author: CULPEPPER, Judge. STOKER, Judge,

text:
    Rose Mae JONES, Plaintiff-Appellee, v. Lee Joseph LEDET, Defendant-Appellant.
    No. 7188.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearing Denied May 29, 1980.

      Clyde Fontenot of Fontenot & Mitchell, Ville Platte, for defendant-appellant.
    Raymond J. LeJeune, Mamou, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX, GUIDRY, STOKER and LABORDE, JJ.
   CULPEPPER, Judge.

This appeal is from a default judgment for damages for personal injuries resulting from a battery. The substantial issue on appeal is whether plaintiff proved her damages by competent evidence, in particular, by testimony which was not hearsay.

At the hearing for confirmation of default, plaintiff and her co-worker, Susie Richardson, were the only witnesses. Plaintiff testified that on September 20, 1978 she was working at her job of sewing rice sacks' at a rice mill when her foreman, the defendant Ledet, started an argument and finally struck her on the jaw with his fist and knocked her down. Plaintiff said she first went to the office of the chief of police and there filed criminal charges against Ledet. She stated she then went to the hospital and saw Dr. Perron, who took an x-ray, which showed that the jaw bone was broken. She said Dr. Perron sent her to Dr. Didier Ardoin. Her testimony as to the ensuing events is as follows:

