H. Scott, Jr., Shreveport, for defendant-appellant.
    Cook, Clark, Egan, Yancey & King by Gordon E. Rountree, Shreveport, for plaintiff-appellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   MARVIN, Judge.

A former Humble service station lessee, McCasland, appeals from a judgment in favor of Humble for the balance due on a promissory note plus interest, attorney’s fees, and costs.

The note was signed by McCasland to pay Humble for a quantity of gasoline for the leased station. About one month later, McCasland needed more gasoline which Humble would not deliver because he did not have cash to pay for it. Within a day or two thereafter, McCasland and Humble signed a “Mutual Cancellation and Termination Agreement” which cancelled the future lease obligations of both. Humble inventoried and appraised the merchandise of the station which had been sold to Mc-Casland partly on credit or open account, and purchased back from McCasland this merchandise and credited McCasland’s open account. The price for each item of the closing inventory was entered on the inventory sheets, which the evidence shows was the same price paid by or charged to McCasland when the items were purchased by him. McCasland signed the inventory and does not dispute its correctness. The total value of the merchandise was some $1,300.00 more than was owed on the open account. This excess credit was applied to the promissory note, resulting in the balance on which Humble brought suit and obtained judgment below.

McCasland contended in his answer to the petition that Humble in effect was seeking a “deficiency judgment” which could not be allowed because Humble had “privately repossessed” the merchandise without benefit of legal appraisal, contrary to the Deficiency Judgment Law, R.S. 13:4106 et seq. McCasland further contends on appeal that he was not truly a lessee or independent operator of Humble’s station because of the degree of “control” Humble exercised over him in the station’s operation, but instead he was a mere “employee” of Humble who should not be held liable for “business losses.”

The facts established by the record do not support McCasland’s contentions. The “Lease to Dealer” as the written lease is styled on the printed form, admittedly signed by McCasland, creates a lessee-lessor relationship. This relationship endured amicably for more than a year prior to McCasland’s inability to pay cash for Humble’s gasoline. The termination agreement, also admittedly signed by McCasland, terminated the lease without affecting past obligations. The promissory note for the gasoline had no connection with the open account for the Humble merchandise which was retailed by McCasland. The open account was fully satisfied by the return of the merchandise to Humble, the value of which was agreed to by McCasland when he signed the inventory. There was no duress or fraud practiced upon McCasland. The excess credit, the amount of which was not disputed by McCasland, was applied to the promissory note. The circumstances under which Humble and McCasland terminated their relationship are clearly distinguishable from those cases invoking the Deficiency Judgment Law as a bar to recovery. In those cases, the thing which is returned to the creditor for disposition does not produce sufficient proceeds to fully satisfy the debt and the creditor claims the deficiency from the debtor, who sometimes signs a “new note” for or otherwise agrees to pay the deficiency after the private disposition without appraisal. See for instance Soileau v. Pitre, 79 So.2d 628, (La.App. 1st Cir., 1955), and cases discussed therein. Here, the thing returned (the merchandise) more than satisfied the open account and the excess credit was applied to the promissory note for the gasoline purchase. The gasoline purchase for which the promissory note was given was distinctly a different and separate transaction from the merchandise purchase on open account which occurred over a period of several months. The Deficiency Judgment Law does not bar recovery on the promissory note under the circumstances presented by this case.

Affirmed.


source: Caselaw Access Project

author: BURGESS, Judge.

license: Public Domain

text:
    Edsel MORROW, Plaintiff-Appellant, v. ROCKWOOD INSURANCE COMPANY et al., Defendants-Appellants.
    No. 12744.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      Huckaby, Piper & Brown, by Robert E. Piper, Jr., and Frank E. Brown, Jr., Shreveport, for plaintiff-appellant.
    Hal V. Lyons, Shreveport, for defendants-appellants.
    Before HALL, DENNIS and BURGESS, JJ.
   BURGESS, Judge.

This workmen’s compensation suit was filed by Edsel Morrow against his employer, Pro, Inc., and its insurer, Rockwood In-’ surance Company, alleging plaintiff was injured on March 19, 1973, while stacking boxes of lawn mower blades in the warehouse of his employer and that the injury occurred during the scope and in the course of his employment. By supplemental petition plaintiff asked for penalties and attorney’s fees for defendants’ arbitrary and capricious refusal to pay compensation within 60 days after notice of the injury. Following trial the lower court awarded judgment for plaintiff against defendants for compensation benefits at the rate of $49 per week commencing March 19, 1973, and ending November 12, 1974, together with legal interest thereon from date of judicial demand on August 29, 1973, until paid and for all costs. Plaintiff was also awarded medical expenses and the trial judge fixed expert witness fees and cast them against defendants. From the above judgment both plaintiff and defendants have appealed. We affirm the judgment.

The employer and its insurer specified numerous errors allegedly committed by the trial court. However, the thrust of these complaints is that the court erred in finding plaintiff was injured while in the employ of Pro, Inc., and in finding defendants had been given notice of plaintiff’s claim as provided in Louisiana Revised Statutes 23 :1293 and 1294.

Plaintiff complains the court erred in failing to find he was totally and permanently disabled and in failing to award maximum medical fees, together with penalties and attorney’s fees.

PROOF OF NOTICE

The issue of whether plaintiff gave notice in accordance with La.R.S. 23:1293 has been vigorously contested and the conflict in the testimony regarding this issue is irreconcilable. Flowever, the circumstances surrounding the event of March 19, 1973, the date of the alleged injury, including the exchange of letters between plaintiff’s attorney and the claims manager for the insurer of Pro, Inc., convinced the trial judge that defendants had notice of the fact plaintiff was complaining of having-injured his back on that date. Although this notice was not in accordance with the statutory provisions relating thereto, nevertheless the court found the company had been made aware of plaintiff’s allegations of injury to his back at least by June 18, 1973, which notice was well within the six-month period required by R.S. 23:1291 as a prerequisite to suit.

The testimony on this issue alone consumes a large portion of the record, which we have reviewed in detail, and from which we find the trial court made a correct determination that, although the notice may not have accorded with the statutes, nevertheless there was sufficient notice to allow the company and the insurer to determine the existence and extent of the claim prior to suit being filed.

OCCURRENCE OF INJURY

The testimony of defendants’ witness, Waters, who was the supervisor in charge of filling out employees’ claims for injuries, is to the effect that Edsel Morrow was a constant complainer; that when he, Waters, heard the “rumor” that Morrow had hurt his back while working on March 19th, he discounted it because he thought plaintiff was complaining about an injury to his eye which he had suffered only a short time prior to the alleged back injury. This opinion gains support from an entry made by Waters on plaintiff’s record card:

“Last day worked 3-20-73. Was sent home to get himself straightened out physically to do his work without constant complaint. Claimed he hurt his back on job, but Pro, Inc., did not agree.”

Although there is no indication of the date of the above entry, it is indicative that Pro, Inc., had been apprised of Morrow’s alleged back injury.

Plaintiff testified he injured his back about 2:30 p. m., on March 19, 1973, approximately 30 minutes before the end of his working day; that he told LaCoure, his immediate supervisor, he had “hurt his back” packing lawn mowers and stacking lawn mower blades; that he also told Waters he had hurt his back and was told to return to work; that he reported for work the next day, March 20, 1973, but was unable to lift the boxes of blades and was told by Waters to check out at 8:30 a. m., which order he obeyed.

The medical testimony affirms the fact that on March 20, 1973, plaintiff went to see Dr. Denman Crow who examined plaintiff for an eye injury and for back injuries. Dr. Crow’s findings, as set forth in a letter dated May 29, 1973, addressed to plaintiff’s attorneys, stated:

“History: Patient stated he received injury to his right eye when he stuck a splinter in his eye while working at his job. He was treated for the injury to his eye by Dr. Bryant, but still states his vision in the right eye is not good.
“He complained of lower back pain and claims he injured his back while lifting a box of steel blades weighing about 120 pounds. He said he hasn’t worked since March 19, 1973.
“Physical examination: The left eye vision is 20/20 and the right eye is 20/70, head and neck is clear, blood pressure is 120/70, heart and lungs are normal, back tests were positive for flexion and hy-perextension with pain over the lumbo-sacral joints. He has continued treatment once to twice weekly until May 23, 1973 when he was then referred to Vocational Rehabilitation for possible evaluation for vocational possibilities.
“X-ray lumbar spine was negative for fracture and bony pathology.
“Diagnosis: Chronic myoligamentous strain of the back.
“Prognosis: Guarded.”

Dr. W. W. Fox, an orthopedist, examined plaintiff on July 30, 1973, and recorded his history which repeated his previous history and the treatment administered by Dr. Crow. X-rays of the lumbar spine were taken and read by Dr. Fox and revealed a right lumbar scoliosis; separate ossifications which never fused in the transverse process of LI on the left; no narrowing of disc; no pars defects, and a “good lumbar lordotic curve”. The diagnosis by Dr. Fox was that the patient probably received a sprain of the lumbar spine and he suggested the patient be measured for a Williams brace and return for application of the brace.

Plaintiff continued to see Dr. Fox through March 18, 1975, and trial was had on April 4, 1975. Dr. Fox testified he saw and examined plaintiff in his office on numerous occasions and each time plaintiff complained of some back pain. At one visit, on June 10, 1974, plaintiff reported he had been in a “little” automobile accident but was not seriously hurt, although he stated, “it sort of stirred up his back”. He was advised he should have a myelogram to determine a possible L4 disc injury but refused.

