author: FORET, Judge.

text:
    Hadley VIZINAT, et ux., Plaintiffs-Appellees, v. Donald REED, et ux., Defendants-Appellants.
    No. 8417.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Ryder & Deshotels, Errol D. Deshotels, Oberlin, for defendants-appellants.
    Pucheu, Soileau & Coreil, A. Gaynor Soi-leau, Ville Platte, for plaintiffs-appellees.
    Before GUIDRY, FORET and DOUCET, JJ.
   FORET, Judge.

Plaintiffs, Hadley J. Vizinat and his wife, Sally Vidrine Vizinat, brought this action for unjust enrichment to recover rent allegedly due them from defendants, Donald Reed and Mae Young Reed. Trial of this action resulted in a judgment in favor of plaintiffs and against defendants, who bring this appeal. Defendants present the following issues:

(1) Whether the trial court was manifestly erroneous in finding that plaintiffs proved their case by a preponderance of the evidence;
(2) Whether the civil law action for unjust enrichment was available to plaintiffs;
(3) Whether the trial court erred in refusing to award defendants damages in the amount of $2,819.76 asked for in their reconventional demand.

FACTS

The undisputed facts show that in October of 1971, plaintiffs entered into a verbal agreement with defendants for the sale of a house located in Mamou, Louisiana, belonging to plaintiffs. Defendants agreed to purchase the house for $25,500.00 and moved into the house shortly thereafter. Defendants continued to live in the house for approximately 42 months without paying rent. The parties never entered into a written contract of sale.

Plaintiffs filed a rule to show cause on March 21, 1975, seeking to have defendants evicted from the house and to regain possession thereof. Plaintiffs filed a “Petition for Quantum Meruit” in the same proceedings on May 5,1975, alleging that they were entitled to recover the sum of $9,300.00 from defendants as rent for the period of time that defendants occupied the house. Defendants filed an answer and reconven-tional demand denying plaintiffs’ allegations and seeking to recover $15,000.00 for damages allegedly sustained by them as a result of plaintiffs’ actions.

Defendant, Donald Reed, subsequently died and his children, Donna Mae Reed Deshotel, Christine Reed Hundley and Stephanie Reed Deshotel, were substituted as defendants. The trial court rendered judgment in favor of plaintiffs for $8,400.00 on the main demand and in favor of defendants for $371.76 on their reconventional demand.

PLAINTIFFS’ PROOF

The trial court found that plaintiffs in the main demand proved their case by a preponderance of the evidence, and that they are entitled to recover from defendants rental value in the amount of $200 for 42 months, or $8400.00. Defendants contend that this finding is manifestly erroneous.

Defendant, Mae Young Reed, admitted that she and Donald Reed moved into the home in October, 1971, and lived in it until May, 1975. She also admitted that they never paid plaintiffs anything for occupying the house during this entire period of time. Hasker Garland was accepted by the court as an expert in the fields of home construction, appraisal, and valuing of homes for rental purposes. He testified that a home such as the one occupied by defendants would have had a rental value of between $200 and $225 per month during the time that it was occupied by them.

Our review of the record establishes that the finding of the trial court that plaintiffs had proved their case and were entitled to recover $8400 from defendants is not clearly wrong.

CIVIL LAW ACTION FOR UNJUST ENRICHMENT

Defendants cite the decision of the court in Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967), which sets forth the different elements of the civil law action de in rem verso, or unjust enrichment. Minyard stated, on page 432 that:

“There are now five prerequisites to the successful suit by actio de in rem verso: (1) there must be an enrichment, (2) there must be an impoverishment, (3) there must be a connection between the enrichment and resulting impoverishment, (4) there must be an absence of “justification” or “cause” for the enrichment and impoverishment, and finally (5) the action will only be allowed when there is no other remedy at law, i. e., the action is subsidiary or corrective in nature.”

Defendants contend that plaintiffs have failed to prove that the civil law action for unjust enrichment is available to them. We disagree. We find that defendants’ occupation of the home for a period of 42 months without paying rent constitutes an enrichment to them. We also find that the deprivation of use of that home to plaintiffs because of that occupation constitutes an impoverishment of them. The connection between the enrichment and the impoverishment is obvious.

Defendants argue that plaintiffs failed to prove an absence of justification or cause for the enrichment and impoverishment. Defendants contend that they were justified in occupying the home without paying rent because of plaintiffs’ failure to enter into a contract of sale with them despite their repeated request to do so. However, Mae Reed testified that she and her husband refused to enter into an agreement with plaintiffs until the house was completed and certain defects remedied. She also testified that she knew of no attempts made by her husband to secure a loan to purchase the home. However, she believed that they would have had no problems obtaining the money from either a bank or her father-in-law.

Plaintiff, Hadley J. Vizinat, testified that he first discussed the sale of the home with defendants before it was completed. Items such as a bar and driveway were added pursuant to requests made by defendants. He allowed defendants to move into the home because he was eager to sell it. He also knew that defendants owned another home, which they planned to sell, and that they would use the proceeds from the sale as a down payment.

Vizinat spoke with Donald Reed some time after that, though he couldn’t remember exactly when. He testified that Donald Reed told him that they would close the deal as soon as his father sold some land and gave a portion of the money to him. Subsequently, Vizinat learned that Donald Reed had lost his job and was unemployed. Because of this, he did not press defendants to go ahead with the sale. Vizinat talked with Donald Reed for the last time approximately three to five months before defendants were evicted. He stated that Donald Reed again told him that he would soon be ready to complete the sale.

We find that plaintiffs have proven the absence of any justification for defendants’ enrichment or for their own impoverishment. Finally, defendants make no argument that plaintiffs have any other remedy at law available to them, and we find that none exists. Thus, we conclude that all of the elements necessary to maintain the civil law action for unjust enrichment are present in this case.

DEFENDANTS’ OFFSET

The trial court awarded defendants $371.76 on their reconventional demand representing $200 for improvement of the yard surrounding the house, $100 for wallpapering the house and $71.76 defendants paid to have a ventilator installed. Defendants contend that the trial court erred in refusing to award them $1700.00 which they claim represents the increase in value of the home they sold that they would have enjoyed had they not sold it, and $748.00 for insurance they claim to have paid on the home they were occupying. Defendants’ claim for $1700.00 is unfounded. We can conceive of no theory under which recovery of this amount would be allowed, and defendants have cited us none. As to defendants’ claim for $748.00 for insurance allegedly paid on the house, the trial court apparently found that defendants had failed to prove this claim and we agree.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against defendants-appellants.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    In re Clarence SIMON, Jr. and Mary Louise Humphries Simon Applying for Adoption.
    No. 8421.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Simon & Woodruff, Paula Kobetz Woo-druff, Lafayette, for appellant.
    Vidrine & Wimberley, J. Lee Wimberley, Jr., Church Point, for appellee.
    Before GUIDRY, FORET and DOUCET, JJ.
   FORET, Judge.

Clarence Simon, Jr. and his wife, Mary Louise Humphries Simon, (appellees) brought this action for an interlocutory decree of adoption. They seek to adopt Andrea Denise Simon (Andrea), a female child born January 2, 1980. Larry Simon (appellant), a maternal uncle of the child, filed an opposition to the adoption.

The trial court granted the interlocutory decree of adoption, from which appellant brings this appeal.

FACTS

Andrea’s mother, Kathryn Sue Simon, died on January 30, 1980, approximately one month after Andrea was born. Her father is unknown. Andrea has been in the physical custody of appellees since birth. Appellant filed a petition for appointment as Andrea’s tutor and appellee, Clarence Simon, Jr., filed an opposition to the appointment. Clarence Simon, Jr. is also a brother of Andrea’s mother.

Subsequently, appellees filed a petition for an interlocutory decree of adoption to which appellant filed an opposition. The trial court granted the interlocutory decree in favor of appellees, finding the adoption to be in the best interest of the child. Apparently, the trial court sustained an exception of no right of action against appellant, finding that he had no right to oppose the granting of the decree under the provisions of LSA-R.S. 9:422.1o.

The trial court granted appellant a sus-pensive appeal from its judgment. Appel-lees have filed a motion to dismiss the appeal on the grounds that appellant has no right to appeal from the granting of the interlocutory decree. The motion to dismiss has been referred to the merits.

MOTION TO DISMISS

Appellees contend that appellant has no right to appeal this matter under the provisions of LSA-R.S. 9:438:

“§ 438. Appeals
Appeals from any judgment rendered in accordance with this Subpart or from the granting or refusal of any interlocutory decree shall be to the supreme court on both law and fact. Any party to the proceedings or any other party in interest shall have the right to appeal within thirty days after the rendition of a judgment or decree. If no appeal is perfected within thirty days after a judgment is rendered, the judgment shall be final.” (Emphasis ours.)

The portion of this section providing that such appeals be taken to the Supreme Court has been impliedly overruled by LSA-Const. Art. 5, §§ 5(D) and 10. Such appeals are now properly brought before the courts of appeal. See Martin v. LeBoeuf, 351 So.2d 1202 (La.1977).

Essentially, appellees argue that appellant is not a party in interest for purposes of LSA-R.S. 9:438, supra. We disagree. We find that appellant is a party in interest as he is a maternal uncle of the child sought to be adopted. Thus, the motion to dismiss the appeal is denied.

