author: LANIER, Judge.

text:
    TRANSCONTINENTAL GAS PIPE LINE CORPORATION v. James F. TERRELL, Jr., et al.
    No. 14839.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.

      R. Gordon Kean, Jr., Baton Rouge, and C. McVea Oliver, Monroe, for plaintiff-appellant Transcontinental Gas Pipe Line Corp.
    J. Glenn Dupree, and Robert W. Scheffy, Jr., Baton Rouge, for defendants-appellees James F. Terrell, Jr., Ida Louise Miller Terrell, Alex Theriot, Jr., Loretta Durand Theriot, Gerald J. LeGleu, Constance Klein-peter LeGleu, George R. Lambert, Mary Francis Lowe Lambert, Herschel C. Adcock and Frances Swayze Adcock.

      Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

Transcontinental Gas Pipe Line Corporation (hereinafter referred to as Transco) instituted this suit to expropriate a servitude for a 12.75 inch high pressure gas pipeline across property owned by the defendants, James F. Terrell, Jr., Ida Louise Miller Terrell, Alex Theriot, Jr., Loretta Durand Theriot, Gerald J. LeGleu, Constance Kleinpeter LeGleu, George H. Lambert, Mary Francis Lowe Lambert, Herschel C. Adcock and Frances Swayze Adcock (hereinafter referred to as the Terrell group). In the first portion of a bifurcated trial, the trial judge ruled that Transco had the power to expropriate the servitude in question, that the pipeline project would servé a public and necessary purpose, and that the route selected for the servitude was proper. There has been no appeal from these rulings. At the second portion of the bifurcated trial, the issue of just compensation was litigated and the trial judge rendered judgments totaling $68,525.00 in favor of the Terrell group for the permanent servitude ($8,800.00), the temporary construction servitude ($925.00) and severance damages ($58,800.00). The trial court also awarded the Terrell group a $3,000.00 attorneys’ fee and cast Transco for all costs, including the expert witness fees of the defendants’ and the court’s experts. Tran-sco deposited the judgment award into the registry of the court and took this devolu-tive appeal asserting errors in the just compensation award.

The defendants are the owners of a tract of land containing approximately 600 acres located in Sections 61, 62 and 63, Township 4 South, Range 1 West in East Baton Rouge Parish, Louisiana. This property is bounded on the South by the Ligón Road and is bounded on the North by the Plains-Port Hudson Road (Louisiana Highway 3004). The Transco pipeline traverses the eastern side of the defendants’ property from north to south over a distance of 2,353.7 feet. Plats of subdivision have been filed which establish a series of lots on the Ligón Road and some of these have been sold. Tentative plans have been made for establishing interior lots on the undeveloped portion of the property where the pipeline passes. Approximately 925 feet of the pipeline route traverses Lots 2-E and 2-F which front on Ligón Road and the balance of 1,428.7 feet crosses the interior undeveloped portion of the tract. Lots 2-E and 2-F each measure 253 feet front by approximately 1010 feet in depth and contain 5.87 acres. The permanent pipeline right-of-way is 30 feet wide. An additional 20 foot temporary construction servitude will be used on the west side of the permanent servitude.

I. VALUE OF SERVITUDES TAKEN

A. Value of Property. At the trial, testimony was received from four expert appraisers: two for the plaintiff (Chester A. Driggers and Julius A. Bahlinger, III), one for the defendants (Oren W. Russell), and one appointed by the court (Norbert F. Schexnayder, Jr.). All of the appraisers agreed that the lots on Ligón Road were more valuable per acre than the property situated in the interior of the tract and that the highest and best use for the entirety of this tract was future development into large lot single family residences. All of the appraisers further agreed that the market data approach using comparable sales was the proper method for determining true value and just compensation.

The per acre value assigned by the appraisers to Lots 2-E and 2-F on Ligón Road are as follows:

1. Schexnayder — $7,500.00 per acre
2. Driggers — $4,000.00 per acre
3. Bahlinger — $5,500.00 per acre
4. Russell — $7,500.00 per acre

The trial judge accepted the valuation of $7,500.00 per acre assigned by Schexnayder and Russell.

The valuations of the four appraisers for the property located in the interior of the tract are as follows:

1.Schexnayder — $4,500.00 per acre
2. Driggers — $3,000.00 per acre
3. Bahlinger — $2,500.00 per acre
4. Russell — $7,500.00 per acre

The trial judge accepted the valuation of $4,500.00 per acre assigned by Schexnayder.

Schexnayder’s valuations were based on the escalation of property values in this area of East Baton Rouge Parish and 21 comparable sales. The record shows that the Schexnayder comparables were located in the general area of the property in question. Russell’s appraisal supports Schex-nayder for Lots 2-E and 2-F. Based on this evidence, the trial judge was not clearly wrong in these factual determinations. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The plaintiff argues that the opinions of Schexnayder should be rejected because he considered offers to purchase as well as actual sales in making his determination of fair market value. Offers to purchase, except offers by the expropriator, should not be considered in expropriation cases as evidence of fair market value because they are highly susceptible to fabrication. State v. McDuffie, 240 La. 378, 123 So.2d 93 (1960); Louisiana Gas Purchasing Corp. v. Sincox, 368 So.2d 816 (La.App. 2nd Cir. 1979); Central Louisiana Electric Company v. Gamburg, 200 So.2d 733 (La.App. 3rd Cir. 1967). Schexnayder’s report shows that out of a total of 26 comparables considered that five were offers to sell rather than actual sales. Even if these offers are discounted, there are still 21 sales which were validly considered by Schexnayder in reaching his decision. Under these circumstances, since there is more than sufficient valid evidence of comparable sales upon which the opinion was based, any error involved is harmless and the trial judge could validly accept the opinion of Schexnayder.

Plaintiff complains that the trial court committed error by “Considering that property was a part of an established subdivision when the plan had been made six years ago but had not been filed, when there were no roads or utilities, when no lot had been sold, and when the developer testified that the plan was not final.... ” citing State, Dept. of Highways v. Terrace Land Co., Inc., 298 So.2d 859 (La.1974). Obviously, this refers to the valuation of the acreage on the interior of the tract. This claim is without merit. All four appraisers determined that this portion of the property had the highest and best use of future large acreage residential development. The defendants had a proposed plan for the development to the highest and best use as evidenced by Exhibit D-2. The appraisal was not made on a per lot basis but on an acreage basis. The lack of development of the interior portion of the tract caused it to be less valuable and that is why Schexnay-der fixed a valuation of $4,500.00 per acre, an amount substantially lower than that assigned to the two front lots. Schexnay-der’s opinion was based on viable comparative sales of similar type properties and the ruling of the trial judge in accepting this opinion was not clearly wrong.

B. Value of Permanent Servitude. Schexnayder found that the pipeline servitude traversed Lots 2-E and 2-F for a total distance of 925 feet. Since the permanent servitude was to be 30 feet wide, a total of 27,750 square feet or 0.6371 acres was taken for this portion of the permanent servitude. The permanent servitude traverses 1,428.7 feet of the interior acreage and since it is 30 feet wide, occupies an area of 42,861 square feet or .9840 acres.

The plaintiff alleges error by the trial court in accepting the opinion of Schexnayder that the value of the permanent servitude was 95% of the value of the entire property. The other three appraisers, Driggers, Bahlinger and Russell, all fixed the value of the permanent servitude at 80% of the total value of the property. A review of the judgment in this matter shows that the defendants are authorized to use the property subject to the servitude for any purpose which will not unreasonably interfere with the rights of Transco, including, but not limited to, the right to cross the servitude with other pipelines or utilities, the right to grant other servitudes or rights-of-way across Transco’s servitude, the right to construct shallow drainage ditches not to exceed 24 inches in depth, the right to conduct agricultural operations of any character over the pipeline, including planting, cultivating, pasturing and harvesting of crops, and the right to maintain roads and fences. In view of this, it is our opinion that the trial judge was clearly wrong in fixing the value of the servitude at 95% of the value of the whole property. We reverse that portion of the ruling and fix the value of the servitude at 80% of the value of the whole property.

Thus, the value of the permanent servitude over Lots 2-E and 2-F is 0.6371 acres X $7,500.00 per aere X 80% or $3,822.60. The value of the permanent servitude over the interior acreage is 0.9840 acres X $4,500.00 per acre X 80% or $3,542.40. The total value of the 2,353.7 feet of the permanent 30 foot servitude over the property of the defendants is $7,365.00.

C. Value of Temporary Construction Servitude. The estimated time of construction on this project is one year. All of the appraisers agreed that the defendants would be entitled to rental for one year for the temporary construction servitude. Driggers and Bahlinger were of the opinion that a fair rental would be 20% of the values they assigned to the property or the sums of $745.00 and $805.00, respectively. Russell was of the opinion that a reasonable rental would be 10% of the value he assigned to the property or $812.00. Schex-nayder was of the opinion that a fair rental would be 15% of value or $925.00. Schex-nayder arrived at this figure by calculating the acreage in the temporary servitude in Lots 2-E and 2-F (0.4247) and in the interi- or acreage (0.6560) and multiplying these acreages by the valuations that he assigned to the property in those areas and then multiplying that figure by 15%. The trial judge accepted the opinion of Schexnayder and a review of the record indicates that, in so doing, he was not clearly wrong.