Following the examination of November 12, 1974, Dr. Fox reported: “On examination plaintiff walks pretty slowly and has a reverse of the lumbar curve, he has no definite neurological deficit. He has no clear cut spasm. He was advised to try to continue exercises as I can’t find adequate evidence of disc diagnosis.”

In the report of March 11, 1975, Dr. Fox found the patient was having more trouble with his knee than anything; that he had some grinding of the left patellofemoral joint. On March 18, 1975, the doctor reported the patient was better in the back but the knee showed lateral instability. Dr. Fox’s final estimate of the knee injury was a recommendation of reconstruction of the knee.

We agree with the trial judge’s summation of the medical findings and his conclusion that plaintiff was injured March 19, 1973, while in the course and scope of his employment; that he was totally and permanently disabled- from that date to November 12, 1974; the subsequent difficulty plaintiff had evidenced was predominately with his knee, which, according to Dr. Fox, had no relation to the original back injury; and that plaintiff was entitled to workmen’s compensation for total and permanent disability until November 12, 1974.

With regard to penalties and attorney’s fees, we also agree the notice to the employer was not in accordance with R.S. 23:1293, which requires that the notice must be in writing, shall contain the name and address of the employee, shall state in ordinary language the time, place, nature and cause of the injury, and shall be signed by the person giving or making the same.

It was shown on the trial that plaintiff was well acquainted with the method and procedure for reporting injuries occurring on the job, since he had previously reported a claim for an eye injury less than a month prior to the alleged back injury. We find, as did the trial judge, that, under the circumstances here presented, plaintiff failed to show his employer was arbitrary and capricious in refusing to timely pay the workmen’s compensation claim.

For the reasons assigned the judgment of the lower court is affirmed at appellants’ cost.


author: PRICE, Judge.

text:
    STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Reginald M. MANNING, Defendant-Appellant.
    No. 12736.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      Burnett, Harrison, Sutton & Walker by Bobby D. Sutton, Shreveport, for defendant-appellant.
    D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Bernard L. Malone, Jr., Johnie E. Branch, Jr., Jeanette M. Faust, Ed A. Michel, Baton Rouge, for plaintiff-appellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   PRICE, Judge.

This appeal arises out of an expropriation by the State of Louisiana through the Department of Highways of a portion of defendant’s property necessitated by the construction of a westbound entrance ramp onto Interstate 20 from the Pines Road in the extreme western sector of Shreveport.

Prior to the expropriation under the “quick taking statute” on May 29, 1974, defendant, Reginald M. Manning, owned a 2.02 acre tract fronting on the south side of U. S. Highway 80 (Greenwood Road) some 350 feet west of its intersection with the Pines Road. This tract was in the shape of a trapezium and abutted Interstate 20 on its south boundary for a distance of 400.75 feet. It had a frontage on U. S. Highway 80 of 379.93 feet and a depth on its west side of 289.84 feet. The easterly depth was 167.73 feet. Defendant operated an antique shop in a combination brick and frame building situated on the westerly portion of the property. A chain link fence surrounded the building on the sides and rear for security purposes.

The taking from the rear portion of the tract bordering 1-20 comprised .907 of an acre with a depth of 56.15 feet on the westerly side expanding to 145.36 feet on the east side of the tract. The building was not within the area of the taking and the only improvements to be compensated for are 80 feet of septic sewer field lines, 20 feet of chain link fence and 150 feet of 1 inch gas line.

After the completion of construction on this project defendant’s property will be located in the northwest quadrant of the Pines Road Interchange but will no longer abut Highway 80. This highway is to be rerouted in the vicinity of defendant’s property and will run some 300 feet north in its realignment. The prior alignment of the highway will become a dead-end street. Along a portion of the old road on which defendant’s property will continue to front, a controlled barrier will affect the easterly 100 feet. Access from the new alignment of Highway 80 will be provided by a boulevard type crossover or road leading directly to defendant’s property.

The State deposited the sum of $9,757 as just compensation for the land and minor improvements taken. No amount was deposited for severance damages.

Defendant answered the proceeding, asking for an increase in the value of the land and improvements taken to $20,855 and for severance damages of $18,212.

After a trial on the merits the district court awarded defendant the sum of $19,754.50 for the land taken and $750 for improvements. Defendant’s claim for severance damage was rejected. The fees of defendant’s two expert witnesses were fixed at $200 each for preparatory work, and $100 for their court appearance.

Defendant has appealed, alleging the trial judge erred in not awarding severance damages and in fixing an inadequate amount for the expert witness fees.

The State has answered the appeal, asking that the judgment be modified to reduce the amount awarded by the trial judge as the value of the land taken.

We shall first review the finding of the trial court on the value of the land taken.

In determining the market value of the subject property the trial judge was presented with the testimony of two real estate appraisers for the State, James C. McNew of Ferriday, and Byron Core of Crowley, who appraised the land value at approximately $10,000 an acre, or 27J/2 cents per square foot as opposed to the opinions of defendant’s appraisers, O. L. Jordan and Frank W. Grigsby of Shreveport, that the value is 50 cents per square foot. All of these appraisers used the market data and comparison approach to arrive at estimates of market value. The tremendous difference in their conclusions results from variations in the selection of sales deemed comparable to the subject property.

The State contends the appraisals of Jordan and Grigsby which were accepted by the trial judge on land values were not as reliable as the opinions of its experts as the evidence shows they were not well grounded.

Without discussing in detail the various sales selected by the several witnesses as comparable to the property under study, we find no abuse of the discretion accorded the trial judge in accepting the opinions of value expressed by Jordan and Grigsby over the State’s appraisers.

The record indicates Jordan and Grigsby worked independently of one another and used different transactions entirely as comparable sales on which to evaluate market value. Both arrived at the unit price of 50 cents per square foot for commercial property similar to defendant’s in this vicinity. Grigsby had previously made an appraisal on this property a short time before for Arkansas-Louisiana Gas Company in connection with the relocation of a gas line on the rear of the tract. He then arrived at this same estimate while working for a party with a contrary interest to that of defendant.

While some of the sales selected by these appraisers may be questioned as being true comparables to the subject property to be entitled to much weight, our review of all the transactions utilized by them lead us to the opinion’ that the trial judge was within his discretion in accepting and relying on their estimates of market value.

Defendant contends the trial court should have awarded him severance damages because the preponderance of the evidence in the record shows the following circumstances will adversely affect the market value of the remainder of his property after the taking:

1. The substantial loss of highway frontage and circuitous means of access resulting from the relocation of U. S. Highway 80.
2. The reduction in size and change in shape of the property which affects the value and usefulness of the westerly area on which the building is situated and precludes the possibility of the sale of the easterly undeveloped portion of the tract as a separate commercial site.
3. The loss of available space at the rear of defendant’s business to maintain an outdoor advertising billboard visible to traffic proceeding on 1-20 as existed prior to the taking.

Although defendant’s property no longer has direct frontage on a major highway as it enjoyed prior to the taking, it does have a reasonable means of access from the relocated highway and under the jurisprudence we do not find this change to be a compensable element of damage. Patin v. City of New Orleans, 223 La. 703, 66 So.2d 616 (1953); State of Louisiana, through Department of Highways v. Salassi, 244 So.2d 871 (La.App. 1st Cir. 1971); State of Louisiana, through Department of Highways v. Beauregard Development Co., Inc., 279 So.2d 787 (La.App. 3rd Cir. 1973).

Defendant’s appraisers, Jordan and Grigsby, followed a method of dividing the property into two tracts in the evaluation of the before and after market value. They contend the west portion containing 51,784 square feet prior to the taking, on which the building is situated, was of sufficient size to accommodate a small commercial venture such as its present use as an antique shop, and that the remaining undeveloped portion to the east side, containing 36,207 square feet, was surplus and available for sale as a separate commercial business site. They were further of the opinion that the loss of the rear portion adversely affected the market value of the westerly tract by 25% and the easterly tract by 50%.

The State appraisers disagreed with the theory of dividing the property into parts to determine severance damages as they contend the entire tract was being put to a single use by defendant at the time of the taking, although somewhat excessive in size for this purpose. They further contend that any severance damage which may be assigned because of a reduction in size or shape of the property is offset by the increase in market value which will accrue to the remainder by being situated in the quadrant of an interstate interchange.

The trial judge rejected defendant’s request for severance damages, and although his reasons do not discuss in detail the basis on which he arrived at this decision, we must assume he found the State appraisers’ testimony in this regard to be acceptable and that defendant had not borne the burden of proving his claims for these items of damage.

Defendant argues on this appeal that the State appraisers’ opinions that the remainder of defendant’s property will sustain an increase in value by being in the interchange quadrant is without proper basis as they have relied on transactions at the Monkhouse Drive interchange for their conclusion and that interchange is not comparable to the subject Pines Road interchange. We find the testimony of defendant’s witnesses to acknowledge this difference and that it was properly compensated for in their conclusions. They were each of the opinion the price per square foot of defendant’s remaining land would almost double in value after the construction of the interchange.

Nor do we find the testimony of Jordan and Grigsby to establish with any degree of legal certainty that any actual damage will occur to the remainder. Under the circumstances presented the division of defendant’s property into two separate tracts for the purpose of ascertaining severance damages is not appropriate. There is no evidence in the record that the tract was intended to be subdivided into two separate tracts prior to the expropriation proceedings.

The trial judge denied defendant’s claim for damages resulting from a loss of outdoor advertising space on finding that the billboard presently being used by him was on property belonging to the Department of Highways.