THE INTERLOCUTORY DECREE

Appellees instituted this action to adopt Andrea pursuant to the provisions of LSA-R.S. 9:422. Appellant contends that it was error for the trial court to grant appellees an interlocutory decree of adoption because they failed to adhere to some of the provisions of LSA-R.S. 9:422.3, et seq. Specifically, he alleges that the formal act of voluntary surrender executed by Andrea’s mother in favor of appellees fails to set forth all of the information required by LSA-R.S. 9:422.6. We agree that the document is deficient.

There appears to be a hiatus in the law with respect to private adoptions when facts and circumstances such as those present in the action before us exists. LSA-R.S. 9:422.3 provides:

“§ 422.3. Voluntary surrender of custody of child for private adoption
The parent or parents of a child, whether the child is born in wedlock or out of wedlock and whether the parent is over or under eighteen years of age, may execute an authentic act of voluntary surrender of custody of the child for private adoption. The formal act shall be evidence of a legal and voluntary surrender only if it is executed in accordance with the provisions of this Subpart. The provisions of this Subpart shall be inapplicable where custody of the child has been removed by court order and placed with the Department of Health and Human Resources and the parent or parents shall have no capacity to execute an authentic act of voluntary surrender of custody as provided for in this Subpart. Nothing in this Subpart, however, shall alter the provisions for or the effects of a voluntary surrender to an agency.” Added by Acts 1979, No. 686, § 1. Amended by Acts 1980, No. 187, § 1. (Emphasis ours)

Here, Andrea’s mother is dead and the father is unknown. Under the provisions of LSA-R.S. 9:422.3, supra, there is no one who can execute the formal act of voluntary surrender in proper form. However, we do not believe that the legislature intended to prohibit private adoptions in situations such as this.

The Louisiana Supreme Court, in In re Ryals, 231 La. 683, 92 So.2d 581 (1957), was faced with a situation similar to this. In Ryals, the child involved had been born on April 21, 1951, four months after the death of his father. On February 16, 1954, his mother was killed in a fire. The child’s brother brought him to the home of an uncle-in-law and aunt a few days later. Four months later, the uncle-in-law and aunt filed a petition to adopt the child under the provisions of LSA-R.S. 9:421 — 441, then in effect. The child’s brother opposed the adoption on the grounds that he had not been voluntarily surrendered or declared abandoned or a foundling.

Ryals disagreed, stating on page 583:

“As we have said, this proceeding was instituted under R.S. 9:421-441, and there is nothing in this statute which requires a child whose parents are both dead to be voluntarily surrendered or declared abandoned or a foundling before he is available for adoption, nor is there any provision which requires the consent of a collateral relative, such as a brother. The child in the instant case has no father and no mother, and his brother is his closest relative. Under the law, however, the brother is not given as a matter of right the care and custody of the child, nor is there any legal duty or obligation upon the former to provide for the latter’s support and maintenance. We know of no law under a case presenting facts such as these which requires that a child be voluntarily surrendered or declared abandoned or a foundling before he is available for adoption, and no law which requires the consent of a brother to such adoption.”
“Under the facts of this case, was the judgment granting the adoption of this minor to petitioners in the best interest of the child? If so, it should be affirmed, for under the adoption statute “the basic consideration for this decree and all others shall be the best interest of the child”. R.S. 9:432.”

See also 2 C.J.S. Adoption of Persons § 54, pg. 471.

We see no sound reason why the result should be any different under LSA-R.S. 9:421, et seq. presently in effect. See LSA-R.S. 9:432(B); Adoption of Latiolais, 384 So.2d 377 (La.1980). We have reviewed the confidential report prepared by the Louisiana Health & Human Resources Administration, Office of Human Development, which was entered in evidence. That report convinces us that it is in Andrea’s best interest to allow her adoption by appellees. The trial court found this to be so after reviewing the report and the evidence adduced at the in camera hearing on appel-lees’ petition.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against appellant.

AFFIRMED.

      . The record contains no written judgment signed by the trial court sustaining an exception of no right of action. Thus, there is nothing for us to review in connection therewith.

      . LSA-R.S. 9:422 provides:
      “§ 422. Persons who may petition for adoption
      A single person eighteen years or older, or a married couple jointly, may petition to adopt a child. When one joint petitioner dies, proceedings may continue as though the survivor was a single original petitioner. If one of the spouses is the legitimate parent of the child to be adopted the other spouse may adopt the child with the written consent of the legitimate parent who need not join in the petition nor be served with a copy thereof. A judgment of adoption awarded to one spouse shall not alter the relationship of the child to the spouse who is the legitimate parent.
      Amended by Acts 1975, No. 421, § 1; Acts 1978, No. 714, § 1.”

      . LSA-R.S. 9:422.6 provides:
      “§ 422.6. Formal act of surrender; contents
      The formal act of surrender shall identify the parents or parent of the child by name, parish of domicile, age, and marital status; shall identify the child and the parish of birth of the child; shall indicate the name and address of the person or persons to whom the surrender is made, or the name and address of the representative of that person or persons; and shall recite: (1) the date of birth of the child to be surrendered and that the act is not signed earlier than the fifth day following that date; (2) that the parent or parents freely and voluntarily surrender custody of the child for the purpose of private placement and adoption; (3) that the parent or parents consent to the adoption; (4) that the parent or parents have been informed and understand that their rights as parents of the child are to be terminated, and (5) that notice and service of any pleading of any sort in any subsequent adoption proceeding is waived. Should a surrendering parent of the child be under the age of eighteen at the time of signing, the formal act shall also recite that fact and shall state that the surrendering parent under the age of eighteen is joined in signing the formal act of surrender by those individuals indicated in R.S. 9:422.3. Each necessary party must sign in the presence of a notary and two witnesses, although it is not necessary that they sign the same instrument.”


author: DOUCET, Judge.

text:
    Leo SPILLERS, Plaintiff-Appellee, v. CITIES SERVICE COMPANY, Defendant-Appellant.
    No. 8422.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Jones, Tete, Nolen, Hanchey, Swift & Spears, Bret L. Barham, Lake Charles, for defendant-appellant.
    Baggett, McCall, Singleton & Ranier, William B. Baggett, Lake Charles, for plaintiff-appellee.
    Before GUIDRY, FORET, and DOUCET, JJ.
   DOUCET, Judge.

This action for workmen’s compensation benefits was brought by Leo Spillers against his former employer, Cities Service. Plaintiff alleges that he suffered a knee injury while working within the course and scope of his employment as a boilermaker for Cities Service, and that such injury resulted in a permanent partial disability entitling him to recover benefits prescribed by the Louisiana Workmen’s Compensation Act. Defendant admits the occurrence of the accident but contends that the employee’s complaints were not justified for the duration alleged. Defendant’s position is that the injury resulted in aggravation of a pre-existing condition and that plaintiff has since returned to the same physical condition which existed prior to the accident. From an adverse ruling defendant has perfected this appeal, wherein he alleges plaintiff failed to prove such a disability by a preponderance of evidence.

On January 3, 1979, Mr. Spillers, while working in the course and scope of his employment, attempted to lift a heavy impact wrench, when he felt a tearing sensation in his knee. He reported to the first aid center on his employer’s premises, and was immediately referred to Dr. Edward Phillips, Jr., an orthopedic surgeon. Thereafter, Dr. Phillips allowed Mr. Spillers to return to work on light duty, in which position he stayed until his retirement on October 1, 1979. Subsequent to his retirement Mr. Spillers worked occasionally doing light work as a boilermaker. However, he filed suit against Cities Service alleging that he was permanently partially disabled as a result of the aforesaid accident, and that such disability prevented him from working as often as desired.

Since the date of the accident plaintiff has been seen by only one physician, Dr. Phillips; thus his testimony represents the totality of medical evidence presented at trial. Mr. Spillers related to Dr. Phillips that he had suffered an injury to his right leg as a child when a bull fell on his leg resulting in one leg being shorter than the other. Dr. Phillips testified that, after following his patient’s progress, his opinion changed as to the cause of plaintiff’s problems, being of the belief that “a lot of his trouble in the latter few months probably had to do with the original old injury,” now being aggravated by arthritis. He could not say with any certainty that Spiller’s continued suffering was not attributable to a torn meniscus incurred during the accident.

Aggravation of a pre-existing physical deficiency is compensable. Berry v. Livingston Roofing Co., 403 So.2d 1247 (La.1981); Allor v. Belden Corp., 393 So.2d 1233 (La.1981); Parks v. Ins. Co. of North America, 340 So.2d 276 (La.1976). In other words, an employer takes his employee as he finds him. Thus the question remains whether plaintiff established that the accident caused his pre-existing condition to become symptomatic or aggravated it in some way.

Where there is proof of an accident and a following disability without any intervening cause, it is presumed that the accident caused the disability. Adams v. New Orleans Public Service, Inc., 399 So.2d 607 (La.1981); Bertrand v. Coal Operators Casualty Co., 221 So.2d 816 (La.1969). This presumption of causal connection between the accident and ensuing disability is available to ease the injured worker’s burden of proof when he is able to show that before the accident he was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves after-wards, providing that the medical evidence establishes a reasonable possibility of such a connection. Berry v. Livingston Roofing Co., supra; Allor v. Belden Corp., supra; Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (1978). Plaintiff testified as to history of good health, which was corroborated by the two other witnesses, A.E. Vincent, and Eddie Stroderd. The record indicates plaintiff never missed work because of any pre-existing condition. All of these witnesses, and additionally Dr. Phillips, testified that subsequent to the accident plaintiff experienced pain when working. Dr. Phillips further testified that Mr. Spillers continues to exhibit disability in the right knee and this was attributable, in part, to the lifting injury.