II. SEVERANCE DAMAGES

This court in State, Through Dept, of Highways v. Wilson, 372 So.2d 632 (La.App. 1st Cir. 1979) defined severance damages and the methods by which they may be calculated as follows:

“Severance damage is any depreciation in market value of the remainder of a landowner’s property caused by the taking. Such damages are recoverable and are ordinarily calculated as the difference between the value value (sic) of the remaining property before and after the taking. State, Department of Highways v. Denham Springs Development Co., Inc., 307 So.2d 304 (La.1975). The burden of proving severance damages rests on the landowner, who must prove such damages with legal certainty by a preponderance of the evidence. State, Department of Highways v. Levy, 242 La. 259, 136 So.2d 35 (1961). However, there is no fixed or artificial formula by which such damages must be proved. Louisiana Power & Light Co. v. Churchill Farms, Inc., 292 So.2d 183 (La.1974). In fact, the informed and reasoned opinion of an expert, corroborated by the facts in the record, may be sufficient proof of a severance damage loss, especially where it is accepted by the trier of fact. State, Department of Highways v. Ross Continental Motor Lodge, Inc., 328 So.2d 883 (La.1976); State, Department of Highways v. Denham Springs Development Co., Inc., supra, and cases cited therein.
“In expropriation proceedings, the trial court’s factual findings as to severance damages and the evaluation of, and the weight given to, the testimony of expert witnesses will not be disturbed on review absent a showing of manifest error. State, Department of Highways v. Ruckstuhl, 348 So.2d 701, 704 (La.App. 1st Cir. 1977); See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).”

See also State, Through Dept. of Highways v. Bitterwolf, 401 So.2d 380 (La.App. 1st Cir. 1981).

The location of a high pressure gas pipeline on a tract of land may have the effect of diminishing the market value of the property located in close proximity to it because of the fear that prospective purchasers may have of the dangerous potentialities of such line. Louisiana Resources Company v. Langlinais, 383 So.2d 1356 (La. App. 3rd Cir. 1980) and the cases cited therein, and Louisiana Intrastate Gas Corp. v. Mclntire, 349 So.2d 1331 (La.App. 1st Cir. 1977). In his report, Oren W. Russell did a study on the effect of a pipeline crossing the Tara Subdivision, Fifth Filing. Russell concluded from this study that residential lots crossed by a pipeline servitude were diminished in value and that the degree of loss of value depended on where the servitude crossed the property, with loss of value being greater when the crossing is in the front and less when the crossing is in the rear. In his report, Julius A. Bahlinger, III, observed that “it is well known that persons would prefer not to have a pipeline run through property. Lots with pipelines on them tend to sell a little later in the development because other lots are generally chosen by preference.”

All four of the appraisers found that the property remaining after the expropriation would be diminished in value as a result of the pipeline servitude. In his report, Drig-gers estimated severance damages as loss in utility to the land. He found that the front two lots would lose the value of one acre or $4,000.00 and the interior acreage would lose one acre or $3,000.00 and that the sum of $6,000.00 would be required for a possible street extension of 60 feet at $100.00 a foot, for a total severance damage estimate of $13,000.00. Three of the four appraisers, Schexnayder, Bahlinger and Russell, were of the opinion that severance damages should be calculated on a percentage of reduction in value caused by the manner in which the pipeline crosses the two actual and four proposed lots. Schexnayder estimated that there would be a 47% loss in value to Lot 2-E because the pipeline cuts across the middle of the lot. He estimated that the loss in value of Lot 2-F would be 13% because the line only crosses at the northwest corner. He estimated the loss in value to the 30 acres which collectively comprise the four proposed lots in the interior of the tract at 25%. His total estimate of severance damages was $58,400.00. Bah-linger estimated an 11% loss in value to Lot 2-E, a 7V2% loss in value to Lot 2-F, and estimated losses of value of 12%, 12%, 5% and 5% to four lots that he proposed for the development of the interior acreage to accommodate the servitude. His total estimate of severance damages was $9,065.00. Russell determined a 35% diminution in value to Lot 2-E, 20% to Lot 2-F, 35% to Lot 2-A-4, 20% to Lot 2-A-5, 20% to Lot 2-A-6, and 35% to Lot 2-A-7, for a total of severance damages of $81,994.00.

The trial judge accepted Russell’s estimates of diminution in value for Lots 2-E and 2-F and the four proposed lots, but applied Schexnayder’s property evaluations of $7,500.00 per acre for the front two lots and $4,500.00 per acre for the interior lots. In calculating the severance damages to Lots 2-E and 2-F, the trial judge used 5.82 as the acreage of each lot. Exhibits D-2 and D-4 show that each lot contains 5.87 acres. The trial judge did not subtract the value of the permanent servitude during his calculation of severance damage, but included the area taken for the permanent servitude in making this determination. The trial judge did not make a determination on the value of the total property before and after the taking which, although not essential, is, in our view, a better procedure. Accordingly, it is our opinion that the conclusion reached by the trial judge on severance damages is clearly wrong.

It is our opinion, after reviewing all of the testimony and the appraisal reports, that the procedure followed by Schexnay-der is the correct one for calculating severance damages because it most closely follows applicable law. He estimated the percentage of diminution in value for the front lots individually and for the four proposed interior lots collectively. He made an estimate of the value of the total property before the taking ($821,500.00) and after the taking ($754,300.00) and from the difference between these two valuations ($67,-200.00), he subtracted the value of the property taken as part of the permanent servitude ($8,800.00), for a severance damage estimate of $58,400.00. (Bahlinger also followed this method of calculation). His value for the worth of the permanent servitude must be adjusted because it was based on a 95% of value figure and this court has only approved 80%. Accordingly, from $67,200.00 we must subtract the sum of $7,365.00 (not $8,800.00), leaving the balance for severance damages of $59,835.00. This sum will be approved by this court for severance damages in this ease.

III. CONCLUSION

The judgment of the trial court is amended to provide that just compensation for the taking of the permanent servitude is $7,365.00 and is further amended to provide that the severance damages in this case are $59,835.00. The award for the use of the temporary construction servitude is affirmed at $925.00.

For the reasons assigned, the judgment of the trial court for just compensation is amended to reduce the total award in favor of the defendants to the sum of $68,125.00. The appellant is to pay all costs of this appeal.

AFFIRMED IN PART, AMENDED IN PART, AND RENDERED.

      . We believe that calculating the severance damages on the four proposed interior lots collectively as a 30 acre tract is a better practice because the area is undeveloped. See, for example, the procedures followed in the Langli-nais and Mclntire cases cited herein.

      . There has been no appeal from the awards of costs, expert witness fees and attorney fees, and these portions of the trial court’s judgment are now final.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Herbert A. RODRIGUE v. Carrol MATHERNE and Statco, Inc.
    No. 14862.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 22, 1982.

      Michael Wanek, Robert A. Vosbein and Edward Markle, New Orleans, for plaintiff and appellee.
    Robert J. Zibilich, New Orleans, H. Minor Pipes, Houma, for defendants and appellants.
    Bruce M. Horack and Wilton E. Bland, New Orleans, for third-party defendant and appellee.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is an action ex delicto in which Herbert A. Rodrigue sued Carrol Matherne and Statco, Inc. for damages resulting from an alleged assault and battery. Defendants reconvened, claiming that the actions of Rodrigue in wrongfully cancelling certain insurance policies caused defendants large business losses. After a trial on the merits, the trial court found for plaintiff on the main demand. The trial court also found for defendant-in-reeonvention on the recon-ventional demand, which was dismissed with prejudice. Defendants Carrol Math-erne and Statco, Inc. have appealed suspen-sively the adverse judgment of the trial court on the main demand.

FACTS

Plaintiff, Herbert A. Rodrigue, testified at trial to the following: on April 7, 1977, plaintiff traveled from New Orleans to Houma for an appointment with Carrol Matherne, the president of Statco, Inc. Plaintiff’s company acted as insurance agent to Statco, Inc. and Statco Rental Tools (also known as Mark Drilling), and also as insurance agent to Carrol Matherne personally. The purpose of the visit was to discuss insurance premiums which were due and also to discuss monthly reports which were required by the workmen’s compensation insurer of Mark Drilling. These monthly reports had not been forthcoming as requested, and plaintiff wanted to reiterate to Matherne the necessity of same.

Plaintiff arrived in Houma at about nine o’clock a. m., and proceeded to the office of Matherne. Plaintiff was met by a secretary, Phoebe Buquet, who told him that Matherne was not in the office and requested that he wait. Matherne arrived some ten or fifteen minutes later. Plaintiff, Matherne, and Ms. Buquet retired to Math-erne’s office. Matherne sat behind his desk and plaintiff and Ms. Buquet sat in chairs in front of the desk. Conversation ensued for about one-half hour, during which Matherne insisted that he had paid all insurance premiums which were owed and that the monthly reports would not be made. Plaintiff then stated that he knew what would have to be done, meaning cancellation of the insurance policies. At this point, plaintiff reached down to gather his papers, closed his briefcase, and got up to leave. As he walked to the door of Math-erne’s office, he was grabbed by his right arm and spun around, and Carrol Matherne punched plaintiff on the left side of his face, knocking off plaintiff’s glasses and sending him sprawling to the floor. After being punched by Matherne, plaintiff testified that he lost consciousness for a short time.

When plaintiff came to, he was sitting in a chair in an adjoining room and Carrol Matherne was choking him by the throat and cursing him. Plaintiff testified that he heard Ms. Buquet and Matherne’s daughter, Remedia Matherne Moore, screaming for Matherne to stop, that Matherne was killing plaintiff. Plaintiff stated that at that moment he feared for his life, but Matherne then released him.

Plaintiff testified that he was allowed to use the lavatory to clean up, inasmuch as his cheek was bleeding where he had been struck. Remedia Matherne Moore aided plaintiff with a wet paper towel. Plaintiff then collected his belongings and left the office. He traveled by car down the street, trying to remember where the local hospital was located. Plaintiff went to the office of Damco, Inc. to elicit the help of a business client, but did not stop because the client’s car was not on the premises. Plaintiff then drove to a pay phone and attempted unsuccessfully to contact his attorney in New Orleans. Finally plaintiff drove to a filling station and called another business associate, requesting assistance. Plaintiff stayed at the filling station until William Ledet, an employee of the business associate, arrived to take plaintiff to the Terrebonne Parish General Hospital for treatment. In route to the hospital, plaintiff told Ledet what had transpired. Plaintiff was met at the hospital by Louis St. Martin, the son of the plaintiff’s business associate. Plaintiff also told St. Martin that he had been struck by Matherne.