Defendant does not argue this factual finding in brief to this court. The thrust of his argument seems to be that he has now lost the only area of the rear portion of his property on which an outdoor sign could be erected that would be visible from both directions of travel on 1-20 without constructing an elevated sign of some eighteen feet in height or more.

We know of no authority, and have not been cited to any by counsel for defendant, to make a separate award for such an item of alleged damage. Defendant’s appraisers did not give this factor any consideration in their determination of the before and after valuation of the property. Such an item of damage must necessarily be absorbed into the reduction of the market value of the remainder after the taking by the expropriating authority. We therefore feel constrained to affirm the trial judge’s disallowance of this item of damage.

Defendant also asks that we modify the judgment to allow a total of $1,100 for the taking of the minor improvements situated within the area of the taking, such as field line, fencing and service gas line. The testimony regarding the value of these items ranged from a low of $443 through $1,100. There does not appear to be any abuse of discretion by the -trial judge in fixing the sum of $750 for these items.

Defendant also requests this court t'o increase the fees awarded defendant’s expert witnesses by the trial judge. The court awarded $200 for preparatory work and the sum of $100 for each witness for his court appearance. Defendant asks for this to be increased to the amount charged him by these experts. Jordan’s charges were $650 for preparation; $150 for pretrial conference, and $150 for a court appearance. Grigsby billed defendant for $350 for preparation; $125 for pretrial conference, and $150 for a court appearance.

The amount charged the landowner is not the criterion to be followed by the court in fixing expert witness fees. Nor can defendant claim the charges made by the expert for time spent in consultation with his legal counsel prior to trial. See State through Department of Highways v. Beaird-Poulan, Inc., 292 So.2d 842 (La.App.2nd Cir. 1974); State through Department of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886 (La.App. 2nd Cir. 1975).

There is no evidence in the record to show that these witnesses spent any unusual amount of time or expenditures which would show an abuse of the discretion accorded the trial judge in fixing the fees of expert witnesses.

It has been pointed out by both parties to this appeal that the judgment signed by the trial court inadvertently omitted to give the State credit for the sum previously deposited and withdrawn by defendant.

The judgment is therefore amended to allow the State of Louisiana a credit of $9,757 on the total judgment rendered against it of $20,505, and as amended the judgment is affirmed.


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS v. William Edward HARRIS et ux.
    No. 12732.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    D. Ross Banister, Chester E. Martin, William W. Irwin, Jr., Alva Jones, Jerry F. Davis, Jr. & Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
    Simon, Carroll, Fitzgerald & Fraser by Archie M. Simon, Shreveport, for defendants-appellees.
    Before HALL, MARVIN and BURGESS, JJ.
   MARVIN, Judge.

The state appeals from a determination of just compensation for property expropriated for highway purposes to be in excess of the amount deposited by the state under the “quick-taking” provisions of Title 48 of the Revised Statutes.

The property is unimproved, situated in an area primarily residential, which is surrounded on the north, east and south by other areas which are within the municipal limits of Shreveport. The property is about 1,000 feet south of the 70th Street city limit on the south of the Greater Shreveport Municipal Airport, and about one mile east of the intersection of Jewella and Mansfield Roads. Approximately 250 feet south of the property is Pine Forest Subdivision, a residential subdivision which is within the city limits of Shreveport. With depth of 247.5 feet, the property fronts 165 feet on Walker Road, a northerly-southerly blacktopped public road which intersects the Meriwether Road, an easterly-westerly blacktopped road north of the property.

The appellee-landowner bought the .938 acres of property on May 25, 1968, for $4,500.00. The taking occurred almost five years later, on February 26, 1973.

At the time of the taking, the state’s appraisers valued the property at $5,100.00 which was the amount deposited in court. At the trial, different appraisers for the state respectively valued the property at $5,956.00 and $6,750.00, the latter appraisal allowing $100.00 for a fence and a gravel driveway on the property. Two appraisers for the landowner respectively valued the property at $10,725.00 and $10,500.00. The lower court awarded $10,500.00 as just compensation.

The record reflects the rapid development of the southwest area of Shreveport in recent years and especially since the landowner’s acquisition. A water line now runs along and across Walker Road in front of the property. An expensive home has been erected between the property and the city subdivision to the south. In the general area of the property, retail stores, a high school, an elementary school, and direct accessibility to major thoroughfares have been completed, and a park has been dedicated. The municipal limits and city services and utilities have been extended to within 250 feet of the property. Some or all of these factors were considered by the several witnesses testifying as to fair market value. A part of the trial court’s opinion on the appraisal issues reads as follows :

“The State’s appraisers approached the problem of appraising the property in question from a raw land point of view. The defendants take a prime residential point of view of the property in question. The State has attacked the defendants’ appraisals as being a deliberate attempt to distort. The Court does not find same to be the case .
“The Court was impressed by the testimony of defendants’ witnesses who were more experienced and familiar with the area, the changes, developments and fluctuation in property values. The property in question is directly abutted to a residental area. Its highest and best use seems to be that of residential. The State acknowledges the Court’s discretion where you have presented difficulties such as in this case, i. e. really no appropriate comparables within a reasonable time frame to determine the value of the property in question. The State began with the raw land transaction in 1968 and moved forward. The defendants take developed residential property and then assimilate a comparison with the property in question deducting a percentage which the appraisers compute between 50-75 per cent for development costs.” Record, page 49-50

The state contends the lower court erred in not accepting alleged comparable sales used by its appraisers and instead accepting lot sales in the city subdivision some 250 feet south of the property which were used as alleged comparables by the landowner’s appraisers.

One comparable, as contended by the state, is an elongated tract of almost four acres north of the property taken, on which was situated a frame house, which was sold for almost $2,800.00 per acre in 1971. Another, and contiguous to the property taken, is almost two acres which was sold to a church for $4,800.00 per acre more than six years prior to the taking. The third contended comparable is an elongated five acre tract containing a Jim Walter type frame house about Jfsths mile from the subject property which sold in January, 1970, for $2,700.00 per acre. The state’s appraisers also used the landowner’s purchase of the subject property for $4,500.00 in 1968, as a comparable and increased these figures because of development in the area to reach a per acre value of $7,200.00.

The landowner’s appraisers averaged the subdivision lot sales at approximately 50 cents per square foot and deducted 50 percent therefrom for development cost to reach a valuation of approximately 25 cents per square foot. This was the approximate value assigned to the property taken by the landowner’s appraisers. The subdivision lots were approximately 72 x 130 feet, about one-fourth the size of the property taken which was 165 x 247.5 feet. The landowner argues that there were “two” lots in the 165 x 247.5 tract, each of which was “comparable” to one subdivision lot. The state argues that the smaller subdivision lots resulted in a higher per square foot valuation than a larger lot such as under consideration here. The state also argues that the lower court was in error in apparently accepting only a 50 percent deduction for development cost when one of the landowner’s appraisers acknowledged on cross-examination a 60 percent development cost plus a 15 percent “economic factor” cost could be deducted. Notwithstanding these arguments, the appraisers generally allowed for development costs, subdivider’s profit and selling costs in adjusting the value of the property taken, as we appreciate their testimony. We cannot say that the trial court abused its discretion in its determination of just compensation because the preponderance of the evidence shows that in size, location and other characteristics, the property taken is a residential lot more comparable to the lots of the subdivision than to the four and five acre elongated tracts (the depth of which are 1200 feet or more) which are upheld by the state as “true” comparables. None of the sales asserted as comparables were in reasonable proximity in time to the time of the taking. It has been held that only recent sales are of particular significance in determining value, and we agree with the trial court’s assessment that there are “really no appropriate comparables within a reasonable time frame” on which to make a valuation.

We believe the trial court’s determination is supported by the evidence and that there has been no abuse of discretion. See City of Baton Rouge v. Allied, Chemical, 308 So.2d 295, (La.App. 1st Cir., 1975).

We affirm, at appellant’s cost.

      . See Southwest Electric v. Conger, 254 So.2d 98 (La.App.2d Cir., 1971).


text:
    LANE WILSON COMPANY, INC., Plaintiff-Appellee, v. R. W. GREGORY, Jr., Defendant-Appellant.
    No. 12730.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      James H. Trousdale, Jr., Monroe, for defendant-appellant.
    Kostelka & Blackwell, by Marshall Blackwell, Monroe, for plaintiff-appellee.
    Before HALL, MARVIN and BURGESS, JJ.
   BURGESS, Judge.

Plaintiff, Lane Wilson Company, Inc., sued defendant, R. W. Gregory, Jr., to recover the balance of the contract price allegedly due under a building contract in which plaintiff agreed to construct a swimming pool for defendant. In answer to plaintiff’s suit, defendant alleged that plaintiff had not constructed the pool according to the terms of the contract and reconvened for damages in an amount sufficient to correct the alleged defects in the pool. The trial court found that plaintiff had substantially performed under the contract. Therefore, the lower court held that plaintiff was entitled to recover the contract price subject to a credit of $300 to remedy a defect in plaintiff’s performance. We amend the trial court’s judgment and affirm the judgment as amended.

Defendant is the owner of a KOA Campground facility near Monroe, which provides trailer space and utility connections for overnight campers and mobile home travelers. To make his campground more attractive to the traveling public, defendant decided to have a large swimming pool built. Accordingly, defendant entered into a written contract with plaintiff by which plaintiff agreed to construct a 30-foot by 60-foot swimming pool with a depth varying from three feet to six feet for a price of $12,000. At a later date the parties orally modified their contract by agreeing that plaintiff would add a diving board and increase the depth of the pool to safely accommodate persons using the diving board. Other oral modifications included enlarging the walkway around the pool and erecting a longer fence.