Appellant further contends that plaintiff could continue similar employment if he so desired. La. R.S. 23:1221(3) provides that an employee is eligible for compensation for a partially disabling work-related injury regardless of whether his employment continues; only the amount of compensation due may be affected by wages actually earned after the injury. Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981). The evidence fully supports the finding of the trial court that plaintiff is physically unable to perform some of his old tasks as a result of his injury. Dr. Phillips testified that Spiller’s disability would interfere with the regular duties of a boilermaker, which was corroborated by the testimony of other witnesses. Furthermore, Dr. Phillips conditioned plaintiff’s return to employment upon him doing only light duty work.

Reasonable evaluations of credibility made by a trier of fact should be accorded great weight by a reviewing court. Cadiere v. West Gibson Products Co., Inc., supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973). We accept the trial court’s finding that plaintiff was permanently partially disabled as a result of the accident, and accordingly affirm. Costs of this appeal are to be borne by appellant.

AFFIRMED.


text:
    Billy Lee BERTRAND, Plaintiff-Appellant, v. HOWARD TRUCKING COMPANY, INC., Defendant-Appellee.
    No. 8425.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Writ Denied Jan. 8, 1982.
    Levingston, Tynes & Liles, Maurice L. Tynes, Lake Charles, for plaintiff-appellant.
    A. D. Barnes, Jr., New Orleans, Roy & Forrest, Alex A. Lopresto, New Iberia, for defendant-appellee.
    Before GUIDRY, FORET and DOUCET, JJ.
   FORET, Judge.

Billy Lee Bertrand brought this tort action against defendant, Howard Trucking Company, Inc., to recover damages for personal injuries he sustained in an oil field related accident. Defendant, after answering plaintiff’s petition, filed a motion for summary judgment, which was granted by the trial court. The trial court’s judgment dismissed plaintiff’s suit. The sole issue presented is whether it properly granted the motion for summary judgment.

FACTS

Plaintiff was injured on January 3, 1978, while employed by Progress Drilling Company (Progress) as a driller. Plaintiff and his crew were dismantling a drilling rig located in Acadia Parish at the time. Defendant, pursuant to an oral contract with Progress, had provided a large crane to assist in this operation and also provided the trucks necessary to transport the rig to its new location around Gonzales, Louisiana.

Three large motors connected together supplied power to the rig, and it was necessary to remove them from it, one at a time, prior to loading them on trucks. The first motor was successfully detached and removed and plaintiff and his crew proceeded to the second motor. Defendant’s crane was positioned to lift that motor and plaintiff helped attach cables from the crane to it. Apparently, it was sometimes necessary for the crane operator to shake a motor with the crane in order to detach it from the others, and this had to be done with the second motor. Plaintiff had stepped off the second motor and was watching the operation from another part of the rig when he noticed that the crane operator was having trouble detaching them. He then climbed back down to the second motor to attach another cable to it, which led to a winch on the crane. At approximately the same time, as plaintiff stepped down onto a small platform attached to the motor not being handled, both motors moved and plaintiff was thrown to the ground. The movement of the motors also caused a section of a steel stairway to dislodge, which then fell on top of plaintiff, causing him serious injury.

Plaintiff alleges that defendant’s crane operator had operated the crane in a negligent manner, causing him to suffer serious personal injuries . Defendant alleged in its motion for summary judgment that its employees were “borrowed employees” of Progress (appellant’s employer at the time of the accident) and were considered to be co-employees of appellant. Thus, appellee argued that appellant’s exclusive remedy was that provided under the workmen’s compensation statutes. In the alternative, defendant alleged that the pleadings, depositions, interrogatories, admissions, and sworn affidavits filed in the record showed conclusively that its employees were in no way negligent and, therefore, it could not be held liable to appellant. Thus, defendant argued that there existed no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. The trial court agreed and granted the motion, and also granted appellant’s motion for a devolutive appeal from the judgment .

SUMMARY JUDGMENT

LSA-C.C.P. Article 966 provides that a motion for summary judgment shall be rendered forthwith 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 mover is entitled to judgment as a matter of law.

In deciding whether all material issues have in fact been disposed of, any doubt is to be resolved against the granting of summary judgment and in favor of trial on the merits. Sanders v. Hercules Sheet Metal, Inc. 385 So.2d 772 (La.1980); Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Employers’ Surplus Line Insurance Company v. City of Baton Rouge, 362 So.2d 561 (La.1978).

Plaintiff contends that the trial court erred in granting defendant’s motion for summary judgment because there exists a genuine issue as to certain material facts. Plaintiff relies on his affidavit filed in opposition to the motion for summary judgment and his deposition filed into the record as setting forth facts showing that there is a genuine issue for trial. Specifically, appellant alleges therein that appellee’s crane operator negligently lifted the motor, to which the crane was attached, an excessive distance which placed a bind on the pins connecting it to the motor on which he was standing. He argues that this caused both motors to move in a sudden and unexpected manner causing the accident which injured him.

The summary judgment procedure is designed principally to decide issues of law in cases where the material facts are not in dispute. The procedure is therefore seldom appropriate in negligence cases in which the decision turns on a determination of whether or not a defendant’s conduct constitutes a tort. Such a determination usually involves a factual dispute. Cosse v. Schwegmann Brothers Giant Supermarkets, 336 So.2d 1074 (La.App. 4 Cir. 1976); Continental Casualty Company v. McClure, 313 So.2d 260 (La.App. 4 Cir. 1975).

In the instant case, the decision turns on whether the conduct of the crane operator, in lifting the motor to which the crane was attached, and the causing of both that motor and the one on which appellant was standing to move, constitutes a tort. Our review of the record leads us to conclude that a genuine issue exists with respect to this material fact. Thus, we find that the trial court improperly granted ap-pellee’s motion for summary judgment on the issue of negligence.

For the above and foregoing reasons, the judgment of the trial court is reversed and this ease is remanded for further proceedings.

All costs of this appeal are assessed against defendant-appellee.

REVERSED AND REMANDED.

      . Plaintiff testified that he suffered the following injuries: a punctured lung, severed kidney, contusion and broken ribs and multiple fractures up and down his back. Plaintiff also testified that his gall bladder and spleen were completely removed, as was a part of his liver.

      . The trial court did not decide the issue of whether plaintiff was a borrowed employee of Progress, but, rather, decided that defendant was not negligent.

      .“Art. 966. Motion for summary judgment; procedure
      The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
      The motion for summary judgment shall be served at least ten days before the time speci-tied for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with
      the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”


author: YELVERTON, Judge.

text:
    Freddie DOMINICK, Plaintiff-Appellant, v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, et al., Defendants-Appellees.
    No. 8431.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Gray, Clemons & Spruel, M. Joy Clemons and James Spruel, Jr., Lake Charles, for plaintiff-appellant.
    Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for defendants-appellees.
    Before DOMENGEAUX, SWIFT and YELVERTON, JJ.
   YELVERTON, Judge.

The plaintiff, Freddie Dominick, brought this workmen’s compensation suit against his employer, the Department of Health and Human Resources, Office of Family Security, and its insurer, Rockwood Insurance Company. After a trial on the merits, the trial court found that plaintiff’s accident did not arise out of and in the course of his employment, and dismissed the action. Plaintiff appealed. We affirm.

In well-written reasons for judgment, the trial court found the following facts, which our review of the record substantiates and from which we quote:

“Dominick was employed as a ‘custodial worker IIP by the Office of Family Security, Louisiana Department of Health and Human Resources . . .
“On June 2, 1978, the Petitioner was involved in an automobile accident at the intersection of Enterprise Boulevard and 12th Street in the City of Lake Charles. He contends that as a result of this accident he suffered disabling injuries for which he is due compensation. The accident occurred while the claimant was taking his wife to the Mental Health Clinic on Kirkman Street to. keep an appointment. He was traveling in a personally owned vehicle.
“Mr. Dominick’s immediate supervisor was Mrs. Shirley Verrett, Administrative Assistant. She testified that among his other duties, on alternate Fridays, he was instructed to pick up CETA checks after 1:30 P.M. and before 4:30 P.M. He was authorized and directed to use a State vehicle for that purpose. On the date in question he arrived for work 30 minutes late. He requested permission to take his wife to the doctor and this was approved ...”

There are some conflicts in the testimony as to what happened after that. Plaintiff testified that he left the office around 12:30 P.M., picked up his wife at 20 minutes to one, had the wreck at 1:00 P.M., then returned to the office arriving at about 1:30 P.M. He stated that it had been his intention to take his wife to the Mental Health Clinic then pick up the CETA checks on the same trip. He stated he was unable to do that because his personal automobile was not drivable after the accident and he had to catch a ride back to the office. Dominick denied that he was on annual leave when the accident happened.

The other version of the chronology of events, and the version found by the trial court to be true facts, was that plaintiff left the office at 11:00 A.M. and did not return until 3:00 P.M. During this interval he was charged annual leave, a customary practice in the Agency when an employee wanted time off for purely personal business. The accident happened at 1:00 P.M. Plaintiff’s wife was taken to the hospital emergency room for observation. Plaintiff himself returned to work (the injury his present suit alleges occurred in that accident did not immediately manifest itself). He got back to the office at 3:00. He was then instructed to proceed to the CETA headquarters to pick up the checks. He did so, using an Agency car, and returned the checks to the office. He immediately left again to see about his wife at the hospital. When the office closed at 4:30 P.M. he had not yet returned.