“Q. Did Dr. Perron continue to treat you?
A. Yessir. He told me to go to Dr. - this Dr. in Eunice.
Q. Dr. Didier Ardoin.
A. Dr. Didier Ardoin. And I went there.
Q. And you went?
A. Yes sir.
Q. What did Dr. Ardoin tell you?
A. He told me that it. was broken, and that I needed surgery.
Q. Okay. Where was the surgery performed?
A. At Savoy’s Hospital in Mamou.
Q. And did you go into the hospital on September 24th?
A. Yes sir.
Q. And remain there from September 24th through September 27th?
A. Yessir.
Q. I show you a copy of a bill from Savoy Hospital stating the dates of September 24th through 27th in the amount of nine hundred and forty-nine dollars ($949.00). Now, is that the bill that you received from the hospital?
A. Yes.
Q. Okay.
BY RAYMOND LEJEUNE, Counsel for plaintiff:
We would like to offer, file, and introduce this document as P-2.
BY THE COURT:
Let it be introduced into evidence as marked.
BY RAYMOND LEJEUNE, Continued:
Q. Did Dr. Didier perform the surgery in Savoy Hospital?
A. Yes.
Q. Okay. And after the surgery, did you have occasion to see him again?
A. Yes sir. I did. I seen him the week I came out of the hospital. I had to go to his office that Monday. And he says another surgery again.
Q. And this surgery was in his office in Eunice?
A. In his office in Eunice.
Q. And what did he do then?
A. Well, he took the wires out in one place, and he removed it and put it in another place. Then I had to keep going every week, every Monday, and then about two weeks after it started, you know — it wasn’t healing right. So he done another surgery.
BY THE COURT :
Did he have to put you to sleep for any of these?
A. Yes sir. He had to put me to sleep in his office.
Twice.
A. Twice in the office and one time in the hospital.
I see.
BY RAYMOND LEJEUNE, Continued:
Q. And I see here a bill from Dr. Ardoin in the amount of four hundred and twenty-five dollars ($425.00). Is that the bill that you received from Dr. Ardoin for his services?
A. Yes sir.
BY RAYMOND LEJEUNE, Counsel for plaintiff:
I mark this P-3, Your Honor.
BY THE COURT:
Let it be received into evidence as marked.
BY RAYMOND LEJEUNE, Continued:
Q. Now, you stated you saw Dr. Ardoin every Monday?
A. Um-huh.
Q. And you also were given medication at the hospital?
A. Yes.
Q. And when you were discharged, they gave you medication for pain, and that is included in that bill from Savoy Hospital?
A. Yes.
Q. In addition to that- — you say the second time that he had to put you to sleep to perform an operation was because your jaw had gotten infected?
A. Infected. Yes.
Q.- Okay. Now, have you purchased any medicine or medication from Reed’s Family Pharmacy?
A. Yes sir. I did.
Q. Okay. And was that in the amount of $26.34?
A. Yes.
BY RAYMOND LEJEUNE, Counsel for plaintiff:
We would offer that also.
BY THE COURT:
Let it be received in evidence, and mark it P-4.
BY RAYMOND LEJEUNE, Continued:
Q. Did you have occasion to buy any other medication other than at Reed’s Pharmacy?
A. Yes. I had to get some at Deshotel’s Drug Store in Mamou.
Q. Okay. And how much was that?
A. Twenty dollars and ten something.
Q. Would $10.20 be the correct amount?
A. Yes.
BY RAYMOND LEJEUNE, Counsel for plaintiff:
Your Honor, we don’t have a receipt for this particular bill. We have a check for which she made out to be held until such time as she paid the bill.
BY THE COURT:
I’ll accept it as evidence. I think she’s telling the truth.
BY RAYMOND LEJEUNE, Counsel for plaintiff:
Okay. We would mark this — this is made out to Deshotel Drugs_
BY THE COURT:
That was for medicine for yourself and your condition?
A. Yes sir.
Let it be introduced into evidence.
BY RAYMOND LEJEUNE, Counsel for plaintiff:
And mark this P-5.
BY RAYMOND LEJEUNE, Continued:
A. Now, Rose, you’re still under a doctor’s' care? Is that correct?
A. Yes.
Q. And you don’t have to see him every Monday? You just see him about once a month?
A. Twice a month.
Q. Twice a month. Okay. You expect to have further medical bills from Dr. Ar-doin?
A. Yes.
Q. Are you still seeing Dr. Perron?
A. No sir. Just Dr. Ardoin.
Q. Just Dr. Ardoin. Now, when your jaw was fractured after the blow, was it very painful?
A. Oh yes. It sure was.
Q. And for how long did you—
A. Well, I stayed on liquid about a month and a half before I could start chewing.
Q.' Did you lose quite a bit of weight?
A. Yes sure. I sure did.
Q. Now do you have any difficulty in chewing?
A. Yes sir. I'do.
Q. Does your jaw bother you right now?
A. Yessir. It bothers more in the morning, you know when I get up in the morning.
Q. Is that because maybe it hadn’t been moved at night, and it’s stiff, or — ?
A. It’s stiff.
Q. Now, since the time — since September 20th, have you worked?
A. No sir.
Q. Why have you not worked? Is it because of the problems that you have had with your jaw?
A. Yessir. That’s why.
Q. Okay. And you’re unable to say now when you feel you’ll be able to go back to work?
A. No sir. I wouldn’t know.
BY THE COURT:
You at first had difficulty sleeping with this? Did it bother you at night? Did it disturb your rest?
A. Well, the second time that I had surgery; I couldn’t sleep at all after I had the first surgery.
I see. Did the doctor have to remove any teeth?
A. No. Cause I had false teeth.
I see. And it was a fracture of the lower—
A. Right here.
BY THE COURT, Continued:
Jaw bone. Lower mandible.”

Plaintiff testified further that at the time of the battery on September 20, 1978 she was earning $3.00 an hour, working 40 hours a week, and some weeks worked overtime at $4.50 per hour.

Plaintiff’s co-worker, Susie Richardson, testified she saw defendant strike plaintiff in the face with his fist and knock her down. She also corroborated plaintiff’s testimony that the attack followed an argument and that plaintiff did not attempt to hit defendant with her hand or any other object.

The trial court awarded judgment in favor of plaintiff and against defendant for the following amounts:

“(a) Pain and Suffering $5,000.00
(b) Medical Expenses 949.00
(c) Physical Disfigurement 1,500.00
(d) Loss of Wages 1,920.00
Total $9,369.00”

The default judgment was read and signed on January 11, 1979. Defendant timely filed on January 22, 1979 a motion for new trial, in which he admits that plaintiff’s suit was filed on December 1, 1978, that defendant was personally served on December 5, 1978, that a preliminary default was entered on January 3, 1979 and the final judgment rendered on January 9, 1979. Defendant does not contend he was not properly served and cited, nor does he urge any procedural defect.