The original contract was also allegedly amended to reduce the number of water inlets from twelve to six. The cost of these modifications raised the contract price to $13,643.36.

The contract was entered into on February 2, 1973. Construction began on May 29, 1973, and the pool was completed by the first part of July. Defendant has paid $8,400 on the contract but refuses to pay more because of the alleged failure of plaintiff to construct the pool according to the terms of the contract and because of alleged defects in the construction. Plaintiff brought this suit to recover the balance allegedly due it.

Article 2769 of the Civil Code governs the disposition of this appeal. The article provides:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

In Florida Ice Machine Corp. v. Branton Insulation, Inc., 290 So.2d 415 (La.App. 4th Cir. 1974), the court in interpreting the code article stated:

“The jurisprudence interpreting this code article has made it clear that construction contracts are treated in a different manner than other commutative contracts. In the latter there can be no recovery in the absence of full performance. In the case of construction contracts, a substantial compliance with the contract is sufficient to justify recovery of the contract price by the contractor. The remedy against the contractor (or the subcontractor, as in this case) in the presence of substantial compliance or performance is to allege and prove the nature and extent of the unfinished or defective work in order to reduce the sum owed to the contractor by the amount of the cost involved in properly completing the contract work. Therefore, the person proceeding against the contractor who has substantially performed must prove both the existence of the defects or omissions on the part of the contractor and the cost of repairing or finishing the defective work.”

As reflected by the jurisprudential interpretation of Article 2769, this appeal presents two issues. First, has plaintiff substantially performed the contract thereby enabling him to recover the balance due on the contract price? Second, if plaintiff has substantially performed, are there any defects in the construction which entitle defendant to damages in an amount sufficient to remedy the faulty performance?

In Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961), the supreme court considered Article 2769 and the meaning of “substantial performance.” The court stated:

“Substantial performance of the contract is essential to warrant the application of this rule of law. For if the breached contract has not been substantially performed, the contractor may not recover on the contract, but is limited to recovery on quantum meruit.
“The principal question presented in this case is whether or not there has been substantial performance so as to permit recovery on the contract. This is a question of fact. Among the factors to be considered are the extent of the defect or non-performance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the defendant of the work performed.”

In light of the factors enumerated above, we cannot say the trial court was manifestly erroneous in finding that plaintiff substantially performed the contract. Defendant contracted for a 30 by 60 foot swimming pool deep enough to accommodate persons using a diving board. The defects alleged by defendant are not such that defeat the purpose of the contract or prevent defendant from using the pool. In addition, the defects for which plaintiff may be held accountable are easily remedied.

In reconvention, defendant has alleged numerous defects in performance which entitle him to damages.

(a) Rather than measuring 30 by 60 feet as called for by the contract, the pool’s measurements fluctuate from 59 feet six inches to 59 feet three and one-half inches in length, and from 29 feet one-half inch to 29 feet three and one-half inches in width.

(b) The walls of the pool are not vertical but slope severely to form a bowl-shaped pool.

(c) Plaintiff installed only six water inlets as opposed to twelve water inlets called for by the contract; this deficiency coupled with the poor placement of the inlets results in insufficient water circulation in the pool.

(d) The pool is not ten feet deep as the parties allegedly agreed.

(e) Plaintiff improperly installed a “skimmer box” which cased an unsightly dangerous hump in the concrete.

(f) Plaintiff did not lay the amount of concrete walkway called for by the contract.

(g) Plaintiff installed the water pump on a piece of wood planking rather than on a concrete base.

(h) Plaintiff damaged defendant’s sewer line while building the pool.

(i) Plaintiff installed incorrect depth markers.

(j) Defendant supplied 200 feet of pipe to plaintiff for which he was not compensated.

(k) Defendant performed some clean-up work which plaintiff was obligated to do but did not.

(i) Plaintiff only installed six water inlets but charged defendant for twelve water inlets.

This court will consider each of these alleged defects in order.

(a) Defendant alleges it will cost some $2,000 to remedy the defect in the length and breadth of the pool. In Blakesley v. Ransonet, 159 La. 310, 105 So. 354 (1925), an owner sought to avoid payment to a contractor who built a tomb, the measurements of which were not those called for by the contract. The court held the variance in the dimensions, which could not be determined except by actual measurement, was not a breach of the contract. The court also found that the slight difference in appearance between the left wall and the right wall of the tomb could not be avoided in constructing the tomb with the class of materials called for in the contract and was therefore not a defect in construction.

In the instant case we find the deviations in dimensions, which could be discovered only by measuring the pool, in no way defeat the purpose of the contract. Plaintiff also testified the method of constructing the pool made it impossible to achieve perfect compliance with the exact measurements called for by the contract. Therefore, under the authority of Blakes-ley, supra, we find the slight deviation in measurements did not constitute a breach of the contract.

(b) Defendant made no complaint about the shape of the pool walls until after suit was filed. The defect, if it be one at all, was apparent and defendant is held to have accepted same since he made no objection to the walls until suit was filed.

(c) The number of water inlets was changed at the suggestion of the supplier of the equipment because twelve water inlets would have lowered the water pressure and caused improper circulation in the pool. Defendant agreed to the change in plumbing and cannot now claim that change as a defect.

(d) Defendant failed to prove that the parties agreed to a ten-foot depth for the pool. We find the pool as constructed, is deep enough to accommodate a diving board and, therefore, there is no defect in regard to the depth of the pool.

(e) Assuming the raised “skimmer box” is a defect, defendant has not testified what it would cost to remedy the alleged defect and, accordingly, defendant is not entitled to damages for this item.

(f) Plaintiff admits defendant is entitled to $38.52 because of a deficiency in the amount of concrete slab laid around the pool, and we, therefore, find defendant is entitled to this amount.

(g) Assuming that installing the pump on a wooden plank rather than on a concrete base is a defect, defendant, having offered no evidence concerning the cost to remedy this alleged defect, is not entitled to recover damages for this item.

(h) The damage to the sewer line was not discovered until Christmas of 1973, some six months after completion of the pool. Defendant failed to prove plaintiff was responsible for the harm; therefore, he is not entitled to damages.

(i) Defendant testified the cost of draining the pool, removing the incorrect depth markers, purchasing and installing new depth markers totaled $172.70. Plaintiff admitted he installed incorrect depth markers. The trial court did not allow defendant damages because it found defendant failed to prove the cost to remedy the defect. We find that, since plaintiff admitted the defect and did not object to the amount testified to by defendant, defendant has sufficiently proved the amount he actually expended to correct the defect and is entitled to $172.70 as damages.

(j) Plaintiff did-not deny he was indebted to defendant in the amount of $84.50, the cost of 200 feet of defendant’s pipe which plaintiff used in building the pool, and we find defendant is entitled to this amount as damages.

(k) Defendant sufficiently proved he removed waste cement and cement forms at a cost of $12.80, and he is entitled to this amount as damages.

(1) The contract as originally written called for twelve water inlets but only six water inlets were actually installed in accordance with the subsequent oral modification. Defendant is entitled to $22.50, which is the cost of six water inlets.

Totaling the amounts listed above, we find defendant is entitled to $331.02 as damages to correct defects in plaintiff’s performance, in addition to the $300 allowed by the trial court for the cost of an additional chlorinator which plaintiff admitted the pool needed. Since plaintiff did not answer the appeal, the propriety of the trial court’s award of $300 for the chlorin-ator is not before this court.

For the reasons assigned the judgment in favor of plaintiff is amended to reduce the award from $4,943.36 to the sum of $4,612.34, and as amended is affirmed at appellant’s cost.


author: CULPEPPER, Judge.

text:
    Calvin J. GUIDRY, Plaintiff and Appellant, v. HUDSON ENGINEERING CORPORATION and the Travelers Insurance Company, Defendants and Appellees.
    No. 5251.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Ashton J. Landry, Lafayette, for plaintiff-appellant.
    Don L. Broussard, Lafayette, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

The plaintiff-appellant, Calvin J. Guidry, neither appeared nor filed a brief in this matter prior to the time the case was called for oral argument. Pursuant to Rule 7, Section 5(b), Uniform Rules, Courts of Appeal, this appeal is considered abandoned, and is hereby dismissed at appellant’s costs.

Appeal dismissed.


author: DOMENGEAUX, Judge.

text:
    Paul GUILLORY, Jr., Plaintiff and Appellant, v. MOREIN MOTOR COMPANY, INC., et al., Defendants and Appellees.
    No. 5237.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.

      Fonenot & Mitchell by Guy O. Mitchell, III, Ville Platte, for plaintiff-appellant.
    Preston N. Aucoin, Ville Platte, Peter C. Piccione, Lafayette, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

This is an action in redhibition to rescind the sale of a used automobile. The plaintiff, Paul Guillory, Jr., purchased a used car from the defendant, Morein Motor Company, Inc., in Ville Platte, Louisiana. After a short time the vehicle ceased to function, and the plaintiff brought this suit against Morein seeking recision of the sale and damages. He further sought injunc-tive relief against General Motors Acceptance Corporation prohibiting it from proceeding against plaintiff on the chattel mortgage and promissory note executed pursuant to the sale. General Motors Acceptance Corporation filed an exception of no right or cause of action, which was sustained by the trial court. After trial on the merits the plaintiff’s suit against Morein was dismissed with prejudice. From the latter judgment plaintiff has appealed. The facts of this case are as follows:

On July 8, 1974, in Ville Platte, Louisiana, Guillory purchased a used 1966 Pontiac automobile from Morein. The bill of sale indicates that the price of this vehicle was $675.00. It further indicates that the mileage on the vehicle at the time of sale was 95,537 and after the word “warranty” on the bill of sale there was a dash with a “0” indicating that the vendor did not extend any warranties to the automobile.