Throughout all the proceedings in the trial court, the fact that plaintiff arrived at Terrebonne General with a fracture of his left cheekbone, soft tissue swelling around the left eye, and bleeding within the sinus cavity was uncontested. Defendant Carrol Matherne stated at trial that he did not lose his temper during the discussion in his office, that he did not strike plaintiff, and that he did not choke plaintiff.

Phoebe Buquet testified at trial that she was gathering papers with her back turned when the alleged punch was thrown, and that she neither saw nor heard anything resembling an altercation. Ms. Buquet stated that plaintiff did exchange chairs during the course of discussion and that she observed a small bit of blood on plaintiff’s left cheek, which she attributed to a scratch or pimple.

Remedia Matherne Moore testified at trial that she did not know what transpired in her father’s office, and additionally denied having given plaintiff assistance in cleaning up his face.

TRIAL COURT

The trial court rendered judgment on the main demand for plaintiff, Herbert A. Ro-drigue. The trial judge stated that he had been favorably impressed by the testimony of Rodrigue, who had been responsive to all questions and exhibited other indications of credibility. The trial judge further stated that the testimony of Matherne was evasive and inconsistent, and also concluded that the testimony of Phoebe Buquet and Reme-dia Matherne Moore was prejudiced and unduly influenced by Carrol Matherne.

The trial court held that there was no overt act or provocation by Rodrigue which might excuse the sudden violent tortious acts of defendant, and held Carrol Math-erne and Statco, Inc. jointly and in solido liable to plaintiff. Matherne and Statco, Inc. were cast in judgment for $2,530.89 in special damages and $50,000.00 in general damages.

SPECIFICATIONS OF ERROR

Defendants-appellants, Carrol Matherne and Statco, Inc., assign the following specifications of error:

I. The trial court erred in admitting hearsay testimony by various people as to what happened in defendant’s offices.

II. The trial court erred in permitting questions to the defendant concerning past acts of violence and in then allowing extraneous evidence of those acts, when defendant neither placed his character in issue nor made any claim of self-defense.

III. The trial court erred in granting excessive damages when no permanent disability nor any severe pain was proven.

ASSIGNMENT OF ERROR 1

Defendants-appellants basically argue that the trial court erred in allowing Louis St. Martin and William Ledet to testify that the plaintiff had told them that his injuries had been caused by Carrol Math-erne. Appellants contend that these out-of-court statements were inadmissible hearsay, and that the trial court committed reversible error by allowing same into evidence over counsel’s objections.

The Louisiana Supreme Court has quoted Professor McCormick for the following definition of hearsay evidence:

“Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” State v. Martin, 356 So.2d 1370, 1373-1374 (La.1978); citing C. McCormick, Evidence, § 246 (Cleary ed. 1972)

The plaintiff has argued that these statements were non-hearsay, in that they were offered not to show that the truth of matters asserted therein, but rather to show the plaintiff’s state of mind following the incident in Matherne’s office. A statement or writing is not hearsay if it is introduced solely for the purpose of proving the fact of its utterance and not the truth of the statement, but for this rule to apply, the mere fact that the statement was made by the person not under oath must itself be a relevant and important fact; however, if the fact that the statement was made would be of no importance except for the truth of the statement, it is not admissible under the hearsay rule. State v. Launey, 335 So.2d 435 (La.1976). The fact that plaintiff made such statements has no independent relevance to any element of plaintiff’s claim, and the only importance of such statements to the claim is the truth of the assertions. For this reason, the statements made to Ledet and St. Martin were hearsay.

Plaintiff alternatively asserts that these statements are exceptions to the hearsay rule as part of the res gestae. However, we do not find this to be the case, inasmuch as the statements were in no way contemporaneous in place and time to the tortious conduct complained of. The fact that plaintiff attempted to contact his attorney in New Orleans prior to making these statements shows that the plaintiff was not precluded from cool deliberation when the statements were made. Thus, neither the res gestae exception nor the “excited utterance” exception to the hearsay rule applies to these statements. See State v. Henderson, 362 So.2d 1358 (La.1978); State v. Millet, 356 So.2d 1380 (La.1978).

Nonetheless, the fact that hearsay evidence was admitted does not necessarily constitute reversible error, especially in a civil proceeding where the exclusionary rules of evidence most often go to the weight rather than the admissibility of the evidence. Of particular importance is the fact that the declarant, Herbert Rodrigue, was present in the courtroom and took the witness stand immediately after Ledet and St. Martin. Thus, one of the principal criticisms of hearsay testimony, that the declar-ant is unavailable for cross-examination, was not present in the case sub judice. This fact alone does not place the statements made by plaintiff outside the reach of the hearsay rule, but as the Supreme Court stated in State v. Martin, supra, “Often an erroneous ruling admitting an un-sworn out-of-court assertion by a testifying witness will not present grounds for reversal [.]” 356 So.2d 1370, 1374 (La.1978). The testimony of Ledet and St. Martin regarding extrajudicial statements made by plaintiff was brief and insignificant, and we hold that whatever error was made was wholly harmless.

ASSIGNMENT OF ERROR 2

Defendants-appellants argue that the trial court erred in allowing testimony concerning alleged past crimes and acts of violence by Carrol Matherne.

At trial, the plaintiff’s counsel asked Carrol Matherne if he had ever been arrested for arson. Carrol Matherne was later asked if he had been arrested for battery or for disturbing the peace. Under La.R.S. 15:495, evidence of a conviction of a crime is admissible to impeach the credibility of a witness; however, before adducing impeaching evidence from another source, the witness must first be questioned on cross-examination as to such conviction, and must fail to admit same. La.R.S. 15:495 further states that evidence of arrest, indictment, or prosecution is not admissible, and that no witness can be questioned as to indictments or arrests, but only as to convictions. All questions posed by plaintiff’s counsel to Carrol Matherne on cross-examination were couched in terms of arrests and not convictions, therefore this evidence was not admissible under La.R.S. 15:495.

Plaintiff alleges that the evidence of the prior arrests (and subsequent convictions in some matters) are admissible for impeachment purposes since Matherne denied in a pretrial deposition that he had ever been arrested or convicted. Thus, plaintiff argues, this denial opened the door for the introduction of evidence to show that Matherne had told an untruth in his deposition. We note, however, that Math-erne’s deposition was not introduced into evidence. Matherne was questioned at trial as to arrests, but such questions are clearly improper under the letter of La.R.S. 15:495. Even had Matherne’s denial of prior arrests been properly adduced into evidence, impeachment would have been accomplished by the mere introduction of Math-erne’s arrest sheet (which was actually received into evidence.) Extrinsic evidence, consisting of testimony of police officers who had arrested Matherne in the past and testimony of persons who had in the past preferred criminal charges against Math-erne, went far beyond the scope of possible impeachment, involving details of prior altercations and arrests. We see no value of this testimony in impeaching Matherne; more importantly, the deposition which contained an alleged untruth was not part of the evidence.

Plaintiff alternatively argues that testimony of the arresting officers and those previously assaulted by Matherne was admissible to rebut trial testimony by Matherne that he had only been in two fights since his boyhood. Again, assuming this to be a valid contention, only evidence proving that Matherne had been in more than two fights since boyhood would be admissible. This fact alone if introduced would impeach the witness, and recital of details and circumstances of alleged prior pugilistic endeavors again went far beyond the scope of impeachment.

Plaintiff cites Terito v. McAndrew, 246 So.2d 235 (La.App. 1st Cir. 1971) for the proposition that in an assault and battery suit, the trial court should allow evidence showing the defendant’s predisposition toward violence. In Terito, the plaintiff sued one McAndrew and McAndrew’s employer for damages resulting from an assault and battery. The plaintiff sued the employer for its vicarious liability under La.C.C. 2320 and also for its independent negligence in allowing a violent person such as McAn-drew to entertain business clients in barrooms. This court stated merely that the employer could not be held liable for its independent negligence since there was no showing at trial that McAndrew was predisposed to violence. Terito, supra, does not stand for the broader proposition that evidence of a defendant’s predisposition to violence is admissible in every suit for assault and battery. Furthermore, even the limited statements of this court made in Terito are not applicable in this case inasmuch as the respondeat superior liability of Statco, Inc. is not an issue on appeal, and the independent negligence of Statco, Inc. in allowing Carrol Matherne to conduct conversations with insurance agents has never been alleged.

Professor McCormick says the following about using character as circumstantial evidence of conduct and state of mind:

“. . . evidence of character in any form, whether reputation, opinion from observation, or specific acts, will not generally be received to prove that the person whose character is sought to be shown, engaged in certain conduct, or did so with a given intent, on a particular occasion . . . [t]he reason for the general rule is that . . . generally it comes with too much baggage of prejudice, distraction from the issues, time-consumption and hazard of surprise.” C. McCormick, Law of Evidence, § 155 (West ed. 1954)

Professor McCormick states that an exception may be made to the general rule, especially in civil cases for assault and battery, but only if and when the defendant pleads self-defense or offers evidence of his good character. C. McCormick, supra, at § 159. Carrol Matherne did not plead self-defense or otherwise make his character an issue at trial; thus, the cumulative testimony of the arresting officers and prior combatants should have been excluded by the trial court, and the trial court erred in admitting same.

Nonetheless, we are not of the opinion that this error mandates a reversal. It is clear from a reading of the trial court’s written reasons for judgment that the trial court was not unduly impressed with character evidence erroneously introduced. Although such evidence is mentioned by reference to plaintiff’s post-trial memorandum, the unmistakeable inference arising from the reasons for judgment is that the trial judge simply believed the testimony of the plaintiff and did not believe the testimony of the defense witnesses, including that of Carrol Matherne. It is axiomatic that the finder of fact has the discretion and responsibility to evaluate the credibility of witnesses. After an exhaustive and thorough examination of the record, we cannot say that evaluations of credibility made by the trial court and the findings of fact based thereupon were manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). We hold that whatever error was made in allowing evidence of Matherne’s bad character or past wrongdoings to be introduced was non-prejudicial, and that same does not compel reversal of the trial court.