The trial court further found that:

“There were conflicts between the testimony of Mr. Dominick and that given by other workers at the agency.
“Although the method of granting annual leave for portions of days, even for periods as short as 30 minutes, may be somewhat unusual, witnesses were in agreement and reciting that it was a well-established practice. The accident which resulted in the injury complained of occurred while the Plaintiff was driving his wife to keep an appointment at the mental health clinic, in his own personal automobile. He had requested and received permission to absent himself from his duties during that time and the period was charged to his annual leave allowance.”

The trial judge rejected Dominick’s contentions that at the time of the accident he was on a combined mission involving his personal business and his employer’s business. The trial court found that when the accident happened plaintiff was on annual leave in his personal car going about his personal business which was in no way related to the business of his employer. When testimony is in conflict, reasonable evaluations of credibility and reasonable inferences of fact drawn by the trier of facts should not be disturbed on appeal. Clay v. Bituminous Casualty Corporation, 401 So.2d 1257 (La.App. 1 Cir. 1981). Our review of the entire record convinces us that there was ample evidence on which the trial court could reasonably base his findings of fact.

We now move to a consideration of the primary issue on this appeal, and that is whether, on these facts, the plaintiff’s accident arose out of or in the course of his employment. An accidental injury is com-pensable only if it arises out of and occurs in the course of the employment. La. R.S. 23:1031.

In Whitney v. U.S. Fidelity and Guaranty Insurance Company, 373 So.2d 728 (La.App. 2nd Cir. 1979), writ refused, 376 So.2d 320 (1979), an excellent and concise review is made of the jurisprudence interpreting the “arising out of” and “in the course of his employment” criteria. The Second Circuit in that case observed that the “arising out of” requirement demands inquiry into the relationship of the accident to the necessities of the plaintiff’s employment and in some instances the character of origin of the risk, while the “in the course of” requirement brings into focus the time and place relationship between the risk and the employment. An accident occurs in the course of employment when it happens during the time of employment and at a place contemplated by the employment. In determining whether the accident arises out of the plaintiff’s employment, two factors are considered:

1) Was the employee then engaged about his employer’s business and not merely pursuing his own business or pleasure; and
2) Did the necessities of that employer’s business reasonably require that the employee be at the place of the accident at the time the accident occurred?

Applying these tests to the facts, the record shows'that the accident in which Mr. Dominick sustained his disabling injuries did not occur in the course of his employment. Neither the time nor the place requirements were met. As previously discussed, the plaintiff was on approved annual leave requested by him at the time of the accident. Additionally, the place of the accident was not one contemplated by the plaintiff’s employment. At the time of the accident, the plaintiff was traveling in the opposite direction from both his employment office and the place where he picked up the CETA checks. Therefore, the place of the accident was not one contemplated by the plaintiff’s employment.

The accident did not arise out of the plaintiff’s employment. Mr. Dominick was driving his wife to the doctor in his personal vehicle when the accident occurred. The trial court found that this was not a combined trip to pick up the CETA checks for his employer and to deliver his wife to the clinic. There was no relationship between this venture and the work for which the plaintiff was employed. The facts of this case also conclusively show that the necessities of the employer’s business did not reasonably require that Mr. Dominick be at the place of the accident at the time the accident occurred.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against the plaintiff-appellant.

AFFIRMED.

      . He was charged annual leave only from 12:30 P.M. to 3:00 P.M. His normal lunch hour (11:30 A.M. to 12:30 P.M.) was not charged against him and he was apparently given an extra 30 minutes free of charge.


author: CULPEPPER, Judge.

text:
    KALMN, INC., Plaintiff & Appellee, v. EMPIREGAS CORPORATION, et al., Defendants & Appellants.
    No. 8432.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendants-appellants.
    Raggio, Cappel, Chozen & Berniard, Richard A. Chozen, Lake Charles, for defendant-appellee.
    Scofield, Bergstedt & Gerard, J. Michael Veron, Lake Charles, for plaintiff s-appel-lees.
    Plauche, Smith, Hebert & Nieset, Jeffrey • M. Cole, Lake Charles, for plaintiff-appel-lee.
    Romero & Romero, Clarence E. Romero, Welsh, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CULPEPPER, Judge.

This case is consolidated on appeal with Southern Farm Bureau Casualty Insurance Company v. Empiregas Corporation, et al., 406 So.2d 283, and Lamotte v. Empiregas Corporation, et al., 406 So.2d 283, in which separate judgments are being rendered by us this date. All three cases are for property damage arising from the destruction of a farm house by a gas explosion and fire. The present case is by the owner of the home, Kalmn, Inc. The companion case by Mr. and Mrs. Richard A. Lamotte, occupants of the home, is for damages to the contents. The third suit is by Southern Farm Bureau Casualty Insurance Company, fire insurer of the La-mottes, for the sum of $6,150 which it paid on the loss of the contents, and for which it took a subrogation. In each of the three cases, the defendants aré Empiregas, Inc. of Jennings and its liability insurer, International Insurance Company. Empire-gas installed and filled the propane gas tank at the home. Defendants filed a third party demand against Anchor Gasoline Corporation, from whom Empire purchased the propane gas, which was allegedly not properly malodorized.

The three suits were consolidated for trial, but just before the trial began Southern Farm’s suit was settled by a stipulation that it would receive reimbursement of $6,150 out of any judgment rendered in favor of the Lamottes. The suits by Kalmn, Inc., and by Mr. and Mrs. Lamotte were tried before a jury.

The jury found the defendant, Empire-gas, was negligent. It found that damages to the contents had been sustained by the Lamottes in the amount of $41,502.21 and by Kalmn, Inc. for the home in the amount of $65,831.59. It further found that the third party defendant, Anchor Gasoline Corporation, was not liable to the third party plaintiffs for any part of those damages. From this judgment, Empiregas, Inc. of Jennings and its insurer have appealed, raising the following questions: (1) Whether the jury erred in finding Empiregas, Inc. of Jennings (hereinafter Empiregas), was guilty of negligence which was the proximate cause of the explosion and fire; (2) whether the jury was in error in holding that the third party defendant, Anchor Gasoline, was not guilty of negligence which was a legal cause of the accident; (3) whether the jury abused its discretion in the amount of damages awarded to Kalmn, Inc., (4) whether the expert witness fees fixed in the judgment are excessive.

FACTS

The facts are as follows: Sometime early in the week of October 21, 1977, the La-mottes contacted Empiregas to request that the house in which they resided be furnished with gas service for the purpose of operating a furnace. The house had always been heated by gas, but the old lines had been disconnected. Mr. Lamotte wished to have the new tank situated farther away from the house. Copper tubing was specified for the purpose of making the connection between the new tank and the old existing gas line leading into the house.

Employees of Empiregas delivered a 500 gallon propane-butane tank to the La-mottes’ residence on the afternoon of Thursday, October 20, 1977. On Friday afternoon, they returned, hooked up the line from the tank to the old line and filled the tank. No pressure test was conducted at this time to determine whether there were any leaks in the lines, open valves in the house, or any other means by which gas might escape. The work was performed in the absence of all occupants of the house, despite the fact that Mr. Lamotte requested that it be done during the morning hours, because no one would be at home in the afternoon. At about 10:30 P.M. October 21, 1977, Bradley Bjarko, who was residing with the Lamottes temporarily, entered the kitchen of the house and turned on the light. Minutes later, as he prepared to leave the kitchen, he turned off the light switch. The explosion and fire followed immediately, completely destroying the house, its contents, outbuildings, plants and trees.

After the explosion, it was discovered that the tank valve was in the “on” position. An expert witness from the State Fire Marshal’s office testified that from his investigation he had little doubt that the occurrence was caused by sparks from the light switch igniting propane gas which had entered the house through an open value inside the house. It was shown through expert testimony, and is not disputed, that the gas in the tank did not contain the proper amount of malodorant required by the Louisiana Propane Gas Commission Rules and Regulations.

LIABILITY OF EMPIREGAS

Defendant, Empiregas, contends that it should escape liability first because it was not negligent, and, second, because, even if it was, that negligence was not a proximate cause of the incident. We will first address the negligence issue.

It is well settled that gas is an inherently dangerous instrumentality because of its highly flammable and explosive character. Those who handle and distribute it are charged with the duty to exercise that degree of care commensurate with its dangerous character and necessary to protect the public from any foreseeable injury therefrom. Raphael Bros. v. Cerophyl Laboratories, 211 La. 354, 30 So.2d 116 (La.1947); Harris Drilling Company v. Delafield, 222 La. 416, 62 So.2d 627 (La.1952); Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (La.1963). The testimony shows that Empiregas employees, Mr. Gotreaux and Mr. Seaux, hooked up the gas line without the presence of any occupant of the household, despite the specific request by Mr. Lamotte that it be done only when someone could be present. The hookup was completed without checking for open valves inside the house and also without conducting a pressure test. No reason was given as to why they could not have waited to make the final connection until a pressure test could be performed. In the words of Mr. Gotreaux, “I don’t see no reason why, more than we done it, only when we had the time to do it.” There was further testimony that the valve on the tank, which was a used one supplied by Empiregas, did not have a locking mechanism. All of these factors, as well as the evidence that Empiregas took no precaution to make certain the gas was properly odor-ized, furnish a substantial basis for the jury’s finding of negligence. The jury was not clearly wrong in finding Empiregas negligent.