Defendant alleges in his motion for new trial that although he had retained an attorney to represent him in the criminal case, he neglected, through misunderstanding and inadvertence, to notify his counsel of the civil suit. Defendant-alleges further in an amended motion for a new trial, filed on January 25, 1979, that the evidence taken at the conformation of default and transcribed by the court reporter did not establish a prima facie case, since there was no medical doctor to prove the injuries, and since plaintiff perjured her testimony as to the facts of the altercation. Defendant filed affidavits of several parties stating that plaintiff started the fight by attacking defendant with a shovel, and that defendant, in self-defense, was only trying to protect himself when he hit plaintiff. After a hearing of the motion for a new trial on February 16, 1979, the district judge denied the motion for reasons orally assigned.

The defendant argues that the trial judge erred in not granting a new trial. LSA--C. C.P. Article 1972 provides it is peremptory that a new trial shall be granted: “(1) Where the “judgment appears clearly contrary to the law and the evidence; (2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial;”. Article 1973 provides the discretionary grounds: “A new trial may be granted in any case if there is good grounds therefor, except as otherwise provided by law.”

Defendant first emphasizes his argument that the trial court should have granted a new trial on discretionary grounds, under Article 1973, to prevent a miscarriage of justice. Defendant stresses his confusion at being involved in the criminal prosecution arising out of the same incident, and the contention that he is illiterate and neglected to inform his attorney when he was served and cited in the civil suit. He also points to the affidavits that plaintiff struck the first blow and defendant was trying to defend himself. The trial judge considered all of these arguments and rejected them. We cannot say he abused his discretion in this regard.

Defendant next argues a new trial should, have been granted because the judgment was clearly contrary to the law and the evidence, under the provisions of Article 1972. The basis of this argument is LSA-C.C.P. Article 1702 which provides: “A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” Jurisprudence construing Article 1702 holds that in confirming a default the plaintiff must prove all of the essential allegations of his petition as fully as if they had been specifically denied. Smith v. Doyle, 160 So.2d 791 (3rd Cir. 1974). Hearsay evidence does not sustain the burden of proving a prima facie case. Verrette v. Saltzman and Gordon Welding Service, Inc., 248 So.2d 876 (3rd Cir. 1971) and Blackwell v. Daigle, 317 So.2d 18 (3rd Cir. 1975).

In the present case, it is clear that plaintiff proved the battery by competent evidence. Both plaintiff and her. co-worker, Susie Richardson, testified from their own knowledge that defendant struck plaintiff on the jaw with his fist and knocked her down. These two witnesses also stated that plaintiff was not - attempting to strike or injure defendant in any way. Thus, a pri-ma facie case of liability was established by competent evidence.

The only serious issue is whether plaintiff proved her damages by competent evidence, i. e., by evidence which was not hearsay. Hearsay is defined generally as evidence whose probative force depends on the competency and credibility of some person other than the witness. The basis for excluding hearsay is the lack of opportunity to test by cross-examination, under oath, the veracity and accuracy of the statement offered. Thus, the courts will not allow a witness to testify as to what some other person said or told him. Of course, there are exceptions to the hearsay rule, but we are not concerned with those exceptions in the present ease.

As stated above, the first item of damages awarded, by the trial judge is $5,000 for pain and suffering. A review of the above quoted portions of plaintiff’s testimony shows that some of her statements regarding the nature of her injury are hearsay and cannot be considered in proving the award for pain and suffering. Plaintiff testified that Dr. Perron and Dr. Ardoin told her the x-ray showed her jaw was broken. Obviously this is hearsay and cannot be considered. The handwritten report by Dr. Perron diagnosing a fractured jawbone is also hearsay. It should not have been admitted in evidence and cannot be considered. Nothing that plaintiff was told by the doctors is competent evidence, nor are the bills of the doctors, the hospital or the drugstores.