ASSIGNMENT OF ERROR 3

Defendants-appellants argue that the trial court’s award of $50,000.00 in general damages is excessive and should be reduced.

The Louisiana Supreme Court has stated that an appellate court should modify an award for damages only upon a showing that the finder of fact abused its discretion. Even upon such a showing, the award should be modified, “... only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.” Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976). Accord: Reck v. Stevens, 373 So.2d 498 (La.1979). This court in Hanzy v. Sam, 385 So.2d 355 (La.App. 1st Cir. 1980), writ refused 386 So.2d 357 (La.1980), stated:

“Our purpose and our constitutional role is to guarantee by appellate review that the trial judge or jury in fulfilling its role has not so excessively abused its much discretion that our consciences would be shocked if such an award were allowed to

remain untouched.” 385 So.2d 355, 358. It is not the function of the appellate courts to standardize damage awards across the state in cases with similar facts. There is no manual that one can look to for the answer as to what is shocking enough to constitute an abuse of discretion. Hanzy v. Sam, supra.

As was stated in Squyres v. Phillips, 285 So.2d 337, 339 (La.App. 3rd Cir. 1973): “A general review of the jurisprudence indicates that our courts balance many factors in assessing damages in assault and battery cases. These include, besides physical pain and suffering, the factors of provocation, reasonableness of force used, attendant humiliating circumstances, sex of victim, mental distress, etc. There is no rule or standard of law fixing or establishing the amount of recovery and each case consequently must rest on its own set of facts.”

Herbert A. Rodrigue sustained a fracture of the zygomatic compound, a series of bones in the cheek area. He suffered contusions on the left cheek and eye, with concommitant soft tissue swelling around the left eye. After seeking initial treatment at Terrebonne General, plaintiff asked to be transferred to a New Orleans hospital nearer his home. Dr. Phillip Cenae testified that plaintiff suffered a moderate amount of pain while at Terrebonne General as a result of the injuries he received. Dr. Cenac did not administer painkilling drugs to Rodrigue because he wanted plaintiff to be alert when plaintiff arrived at the hospital in New Orleans. The punching incident occurred at about 10:00 a. m., and plaintiff did not receive pain medication at Hotel Dieu Hospital in New Orleans until 7 p. m. Thus, the plaintiff suffered pain from his fractured cheek bones without relief for nine hours on the day he was injured.

Plaintiff stayed at the Hotel Dieu Hospital for some 6 days, from April 7 through April 13,1977. Four days passed before the swelling around the injury subsided enough that the situation could be properly assessed. The plaintiff underwent surgery on his face on April 11, 1977. The operation consisted of inserting instruments to push the fractured bones back into place, and insertion of a screw-type surgical pin to hold the bones in place. Plaintiff suffered a good deal of pain in the hospital both before and after the surgery, and also had bleeding within his sinus cavities.

After being released from the hospital, plaintiff did not return to work for two weeks. He suffered double vision in the left eye as a result of soft tissue swelling. This double vision lasted about one month. Plaintiff stated that he had trouble sleeping because of the protrusion of the surgical pin from his face. He felt numbness in his cheek, upper lip, and lower eyelid, which physicians attributed to nerve damage near the traumatized area. This numbness lasted five or six months. Due to bleeding into sinus cavities, plaintiff was unable to bend or stoop for some two months. He also suffered dizziness and headaches which lasted for an indeterminate time. Plaintiff wore the surgical pin in his check for slightly more than one month, and testified that its removal was done without anesthetic and was quite painful.

Plaintiff was restricted in his eating habits after the injury due to difficulty in opening wide his mouth. He was unable to eat at all for 3 days after the injury, and had to restrict his diet to pureed meat and vegetables for six weeks. When plaintiff returned to work, he appeared to be timid in seeking out new business; however, there was no testimony in this regard as to the quantity of new or old business which may have been lost because of plaintiff’s timidity.

The injuries suffered by plaintiff did not leave a physical scar. The plaintiff claims some damage to his psyche in that he suffers troublesome recurring memories of being punched, but apparently has not sought psychiatric help. Plaintiff’s eyesight returned to normal within two months of the battery, and the medical testimony leaves little doubt that the chance of any residual disability as a result of these injuries is very small.

The trial court found, and we agree, that the attack by Matherne was totally unprovoked. Additionally, the amount of force used by Matherne was wholly unreasonable under the circumstances, especially since Rodrigue was walking away when struck by Matherne. The battery was committed in private before only one witness, so public humiliation is not a factor. However, being attacked suddenly while on the job no doubt caused great mental distress to Rodrigue, as well as shock and surprise. Additionally, Rodrigue testified that he was put in fear of his life by Matherne’s choking him. This is a factor which cannot be ignored.

In light of all the attendant circumstances and factors discussed above, we are of the opinion that a general damage award of $50,000.00, although generous, is not shocking to the judicial conscience.

DECREE

Therefore, for the above and foregoing reasons, judgment of the trial court in favor of Herbert A. Rodrigue and against defendants, Carrol Matherne and Statco, Inc., jointly in solido, in the amount of $52,530.89 is hereby affirmed. All costs of this appeal are assessed to appellants.

AFFIRMED.

      .Also made defendants by supplemental and amending petition were Statco Rental Tools, Interstate Fire and Casualty Company, and Market Insurance Company. Market Insurance Company was dismissed from plaintiff’s suit by motion for summary judgment. (See also Note 2, infra.) Interstate Fire and Casualty Company was dismissed from the suit without prejudice on the motion of plaintiff.

      . Defendants also third-partied Hartford Insurance Company and Market Insurance Company, alleging various liability insurance coverages. Both insurers were dismissed from the third-party demand by motions for summary judgment, on the grounds that their respective policies excluded coverage for the intentional acts of Carrol Matherne.

      . Statco Rental Tools was not cast in this judgment, apparently on the basis of trial testimony that Carrol Matherne was not an officer or employee of Statco Rental Tools at the time of the incident in question.

      . Dismissal of the reconventional demand has not been made an issue before this court.

      . The trial court apparently accepted plaintiffs argument that the intentional acts of Matherne were so related to the concerns of Statco, Inc., so as to bring Matherne’s conduct within the scope of his employment. See La.C.C. Art. 2320; Miller v. Keating, 349 So.2d 265 (La. 1977); LeBrane v. Lewis, 292 So.2d 216 (La. 1974).

      . See G. Pugh, Louisiana Evidence Law, pp. 1-14 (Bobbs-Merrill 1974), wherein it is suggested that in civil non-jury trials, strict rules of admissibility need not be applied, since the test of relevancy and the hearsay rule are primarily concerned with the fear that a lay jury would give undue weight to the wrong type of evidence.


text:
    Henry F. KIRKLEY v. DSI TRANSPORTS, INC. et al.
    No. 14885.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 22, 1982.

      Walton J. Barnes, Baton Rouge, for plaintiff-appellee Henry F. Kirkley.
    Charles A. O’Brien, III, Baton Rouge, for defendant-appellant DSI Transports, Inc. and Texas General Indem. Co.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is a workmen’s compensation suit. Plaintiff, Henry F. Kirkley, filed suit against his employer, DSI Transports, Inc., and his employer’s workmen’s compensation insurer, Texas General Indemnity Company, seeking benefits for total and permanent disability, together with statutory penalties and attorney’s fees. From a judgment finding plaintiff totally and permanently disabled, and assessing statutory penalties and attorney’s fees, defendants have appealed.

FACTS

The suit arose when plaintiff, a truck driver, sustained an injury to his left leg as the result of an accident on October 27, 1977. On that date, while in the course and scope of his employment with DSI, plaintiff rode in the sleeper berth of a eighteen-wheeled truck owned by DSI and driven by a fellow employee. The truck was involved in an accident on Interstate Highway 55, near Maryville, Illinois, and plaintiff was thrown about in the sleeper berth, causing him injury. Plaintiff sustained an open comminuted fracture of the left distal tibia and fibula involving the ankle joint, as well as several contusions and minor lacerations.

Plaintiff was hospitalized in a Maryville hospital from October 27 until November 2, 1977, at which time he was transferred to Doctor’s Memorial Hospital in Baton Rouge. Plaintiff stayed at Doctor’s Memorial some six days. During his hospital stays, plaintiff was put into traction and a cast, and a pin was inserted into the fracture through the heel bone.

During his stay at Doctor’s Memorial and subsequent to his discharge, plaintiff was treated by Dr. H. K. Plauche’, an orthopedic specialist. Dr. Plauche’ saw plaintiff several times on a follow-up basis after plaintiff left the hospital. Dr. Plauche’ stated that plaintiff complained of pain in his ankle during the follow-up visits, that plaintiff has sustained a 30 percent physical impairment and loss of physical function in the lower left leg as a result of the fractures near the ankle, and that plaintiff exhibited early signs of arthritis forming in the ankle, which he speculated would worsen with the passage of time.

Plaintiff was paid workmen’s compensation for 77 weeks, commencing October 27, 1977, at the rate of $130.00 per week. Disability benefits were terminated on April 10,1979, when plaintiff returned to work at DSI as a truck driver. Plaintiff has worked steadily at DSI as a driver through the time of trial.

TRIAL COURT

The trial court held that plaintiff proved he worked in substantial pain, and that plaintiff had made out a prima facie case that because of the plaintiff’s age (57 at the time of trial), education, training, experience, and disability, a reasonable job market did not exist for plaintiff’s services. After determining that no evidence was in the record to show that some form of suitable work was available to plaintiff, the trial court found plaintiff totally and permanently disabled. The trial judge further found that the termination of plaintiff’s benefits by defendants was arbitrary and capricious, inasmuch as defendants knew from a March 28, 1980, report of Dr. Plauche’ that plaintiff was disabled and that his arthritic condition was likely to worsen with time. Statutory penalties were awarded, as well as attorney’s fees of $3000.00.