Empiregas also contends the jury erred in failing to recognize that there was an intervening act of negligence which was the sole proximate cause of the explosion. This contention is based on the testimony of the Empiregas employees that the valve on the tank was closed at the time they left the jobsite, but was shown to have been open after the accident. Empiregas argues some unknown person later opened the tank valve, and that this was the sole cause of the explosion.

The determination of the proximate or legal cause of a particular harm has no universal formula. Negligent conduct is a cause in fact of the harm if it is a substantial factor in bringing about that harm. For wrongful conduct to be actionable negligence, it must be found to have been a cause in fact of the resulting harm. It must be a necessary antecedent of the harm, but it need not be the sole cause contributing to the harm. The plaintiff has carried his burden of proof if he can show that he probably would not have suffered injury absent the defendant’s conduct. Dixie Drive-It-Yourself Systems v. American Beverage Company, 242 La. 471, 137 So.2d 298 (La.1962); Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977); Waggenspack v. New Orleans Public Service, Inc., 297 So.2d 733 (La.App. 4th Cir. 1974). In the present case, there can be no doubt that Empire’s negligent conduct was a substantial factor, a cause in fact and thus a legal cause of plaintiff’s damage.

LIABILITY OF ANCHOR GASOLINE

Defendant bases its claim against the third party defendant, Anchor Gasoline Corporation, on its contention that the propane gas involved in this incident was manufactured by Anchor Gasoline Corporation, and that Anchor falsely represented to Em-piregas that the gas had been odorized. Anchor’s sole contention is that if the gas was not properly odorized, it did not come from Anchor.

Three sales tickets from Anchor were introduced into evidence, all showing deliveries to Empiregas in October of 1977. The ticket for October 6 showed a destination of Empiregas of Lake Charles. However, Ms. Ardoin, bookkeeper for Empiregas, testified that this shipment went to the Jennings office rather than to Lake Charles. Empire’s copy of this sales ticket showed that “Lake Charles” had been scratched out and “Jennings” entered as the destination. The manifest of the transport truck which delivered the gas also had been changed to scratch out “Lake Charles” and enter “Jennings”. This ticket was for 9233 net gallons of propane. The daily log book kept by Ms. Ardoin to keep track of the volume of gas in Empire’s 18,000 gallon bulk tank in Jennings also reflected this delivery by an increase in the contents of the tank from 31% to 78% full.

The sales ticket dated October 13 shows 9450 gallons of propane shipped to Empire-gas of Jennings. This delivery was not reflected by Empire’s records, as there were no entries in the log book for a period of five days. The third ticket was dated September 19, but testimony by both an Anchor employee and by Ms. Ardoin established that the correct date was October 19. This shipment was to Empiregas at Jennings in the amount of 9087 net gallons of propane. The log book shows that these were the only gas shipments placed in Empire’s 18,000 gallon tank at Jennings during the month of October of 1977. Each of these sales tickets represented that the gas shipped to Empire had been odorized by Anchor.

Anchor’s plant superintendent testified that Anchor’s process of odorization was manually performed, as the Anchor plant in question did not odorize all of the gas it manufactured. He further testified that the amount of malodorant listed on each ticket was adequate according to the existing regulations.

The Empire employee, Mr. Gotreaux, testified positively that the gas he delivered to the Lamottes was drawn from the 18,000 gallon tank at Jennings. He worked out of the Jennings office. He was working with a man employed by the Elton office, who was at the time working out of the Jennings office because the Elton office was closed. Empire had a 30,000 gallon bulk tank at Elton, but no evidence was adduced to controvert Mr. Gotreaux’s testimony that the gas in question came from Jennings rather than from the Elton tank.

Empiregas urges that the jury was clearly wrong in exonerating Anchor from any liability. Based on the foregoing evidence, we agree. The evidence shows conclusively that the gas delivered to the Lamotte residence came from Empire’s 18,000 gallon tank at Jennings. Furthermore, the October sales tickets from Anchor to Empire, the log book and the testimony of Ms. Ar-doin, discussed above, show conclusively that all of the gas placed in Empire’s 18,000 gallon tank at Jennings during October of 1977 came from Anchor. There is no evidence of any gas in this tank coming from any other source. Thus, the gas in question did come from Anchor.

The jury found as a fact, and Anchor does not dispute, that the gas delivered to the Lamottes, contained an insufficient amount of malodorant, as proven by expert testimony of two chemists from McNeese State University. Anchor represented on its sales tickets to Empire that the gas delivered to Empire in October and placed in the 18,000 gallon tank was malodorized, but this representation was obviously false. Empire was entitled to rely upon Anchor’s obligation to deliver the thing sold, i.e., malodorized gas. LSA-C.C. Art. 2475. Since the gas was found to be inadequately odorized, Anchor is guilty of a breach of its obligation to Empire. The failure to adequately odorize the gas was found by the jury to be a cause of the explosion and fire. Thus, Anchor is liable to Empire on the third party demand.

DAMAGES

The function of an appellate court in reviewing a damage award is not to decide what it considers an appropriate award on the basis of the evidence, but rather only to review the exercise of the trier of fact’s discretion. Reck v. Stevens, 373 So.2d 498 (La.1979); LSA-C.C. Article 1934(3). A reviewing court might disagree with the amount of the award fixed by a jury, but it should not substitute its opinion for that of the trier of fact. Appellate review of awards for damages is limited to determining whether the trial court abused its much discretion.

Three tests have been utilized in determining property damage: (1) Cost of restoration, if the damaged item can be adequately repaired; (2) difference in value prior to and subsequent to the damage, and (3) cost of replacement, less reasonable depreciation, if the value before and after the damage cannot be reasonably determined or the cost of repairs are more than the value. However, no mechanical rule can be applied with exactitude in the assessment of property damage under LSA-C.C.P. Art. 2315. Each case must rest on its own facts and circumstances as supported by the proof in the record. Coleman v. Victor, 326 So.2d 344 (La.1976); Cobb v. Insured Lloyds, et al., 387 So.2d 13 (La.App. 3rd Cir. 1980).

Very obviously, under the circumstances of this case, cost of repairs is inapplicable as a measure of damages, since the house was totally destroyed. Likewise, the second test cannot be used, since there is no evidence as to the value of the house prior to the damage. Therefore, the plaintiffs should be awarded the costs of replacing the home new, less reasonable depreciation. Hymel v. Tom Alexander Brokerage Company, 348 So.2d 104 (La.App. 4th Cir. 1977), writ denied, 350 So.2d 894 (La.1977).

When property is damaged through the legal fault of another, the primary objective is to place the plaintiff in the position that he would have occupied if the injury complained of had not been inflicted on him. Coleman v. Victor, supra.

Defendant urges that the jury fell into error in making an award which was not supported by the evidence. Plaintiffs’ expert estimated the replacement costs of the house in December of 1980 at $67,628. The estimated replacement cost of the outbuildings was $8,744, plus “a couple thousand dollars more”, because part of the salvageable material was destroyed subsequent to the estimate. Total damage to the grounds, trees and shrubbery was estimated at $6,817.49. There was further testimony by plaintiffs’ expert that there would be a higher cost for replacing the oak floors and wood paneling in the house, which had not been figured into the estimate of the replacement costs because such materials would be very difficult to procure and, if they could be. procured, the cost of such would be prohibitive. Therefore, the basic estimated replacement cost of $67,628 would actually not place the plaintiff, Kalmn, Inc., in the same position as before the damage.

Defendant contends the jury failed to take into account the 20% lower replacement cost in 1977 (at the time of the loss), than in 1980 (at the time of trial), and the depreciation of 25 to 30% testified to by its expert, an insurance adjuster.

After careful consideration of all evidence, even taking into account the lower replacement cost of 1977 and reasonable depreciation, we can find no abuse of discretion in the jury’s award of $65,831.59.

EXPERT WITNESS FEES

The defendant contends that the expert witness fees assessed against it should be set aside because the trial court failed to follow the proper procedure set forth in LSA-C.C.P. Articles 1920 and 3666. Defendant relies upon Rains v. Diamond M Company, 396 So.2d 306 (La.App. 3rd Cir. 1981). This case involved the fees of two expert medical witnesses claimed to have been grossly excessive. The facts relative to the time employed by the witnesses, which formed the basis of the justification for the fees charged, did not appear of record. For that reason, this court set aside the fixing of the expert witness fees by the trial court.

We find Rains inapposite to the present situation. The fixing of expert witness fees lies within the sound discretion of the trial court to be fixed with reference to the value of time and the degree of learning or skill required. Hebert v. Diamond M Company, 385 So.2d 410 (La.App. 1st Cir. 1980); Veuleman v. Sims, 382 So.2d 245 (La.App.1980). They will not be disturbed unless there has been an abuse of that discretion. Wm. T. Burton Industries, Inc. v. Busby, 348 So.2d 1328 (La.App. 3rd Cir. 1977); Williams v. Harvey, 328 So.2d 901 (La.App. 4th Cir. 1976).

From our reading of the record, we find that the time employed and the degree of learning and skill of each witness in this case is reflected by his individual testimony. The fees, which were fixed in amounts ranging from $200 to $450, are not so excessive as to constitute an abuse of discretion by the trial court.