The day after the sale plaintiff began to experience difficulty with the vehicle. On July 9, 1974, the 1966 Pontiac automobile developed trouble concerning the water pump. This difficulty was called to the attention of the vendor — defendant and was repaired at no cost to- the plaintiff. Shortly thereafter the vehicle ceased to run, the cause being attributed to failure of the timing chain. The defendant repaired the timing chain at plaintiff’s cost.

Subsequently, on August 5, 1974, the plaintiff discovered a loud hammering noise in the engine. He testified that he checked the oil and that the crankcase appeared to be full. Plaintiff returned the car to defendant’s shop the following day for inspection. The plaintiff testified that he drove the car at a reduced speed from his home to the defendant’s shop, a distance of approximately two miles. Defendant’s mechanics, after examining the vehicle, determined that the motor was “burned up” because it had been operated without any oil pressure. The plaintiff testified that the red oil pressure warning light the automobile did not come on during the trip from his home to the defendant’s shop. However, the defendant’s mechanic, Nelson Charlie (also the father-in-law of the plaintiff), testified that when he first inspected the vehicle on that fateful day at the defendant’s shop, the red oil pressure warning light was functioning and in operation, indicating a dangerous lack of oil pressure in the engine. in

Plaintiff requested that the defendant provide him with a new or rebuilt engine or repair the one in the automobile. The defendant refused and offered to replace the engine with a rebuilt one at the plaintiff’s expense. Plaintiff then tendered the vehicle to the defendant and brought this action.

The trial judge did not rule specifically on the issue of waiver of warranty evidenced by the “0” after the word “warranty” on the hill of sale. Instead, he ruled that plaintiff failed to carry his burden of proof that the fatal defect to the automobile (the oil pump malfunction) existed at the time of the sale and further that the plaintiff’s action in driving the vehicle with the oil pressure warning light on was the proximate cause of the engine’s demise.

The plaintiff — appellant raises the following specifications of error:

1. The trial judge erred in his finding that the defendant failed to meet his burden of proof that the defect existed at the time of the sale.

2. The trial judge erred in his finding that the same warranties do not apply to used and new cars alike.

Although the trial judge did not deal directly with the question of warranty waiver in his reasons for judgment, the plaintiff makes a considerable argument on the issue. We shall deal with this threshold consideration first.

The fact is elementary that had the trial judge found an effective waiver of warranty by the plaintiff, the dispute would have terminated at that point. Since the trial judge dealt with the more substantive issues of the case in his reasons for judgment, it is logical to assume that he found no waiver of warranty. However, in the interest of clarity we shall rule on the issue.

Art. 2475 of the Civil Code sets forth the two principal obligations of the seller:

“Art. 2475. Seller’s obligations of delivery and warranty
The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.”

Art. 2476 further defines the warranty described in the preceding article.

“Art. 2476. Warranty against eviction and against latent defects
The warranty respecting the seller has two objects; the first is the buyer’s peaceable possession of the thing sold, and the second is the hidden defects of the thing sold or its redhibitory vices.”

Every sale in this state carries with it the legal warranty set out in Art. 2476, in that the thing sold is free of hidden defects or redhibitory vices. This warranty of fitness applies by operation of law, but it may be waived by the buyer. Civil Code Article 1764, Section A(2) reads:

“Art. 1764. Contracts; subject, motive, elements determining nature, and exceptions to implied warranty provisions
A. All things that are not forbidden by law, may legally become the subject of, or the motive for contracts; but different agreements are governed by different rules, adapted to the nature of each contract, to distinguish which it is necessary in every contract to consider:
2. Things which, although not essential to the contract, yet are implied from the nature of such agreement, if no stipulation be made respecting them, but which the parties may expressly modify or renounce, without destroying the contract or changing its description; of this nature is warranty, which is implied in every sale, but which may be modified or renounced, without changing the character of the contract or destroying its effect.”

However, our courts have long held that any waiver of these statutory warranties must be express, explicit, and strictly construed. Meyer v. Mack Motor Trucks, Inc., 141 So.2d 427 (La.App. 4th Cir. 1962); Breeden v. General Motors Acceptance Corporation, 140 So.2d 680 (La.App. 4th Cir. 1962); Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973); California Chemical Company v. Lovett, 204 So.2d 633 (La.App. 3rd Cir. 1967).

In the instant case the only evidence introduced by the defendant to support a waiver of the statutory warranty was the bill of sale executed by the parties. This document is a standard form bill of sale, the body of which lists the date of sale, data about the vehicle, price paid, buyer and his address, and the signature of the seller. In addition, in the lower left corner of the bill of sale are several headings in small type followed by blank spaces. Each of these blank spaces is filled in with the data corresponding to the heading, such as mileage, driver’s license number and social security number of buyer, color of car, and warranty. After the word “warranty” there is a hand-written “0” evidently indicating no warranty. This all-important statement of waiver is located in a most inconspicuous position on the document. It is doubtful that an individual such as the plaintiff, a semi-illiterate, would have noticed or understood the implications of that small “0”. Furthermore, the document entitled Bill of Sale is not in authentic form although there is space provided for signatures of a notary and witnesses. This Bill of Sale was the only document purporting to be a waiver of warranty. By no stretch of the imagination did the plaintiff’s action in signing this “Bill of Sale” amount to an express and explicit waiver of the warranties provided by law. Therefore we determine the statement of “0” warranty to be without effect.

Since there was no waiver by the plaintiff, we must now determine exactly what warranties apply to the vehicle which defendant sold to plaintiff. Civil Code Articles 2475 and 2476 state the basic warranties applicable to a sale. Article 2476 speaks of hidden defects and redhibitory vices, the latter of which is defined in Article 2520.

“Art. 2520. Redhibition, definition
Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
Article 2520 is limited by Article 2530.
“Art. 2530. Proof of existence of vice before sale
The buyer who institutes the redhibi-tory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

Reading these articles in conjunction we find that the seller warrants that the thing sold is free from hidden defects and redhibitory vices, which are those defects rendering the thing imperfect for its intended use and which would have prevented the buyer from making the purchase had he known of their existence. Further, these defects must exist at the time of the sale.

The vehicle sold to the plaintiff in this case manifested defects shortly after the sale. Two days after the plaintiff took possession of the car the water pump proved to be defective, causing the car to stop running. The defendant remedied this difficulty at his expense. However, the following day the car again refused to properly function. It was taken to the defendant’s garage but the cause of the problem could not be isolated. The plaintiff took the car back and it ran adequately for approximately the next two weeks. Approximately three weeks after the sale the car again stopped running. The cause was traced to a malfunctioning timing chain which was repaired, this time at plaintiffs cost. The day following the timing chain repair the vehicle again ceased to run. There also appeared to be an excessive knocking noise in the engine at this time. The following day the plaintiff got the car running and drove it at a very slow speed to the defendant’s garage. Upon examination by the defendant’s mechanic the conclusion was reached that the engine was ruined because apparently the oil pump had stopped working, and the vehicle had been driven without any oil pressure.

It is clear that the plaintiff in this case had considerable difficulty with his vehicle the entire time that it was in his possession. While we agree with the trial judge that the same warranties of fitness do not apply to old and new cars alike, the thing sold must still be fit for its intended purpose. The purpose for which one purchases an automobile is that of transportation, be it a used or new vehicle. If an individual wished to purchase a stationary hulk of nuts and bolts with four wheels on it certainly he could do so at a lesser cost than the price paid by plaintiff for the automobile in question.

The defendant’s agent and salesman, Lee S. Ardoin, testified that he represented to the plaintiff that the car was in “good running condition.” We find it difficult to believe that a car which breaks down four times within the first month of ownership is “in good running condition”. We find the case of Standard Motor Car Company v. St. Amant, 18 La.App. 298, 134 So. 279 (1st Cir. 1931), (reversed on other grounds at 138 So. 461) particularly relevant to this litigation. In St. Amant the plaintiff purchased a used car which exhibited many of the same difficulties as the one involved in the instant case. The vendor contended that the vehicle was delivered in “running condition”. The court said:

“Running condition, we think, means a little more than that; a car should keep in running order, at least, for more than a couple of weeks after its purchase, when it has been properly taken care of, as appears to have been the case herein. The many defects, which soon made their appearance for the reasons hereinabove given, authorize the inference that the defects existed when the car was sold or before.”

We do not believe that the 1966 Pontiac vehicle sold to the plaintiff was in good running condition as was warranted by the vendor. Obviously, defects existed in the vehicle which placed it within the purview of Article 2520, that is, there were defects in the thing sold which rendered it so inconvenient and imperfect that it must be supposed the buyer would not have purchased it had he known of these defects. We also feel that the plaintiff met his burden of proof in showing that these redhibitory vices existed prior to the sale. An automobile is a complicated piece of machinery, and a purchaser is not to be burdened with the impossible task of proving the cause of every defect and difficulty which he encounters. It is sufficient that he merely show their existence. Peters v. Pattison Pontiac Company, Inc., 259 So.2d 99 (La.App. 4th Cir. 1972).