SPECIFICATIONS OF ERROR

Defendants-appellants contend the trial judge was in error:

1. in its application of the substantial pain and “odd lot” doctrines and in finding plaintiff to be totally and permanently disabled under those doctrines;
2. in assessing penalties and attorneys fees against defendants; and
3. in awarding plaintiff attorney’s fees in excess of those prayed for in his petition.

I

La.R.S. 23:1221 states in part that an employee is totally disabled when he cannot “. . . engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience.... ” Thus, a totally disabled person is one who cannot engage in any gainful occupation for wages.

However, the Supreme Court has held that an employee need not be utterly helpless in order that he be adjudged totally and permanently disabled. In Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), the Supreme Court adopted the “odd-lot” doctrine of permanent total disability. In Oster, the court formulated the following test:

“In order to determine whether the plaintiff fits within this category of odd lot workers, he must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factor, that he ‘cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity.’ If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with ‘a gainful occupation.’ It is fairer to place the burden on the defendant to show that there are steady jobs available to the plaintiff, after plaintiff has shown his odd-lot status, than to require the plaintiff to prove the universal negative of not being employable at any occupation.” (Citations omitted.) 390 So.2d at 1323-1324.

The Supreme Court in Lattin v. Hica Corporation, 395 So.2d 690 (La.1981), subsequently stated that “substantial pain” claims of total permanent disability should also be determined within the larger framework of the “odd-lot” doctrine. The court stated:

“The odd lot doctrine is also applicable to substantial pain cases because a worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him.” 395 So.2d 693-694.

In the instant case, plaintiff claimed total and permanent disability, alleging that he can work only in substantial pain. The trial court found that plaintiff had proven his substantial pain, and held that plaintiff had proven “odd-lot” status, in that he proved no reasonable job market existed for his services. Both findings are factual, and should not be reversed unless a review of the entire record reveals that they are clearly wrong. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979); Cadiere v. West Gibson Products Company, Inc. 364 So.2d 998 (La.1978).

A review of the record supports the trial court’s conclusion that plaintiff works in substantial pain. At trial, it was undisputed that plaintiff returned to his former occupation as a truck driver with DSI on April 10, 1979. Plaintiff worked steadily since that time, and at the time of trial earned more than he did at the time of the accident. Nonetheless, a preponderance of the evidence is to the effect that plaintiff’s resumption of his duties causes much pain in his left ankle. Plaintiff testified that his ankle hurts every day, with some days being worse than others. In driving an eighteen-wheeled truck, plaintiff must use the injured left leg to depress the clutch pedal when changing gears. The truck plaintiff drives has ten such gears, and must be “double-clutched” when the gears are shifted. Thus, plaintiff must depress the clutch pedal twenty times each time the truck is halted and started again. Plaintiff further testified that his ankle pain is aggravated under certain weather conditions and when he traverses rough terrain. Certain tasks incidental to the truck driver’s job, such as climbing atop the cab or tanker, attaching large heavy hoses, and lifting certain items are difficult for plaintiff to accomplish and cause him pain.

Plaintiff’s complaints of pain were substantially corroborated by Dr. Plauche’, who had urged plaintiff to return to work on a truck with an automatic transmission rather than a manual transmission. It was Dr. Plauche’s concern that a manual transmission would create problems for plaintiff. Plaintiff’s complaints of pain were further corroborated by testimony of his wife, who testified that plaintiff’s left ankle was swollen and tender when he came home from working. Plaintiff’s driving partner, John Wood, verified that plaintiff suffers pain while driving the truck, and stated that he must perform the incidental tasks himself for the most part, since plaintiffs injuries create difficulty in climbing and lifting.

In light of this evidence, the trial court’s conclusion that plaintiff was working as a truck driver in substantial pain is not clearly wrong.

However, such showing does not automatically create total and permanent disability under the “odd-lot” doctrine. Under Oster and Lattin, supra, a claimant proves total and permanent disability by showing that his impairment and pain, along with other Oster factors, limits appreciably the types of work available to him and greatly diminishes his ability to compete in the job market. Only then has the claimant who works in substantial pain made a prima facie case as an “odd-lot” worker, which shifts the burden of proof to the employer to show that there are jobs available to provide a steady income to the injured employee.

We hold that plaintiff did not meet his burden of proving his odd-lot status. Although he did prove that his current occupation is performed only in substantial pain, he did not show that due to his age, education and training, and the availability of employment in his area, that there is no reasonable job market in which he can effectively compete.

The only evidence in the record in this regard is that plaintiff was 57 years old at the time of trial and has only a high school education. Plaintiff also testified that he has always worked as a truck driver, except for two brief periods in which he ran a service station and did maintenance work at a naval laundry. This showing alone does not suffice to prove “odd-lot” status, because this particular offering of Oster factors does not sufficiently indicate that plaintiff’s services are so limited in quality, quantity, or dependability that there is no reasonable job market in which plaintiff can compete. The paltry amount of evidence in this vein introduced into the record does not even sufficiently demonstrate that the two other types of employment which plaintiff has actually undertaken in the past are not now available, or could only be accomplished in substantial pain.

Our holding is bolstered by the fact that plaintiff’s co-worker and supervisor testified that plaintiff’s infirmities and pain have not created any substantial problems in his present employment. John Wood testified that he did not mind assuming the incidental tasks without plaintiff’s help, because he liked working with plaintiff and wished to help him. The supervisor, Thomas Green, testified that there have been no complaints about plaintiff’s job performance and that he considered plaintiff to be a good driver. Although it is generally true that the law does not require a person to work in substantial pain, under Lattin, supra, a claimant in substantial pain must prove “odd-lot” status by showing that his pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market. The plaintiff has not proven that his pain or infirmities render him an undesirable employee either in his present job or in other occupations.

For the above reasons, the trial court erred in holding plaintiff totally and permanently disabled. However, although plaintiff failed to show he is an “odd-lot” worker, he did prove that his former (and present) occupation is accomplished in substantial pain. For this reason, we hold that plaintiff is partially disabled, under La.R.S. 23:1221(3). Plaintiff is now enjoying a better income than that he received at the time of the accident. Should the pain become so overwhelming that plaintiff can no longer endure driving a truck, or should pain and impairment hinder plaintiff’s job performance, causing DSI to dismiss him, then plaintiff will be protected from the loss of his income by his partially disabled status. See Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367, 372 (La.1980).

II

The trial judge found that the actions of defendants in terminating plaintiff’s compensation benefits were arbitrary and capricious, subjecting defendants to statutory penalties and attorney’s fees, under La.R.S. 23:1201.2. The trial judge based this determination on the fact that the medical report of Dr. Plauehe’ dated March 28, 1980, indicated plaintiff’s continuing physical disability and the likelihood that arthritis present in the left ankle would worsen.

We note, however, that compensation benefits were terminated on April 10, 1979, which was the same date plaintiff returned to work. The medical report which the trial judge relied upon in his ruling was not even formulated until March 8, 1980, nearly a full year after plaintiff’s return to work and the cessation of his benefits. Reliance on this report in determining the propriety of defendants’ termination of compensation benefits is misplaced.

The jurisprudence is replete with cases where such termination was held to be not arbitrary when based on medical opinion that the claimant was able to return to work. This case goes farther, in that compensation benefits were discontinued only because plaintiff was actually back on the job, at full pay. We see nothing arbitrary or capricious in the conduct of the defendants, especially in light of the fact that compensation was paid for seventy-seven weeks while plaintiff was not working. Clearly, the goal of the Workmen’s Compensation Act is to provide disability benefits for an employee who is unable to work, not to reward an employee who has returned to his job. We find the trial court in manifest error in holding the defendants responsible for statutory penalties and attorney’s fees.

In light of this holding, discussion of the remaining assignment of error is expressly pretermitted.

Therefore, for the above and foregoing reasons, judgment of the trial court awarding plaintiff, Henry F. Kirkley, compensation benefits for total and permanent disability, and awarding statutory penalties and attorney’s fees is hereby reversed. There is now judgment in favor of Henry F. Kirkley and against defendants, DSI Transports, Inc., and Texas General Indemnity Company, for compensation benefits for partial disability, commencing April 10, 1979, said judgment being pursuant to the provisions of La.R.S. 23:1221(3). All costs of this appeal shall be divided equally between appellants and appellee.

REVERSED AND RENDERED.


author: DUFRESNE, Judge.

text:
    TIMES MIRROR MAGAZINES, INC. v. John B. TRASK, Jr. d/b/a Ascot.
    No. 5-48.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.
    John David Cassanova, Metairie, for defendant-appellant.
    Henry B. Hoppe, Jr., Hoppe & Levith, Metairie, for plaintiff-appellee.

      Before BOUTALL, DUFRESNE and GRISBAUM, JJ.
   DUFRESNE, Judge.

This is an open account collection suit by plaintiff, Times Mirror Magazines, Inc. against defendant, John B. Trask, Jr. d/b/a Ascot. The defendant did not file an answer in the suit and a default judgment was confirmed by the plaintiff on September 24, 1979. The record reflects that a Judgment Debtor examination of John B. Trask, Jr. was held on November 30, 1979 which was marked satisfied.

On August 21, 1980, the defendant, John B. Trask, Jr. filed a petition to nullify the judgment of September 24, 1979. The petition was properly answered by the plaintiff and a trial held and judgment rendered February 2, 1981 dismissing with prejudice the petition to nullify. From this judgment the defendant has appealed.

Neither the appellant nor the appellee filed a brief and neither appeared for oral argument.

From a review of the record, we are not persuaded by the appellant’s appeal. We agree with the result reached by the trial judge and affirm the decision at appellant’s costs.