For the reasons assigned, the judgment appealed is reversed and set aside insofar as it relieves the third party defendant of liability. Judgment is now rendered on the third party demand in favor of third party plaintiffs and against third party defendant, Anchor Gasoline Corporation, in the amount of one-half the damages awarded the plaintiff by the trial court in the principal action. In all other respects, the judgment is affirmed. Costs of both the trial and appellate courts are assessed equally against defendant-appellants and third party defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART.


text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Plaintiff & Appellee, v. EMPIREGAS CORPORATION, et al., Defendants & Appellants.
    No. 8433.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendants-appellants.
    Raggio, Cappel, Chozen & Berniard, Richard A. Chozen, Lake Charles, for defendant-appellee.
    Scofield, Bergstedt & Gerard, J. Michael Vernon, Lake Charles for plaintiff s-appel-lees.
    Plauche, Smith, Hebert & Nieset, Jeffrey M. Cole, Lake Charles, for plaintiff-appel-lee.
    Romero & Romero, Clarence E. Romero, Welsh, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CULPEPPER, Judge.

For the reasons assigned in the decision this date rendered by us in the companion case of Kalmn, Inc. v. Empiregas Corporation, et al., 406 So.2d 276, the judgment appealed in the present case is reversed and set aside insofar as it relieves the third party defendant, Anchor Gasoline Corporation, of liability. Judgment is now rendered in favor of third party plaintiffs and against third party defendant, Anchor Gasoline Corporation, in the amount of one-half of the damages awarded plaintiffs by the trial court in the principal action herein. In all other respects, the judgment appealed is affirmed. Costs of both the trial and appellate courts are assessed equally against defendants-appellants and third party defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART.


text:
    Mr. & Mrs. Richard A. LAMOTTE, Plaintiffs & Appellees, v. EMPIREGAS CORPORATION, et al., Defendants & Appellants.
    No. 8434.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendants-appellants.
    Raggio, Cappel, Chozen & Berniard, Richard A. Chozen, Lake Charles, for defendant-appellee.
    Scofield, Bergstedt & Gerard, J. Michael Veron, Lake Charles, for plaintiffs-appel-lees.
    Plauche, Smith, Hebert & Nieset, Jeffrey M. Cole, Lake Charles, for plaintiff-appel-lee.
    Romero & Romero, Clarence E. Romero, Welsh, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CULPEPPER, Judge.

For the reasons assigned in the decision this date rendered by us in the companion case of Kalmn, Inc. v. Empiregas Corpora tion, et al., 406 So.2d 276, the judgment appealed in the present case is reversed and set aside insofar as it relieves the third party defendant, Anchor Gasoline Corporation, of liability. Judgment is now rendered in favor of third party plaintiffs and against third party defendant, Anchor Gasoline Corporation, in the amount of one-half of the damages awarded plaintiffs by the trial court in the principal action herein. In all other respects, the judgment appealed is affirmed. Costs of both the trial and appellate courts are assessed equally against defendants-appellants and third party defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART.


text:
    Jerry Lane SULLIVAN, Plaintiff & Appellant, v. Howard QUICK, et al., Defendants & Appellees.
    No. 8436.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Tommy J. Johnson, Shreveport, and Richard N. Ware, Natchitoches, for plaintiff-appellant.
    Thomas & Dunahoe, Edwin Dunahoe, Charles W. Seaman, Natchitoches, Dee M. Taylor, Baton Rouge, for defendants-appel-lees.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CULPEPPER, Judge.

The plaintiff, Jerry Lane Sullivan, sues to recover damages allegedly sustained as a result of an assault and battery and false arrest by a deputy of the Natchitoches Parish Sheriff’s Department. Among the defendants named are Sam James, the Sheriff of Natchitoches Parish, and the State of Louisiana. These two defendants filed peremptory exceptions of no cause of action, which the trial court sustained, dismissing plaintiff’s suit against them. Plaintiff appeals.

The plaintiff’s claim against these defendants is based on the theory that they are the employers of deputy sheriffs and are vicariously liable for the wrongful conduct of deputy sheriffs acting in the course and scope of their employment, under LSA-C.C. Article 2320.

The issue presented is whether either the sheriff or the state is an employer of a deputy sheriff for the purpose of determining vicarious liability under LSA-C.C. Article 2320. This issue has recently been decided by the Louisiana Supreme Court, with three dissents, in Jenkins v. Jefferson Parish Sheriff’s Office, 402 So.2d 669 (La. June 22, 1981).

In Jenkins, our Supreme Court held that a sheriff is the employer of his deputy sheriff, and that LSA-C.C. Article 2320 imposes vicarious liability upon a sheriff in his official capacity for the deputy’s wrongful conduct in the course and scope of his employment. Further, the court noted that LSA-R.S. 42:1441 provides the state with immunity from liability for the wrongful conduct of a sheriff’s employee.

Prior to Jenkins, this Court reached the same result in Martinez v. Reynolds, 398 So.2d 156 (La.App. 3rd Cir. 1981). There we specifically held that LSA-R.S. 42:1441 applied to deputy sheriffs as employees of the sheriff, destroying any cause of action against the state arising out of their wrongful conduct.

For the reasons assigned, the judgment appealed is affirmed insofar as it dismisses plaintiff’s suit against the State of Louisiana. That portion of the judgment sustaining the exception of no cause of action filed by Sheriff Sam James is reversed, and the exception is overruled. This case’’ is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against Sheriff James. Assessment of costs in the trial court must await a final judgment there.

AFFIRMED IN PART AND REVERSED IN PART.

      . The trial judge in the present case did not have the benefit of the Supreme Court’s decision in Jenkins, which was rendered after his judgment was signed.

      . LSA-R.S. 42:1441 states:
      “A. The state of Louisiana shall not be liable for any damage caused by a district attorney, coroner, assessor, sheriff, clerk of court, or public officer of a political subdivision within the course and scope of his official duties, or damage caused by an employee of a district attorney, coroner, assessor, sheriff, clerk of court, or public officer of a political subdivision.
      B. The provisions of Subsection A hereof are not intended to and shall not be construed to affect any personal liability which may arise from damage caused by any public officer of a political subdivision, or by a district attorney, coroner, assessor, sheriff, clerk of court, or the employee of any such public officer, nor shall the provisions of said Subsection A be construed to amend or repeal R.S. 13:5108.1.
      C. For the purposes of this Section, “political subdivision” means a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions.”


author: LABORDE, Judge.

text:
    Deborah Lynn Wester MANNING, Plaintiff-Appellant, v. Johnny Earl MANNING, Defendant-Appellee.
    No. 8441.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Love, Rigby, Dehan, Love & McDaniel, Samuel P. Love, Jr. and Joseph B. Cordill, Jr., Shreveport, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, Ronald E. Corkern, Jr., Natchi-toches, for defendant-appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

Deborah Lynn Wester Manning instituted this suit seeking a separation from bed and board from her husband, Johnny Earl Manning. Incidental to the suit, Deborah prayed for alimony pendente lite. After a hearing on the rule, the trial judge ordered defendant to pay alimony pendente lite to the plaintiff in the amount of $200 per month and to maintain hospitalization insurance on the plaintiff. He also granted plaintiff possession of a Grand Prix automobile which the defendant was to keep insured. Deborah appealed, claiming that the amount of alimony pendente lite awarded should be increased.

The sole issue on appeal is whether or not the trial court erred in awarding the plaintiff $200 per month alimony pendente lite. We affirm. Our review of the record reveals no abuse of discretion by the trial court.

The applicable law is set out in LSA-C.C. art. 148, which provides:

“Art. 148. If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”

In making an award for alimony pendente lite, the court must take into consideration the needs of the claimant spouse and the means of the other spouse. The actual needs for the maintenance and support of the wife must first be determined, and if the amount needed is proportionate to the husband’s means, that amount should be awarded. If her needs exceed the husband’s ability to pay, then alimony penden-te lite should be fixed at a sum which will be just and fair to all parties involved. Frederick v. Frederick, 379 So.2d 808 (La.App. 4th Cir. 1980); Shepard v. Shepard, 334 So.2d 745 (La.App. 3rd Cir. 1976).

The fixing of the amount of alimony pendente lite which the husband should be required to pay his wife is largely within the sound discretion of the trial judge and his conclusions as to the amount of the award will not be disturbed on appeal unless there has been a clear abuse of discretion. Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir. 1980); Gravel v. Gravel, 331 So.2d 580 (La.App. 3rd Cir. 1976); Bernard v. Bernard, 300 So.2d 499 (La.App. 3rd Cir. 1974); Vidrine v. Vidrine, 402 So.2d 793 (La.App. 3rd Cir. 1981).

Counsel íor Deborah argues that the judgment of $200 per month is inadequate because her listed expenses amount to $2,119.23 per month. Johnny’s disposable income is listed as $1,173.74 per month and his expenses are $953.85 per month. The trial judge in his oral reasons for judgment noted that he was of the opinion that Johnny’s listed expenses were conservative and that there was “not enough money to go around”. In addition to $200 monthly alimony, the trial court also awarded possession of an automobile to Deborah and ordered Johnny to maintain hospitalization insurance on Deborah and insurance on the automobile. Our review of the record reveals no abuse of discretion on the part of the trial court.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against the plaintiff-appellant, Deborah Lynn Wester Manning.

AFFIRMED.

      . Johnny also filed suit for separation from bed and board, which was consolidated in the trial court.


text:
    Charles H. DAVIS, Individually and on Behalf of his Minor Daughter, Lisa Ann Davis, Plaintiff & Appellee, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Defendant & Appellant.
    No. 8447.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Brittain & Williams, Jack O. Brittain, Natchitoches, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, Raymond Arthur, Natchitoches, for plaintiff-appellee.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CULPEPPER, Judge.