The trial judge found that the plaintiff drove the automobile approximately two miles with the red oil pressure warning light in operation and that this negligent operation of the vehicle was the proximate cause of the ruination of the engine. While the oil pump was defective through no fault of the plaintiff, it was incumbent upon him to heed this mechanical warning and cease operation of the vehicle. We cannot hold the vendor liable for damage caused to the engine by plaintiff’s unreasonable action in operating the vehicle with the oil pressure warning light on.

Therefore, we hold that the plaintiff is entitled to recision of the sale in which he purchased the 1966 Pontiac automobile from the defendant and a return of the purchase price, but with the following modifications.

In accordance with Civil Code Article 2531 the plaintiff shall be given an additional credit of $56.41 which he paid for replacement of the timing chain, a cost incurred in preservation of the thing sold. Plaintiff’s award shall then be reduced by the amount necessary to replace the ruined engine, said amount to be determined upon remand.

We remand this case to the District Court to ascertain the cost of replacing the damaged engine of the 1966 Pontiac with one of a similar quality. The District Court shall determine the condition and value of the engine prior to its ruination from lack of oil pressure (this amount shall not include the cost of replacing the oil pump which we find to be a redhibitory defect).

For the above and foregoing reasons the judgment of the District Court is reversed insofar as it denies recision of the sale, and it is hereby ordered that the sale of the 1966 Pontiac automobile be rescinded, subject however, to the above referred to modifications. The judgment of the District Court is affirmed insofar as it holds that the ultimate damage to the automobile’s engine was caused by the plaintiff’s negligence. The case is remanded to the District Court for the sole purpose of determining the cost of replacing the engine according to the instructions set out herein, and rendering proper judgment consistent with this opinion.

Costs at trial, on appeal, and on remand shall be borne equally by plaintiff and defendant.

Reversed in part, affirmed in part, and remanded.


text:
    Billie Ray HARRIS et ux., Plaintiffs-Appellants, v. Dr. W. C. DUPREE, Jr., et al., Defendants-Appellees.
    No. 12748.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Refused Jan. 30, 1976.

      Ford E. Stinson, Benton, for plaintiffs-appellants.
    Cook, Clark, Egan, Yancey & King by Sidney E. Cook, Shreveport, for defendants-appellees.
    Before HALL, DENNIS and BURGESS, JJ.
   BURGESS, Judge.

Plaintiffs, Billie Ray Harris and Helen Harris Jones, his ex-wife, are appealing from a judgment of the district court in favor of defendants, Dr. W. C. Dupree, Jr., Dr. R. O. Rigby, and Dr. John L. Leopard, III, individually and as partners in the Summer Grove Clinic, J. H. Page, Jr., Summer Grove Clinic, and Willis Knighton Memorial Hospital, Inc. The suit involved the alleged negligence and malpractice of all the defendants which allegedly resulted in the death of plaintiffs’ infant son. In this court, defendants-ap-pellees have filed a motion to dismiss the appeal on the ground that this court lacks jurisdiction because plaintiffs-appellants failed to file their appeal bond timely. We grant the appellees’ motion and accordingly dismiss the appeal.

Following trial on the merits in April of 1974, the lower court took the matter under advisement. Judgment in favor of all defendants was signed in open court on February 7, 1975. The clerk of court gave notice of the signing of final judgment on February 10, 1975. On that same day plaintiffs moved for a new trial. The district court took the motion under advisement and subsequently denied plaintiffs’ motion for a new trial on March 6, 1975. The clerk of court made a minute entry reflecting this decision on March 6, 1975, but did not mail notice to plaintiffs informing them of the denial of their motion because plaintiffs had not filed a request for such notice. Plaintiffs obtained an order of appeal on May 14, 1975, granting them a de-volutive appeal to this court conditioned upon the furnishing of an appeal bond of $250. Plaintiffs-appellants filed the appeal bond on July 1, 1975, more than 90 days after the denial of the motion for a new trial on March 6, 1975, but within 90 days of obtaining an order of appeal on May 14, 1975.

The first issue confronting the court is whether Louisiana Code of Civil Procedure Article 1914 requires that notice of the denial of a motion for a new trial must be given to a party even though, the party has not filed a request for notice. If such notice is required but was not given, the period within which to perfect the appeal began on May 14, 1975 (the date appellants obtained an order of appeal), rather than on March 6, 1975 (the date of the denial of their motion for a new trial). Accordingly, if appellants are entitled to notice, their appeal was timely perfected since the bond was filed within 90 days of obtaining the order of appeal. Conversely, if appellants are not entitled to notice because they did not request it, the appeal would not be timely perfected since the bond was filed more than 90 days after the denial of their motion for a new trial.

The delays within which to perfect a de-volutive appeal are set out in Code of Civil Procedure Article 2087, which provides in part:

“Except as otherwise provided in this article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, within ninety days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.”

Code of Civil Procedure Article 1914 concerns the requirement of notice of the rendition of an interlocutory order or judgment when such interlocutory order or judgment is taken under advisement. The article states:

“When a case has been taken under advisement by the court for the purpose of deciding whether an interlocutory .order or judgment should be rendered, the clerk shall make an entry in the minutes of the court of any such interlocutory order or judgment rendered thereafter.
“If a written request for notice of the rendition of the interlocutory order or judgment in such a case has been filed, the clerk shall mail notice thereof to the party requesting it; and the latter shall have ten days from the date of the mailing of the notice to take any action or file any pleadings he deems necessary, except as provided in the next paragraph.
“If the interlocutory order or judgment is one refusing to grant a new trial, the delay for appealing commences to run only from the date of the mailing of such notice, as provided in Articles 2087 and 2123.
“The provisions of this article do not apply to an interlocutory injunctive order or judgment.”

Article 1914 provides that notice of the refusal to grant a motion for new trial when such motion is taken under advisement is required only when a party has requested such notice. McDowell Well Service, Inc. v. Gray and Company, 270 So.2d 647 (La.App. 3d Cir.1972), is on all fours as a procedural matter with the situation presented by this appeal. In that case Judge Hood stated:

“Appellants rely on the third paragraph of that article. [C.C.P. Art. 1914], They argue that in all cases where a motion for new trial is filed and denied, the delay for appealing commences to run only from the date of the mailing of a notice of the judgment refusing to grant the new trial. They interpret the article as requiring that notice of the rendition of an order or judgment refusing to grant a new trial be given in every case. "We feel that the cited article requires the mailing of a notice of the rendition of a judgment refusing to grant a new trial only in a case where a written request for such a notice has been filed. We believe that the third paragraph of Article 1914 must be construed with the second or preceding paragraph of that article, and that the delays set out in the third paragraph apply only in cases where ‘a written request for notice of the rendition of the interlocutory order or judgment in such a case has been filed.’ No such request was filed in the instant suit, and the delays for appealing thus commenced to run from and after the rendition of judgment refusing to grant a new trial on January 20, 1972. The appellants obviously did not apply for a suspensive appeal timely, and their appeals must be dismissed insofar as they purport to suspend the execution of the judgment.” (Emphasis supplied)

See also Succession of Centanni, 151 So.2d 539 (La.App. 4th Cir. 1963); Dounson v. Faia, 246 So.2d 729 (La.App. 4th Cir. 1971); Palmer and Palmer v. United Investment Corporation, 255 So.2d 611 (La.App. 1st Cir. 1971); and Joffrion v. Sears, Roebuck & Company, 266 So.2d 563 (La.App. 3d Cir.1972).

Since appellants were not entitled to notice of the denial of their motion for a new trial, we find that the appeal was not timely perfected because the bond was filed more than 90 days after the denial of their motion.

In answer to the motion to dismiss the appeal, appellants also argue that Code of Civil Procedure Article 2087 is unconstitutional and cite Article I, Sections 2, 19, and 22 of the Louisiana Constitution of 1974 as authority for their position. Appellants have not favored this court with any argument or other citation in support of their contention.

In Larussa v. Evans, 303 So.2d 310 (La.App. 1st Cir.1974), the court held that the requirement of an appeal bond did not violate any constitutional right to appellate review. We agree with that statement.

The right to appellate review is a constitutional right (Article I, Section 19), but we find no constitutional infirmity in the reasonable regulation of that right by the state legislature. The requirement of C.C. P. Article 2087 that a financially able party post a bond within the prescribed delays to secure the payment of costs is not an unreasonable regulation of a party’s right to judicial review.

Having found no constitutional objection to C.C.P. Article 2087 and having determined that plaintiffs-appellants did not timely file their devolutive appeal bond, we grant defendants-appellees’ motion and dismiss plaintiffs-appellants’ appeal at their cost.


author: WATSON, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Darrel V. WILLET, Sr., Defendant-Appellant.
    No. 5213.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.

      Gold, Hall, Hammill & Little, by Charles S. Weems, III, Alexandria, for defendant-appellant.
    Chris Frugé, Ville Platte, for plaintiff-appellee.
    D. Ross Banister, Jesse S. Moore, Jr., William W. Irwin, Jr., Jerry F. Davis, Baton Rouge, Darrel Van Willett, Jr., Pine-ville, Polk, Foote, Randolph, Percy & Led-better, by William H. Ledbetter, Jr., Alexandria, for defendant-appellant.
    Before MILLER, WATSON and CU-TRER, JJ.
   WATSON, Judge.

This is an expropriation case involving basically the value of the land taken. The trial court granted judgment for $106,430. The expropriating authority had deposited $85,926. The landowner appeals, contending that he is entitled to a sum substantially in excess of the award.