AFFIRMED.


author: GRISBAUM, Judge.

text:
    Mrs. Sharon Riedlinger, Wife of/and Joseph M. GUTHRIE, Jr. v. RUDY BROWN BUILDERS, INC., Don Garland and Mr. and Mrs. Ralph Ragusa.
    Nos. 5-33, 5-34.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.

      McCann, McCann, Schroeder & Mirabile, James A. McCann, New Orleans, for plaintiff, appellant & appellee.
    Taylor, Raggio & Sutherland, John H. Taylor, Baton Rouge, for defendant, appel-lee & appellant.
    Amato & Creely, Terrence J. Lestelle, Gretna, for defendant & appellee.
    Before BOUTALL, DUFRESNE and GRISBAUM, JJ.
   GRISBAUM, Judge.

This case is concerned with the issues of damages for mental anguish and attorney’s fees in an action styled as redhibition or “quanti minoris” involving a surveying error on the part of a builder-vendor’s survey- or. The survey did not note the improper placement of a house in violation of parish ordinances and the subdivision’s restrictive covenants. Relying on the erroneous survey, one home owner built a fence on his neighbor’s property.

Plaintiffs in this ease, Sharon and Joseph M. Guthrie, Jr., initially sought to have the trial court enjoin defendants, Mr. and Mrs. Ralph Ragusa, from maintaining and occupying the Ragusa residence at 5108 Tusa Drive, Marrero, Louisiana, alleging that the Ragusa house was placed such that it was in violation of parish ordinances and subdivision restrictive covenants. They also requested the Ragusas remove a fence they had erected which allegedly encroached on the Guthries’ property. A preliminary injunction was granted by the trial court on March 27, 1979.

This action for injunction was followed by a “Petition for Damages” brought by plaintiffs, Mr. and Mrs. Guthrie, against the Ragusas, Rudy Brown Builders, Inc. (their vendor) and Don Garland (the surveyor of both the Guthrie and Ragusa property). The defendants, Ragusas, filed a “Third-Party Demand” against Rudy Brown Builders, Inc. and Don Garland. Rudy Brown Builders, Inc. also filed a “Third-Party Demand” against the Ragusas and Don Garland.

Prior to the trial on the merits the following stipulations were made: (1) Since the gutter of the Ragusa house encroached on the property of the Guthries, a resubdivision of the property between the parties was agreed upon which would cure the encroachment; (2) Rudy Brown Builders, Inc. would pay the sum of $525.00 to the Guth-ries, on behalf of the Ragusas, to purchase a portion of the Guthries’ property in order to cure the encroachment; (3) Rudy Brown Builders, Inc. would pay for the cost of effecting said resubdivision and transfer.

The only issues to be resolved at trial were that of damages for mental anguish and attorney’s fees. After trial on the merits, the trial judge confirmed the stipulation made prior to trial and answered a judgment in favor of Mr. and Mrs. Guthrie and against Rudy Brown Builders, Inc. in the sum of $775.00, and in favor of Mr. and Mrs. Ralph Ragusa and against Rudy Brown Builders, Inc. in the sum of $500.00. Judgment was further entered in favor of Rudy Brown Builders, Inc. over against third-party defendant, Don Garland, in the amount of $1,275.00. The court held that there was a good faith error in surveying by Mr. Garland, the surveyor of the properties in question, which was imputed to Rudy Brown Builders, Inc., therefore, no attorney’s fees were granted. The claim of the Guthries and Ragusas for mental anguish was not allowed by Judge Eason who cited the Supreme Court decision in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976) to support his denial.

The Guthries and Ragusas have appealed from that part of the trial court’s decision which denies damages for mental anguish and attorney’s fees.

FACTS

Plaintiffs-appellants, Mr. and Mrs. Guthrie, purchased a house and lot from defendant-appellee, Rudy Brown Builders, Inc., in October of 1977. Their neighbors, Mr. and Mrs. Ragusa, also bought their home from Rudy Brown Builders, Inc. some five months before in May of 1977. Rudy Brown was the builder as well as vendor of both of these homes. Don Garland, defendant in this suit, was hired by Rudy Brown and had prepared the surveys used at the respective acts of sale.

In approximately June of 1977, Mr. Ragu-sa attempted to fence his lot in accordance with the Don Garland survey dated December 3, 1976, which was used in the act of sale of his property. Testimony at trial is conflicting, but it seems that while constructing the fence Mr. Ragusa ran into difficulty when his measurements did not agree with stakes placed on his property. Mr. Ragusa testified that he informed the office of Rudy Brown Builders, Inc. of this discrepancy and Rudy Brown spoke to his wife by telephone. Rudy Brown testified he went out to the Ragusa property and advised Mr. Ragusa that the stakes on the Ragusa property designated the correct property line and that Mr. Ragusa’s fence was incorrectly placed. In any case, the fence was completed using the Don Garland survey for reference.

After purchasing the adjoining lot and house in October 1977, Mr. and Mrs. Guthrie also attempted to construct a fence. While measuring his property, Mr. Guthrie found the Ragusa fence seemed to encroach upon his property. The Guthries hired a survey- or who discovered that a second Don Garland survey made July 20, 1977 did not reflect the incorrect placement of the Ragu-sa fence and a gutter encroachment on the Guthrie property. It seems Rudy Brown Builders, Inc. had incorrectly placed the Ra-gusa house upon its lot. This placement caused the gutter encroachment and violated the subdivision’s restrictive covenants and the parish ordinances. The Don Garland survey in December 1976 did not reflect the actual placement of the Ragusa home but instead indicated the house was situated approximately five feet from the property line. The monumentation aspect by Don Garland on the Ragusa property was correct; the actual drawing which Mr. Garland signed as the survey was incorrect; thus, by relying upon this incorrect survey made in December 1976, Mr. Ragusa constructed his fence upon property which would eventually become that of the Guth-ries. The second Don Garland survey (made in July 1977) used in the Guthrie sale also contained this error. The trial court determined Rudy Brown, president of Rudy Brown Builders, Inc., had no knowledge of this survey error before the sale of the adjoining property to the Guthries.

ATTORNEY’S FEES AND MENTAL ANGUISH DAMAGES

The Guthries and Ragusas attempt to base their claims for attorney’s fees by characterizing their respective claims against Rudy Brown Builders, Inc. as actions in redhibition (La.C.C. Article 2520) or “quanti minoris” (La.C.C. Article 2541). Under these actions attorney’s fees are recoverable when it can be shown that the vendor had prior knowledge of the latent defect and did not reveal the existence of the defect to his vendee. La.C.C. Article 2545. Specifically, the Guthries claim Rudy Brown Builders, Inc. is a manufacturer, and, therefore, is presumed to know of the defect. Rey v. Cuccia, 298 So.2d 840 (La.1974). In the alternative, they contend if Rudy Brown Builders, Inc. is not found to be a manufacturer Rudy Brown, its president, had prior knowledge of at least one vice in the thing sold (the fence encroachment) but sold the property to the Guthries without informing them of this latent defect. Similarly,' the Ragusas contend Rudy Brown Builders, Inc. is a manufacturer and thus had knowledge; therefore, they claim under La.C.C. Article 2545 they should receive attorney’s fees. We find that the Guthries and Ragusas do not have actions in redhibition or “quanti minoris.” Instead, their actions are more properly characterized as actions for breach of warranty against eviction.

As a seller Rudy Brown Builders, Inc. has two principal obligations, that of delivering and that of warranting the thing which he sells. La.C.C. Article 2475. It is primarily the breach of the second obligation that of “warranting” the thing which is sold that is the concern of this suit. Article 2476 states:

“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.” (Emphasis added)

The central question is whether the improper placement of a home on its lot causing a gutter encroachment and a fence encroachment upon the adjacent property is covered by Articles 2500 through 2519 which deal with warranty against eviction or whether the improper placement of the house should be considered a “vice” in the thing sold and thereby covered by Articles 2520 through 2548. We find the improper placement of a house on a lot which causes encroachments upon adjoining property is more appropriately covered by the articles on warranty against eviction.

The articles under the eviction section of the Code contemplate two types of eviction; the first is the “loss suffered” from acts of third persons. Article 2500 and 2501 state respectively:

“Eviction is the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person.”
“Although at the time of the sale no stipulations have been made respecting the warranty, the seller is obliged, of course, to warrant the buyer against the eviction suffered by him from the totality or part of the thing sold, and against the charges claimed on such thing, which were not declared at the time of the sale.”

Under the facts of this case, the Guthrie claim is covered by these articles and Article 2514 on partial eviction which states:

“If in case of eviction from a part of the thing, the sale is not canceled, the value of the part from which he is evicted, is to be reimbursed to the buyer according to its estimation, proportionably to the total price of sale.”

The Ragusa fence and gutter have caused them to suffer a “loss” of a portion of their property. It is this situation, namely the loss of a portion of the Guthries’ property caused by the fence and gutter encroachments, that the eviction articles were designed to cover. The Ragusa fence has thus interrupted their peaceful possession of their property.

The second type of eviction found in Article 2504 is that of the “loss suffered” from acts of the vendor. This article states:

“Although it be agreed that the seller is not subject to warranty, he is, however, accountable for what results from his personal act; and any contrary agreement is void.” (Emphasis added)

The Ragusa claim is in essence a claim against their vendor, Rudy Brown Builders, Inc., for eviction. By improperly placing their home and by providing them with an improper survey drawing, Rudy Brown Builders, Inc. exposed the Ragusas to suit by the adjoining landowners and thus to the requirement of either removing the fence and gutter encroachments or buying that portion of the Guthrie property that had these encroachments. This factual situation is similar to that of Katz v. Katz Realty Co., 228 La. 1008, 84 So.2d 802 (1955). In that case plaintiffs were reimbursed by their vendor for the amount they paid to purchase a portion of an adjoining landowner’s property which had encroachments of their walls and foundation upon it. The Katz court analogized the reimbursement demand in that case to similar factual situations presented in earlier cases which allowed “reimbursement.” See Katz, 84 So.2d 802, 804-05. Similarly, the reimbursement under eviction articles that Katz allows has been effected by the pre-trial stipulation that provides for the Ragusa purchase of that portion of the Guthrie property with the fence and gutter encroachments and reimbursement for that amount from Rudy Brown Builders, Inc.