This is a personal injury case. Plaintiff’s minor daughter, Lisa Ann Davis, was injured while a guest passenger in an automobile driven by Sam D. James, which struck the rear of a pickup truck driven by Gregory A. Cochran. The defendant, Southern Farm Bureau Casualty Insurance Company, carried liability insurance on the James vehicle with a limit of $10,000 per person and in addition carried uninsured motorist coverage on a vehicle owned by Lisa’s father, with a limit of $100,000 per person. The defendant, State Farm Mutual Automobile Insurance Company, carried liability insurance on the Cochran vehicle with a limit of $10,000 per person. The district judge found the accident was caused solely by the negligence of James. Judgment was rendered in favor of plaintiff against Southern Farm for the limit of $10,000 under its policy issued to Sam D. James and in addition for the sum of $40,000, plus medical expenses under the uninsured motorist provisions of the policy issued by Southern Farm to Lisa’s father, Charles H. Davis. The total award for general damages was $50,000. Southern Farm appealed. Plaintiff answered the appeal, asking an increase in the quantum to $100,000.

The issues are: (1) Was Sam D. James negligent? (2) Was Gregory Cochran negligent? (3) Is the award of $50,000 excessive or inadequate? (4) Should Southern Farm be given an offset in the sum of $800.32 for medical expenses paid by it to Charles H. Davis under the uninsured motorist provisions of the policy issued to Davis?

The facts are that on February 2, 1979, at about 11:00 P.M., Lisa Ann Davis, then 15 years of age, was riding as a guest passenger on the front seat of a 1955 Chevrolet sedan owned and driven by Sam D. James, then 21 years of age. They were proceeding in a southerly direction on State Highway No. 487, a two-lane blacktop highway leading from Ajax to Marthaville. A misty rain was falling.

James testified that as he drove over the top of a hill he saw for the first time the Cochran vehicle in front of him in the south bound lane. James says he applied his brakes, but was unable to stop. He struck the Cochran pickup truck in the rear. Lisa was thrown forward and received facial injuries. James testified he does not know how fast he was going. He admitted he did not see any vehicles approaching from the south to prevent him from going around Cochran.

Cochran testified that he was driving in a southerly direction at a speed of about 55 miles per hour when he passed his “buddy”, Joey Masterson, traveling in the opposite direction. He signaled to Masterson to stop by patting his brake lights. Cochran testified he had slowed to 20 or 30 miles per hour and had traveled a distance of about 100 feet from the time he began slowing down, when he was suddenly struck from the rear by the James vehicle. It was a severe impact. Cochran’s pickup traveled approximately 300 feet after impact and was a total loss.

Joey Masterson testified that after he saw Cochran slowing down, he turned to the right into a cross-road and stopped, expecting Cochran to go on down the highway and turn around and come back. Mas-terson testified he heard the James car coming over the hill after he turned into the cross-road, and that then he heard the crash.

The state trooper who investigated the accident testified Cochran told him at the scene he was slowing down so he could turn around and go back and talk to Masterson, and the James vehicle came over the hill and hit him. The trooper found no evidence of skidmarks left by the James automobile. The impact was in the south bound lane. The trooper estimated the Cochran pickup truck traveled approximately 300 feet and the James vehicle approximately 270 feet after impact. Also, the trooper testified the accident occurred about 200 feet south of the crest of the hill.

Certainly, the trial judge is not clearly wrong in concluding from the above evidence that Sam James was negligent in traveling at an excessive speed during a rainy night on a wet, slippery highway, and in failing to keep a proper lookout and to maintain control over his vehicle.

The principal issue is whether Cochran was also negligent. Southern Farm argues that it was only 125 to 165 feet from the crest of the hill to the point of impact, and that in view of this short distance and the failure of James to see Cochran sooner, the only logical explanation for the accident is that Cochran had actually stopped on the highway and was waiting for Masterson to come back to him, or that Cochran had stopped and was backing up to come back to Masterson. The evidence does not support such a theory. Cochran testified that at the time of impact he had slowed from about 55 miles per hour to 20 or 30 miles per hour and was planning to turn around at a driveway farther to the south. There is no evidence to the contrary. The trial judge was not clearly wrong in finding Cochran free of negligence.

The next issue is whether the award was excessive or inadequate. Immediately after the accident, Lisa was taken to a hospital in Natchitoches, where she was seen by Dr. David Lee, a specialist in ear, nose and throat, including facial and reconstructive plastic surgery. In the hospital record of his initial surgical procedures, Dr. Lee described the facial injuries as follows:

“DIAGNOSIS: Blunt and sharp trauma to face. Severe facial lacerations.
“OPERATION PERFORMED: Plastic closure of facial lacerations: 1. Flap defect right superior orbital area, 2. through and through laceration upper lip, 3. multiple nasal and facial lacerations.
“This is a 15 year old female admitted by way of the emergency room and operating room for closure of severe facial lacerations secondary to auto accident. The patient’s physical exam was grossly negative except for the face with severe lacerations of the right brow region with a flap defect as described on the operative report. She had a through and through laceration of the mid upper lip as well as multiple abrasions and lacerations of the nose and face. These were meticulously cleaned and closed with plastic technique in the OR. Her post-op course has been benign, with topical treatment being applied. One half of the sutures were removed from her face on the 3rd post-op day, with the rest of the sutures planned to be removed in the office in the a. m. The face is clean and healing well with no evidence of infection. She is discharged to out-patient care and has been instructed on proper care. She will revisit my office again as instructed.”

In his deposition taken in March of 1980, Dr. Lee testified there was a disfiguring residual scar of the right eyebrow where tissue is missing and the nerve is dead. This will require future plastic surgery. She also still had a notable raise of the area of the laceration in the lower part of the lip, which was still tender. On the right forehead, just above the brow region, she had a hytertrophic scar, which also would require future plastic surgery.

For the dental injury, Lisa saw Dr. Jerry Ferguson. The upper right central incisor was broken off and required a crown. The upper right lateral incisor was loose, but it had stabalized and caused no trouble as of the time of Dr. Ferguson’s April, 1980 deposition. However, Dr. Ferguson testified that the blow to that tooth could cause it to later die and require root canal therapy.

Lisa also suffered an injury to her right eye, for which she was seen by Dr. Donald E. Texada, a specialist in opthalmology. He found she had some blood inside the eye, causing her to see “floaters.” He found no retinal tear, but stated that it is possible one could have occurred as a source of the bleeding. His prognosis was that the blood would settle to the bottom of the eye and not cause too much trouble, but this prognosis was guarded. He stated it was possible that she could have future complications such as additional bleeding, cataracts, etc. His recommendation was that her condition be followed, especially because you always worry that there was a retinal tear.

During the trial the judge personally examined Lisa’s facial injuries, particularly the scarring. Based on his personal examination of the facial scarring, the testimony of Lisa as to her injuries and the depositions of the physicians, the district judge made an award of $50,000 for general damages. Certainly, this was not an abuse of the much discretion of the trial judge as to the quantum of awards in personal injury cases.

The final issue is whether Southern Farm is entitled to an offset for the sum of $800.32 in medical expenses paid under the uninsured motorist coverage of its policy issued to Charles H. Davis. The judgment appealed awards $50,000 in general damages for pain, suffering and disability, and then in addition awards total special damages of $3,851.22 for past and future medical expenses. Southern Farm cites Launey v. Thomas, 379 So.2d 27 (La.App. 3rd Cir. 1979) as authority for allowing the credit of $800.32 for medical expenses paid before trial. Under the Launey case, we agree Southern Farm is entitled to this credit.

For the reasons assigned, the judgment appealed is amended so as to give Southern Farm Bureau Casualty Insurance Company a credit of $800.32 for medical expenses previously paid under the uninsured motorist coverage of its policy issued to Charles H. Davis. Otherwise, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED, AS AMENDED.


author: CUTRER, Judge.

text:
    Joseph PASTERNACK, Jr., Plaintiff-Appellant, v. Mrs. Betty Claire Pasternack SAMUELS, et al., Defendants-Appellees.
    No. 8453.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for plaintiff-appellant.
    Gravel, Robertson & Brady, Dan E. Mel-ichar, Alexandria, James H. Brown, Jr., Vi-dalia, for defendants-appellees.

      Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

This appeal arises out of demands for partition by licitation of certain property owned in indivisión by the parties. Included, within the property in question, are both property acquired by inheritance and by purchase.

In 1959, Joseph Pasternack sold two parcels of property to his two children, Joe, Jr., and Betty. The ownership of those two parcels was purchased in indivisión by the latter.

Joseph Pasternack died testate in 1963. He was survived by his wife, Agatha, and two children, Joe Pasternack, Jr. (Joe, Jr.), and Betty Pasternack. Pasternack left his portion of the community and some separate property to his two children subject to the usufruct of his surviving spouse, Agatha Pasternack. In 1979, Agatha Paster-nack died testate. She left her property to her grandchildren, the son of Joe, Jr., and the three children of Betty Pasternack Samuels and her husband, Harold. Joe, Jr. was named trustee of the one-half interest left to his son and Harold Samuels was named trsutee of the one-half interest left to the three Samuels children. Betty Sam-uels was left the usufruct over the property inherited by her children. Joe, Jr. and Betty were named co-executors of the succession of their mother, Agatha.

Joe, Jr. brought suit against Betty Samu-els, individually, for a partition by licitation of the two parcels of property previously purchased by them from their father.