Nevertheless, there is sufficient testimony by plaintiff of facts which she knew of her own personal knowledge, to support the award for pain and suffering. She testified that defendant struck her on the jaw with his fist and knocked her down. She stated she first went to Dr. Perron who sent her to Dr. Ardoin, who placed her in the hospital and performed surgery on her jaw. She says she was in the hospital four days, and that her jaw was swollen and painful and that it became infected and later the wires in her jaw had to be removed and put in another place.

She testified that after her release from the hospital, she returned to see Dr. Ardoin at his office once a week at first and then twice a month until the time of trial. She stated that the injury was very painful for about a month and a half and she could not chew and had to drink only liquids, causing her to lose quite a bit of weight. Furthermore, she stated that even at the time of trial, which was about four months after the battery, her jaw was still stiff and painful, that she could not talk as clearly as before, and that she had been unable to go back to work because of the injury. Of course, the trial judge saw plaintiff on the date of the trial and could actually see whether she had any residual disfigurement and could hear whether her speech was impaired at the time. We conclude there was sufficient non-hearsay testimony to support the award of $5,000 for pain and suffering.

Furthermore, for essentially the same reasons as stated above, we conclude there was sufficient non-hearsay evidence to support the award of $1,500 for physical disfigurement.

As to the award for loss of wages, plaintiff testified that at the time of the injury she was earning $3.00 per hour, working 40 hours per week and during some weeks worked overtime at $4.50 per hour. She stated at trial, almost four months after the battery, that she was still unable to work because of the injury to her jaw. The trial judge awarded $1,920 for loss of wages. Apparently, this is computed on the basis of $3.00 per hour, 40 hours a week, a total of $120 a week or $480 a month for four months. Plaintiff’s non-hearsay testimony supports this award.

As to the award of $949 for medical expenses, this is the amount of the hospital bill which the trial judge admitted into evidence on testimony by plaintiff that she had received this statement for services rendered in connection with the surgery to her jaw. We find the trial judge erred in admitting the hospital bill for the purpose of proving the amount of the hospital charges. The hospital bill is hearsay. The medical expenses were not proved by competent evidence and cannot be allowed. We will reduce the judgment by the sum of $949. It is interesting to note that although the trial judge allowed the hospital expenses on the basis of the hospital bill, he did not allow recovery of Dr. Ardoin’s bill or Dr. Perron’s bill or certain small drug bills. The trial judge correctly disallowed these latter charges,. because the evidence of them consisted only of the bills from the respective parties and was hearsay.

Bailey v. Jackson, 331 So.2d 498 (2d Cir. 1976) affirms a default judgment for amounts of the bills of the physician and the hospital, where there was a question as to whether these bills were hearsay. The testimony was not transcribed, but there was a statement of fact by the trial judge. The Court of Appeal states it could infer “that a proper foundation of these bills, i. e., testimony by plaintiff that they were incurred as a result of her injuries and were paid by her, was made before these bills were admitted as evidence.” We express no opinion as to the correctness of the decision in Bailey v. Jackson. In any event, the present case is distinguished from Bailey on the basis that here the plaintiff testified only that she had received the hospital bill. She did not state that she had paid it. However, we express no opinion as to whether the hospital bill in the present case would be sufficient to prove these medical expenses if plaintiff had testified that she paid the bill.

Defendant cites Smith v. Doyle, 160 So.2d 791 (3rd Cir. 1964), contending that if on confirmation of default all of the damages awarded are not proved by competent evidence, the entire case must be remanded for a new trial on all issues. We do not agree that Smith v. Doyle is authority for a rigid rule. In Smith v. Doyle the court exercised its discretion under LSA-C.C.P. Article 2164 to remand the entire case for a new trial in the interest of justice. In the present case the interests of justice do not require that the entire case be remanded for a new trial on all issues, where the proof of one minor item of damages is hearsay and therefore not proved by competent evidence. To hold to the contrary would mean that in every appeal from a default judgment the entire case must be remanded for a new trial on all issues if the proof on one item of damages is not by competent evidence.