The plaintiff-expropriating authority is the State of Louisiana through the Department of Highways (hereafter referred to as the Department) and the landowner is Darrel V. Willet, Sr. (hereafter referred to as Willet). The property taken under the so-called “quick-taking statute”, LSA-R.S. 48:441 et seq., consists of five tracts or parcels of land, (identified by the Department in its petition and throughout the proceedings as “Advance No. 1” through “Advance No. 5”), all consisting of various groups of lots in Aurora Park — Unit 2 Subdivision of Rapides Parish, Louisiana. A total of 32 lots were taken from the subdivision which originally contained 49 lots. These tracts are located in an area near but not fronting on U. S. Highway 71 near its intersection with U. S. 167. Just adjacent to the property to the west is the Dresser Industry Valve Plant, a large manufacturing plant employing several hundred people. The subdivision had been partially developed at the time of taking, but work stopped in September, 1972, when the owner learned that the highway was going to be constructed through his property.

There were no buildings on the land taken, so the value to be determined is that of the lots themselves.

In the trial court, after hearing an expert for the Department of Highways, an expert for the landowner, and the landowner himself (who qualified as an expert appraiser), the trial court determined that the lots had a value of $60 per front foot and found a total value of the land of $120,430. The trial court deducted from this amount the cost to the owner to complete the streets and utilities, which was established in the record as $14,000. The trial court then made an award of $106,430 subject to a credit of the sum previously deposited by the Department, which was $85,926.00.

In the reasons for judgment, the trial court noted that the evidence presented was not what the court would have desired, the landowner’s estimates of value being in the nature of a “feasibility study” or “cost analysis study” rather than an estimate of market value. The trial court also noted that the land is located in a rural area, where there is considerable undeveloped land. As to the landowner’s contention that the property could be developed into a multi-family dwelling community, the trial court said the subdivision was largely undeveloped, making this evidence speculative. The trial court commented that the values furnished on the property by the landowner’s appraiser and the landowner exceeded the front-foot values of lots located in the most exclusive subdivision in the City of Alexandria. The trial court rejected the idea that the front-foot value of lots in a rural area of the parish, in a multi-family dwelling subdivision next to an industrial plant, is more than that of a lot in the exclusive residential area of the City of Alexandria.

The court stated that the testimony of the Department’s appraiser was more acceptable than the testimony on behalf of the landowner. While the Department’s appraiser placed a value of $45 per front foot or less on the various lots, the trial court set a value of $60 per front foot, apparently giving some weight to the fact that Willet intended to develop the property for multi-family residences rather than single-family residences and possibly giving some consideration to the failure of the Department to call one of its experts who had made an appraisal. Only Willet, the landowner, has appealed; the Department has not appealed and we are not faced with a contention that the award was excessive, only that it is inadequate.

Issues

On appeal, we will consider the following issues:

(1) Is the amount awarded for the value of the land inadequate? (A subsidiary issue is whether the failure of the Department to call an expert who had appraised the property on behalf of the Department gives rise to a presumption that the expert would have testified against the Department and, if so, what weight , should be placed on this presumption ?)
(2) Did the trial court err in computation of the award and, if so, in what amount ?
(3) Is the landowner, who qualified and testified as an expert, entitled to an expert witness’s fee ?
(4) Is the bill of a photographer who made an aerial photograph of the property taxable as court costs ?

Value of the Land

As to the value of the land, only three experts testified. All qualified and were recognized as expert appraisers and all appear to have given a careful and thorough consideration to the appraisal of the particular tract in question.

The Department’s expert was M. C. Gehr, who made his conclusions of market value as of February 12, 1973, prior to May 15, 1973, the date of taking. Counsel for Willet argues strenuously that Gehr’s opinion must be rejected because of this variation in dates. However, the record reflects that the property had no different value on the two dates. Work had halted on the subdivision, as noted above, in September, 1972, and there is no indication in the record of any change in the condition of the land or its value between February and May, 1973. We do not regard as significant the fact that Gehr’s appraisal was dated three months prior to the taking. Lex non curat de minimis.

Gehr stated that, in his opinion, the highest and best use of the property was for residential single-family dwellings. He said the subdivision was composed of 49 lots on which 6 duplexes had been constructed. His opinion was that it would not be feasible to build 49 duplexes in the area, the property taken being most suitable for single-family residences.

Gehr referred to sales of lots in subdivisions of a similar type: in Fairway Estates, the lots sold from $25 to $41.50 a front foot; in Pinebrook Estates from $35.71 to $37.50; in North Park, from $33 to $44 a front foot; and in High Chaparral from $33 to $37 a front foot. Fairway Estates is near to the subject property on the west and Pinebrook is not far to the east. North Park is some distance to the south and lies between the subject property and Pineville. High Chaparral-is not in the area of the property taken and the comparables there are of doubtful significance.

After analyzing his comparables, Gehr assigned a basic value of $45 a front foot to the lots taken.

The property taken was considered in five portions, referred to as Advance No. 1 through Advance No. S. Gehr adjusted the $45 a front foot because of lack of sewerage, and other utilities, or lack of blacktop streets in the various parcels. He valued Advance No. 1 at $41 a front foot; certain lots in Advance No. 2 at $41 a front foot and certain lots at $47.50 a front foot (the latter had electricity, water, sewerage, and blacktop streets) ; Advance No. 3 at $45 a front foot for certain lots; Advance No. 4 at $43.50; and Advance No. 5 at $43.50.

The comparables used by Gehr are contained in his reports, copies of which were filed in the record.

Gehr was cross-examined closely on the question of highest and best use. Gehr acknowledged that the property taken had many attributes making it desirable for multi-family development, but pointed out that these attributes are basically the same for single-family residential property.

A subsidiary issue arises from the failure of the Department to call one Core, who appraised the property on behalf of the Department. The owner contends on appeal that the failure to call Core must be construed against the Department. We note that the amount awarded by the trial court is substantially in excess of the value found by appraiser Gehr. We agree with the contention that the failure to call Core must be construed against the Department, and we believe that the trial court did so adequately by increasing the allowance of value per front foot to $60 rather than the basic $45 as appraised by Gehr.

The landowner presented Habeeb Mon-sur, Jr., an appraiser and realtor of Alexandria. Monsur was recognized as an expert appraiser. He said that in his opinion the highest and best use of the subject property is for multi-family dwellings. He selected four comparable sales of multi-res-idential development property, the prices ranging from $100 to $105 per front foot. These comparables were located in the metropolitan area of Alexandria and Pine-ville rather than in a rural area as is the subject property. Monsur assigned a value of $90 a front foot to the property taken and calculated the front footage at 2,122.55 feet, extended at $90 a front foot, for a total of $191,029.50. He subtracted $14,000, the cost of completion, from the total figure, leaving a value for the land taken of $177,029.50.

The landowner, Darrel V. Willet, Sr., testified as an expert on his own behalf. His expertise as an appraiser was recognized by the trial court. In weighing the evidence, the trial court in effect said that Willet’s testimony was directed at the development of the property into a multi-res-idential community — not at the appraisal of the property as it existed. We do not find error in the evaluation of Willet’s testimony by the court, especially considering his status as owner.

While the owner’s testimony in the capacity of an expert may be considered (State, Department of Highways v. Rapier, 246 La. 150, 164 So.2d 280, 1964), it should be viewed with caution as would be the testimony of any other witness who has an interest in the outcome of a lawsuit. The owner-expert’s testimony should not be rejected merely because he is a party; neither should it be accepted without qualification merely because he is an expert.

Willet put an average value of 99‡ a square foot on the sale of various compa-rables in the Pineville area for multi-family development. He gave his own property value of 75‡ per square foot and calculated a total of $178,563. This was slightly higher than that of Monsur and considerably higher than that of Gehr.

Willet mentioned a square footage value of in Charles Park, an exclusive subdivision in Alexandria. The trial court rejected the idea of a higher value for the rural subdivision property, whether single-family or multi-family residential, than for property in Charles Park.

After considering the testimony of the experts, we find no error in the trial court’s conclusion that the subject property had a front foot value of $60. We agree with the comment by the trial court that the expert, Gehr, seemed to have a better idea of the value of the property taken than did Monsur or Willet, the landowner. Considerable emphasis has been placed on the question of whether the highest and best use is for single-family residential or multi-family residential.

The evidence establishes that the property is most suitable for residential use. The experts differ on whether it is most suitable for single-family or multi-family residential purposes. The only real difference between these lots and the lots in the other subdivisions referred to by Gehr is that there are no restrictions placed on the lots by the subdivider, which may have any number of consequences. The lack of restrictions does not automatically give a highest and best use as multi-family.

The trial court declined to consider this land in the same light as apartment complex property in Alexandria or Pineville. We hold that he was not manifestly in error.

An excellent definition of market value is found in State, Department of Highways v. Rapier, 246 La. 150, at 164 So.2d 280 at 282.

“. . . market value means the worth of the land considered in the light of its best and highest use, this being the most favorable employment to which the property is adaptable and may reasonably be put in the not too distant future.”

The trial court did not state a conclusion as to the exact highest and best use of the land, whether single or multi-family residential, but indicated reservations about its being multi-family residential, saying Gehr had the best idea of the property’s potential.

We find no error in the trial court’s acceptance of Gehr’s appraisal and the allowance of a value in excess thereof. The excess allowance adequately covers the potentialities of the land as multi-family residential.