Joe, Jr. also sued Betty Samuels, as a co-executor of the Succession of Agatha Pasternack, for a partition by licitation of 69 parcels of succession property. In the suit against the succession, exceptions of no cause of action, prematurity and non-join-der of indispensable parties were filed. These exceptions were overruled by the trial court. By answer, Betty Samuels alternatively pleaded that a partition by licitation of the succession property was prohibited by LSA-C.C. art. 543. After trial on the merits the trial court rendered judgment recognizing that the parcels of succession property were owned one-fourth each by Joe, Jr., Betty, the trustee for the children of Joe, Jr., and the trustee of the Samuels children. The trial court ordered the succession property divided into four groups of equal value. The ownership of each group was to be determined by drawing lots. The trial court designated this as a “partition in kind.” In his reasons for judgment the trial judge made no mention of the effect or the disposition of the usu-fruct held by Betty Samuels over the portion of the succession property inherited by her children.

The trial court also failed to rule on the demand for partition by licitation by Joe, Jr. against Betty of the two parcels of property purchased by them from their father in 1959. Counsel for the parties, however, have stipulated that these two parcels are not divisible in kind and that this court render judgment ordering same to be partitioned by licitation. This stipulation is in full accord with the undisputed evidence in the record. An order will be issued accordingly under the provisions of LSA-C.C.P. art. 2164. The suit will be remanded for such partition proceeding.

As to the demand for the partition by licitation of the succession property, several serious issues are presented, including the unauthorized partition of the property set forth in the judgment rendered by the trial court.

The conclusion that we have reached in our consideration of the effect of LSA-C.C. art. 543, however, renders it unnecessary for us to discuss the remaining issues.

EFFECT OF LSA-C.C. ART. 543

Partition of land held by co-owners in indivisión is governed by the Civil Code, of which article 543 states:

“A coowner whether or not he is also a usufructuary of an undivided part of a thing may demand its partition in kind to the extent necessary to enable him to obtain the perfect ownership of a determined part. Partition by licitation is not allowed even though there is a person who is both a usufructuary and an owner.” (Emphasis added.)

This code article is new; however, it is merely a codification of prior Louisiana jurisprudence. The comments following the article are helpful in determining its intent. Comment (b) states:

“The second sentence of this article excludes partition of the entire property by licitation even though there is a person who is both a usufructuary and a naked owner. It restates a rule established by Louisiana jurisprudence and does not change the law. Smith v. Nelson, 121 La. 170, 46 So. 200 (1908); Succession of Glancey, 112 La. 480, 36 So. 483 (1904); Fricke v. Stafford, 159 So.2d 52 (La.App. 1st Cir. 1963).”

The facts of the early case of Smith v. Nelson, supra, are as follows: Mr. Smith died leaving a surviving spouse and three children. Mrs. Smith subsequently married Mr. Nelson but no children were born of that union. Mrs. Nelson died testate, survived by her second husband and the children of the first marriage. She left her children the full ownership of the property of the first community, subject to a usu-fruct granted to Mr. Nelson. Upon Mr. Nelson’s remarriage the children filed for partition by licitation of the property over which Nelson had a usufruct. Mr. Nelson filed an exception of no cause of action which was upheld by the Supreme Court. The court stated as follows:

“The law which confers the right to the partition of a ‘thing held in common’ has no application to those who hold, respectively, the fragments of a dismembered title to the same immovable property, for the reason that in such case, the title being dismembered, each part is a distinct thing, held by a different owner, and there is no ‘thing held in common. ’ It is clear, therefore, that as between plaintiffs, as owners of an undivided interest in the naked title to the property in question, and defendant, as usufructuary (of such interest), there is no basis for this action.”

.The jurisprudential rule of Smith v. Nelson which later became C.C. art. 543, has the effect of prohibiting a partition by licitation of any of the succession property herein since Betty Samuels owned an interest in same and had a usufruct over a pqrtion of each parcel. However, art. 543 does not prohibit a partition in kind of such property. We now turn to the evidence to ascertain whether any of the property could be partitioned in kind. Joe Pasternack, Jr. testified as an expert in real estate. He stated that approximately 99% of the property in question is located in the Town of Ferriday, Louisiana. He stated that none of the succession property could be divided in kind; that is, the property could not be divided without a diminution of its value or inconvenience of one of the owners. The trial court, in its reasons for judgment, complimented Joe, Jr. as being very knowledgeable about real estate.

Also testifying at the trial was a real estate expert, James M. McNew, who described the parcels generally as follows:

“Q. Now, generally speaking, what type of properties are these?
“A. Most of these are either vacant lots or improved lots, ranging from residential properties to commercial properties. There is some agricultural small acreage involved, but I would say most of the property is either some type of lot of some kind, either commercial or residen-tialr

This witness testified that he had examined all the parcels of property and none was divisible in kind without a diminution in value or inconvenience to one of the owners except possibly two tracts. He stated that tracts 44 and 49 could possibly be divided into four parcels without diminution in value or inconvenience to the owners. He stated that Item 44 fronts 600 feet along Lake St. John. As to Item 49, McNew stated that this parcel contains 20 acres fronting 528 feet along a highway and extending 1,650 feet in depth. He felt that this could possibly be divided in kind without a diminution of value of inconvenience of the owners.

Joe Pasternack, Jr. testified that parcels 44 and 49 could not be divided in kind without a diminution in value. He went into detail as to the reasons why such a division in kind could not be made.

As we examine the testimony of these two witnesses we conclude that these two parcels were not divisible in kind. McNew’s testimony in this regard was only a general statement of conclusion that the property was divisible in kind. He gave no specifics to support his conclusion. On the other hand, Joe, Jr. was more specific and gave his reasons to support his conclusion that the two parcels were not divisible in kind. We hold that none of the succession property can be partitioned in kind. Since such property is subject to the usufruct of Betty Samuels, a partition by licitation is prohibited by art. 543. The judgment of the trial court ordering the partition of the succession property will be reversed and set aside.

For the reasons assigned, the judgment of the trial court is amended by ordering the partition by licitation of the property held in indivisión by Joe Pasternack, Jr. and Betty Claire Samuels described as follows:

“(70) Lot 12 of Block 28 of the Town of Ferriday, Louisiana, together with all buildings and improvements thereon situated, owned JA by Joseph Pasternack, Jr. and !A by Betty Claire Samuels.
“(71) Lots 7 and 8 of Block 27 in the Town of Ferriday, Louisiana, together with all buildings and improvements thereon situated, subject to lease to Texaco, Inc. dated September 21, 1965, owned ¡á by Joseph Pasternack, Jr. and V2 by Betty Claire Samuels.”

This suit is remanded to the District Court for the purpose of carrying out the partitioning of these two parcels of property in accordance with law.

In all other respects, the judgment of the District Court is reversed, set aside and dismissed.

All costs of the District Court and this appeal are to be paid by plaintiff-appellant, Joseph Pasternack, Jr.

AMENDED IN PART; REVERSED IN PART AND REMANDED.

      . LSA-C.C.P. art. 2164 reads:
      “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

      . The form of judgment issued by the trial court is not authorized by law but it is interesting to note that in the recent 1981 session of the Legislature (Act 751), C.C. art. 2369.1 was adopted which authorized such partition of community property by a husband and wife. This new article reads as follows:
      “When the spouses are unable to agree on a partition of the community, either spouse may obtain a judgment decreeing a partition of the community in kind by allocation of assets and liabilities of equal net value to each spouse. If the community or any part thereof cannot be conveniently divided, the court shall order partition by licitation.”
      This authorization does not extend to any property other than such community property.

      . The trial court stated:
      “. . . In fact, this Court would pay Mr. Pasternack the compliment of venturing an opinion that he is the most knowledgeable person in the town of Ferriday, Louisiana, concerning real property in and about that community.”

      . In his explanation of why tracts 44 and 49 could not be partitioned in kind, Joe Jr. stated as follows:
      “A. This property is at the head of Lake St. John next to the Spokane Grocery Store there and in my opinion it couldn’t be divided, since one of the few parcels of property on Lake St. John on this side .... it does not have any restrictions as far as residential construction. It’s six hundred feet and as a six hundred foot parcel, I think that it has more economic value than it would as four one hundred fifty foot parcels. To begin with, if it was divided into four one-hundred and fifty foot parcels, I feel like the hundred and fifty feet closest to Ferriday would be more valuable than the hundred and fifty feet closest to Waterproof. I feel like the person that’s locked in-between two one hundred and fifty foot parcels would have less value than dealing with an outside party that homes the brick building that adjoins a hundred and fifty feet closest to Ferriday.
      “Q. Alright. Are you familiar with the Item # 49, which was Lot 7 of Red Gumm?
      “A. That I am.
      “Q. Okay. Would you tell the Court about that property?
      “A. This is approximately five hundred and twenty-eight feet on the highway going to Clayton, Louisiana, and this has the same implications. This property .. . the hundred and thirty-two feet, which is approximately a fourth of this, would be more valuable .... the first hundred and thirty-two feet would be more valuable than the second, third and fourth hundred and thirty-two feet. The first hundred and thirty-two feet adjoins property which you probably could sell. Secondly, the property, held as such, right now .... it’s being farmed, but it it’s held as such, a portion approximately a hundred and thirty-two feet long ... a hundred and thirty-two feet wide and sixteen hundred and fifty feet deep could not economically be farmed. I think you’d have a hard time finding somebody that would be interested in farming four or five acres because of the distance involved in moving equipment alone.”