For the reasons assigned, the judgment appealed is amended to delete the award of $949 for medical expenses, thereby reducing the total award from the sum of $9,369 to the sum of $8,420. Otherwise, the judgment is affirmed at the cost of the defendant-appellant.

AFFIRMED, AS AMENDED.

STOKER, J., dissents and assigns written reasons.

DOMENGEAUX, J., dissents for the reasons assigned by STOKER, J.

STOKER, Judge,

dissenting.

With respect, I dissent from the position taken by the majority in this case, Perhaps the majority opinion renders substantial justice between the parties. However, I believe in doing so, the majority violates fundamental principles governing the taking of judgments by default. I agree with the majority holding which denies a rehearing on the purely equitable grounds urged by defendant that he was confused by the receipt of service in a number of legal proceedings and was hindered by his inability to read.

The majority, of course, recognizes the general principal that hearsay is not admissible in default cases. As I read the majority opinion, it holds that a prima facie case of liability was proved exclusive of the hearsay evidence; therefore, the admission of hearsay in proving up the default was immaterial and harmless error. This holding may very well lead to the assumption by our trial courts and members of the bar that hearsay may be admitted in confirmations of default if the issues are otherwise proved by competent non-hearsay evidence. The danger in such an assumption lies in the possibility that hearsay may be used as corroboration, although it may not be relied upon as the sole proof. Certainly we cannot be sure that the hearsay admitted in this case did not, to some degree at least, enter into the trial court’s considerations in fixing its award of general damages.

In this case, in addition to hearsay reflected in the quotations contained in the majority opinion relative to exhibits P-2, P-3, P-4, and P-5, the trial court admitted P-1. The exhibit consisted of a brief written medical report penned by Dr.. Roderick P. Perron, a general practitioner. It is written on a prescription pad and consists of the words “Simple fracture left mandible — needs wiring” and is dated September 20,1978. This report was admitted without any foundation testimony at all, other than plaintiff’s testimony that she was seen by Dr. Perron and was treated by him. The physician’s brief written words purport to be a diagnosis of plaintiff’s condition and injury. It was offered for proof of the matter asserted in the report. Therefore, it is a classical example of hearsay. The position of the majority is that all the admissible testimony leads to a justifiable inference that plaintiff sustained a broken jaw, and therefore, the physician’s hearsay diagnosis added nothing. I cannot subscribe to this position.

Let us suppose that a plaintiff sustained a back injury of the typical sprain or strain variety for which there are few or only vague objective symptoms. Would not a written report from a physician, diagnosing such an injury and giving a prognosis, confirm an otherwise questionable claim? Even in this case, can it be assumed that the trial judge ignored the corroborative effect of Dr. Perron’s handwritten note? Likewise, exhibit P-3, the statement for services of Dr. Didier Ardoin, II, lists him as “D.D.S.” and as “a Professional Dental Corporation”. This statement reflects that plaintiff had hospital surgery at Savoy Memorial Hospital, Mamou, Louisiana. His charge of $400, although not allowed by the trial judge, reveals something of the seriousness of the surgery as well as corroborating the fact that surgery was done. In like fashion, the hospital bill (P-2) lists a break down of charges, that is, what the charges were for. Even though the award for the hospital charges are reversed by the majority, can it be said that a knowledge of the hospital charges did not act as significant corroboration in the trial judge’s mind concerning general damages? After all, in this case five separate documents consisting of pure hearsay were admitted. Do they not have quantitative effect through accumulation?

My concern here is not a mere wheedling over trivialities. It is a concern for the basic integrity of our law governing default judgments. In such cases the defendant is not before the court and is not represented. If the courts do not require strict compliance with the rules laid down, the protection guaranteed to defendant in default cases by our system of judicial administration may erode. The decision of the majority allows, on the ground of expediency a departure from the strict rule against hearsay. I do not think it is enough to disallow the item of special damages (the hospital charges) by reversing so much of the trial court’s award as covered this item. In order to keep the rules viable and effective, I would reverse the entire judgment and remand the case for a new trial. Then we would be sure that the majority’s construction of the rules will not form the basis for further relaxations. Therefore, I would follow the course taken by us in Smith v. Doyle, 160 So.2d 791 (La.App. 3rd Cir. 1964) and remand the case for a new trial on all issues under authority of LSA-C.C.P. art. 2164.