Even if the trial court concluded the property had its highest and best use as multi-family residential, the comparables used by Monsur and Willet are far removed from the subject property and dissimilar in character. The trial court had no comparables in the record which had the character of rural duplex lots. Even though income method may be used when appropriate, study of comparables is still the primary tool of analysis. State Department of Highways v. Crow, 286 So.2d 353 (La.1973). On the record before us, we find no error in the trial court’s ultimate conclusion to allow $60 per front foot. The object is just and adequate compensation, and we believe that end was achieved here. State, Dept. of Highways v. Terrace Land Co., Inc., 298 So.2d 859 (La., 1974).

Errors of Computation

The landowner makes an alternative contention that if the trial court did not err in fixing the value per front foot of the property taken, then the trial court made certain errors in computing the award.

As to Advance No. 1 and Advance No. 2, Willet contends that the trial court erred in not averaging the front width of the lots with the rear width because the lots were wider on the back than on the front. We have been cited to no authority to the effect that the trial court is required to determine front footage by the suggested procedure. We note that the trial court allowed front footage (or declared he was doing so) on both streets of corner lots, thus giving a much higher value to the corner lots than to the non-corner lots. By calculating footage on both streets of the corner lots, the trial court compensated for any prejudice that may have resulted to the landowner for failing to average the front and back measurements of the lots. In addition, we note that there are some lots such as Lots 18 and 28, to mention only two, that are wider on the front than on the back so Willet benefited from the failure by the trial court to average the widths. The same argument is presented by Willet as to a portion of Advance No. 4. For the same reasons, we conclude that the trial judge did not err as to this portion of his calculations on Advance No. 4.

However, Willet points out that the trial court omitted inadvertently certain frontage in Advance No. 3 and Advance No. 4. We have calculated the frontage in these Advances and we are convinced that Willet is correct in his suggestion that the trial court omitted 120 feet for Lot 30 and 110 feet for Lot 31, or a total of 230 feet in Advance No. 3. Likewise, we are convinced that the trial court omitted the frontage for Lots 35 and 36, totaling 125 feet in Advance No. 4.

As to Advance No. 5, Willet candidly admits that he was allowed five feet too much through an error by the trial court in totaling the footage of Lots 43 and 44.

Therefore, Willet is entitled to an additional award for 230 feet in Advance No. 3 and 125 feet in Advance No. 4, less five feet in Advance No. 5, or a net increase of 350 front feet.

Also, there was an error of calculation by the trial court in that the correct extention of the allowance of $60 per front foot times the 2,008.5 feet of frontage which the trial court used, should have been the sum of $120,510 rather than the sum of $120,430, as calculated by the trial court.

Therefore, we will correct by amending the award of the trial court, properly calculated at $120,510 plus an award of $21,000 for the frontage omitted by the trial court less the cost of completing the development, $14,000. The award is fixed, therefore, at the sum of $127,510, subject to the credit for deposit made by the Department.

Landowner as Expert

A contention is made that the landowner should be awarded an expert witness fee since he appraised the property and testified. The trial court did not award Willet a fee, although he was allowed to qualify as an expert and to give his expert opinion. We find no error in this procedure. Landowners, who incidentally are expert appraisers, are not entitled to fees for appraising and testifying in court proceedings involving their own properties. We find no error in the trial court’s declining to award Willet a fee.

Photographer’s Fee as Court Costs

However, the trial court failed to include in the court costs the bill of an expert photographer for an aerial photograph of the subject property. This exhibit is an excellent photograph and is very helpful to the court. A party is entitled to recover as costs expenses of this nature. Westwego Canal & T. Co. v. Louisiana Highway Com’n, 200 La. 990, 9 So.2d 389 (1942). The judgment of the trial court is amended to tax as court costs the sum of $182, representing the cost of the aerial photograph.

For the reasons assigned, the judgment of the trial court is amended to increase the award to the sum of $127,510, subject to credit for the amount deposited by the Department, and to include the additional sum of $182 for the aerial photograph as court costs.

Costs of this appeal insofar as provided by law are taxed against the Department of Highways.

Amended and affirmed.

      . The various parcels, or “Advances”, and various lots within the parcels had different decrees of completed utilities and streets. There is no point in itemizing these features because there is no dispute between the parties to which these details are relevant; the dispute boils down to single-family residential versus multi-family residential.


author: MILLER, Judge.

text:
    Levina MALBROUX, Plaintiff-Appellant, v. Melvin GUICE, Defendant-Appellee.
    No. 5209.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Francis E. Mire, Lake Charles, for plaintiff-appellant.
    Jack W. Caskey, Lake Charles, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Plaintiff Levina Malbroux appeals seeking an increase in the award of damages resulting when defendant Melvin Guice’s 15 year old son ran a stop sign and drove his motorcycle into the right side of Mrs. Malbroux’s 1962 car. We amend to increase the award.

The trial court held Guice’s negligence to be the sole cause of the accident and awarded plaintiff the $155 stipulated to be the amount spent to repair her car. Other estimates indicated the cost of repairs would be about $300. The trial court rejected her claim for the $119.48 medical expenses (emergency room treatment, x-ray, medicine, and doctor bills) and her claim for pain and suffering on finding she failed to prove she was injured in the accident. Tr. 15: Mrs. Malbroux’s claim for the increase in the award presents the sole issue.

The trial judge based the decision on the minor nature of the impact, the lack of plaintiff’s complaints of pain immediately following the 1:45 p.m. July 7, 1974 accident, the lack of objective symptoms of injury, the lack of corroborating lay witnesses supporting plaintiff’s claim of great force of the collision, and plaintiff’s back injury of November 29, 1973 which was the subject of litigation pending when this accident occurred. That claim was settled prior to trial of the instant case.

The 1973 accident caused a compression fracture of the T-12 vertebra (the lowest of the thoracic vertebrae). The compression fracture healed and plaintiff was discharged by her treating physician on June 5, 1974 about one month before this accident occurred.

About two hours after the 1974 accident, plaintiff reported to the hospital emergency room and sought treatment from the orthopedic surgeon who had treated her for her prior injury. On learning he was on vacation she accepted treatment from the physician on duty at that time. Treatment expenses for X-ray, emergency room, and medications furnished at the emergency room cost $84.10. Neither party called this doctor to testify.

Plaintiff made several attempts to see Dr. Edward W. Phillips, orthopedic surgeon, who had treated her prior injury. On his return from vacation two weeks later, she started treatments with him. He saw her on July 22, August 5, and September 16, 1974 in connection with her complaints relating to the July 1974 accident. After reviewing the x-rays taken at St. Patrick’s on the date of the accident, he concluded that “most likely she had sustained a back sprain.” He didn’t have records, but he ordinarily prescribed muscle relaxants and analgesics. Dr. Phillips was of the opinion that plaintiff’s complaints of back pain were not related to her 1973 accident. Tr. 90.

Plaintiff was S' 2" tall and weighed 196 pounds. Her obese condition made her susceptible to back injuries and retarded the healing process.

We question the trial court’s characterization of Mrs. Malbroux’s failure to complain of pain immediately following the accident as “delay” in the onset of pain. Plaintiff’s delay of two hours before seeking medical treatment was not unusual, particularly considering the seriousness of the injuries sustained by the motorcyclists. Compare Evers v. State Farm Mutual Automobile Ins. Co., 187 So.2d 217 (La.App. 3 Cir. 1966) where there was a two week delay in seeking medical attention.

As to plaintiff’s failure to call the doctor who treated her in the emergency room, we noted in Evers, supra, and recently in Muse v. Sentry Ins. Co., 269 So.2d 609 at 614 (La.App. 3 Cir. 1972) an adverse inference may be drawn from the failure to call a treating physician. But the emergency room doctor was not plaintiff’s treating physician. Furthermore this inference may be overcome by positive “sworn testimony.” And here, plaintiff’s treating physician, Dr. Phillips, was called and testified.

The trial court was particularly impressed with plaintiff’s exaggeration of the force of the impact and categorically rejected her claim that she was knocked to the left when the front wheel of the motorcycle struck the front of her right front door. The motorcycle struck her from the right at a 90 degree angle. Although their testimony was somewhat confused because of their injuries, the motorcyclist and his passenger both testified plaintiff’s car was not knocked to the left. This was confirmed by a neighbor who testified she saw the accident from a distance although she didn’t go to the scene of the accident. We accept the trial court’s factual determination that impact did not alter plaintiff’s direction. However we find that a minor impact may very well cause a minor back strain to a person predisposed to back injury.

The trial court found no causal connection between the accident and plaintiff’s complaints based on inferences. We find these inferences are overcome by Mrs. Mal-broux’s positive testimony corroborated by her treating physician. Furthermore, Mr. Guice testified he offered to pay plaintiff’s medical bills. Tr. 69. He admitted he refused to pay those bills when they were presented. Tr. 76.

Dr. Phillips did not find objective symptoms of disability, but prescribed medication and exercises. He discharged her from treatment on September 16, 1974. After that date plaintiff testified her pain “wasn’t too severe” — “was not bad enough to go to bed.” Tr. 46.

We award the $119.48 paid as medical expenses to plaintiff. Considering the trial court’s appraisal of the minor nature of plaintiff’s injuries, we award only $250 for her pain and suffering.

The trial court judgment is amended to increase the award to plaintiff by $369.48, and as amended the trial court judgment is affirmed. All costs of court both at trial and on appeal including expert witness fees are taxed to defendant appellee.

Amended and affirmed.