Since both the claims of the Guth-ries and Ragusas are eviction claims, attorney’s fees are not considered part of the “costs occasioned by the eviction” and cannot be recovered. La.C.C. Article 2506.3; Calvary Tabernacle v. Louisiana Central Bank, 393 So.2d 708, 710 (La.1981).

With respect to mental anguish damages, the obligation of warranty is one “to do”, i.e. to come to the vendee’s rescue. La.C.C. Article 1926 states:

“On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section.”

In the following section Article 1934.3 is applicable; it states in part:

“Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for work of some of the fine arts, are objects and examples of this rule.”

Article 1934.3 has been interpreted by the Louisiana Supreme Court in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433, 437 (La.1976) to mean that:

“Where an object, or the exclusive object, of a contract, is physical gratification (or anything other than intellectual gratification) nonpecuniary damages as a consequence of nonfulfillment of that object are not recoverable.
On the other hand, where a principal or exclusive object of a contract is intellectual enjoyment, nonpecuniary damages resulting from the nonfulfillment of that intellectual object are recoverable.”

Applying these principles to the instant case, we find that the Guthries and Ragusas are not entitled to recover damages for mental anguish. Although some aesthetic enjoyment may be important, the object of the contract of sale of a house is primarily physical gratification. According to Webster’s New Collegiate Dictionary a “house” is “a building that serves as living quarters ... a shelter or refuge ...” Like the automobile repair in Meador, the primary purpose in purchasing the houses and lots involved in this suit was the procurement of living quarters and, thus, the “utility” of these structures or physical gratification was the principal object of the contracts. See Meador, 332 So.2d 433, 437-38. Nonpecuniary damages, therefore, are not recoverable.

For the reasons assigned, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the appellants.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Mrs. Corinne GUIDRY and Charles M. Guidry, Jr. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, a/k/a the Department of Highways.
    Nos. 5-184, 5-185.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.

      Edward A. Shamis, Jr., Slidell, for plaintiffs-appellants.
    Graffagnino, Perez & Roberts, A. Russell Roberts, Metairie, for Louisiana Dept, of Transp. and Development, a/k/a the Dept, of Highways, defendant-appellant.
    Montgomery, Barnett, Brown & Read, Sylvia Landry Holder, New Orleans, for U. S. Fire Ins. Co., Intervenor.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CHEHARDY, Judge.

These two cases were consolidated for trial in the district court and for argument here. They arise out of a one-car automobile accident which occurred on U. S. Highway 90 near Bridge City in the Parish of Jefferson. Charles M. Guidry, the driver, was killed and his guest passenger, Charles E. Mormon, was injured. Plaintiffs in Suit No. 5-184 of our docket are decedent’s wife and his son, who filed a wrongful death action, and plaintiff in Suit No. 5-185 is the passenger, Charles E. Mormon. Named defendant in both suits is the Louisiana Department of Transportation and Development, also known as the Department of Highways. Mormon also named as a defendant Allstate Insurance Company, the automobile liability insurer of the decedent, under the Louisiana Direct Action Statute.

An intervention was filed in the Guidry suit by U. S. Fire Insurance Company, the workmen’s compensation insurer of decedent’s employer, for compensation and burial expenses paid to Mrs. Guidry.

Following trial a single judgment was rendered in these consolidated suits awarding Mrs. Guidry $308,500.00, Charles Gui-dry, Jr., $50,000.00 and Charles Mormon $30,000.00 against The Louisiana Department of Transportation and Development. Mormon’s claim against Allstate was dismissed, and there was judgment in favor of the intervenor U. S. Fire Insurance Company in the sum of $17,935.00 in the Guidry suit.

The Guidrys have appealed and the Department of Transportation and Development has appealed. The intervenor has answered both appeals, and Mormon has answered the Guidry appeal.

The basic facts are that Guidry and his co-worker Mormon were travelling in a company-owned vehicle on Highway 90 near Bridge City when an automobile cut in front of them, causing decedent to swerve to avoid the accident. In doing so his vehicle went off the road onto a rut on the shell shoulder. The vehicle went out of control as Guidry brought it back onto the roadway, slid sideways across the highway and flipped over several times. Guidry died and his passenger was injured.

NEGLIGENCE OF THE DEPARTMENT

The appeal of the Department is based upon their lack of negligence, or alternatively the contributory negligence of decedent.

As stated by our Supreme Court in the case of Sinitiere v. Lavergne, La., 391 So.2d 821 (1980), the Department is not the guarantor of the safety of travelers, but owes a duty to them to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.

Since road shoulders are only designed for temporary use, when a motorist finds himself off of the roadway, the Department’s duty of care is generally discharged at a level of construction and maintenance less than that required for the primary road surface.

However, an implicit necessity for the functional use of a shoulder is a connection between the roadway and shoulder that allows for safe gradual movement from one to the other. A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Rue v. State, Dept. of Highways, La., 372 So.2d 1197 (1979).

Thus the decedent and his guest passenger are within the ambit of the Department’s duty to maintain reasonably safe shoulders. A review of the record fully supports the trial court conclusion that the Department breached that duty.

According to the testimony of the State Trooper who arrived on the scene shortly after the accident, the trench in the shoulder in the area of the accident was between 8-10 inches deep, 6-9 inches wide and at least 100 feet long. The rut had been there at least three months because he had notified his troop of the existence of this hazardous area and the information had been relayed to the Department. The witness had, in fact, requested a road crew of the Department working in the immediate area to fix the rut before this accident occurred, but they had not done so. The officer was also aware of other accidents at this location.

A parish maintenance supervisor testified he is a resident of the Westbank and very familiar with the accident area. He described his lack of proper equipment and necessary personnel to adequately perform the duty of maintaining the roadway, and further stated that a 5-inch rut would be an emergency situation requiring immediate repairs, and that the accident scene required more than regular maintenance because it is heavily travelled. The trial court found the Guidry vehicle went out of control only after encountering the rut adjacent to the roadway.

The department and plaintiff Mormon claim decedent was negligent. It is suggested that Guidry was intoxicated and that his vehicle ran onto the shoulder because he was looking at the young woman in the other car instead of watching the roadway. Mormon testified that about 30 minutes before the accident they had stopped to pick up something to drink. They bought four 8-ounce ponies of light beer, and each one of them drank two. Mormon also stated they both looked at the young lady in the car that cut in front of them, but he did not know if decedent was observing her at the time their vehicle veered off the highway.

We are more impressed with the testimony of an independent witness, a man who was travelling several car lengths behind decedent’s vehicle for some period of time, who observed the other automobile cut abruptly in front of Guidry causing him to swerve onto the shoulder in an effort to avoid an accident. The witness stopped to give assistance to the decedent and Mormon. He gave no evidence that either man was intoxicated, nor did the investigating State Trooper. The record simply does not support the allegations that Guidry was intoxicated or that he was inattentive to his driving duties, nor does the autopsy report indicate an intoxicated condition. He was confronted by a sudden emergency and his effort to avoid an accident by driving onto the shoulder does not constitute negligence on his part. There is no evidence that he was travelling at an excessive rate of speed.

DAMAGES

The Guidrys request an increase in their awards of $50,000.00 each for loss of love and affection, and Mrs. Guidry asks for an increase in the award for loss of support.

Mrs. Guidry did not testify. It was stipulated that at the time of her husband’s death they were living together and loved each other as a married couple.

Her son testified his mother handled the family finances. His father turned over his pay check to her and she purchased clothing for him and his father. The father enjoyed fishing with his wife and his son. The son testified briefly.

Mr. Charles Mayo, general sales manager of decedent’s employer who was a resident of Texas, testified by deposition that decedent and his wife had a very close relationship. He observed them to be a very happy couple and noted that while on a trip to Hawaii with an employee group Guidry had foregone a deep sea fishing trip with the men to take his wife on a tour of one of the other islands. He noted that Mrs. Guidry frequently accompanied her husband on sales trips.

The law on the issue of the appellate review of damages is contained in La.Const. of 1974, Art. 5, § 10(B) and C.C. art. 1934(3). In interpreting Article 1934(3) our Supreme Court has held in Coco v. Winston Industries, Inc., La., 341 So.2d 332 (1976), at page 335:

“ * * * [Bjefore a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. * * * ”

A reviewing court might well disagree with the amount of the award, but it is not entitled to substitute its opinion for that of the trier of fact. Spiders v. Mont gomery Ward & Company, Inc., La., 294 So.2d 803 (1974); McElroy v. Vest, 407 So.2d 25 (La.App. 3d Cir. 1981). An abuse of the trial court discretion must be clearly demonstrated before an appellate court will tamper with an award of general damages. Anderson v. Welding Testing Laboratory, Inc., La., 304 So.2d 351 (1974); Covington v. Department of Transp., Etc., 411 So.2d 660 (La.App. 4th Cir. 1982).

Using these guidelines, we cannot say the trial court abused the wide discretion granted it under C.C. art. 1934(3) and we decline to increase the awards for loss of love and affection.

THE AWARD FOR LOSS OF SUPPORT

Mrs. Guidry was awarded $308,500.00. Of this amount $258,500.00 was attributable to loss of support. We are asked to increase this award.

Mr. Guidry was 44 years old at the time of the accident. He had been employed for a little more than one year as a salesman for an oilfield services company. He was an excellent salesman and well regarded by his company. He was highly motivated, very ambitious, aggressive and well liked by all. His first year earnings totaled $20,-000.00 income from commissions, bonuses, prizes and trips. He had such fringe benefits as pension, profit sharing plan, automobile allowance and vacation trips for himself and his wife. The sales manager projected that within five or six years Gui-dry would have been earning $40,000.00 in commissions alone.