source: Caselaw Access Project

author: CUTRER, Judge. PER CURIAM.

license: Public Domain

text:
    CITIES SERVICE OIL COMPANY, Plaintiff-Appellant, v. ADMINISTRATOR, LOUISIANA DEPARTMENT OF EMPLOYMENT SECURITY, Frank A. Lafaso et al., Defendants-Appellees.
    No. 7253.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearing Denied May 29, 1980.

      Jones, Patin, TEte, Nolen & Hanchey, William T. McCall, Lake Charles, for plaintiff-appellant.
    James A. McGraw, Baton Rouge, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CUTRER, Judge.

Cities Service Oil Company appeals the judgment of the district court affirming the decision of the Board of Review for the Louisiana Department of Employment Security awarding unemployment compensation benefits under the Louisiana Employment Security Law, LSA-R.S. 23:1471, et seq., to 20 claimants who were employees of plaintiff.

The claimants, members of the International Association of Machinists (Machinists), became unemployed as the result of a labor dispute between Cities Service Oil Company (Cities Service) and the Oil, Chemical and Atomic Workers (OCAW). The dispute resulted in a strike in which picket lines were established at the Cities Service complex in Lake Charles, Louisiana, including the Lube Plant where the claimants were employed. After the picket lines were established, the claimants did not return to work and filed for unemployment compensation with the Department of Employment Security. Initially, the claims were rejected pursuant to LSA-R.S. 23:1601. This statute provides, in pertinent part, that:

“An individual shall be disqualified for benefits:
“(4) For any week with respect to which the administrator finds that his unemployment is due to a labor dispute which is in active progress at the factory, establishment, or other premises at which he is or was last employed; but such disqualification shall not apply if it is shown to the satisfaction of the administrator that he is not participating in or interested in the labor dispute which caused his unemployment. For the purposes of this Sub-section, if separate branches of work which are commonly conducted as separate businesses in separate premises, are conducted in separate departments of the same premises, each such department shall be deemed to be a separate factory, establishment or other premises. ”

Initially, it was determined that the claimants were members of the striking union, therefore, active participants in the labor dispute, and disqualified for benefits.

This initial determination was appealed by the claimants to the appeal tribunal. A hearing was held and the referee of the appeal tribunal reversed the prior determination and awarded benefits. The referee determined that justifiable fear of injury or violence was a valid basis for the claimants’ refusal to cross the picket lines. Under these circumstances, the referee felt that the claimants were not participating in or interested in the labor dispute. Therefore, they were not disqualified for benefits.

The appeal by Cities Service of the appeal tribunal decision was denied by the Board of Review. Thus, the Board of Review adopted the decision of the appeal tribunal. LSA-R.S. 23:1630. Cities Service obtained judicial review of the proceedings before the Board of Review in district court. The district court affirmed the decision of the Board of Review, finding no error in the factual determination or the legal conclusion of the Board of Review. Cities Service appeals the judgment of the district court.

The issues presented by this appeal are: (1)Whether a claimant is disqualified for benefits, under LSA-R.S. 23:1601(4), where the reason for the unemployment is his refusal to cross a picket line in a labor dispute due solely to a reasonable and genuine fear of personal injury or violence; and, if such “fear of violence” exception is recognized, (2) whether sufficient evidence was presented in the present case to support a finding of fact by the appeal referee (and adopted by the Board of Review) that the claimants had a reasonable and genuine fear which was the sole reason for their refusal to cross the picket lines at their place of employment.

Cities Service contends first that the referee, the Board of Review and the district court erroneously interpreted LSA-R.S. 23:1601(4). Cities Service contends that a refusal to cross a picket line, even though there is a reasonable fear that violence or injury will occur, is a ground for disqualification for benefits. It argues that any refusal to cross a picket line is “participating” in the labor dispute for purposes of the statute.

We disagree. The Louisiana Employment Security Law is to be- broadly interpreted in keeping with the legislatively declared purpose to relieve economic hardship created by unemployment. Lykes Brothers Steamship Company, Inc. v. Doyal, 338 So.2d 594 (La.1976). The very broad meaning of “participating” advanced by Cities Service would have the effect of imposing a very narrow interpretation on the availability of unemployment compensation.

We recognize that the intent of LSA-R.S. 23:1601(4) is undoubtedly to avoid placing an employer in a position of being compelled by statute to subsidize a strike since the employer is required to pay substantial sums into a fund from which unemployment benefits are paid. Senegal v. Lake Charles Stevedores, Inc., 250 La. 623, 197 So.2d 648 (1967). However, the policy must be considered with the policy of relieving hardship of those who are unemployed for reasons not attributable to themselves.

“Participating in a labor dispute” includes the official recognition by a claimant’s local union of another local’s picket line. Brown v. Brown, 158 So.2d 305 (La.App. 1st Cir. 1963), writ ref’d, 160 So.2d 227 (La.1964), cert. den., 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964). It would also include a situation of individual recognition of a picket line because of adherence to a union principle of not crossing picket lines.

“Interested in a labor dispute” includes situations in which the claimant stands to benefit from actions of those participating in the labor dispute. In the case of Senegal v. Lake Charles Stevedores, Inc., supra, a non-striking, non-union claimant was held to be interested in the labor dispute because he would receive the same wages and benefits as those who participated in the strike. “Interested in” would not include a situation in which the claimant stood to receive no benefits from the labor dispute. Interest of the claimant is determined by the facts and circumstances of each case. Senegal v. Lake Charles Stevedores, Inc., supra. It is not contended in the present case that the claimants had any interest in the labor dispute between Cities Service and OCAW since the Machinists had previously reached an agreement with Cities Service.

A worker, who is not otherwise participating in or interested in a labor dispute, is not disqualified for unemployment benefits by a refusal to cross picket lines due solely to a reasonable and genuine fear of violence or injury inspired by actual or potential violence. Such refusal to cross picket lines is not “participating in or interested in the labor dispute which caused his unemployment.” Whether the fear of injury or violence is reasonable and genuine depends on the facts of each case. The burden is on the employee to prove that he comes within the exceptions to disqualification by showing that such fear was the sole reason for his not crossing the picket lines.

This brings us to the question of whether the claimants presented sufficient evidence to support the findings of the appeal referee as affirmed by the Board of Review.

The record of the hearing before the appeal referee reveals the following:

Claimants are members of a local of the International Association of Machinists. The Machinists had reached the tentative agreement with Cities Service, but no formal contract had been signed. The OCAW was unable to reach an agreement with Cities Service and on February 19, 1977, at about 4:00 P.M., the OCAW established picket lines at the Cities Service Refinery. The claimants refused to cross the picket lines. At the hearing, Ivan Fisk, the business representative for the Machinists local, Roy Ryczak and Frank Lafaso appeared. Fisk testified the claimants refused to cross the picket lines because of fear of bodily harm to themselves or their families. He stated that there had been numerous incidents of violence on picket lines in the area in the recent past. One of the claimants stated that there was no directive from the Machinists local not to cross the picket lines, but none would cross because of fear of injury. Fisk further stated that the Machinists were prepared to honor the tentative agreement and return to work but that fear of harm was the obstacle. He pointed out that at the Lube Plant there were 25 Machinists and 300 to 400 OCAW members. Fisk further stated that even though police were constantly present, their presence was not a sufficient guarantee of safety. Additionally, the claimants feared further retaliation by OCAW members after the strike terminated.

Based upon the testimony of the claimants, the referee found that the claimants were not participating in or interested in the labor dispute. He found that the claimants were justified in refusing to cross the picket lines due to fear of injury.

Upon appeal to the district court, the trial judge, in his reasons for affirming the judgment, took judicial notice of past violence when he stated as follows:

“. . In this regard, the court takes judicial notice of the terrible violence that occurred in the same area on January 15, 1976 at the Jupiter Chemical Plant.”