Dr. Melville Wolfson, an economist, gave expert testimony in the field of economic loss. He stated plaintiff had a life expectancy of 26 years from the date of trial, and a work life expectancy of 16 years. Based upon an average annual income of $20,-000.00, Wolfson concluded the lost income to date of trial amounted to $66,000.00.

In connection with the loss of future support Wolfson offered numerous calculations regarding loss of future income ranging from $228,100.00 to $550,000.00. Using an annual income of $20,000.00 discounted at 7V2%, allowing a 30% deduction for consumption (i.e. personal spending), and allowing a 15% increase for fringe benefits, he arrived at his lowest figure of $228,-100.00.

Proceeding to base other calculations on $20,000.00 income for five years, increased thereafter to $40,000.00, and using the same deductions and increases outlined above, the loss would amount to $379,000.00.

Asked to make further calculations assuming that fringe benefits and consumption offset each other and using a T/2% discount rate he stated the loss would amount to $470,000.00; at a 5% discount rate the loss would amount to $550,000.00.

It is clear the trial court award was based upon the lesser of the figures. It is appellant’s position that her award should have been based upon the higher calculations. She is of the opinion that fringe benefits should offset consumption, which would increase her award to $440,000.00 or $550,-000.00 (based upon a 7V2% or 5% discount), or that her award should be based upon that calculation which increases the $20,-000.00 yearly earnings to $40,000.00 after five years.

Although Wolfson was the only expert to testify, he was cross-examined extensively. He admitted that he had no basic data available to determine decedent’s consumption factor and he had predicated his 30% factor solely on the basis of an academic study. He agreed that such a figure would vary considerably according to the individual’s lifestyle, how much money he spent on himself and his wife, whether or not he invested his money or saved it, etc. He knew nothing of decedent’s habits in these matters.

Decedent worked on a commission basis and had only a one-year work history in his new profession. Therefore we find it was proper for the trial court to base its award on his known earnings of $20,000.00 rather than to speculate on what those earnings might be five years in the future.

Considering all of the evidence, in our view the trial court committed no manifest error in this award.

INTERVENOR’S CLAIM

U. S. Fire Insurance Company has answered the appeals of both the Guidrys and the Department. It prays the judgment be amended to increase its award from the sum of $17,935.00 to any and all amounts paid by U. S. Fire Insurance Company to Corinne Guidry on the basis of $95.00 per week, and costs incurred in both courts.

We agree with this contention. The intervenor is entitled to be reimbursed for all workmen’s compensation paid and that which it is obligated to pay in the sum of $95.00 weekly. We will amend the judgment accordingly.

THE PASSENGER’S ANSWER TO THE APPEAL

Charles Mormon, the guest passenger, obtained judgment in the sum of $30,000.00 against the Louisiana Department of Highways and his demand against Allstate (decedent’s insurer) was dismissed.

He answered the appeal of Mrs. Guidry praying for an increase in quantum to compensate him for impaired wage earning capacity, and for a finding of negligence on the part of decedent and Allstate.

First we consider the effect of Mormon’s answer to the Guidry appeal. The Guidrys were not named defendants in the Mormon suit and no judgment was rendered against them. His answer to the Guidry appeal does not have the effect of bringing before this court Allstate Insurance Company for a review of that part of the judgment which dismissed Mormon’s suit as to that defendant.

Nor does Mormon’s answer to the Guidry appeal suffice to bring before us his request for an increase in quantum. We could render no judgment against the Guidrys in a suit in which they were not named defendants, nor could we grant an increase in Mormon’s award against the Department, because he has neither appealed nor answered its appeal.

Our settled law is that set forth in C.C.P. art. 2133:

“An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded. * * * The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. * * * ft

See Barrois v. Noto, 215 So.2d 676 (La.App. 4th Cir. 1968).

For the reasons assigned the judgment appealed from is amended to increase the award to the intervenor U. S. Fire Insurance Company for reimbursement by preference for any amounts paid to Mrs. Guidry after October 17, 1980 for workmen’s compensation benefits. Costs of the intervenor in both courts are to be paid by Mrs. Corinne Guidry. In all other respects the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.

      . Panther Chemical Company, the employer of Guidry and Mormon, initially intervened in the Guidry suit alleging it had been sued in a separate action by Mrs. Guidry for compensation benefits. It denied decedent was in the scope of his employment at the time of the accident, but prayed alternatively that if found liable, judgment be rendered for payment by preference out of any judgment awarded to Mrs. Guidry for reimbursement of compensation paid.
      Judgment was rendered against Panther in the compensation suit in the sum of $95.00 per week, plus $1,500.00 funeral expenses. A total of $17,935.00, representing the sum due through October 17, 1980 was paid by Panther’s compensation insurer, U. S. Fire Insurance Company. Subsequent thereto U. S. Fire filed its intervention in the Guidry suit.

      . Because of the facts of this case we need not decide the applicability of C.C. art. 2317.

      . We have already decided the decedent Guidry was not negligent in connection with the appeal of the Louisiana Department of Transportation and Development.


text:
    Charles E. MORMON v. ALLSTATE INSURANCE COMPANY and the State of Louisiana, Department of Highways.
    Nos. 5-185, 5-184.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.

      Weigand & Siegrist, Christopher B. Sieg-rist, Houma, for plaintiff-appellee.
    Graffagnino, Perez & Roberts, A. Russell Roberts, Metairie, for Louisiana Dept, of Transp. and Development, a/k/a the Dept, of Highways, defendant-appellant.
    Porteous, Toledano, Hainkel & Johnson, Lloyd T. Bourgeois, Thibodaux, for Allstate Ins. Co., defendant-appellee.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CHEHARDY, Judge.

For the reasons expressed in Suit No. 5-184 of our docket handed down this day, 416 So.2d 595, the judgment as it affects the parties in Suit No. 5-185 is affirmed.

AFFIRMED.


author: CURRAULT, Judge.

text:
    Yvonne Sevin, Wife of/and Lloyd B. SEVIN v. Richard GALLOIS, Safeco Insurance Company and Allstate Insurance Company.
    No. 5-37.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.
    Lawrence J. Fritz, Metairie, for plaintiff-appellant.
    Steven M. Lozes, New Orleans, for defendants-appellees.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CURRAULT, Judge.

Yvonne Sevin, plaintiff, was injured on February 15,1974, when the automobile she was driving was struck from the rear by an automobile driven by Richard Gallois. After the accident, being unable to determine if Mr. Gallois was insured, Mrs. Sevin attempted to process her claim through her own insurer Allstate Insurance Company. Before it was determined Mr. Gallois did in fact have liability insurance, a claims adjuster for Allstate offered to pay Mrs. Sev-in’s medical expenses under the provisions of the uninsured motorists coverage of her policy. On March 7, 1979, Allstate Insurance Company issued to Mrs. Sevin a draft in the sum of $290.00. The face of the check contained the notation “In payment of any and all bodily injury received due to accident of February 15, 1979 under uninsured motorists section.” The plaintiff accepted this check and deposited it in her checking account.

Subsequently suit was filed against Mr. Richard Gallois, his insurer, the Safeco Insurance Company and Allstate Insurance Company. A settlement was reached between the plaintiff-appellant and Richard Gallois and Safeco Insurance Company for the sum of $4,500.00. Mrs. Sevin through counsel then sought to pursue her claim against Allstate Insurance Company, her uninsured motorists carrier. Allstate filed a motion for summary judgment alleging the plaintiff released her claims against Allstate Insurance Company by entering into an accord and satisfaction; the acceptance of the $290.00 draft. The trial judge granted the motion and the plaintiff has appealed.

The defendant-appellee argues the criteria of accord and satisfaction have been met. Although the concept of accord and satisfaction is one based in common law, it has over the years managed to creep into Louisiana cases despite a codal provision governing compromises.

In Louisiana National Bank of Baton Rouge v. Heindel, 365 So.2d 37, 38 (La.App. 4th Cir. 1978) the court held:

For accord and satisfaction to occur, a debtor must tender payment to a creditor in full satisfaction of a disputed claim, and the creditor in turn must accept the tender. As in any other contract, acceptance of the offer must be an informed consent. Whether the creditor was fully informed of the nature of the compromise offered by the tender must be determined by the circumstances.. . .

The issue here is whether the plaintiff (creditor) was fully informed of the nature of the compromise offered by the tender. Although the testimony of Mrs. Sevin reflects she knew this was to be the only payment under the uninsured motorists provisions of her policy, nothing before the trial judge indicated she was aware of the underinsured motorist provisions, or that she intended to release Allstate Insurance Company from all liability. This is especially important since her claim against Mr. Gallois was limited due to his being under-insured. It is inconceivable that the claim could be settled when the medical reports contained in the record reflect that at the time of receiving the draft, she was under the care of a physician and had scheduled future appointments.

It is well established in our jurisprudence that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. Dixie Campers, Inc. v. Veseiy Company, 398 So.2d 1087 (La.1981); LSA-C.C.P. Art. 966. Further, the burden is upon the mover of summary judgment to demonstrate there is no genuine issue of material fact and that any doubt as to the existence of a material fact must be resolved against the granting of a summary judgment and in favor of a trial on the merits. Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977).

Summary judgment is rarely the appropriate procedure for determining intention and intention is the crux of the issue in the instant case. Was plaintiff aware this would be a release of Allstate as to all liability including that covered by the under-insured motorist provisions of her policy? We think not as the pleadings and exhibits offered into evidence fail to affirmatively establish that an offer to compromise in the form of a draft restricted on its face was accepted by the creditor fully informed as to the import of its tender.

For the reasons assigned, the judgment appealed from is reversed and this matter is remanded for further proceedings consistent with the views herein expressed. All costs are to await the final disposition of this matter.

REVERSED AND REMANDED.