By taking judicial notice of such past violence, the trial court erred. No additional evidence may be received or injected through judicial notice by the trial court. This is prohibited by LSA-R.S. 23:1634 which provides, in part, as follows:

“In any proceeding under this Section the findings of the board of review as to the facts, if supported bv sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received bv the court, but the court may order additional evidence to be taken before the board of review, and the board of review may, after hearing such additional evidence, modify its findings of fact or conclusions, and file such additional or modified findings and conclusions, together with a transcript of the additional record, with the court. . . .”
(Emphasis added.)

Under this statute, the findings of the Board of Review as to facts, if supported by sufficient evidence and in the absence of fraud, are conclusive. The court is confined to questions of law. No additional evidence may be taken. If the evidence is insufficient, the court may remand and order additional evidence taken by the Board of Review.

We have carefully reviewed the record and have concluded that the trial court erred in its finding that the evidence was sufficient to support the claimants’ position. The statements made by the claimants regarding the past history of violence in the Lake Charles area were very general in nature. There is no testimony of facts, circumstances or events of past labor violence upon which the claimants base their conclusions that the past history is such as would reasonably inspire a genuine fear of harm to the claimants if they attempted to cross the picket lines in question.

The claimants do not contend nor do they testify to any violence or threats emanating from the picket lines in question. The clerks and supervisory personnel readily crossed the picket lines without incident. The claimants’ mere statement that their fear is grounded on past labor violence, without giving the facts and circumstances of those activities, is not sufficient proof to excuse claimants from crossing the picket lines in question. Unemployment Compensation Board of Review v. G. C. Murphy Co., 19 Pa.Cmwlth. 572, 339 A.2d 167 (1975).

The claimants’ fear of violence must be real, not nebulous. They must show that the sole reason for failing to cross the picket lines in question was a well-founded, genuine and reasonable apprehension of violence toward them. We emphasize the words “sole reason” because if a reason for not crossing the picket lines was due to union beliefs, sympathy with other strikers or adherence to union principles, they would be disqualified from unemployment compensation under the statute. Texas Co. v. Texas Employment Commission, 261 N.W.2d 178 (Tex.Civ.App.1953).

We conclude that, since claimants are relying on past history of violence as a basis for their fear and failure to cross the picket lines in question, the claimants must produce evidence of facts and circumstances showing that the past history of violence is of such a nature and character as would create a well-founded, a real and genuine fear of harm in a reasonable man due to the probability that further violence would occur should an attempt be made to cross the picket lines in question. The claimants failed to meet this burden of proof in the evidence presented to the referee.

Under these circumstances, we will reverse. the judgment of the trial court. We will further remand the claims to the Board of Review for the purpose of taking additional evidence pursuant to the provisions of LSA-R.S. 23:1634.

For the reasons assigned, the judgment of the district court is set aside and reversed, and the case is remanded to the Board of Review, Department of Employment Security of the State of Louisiana for the purpose of taking of additional evidence and making a determination of claimants’ eligibility for unemployment compensation pursuant to the provisions of LSA-R.S. 23:1634. The costs of this appeal are assessed one-half to claimants-appellees and one-half to plaintiff-appellant.

REVERSED AND REMANDED.

PER CURIAM.

ON REHEARING

In its application for a rehearing, the Administrator of the Office of Employment Security, Louisiana Department of Labor points out that our original decree contains an error in the assessment of costs of the appeal.

In the original decree of this court, costs of the appeal were assessed one-half to appellees (claimants) and one-half to appellant (Cities Service). Under the provisions of LSA-R.S. 23:1692 an assessment of costs against a claimant is prohibited. In view of the error and under the circumstances presented our original decree is hereby reformed to omit the taxing of costs of appeal to either party and, as amended, our original decree is affirmed.

AMENDED AND AFFIRMED.

      . For example, see Bodinson Mfg. Co. v. California Employment Comm., 17 Cal.2d 321, 109 P.2d 935 (1941).

      . This suit presents the “fear of violence” exception to our courts for the first time. We resort to cases in other jurisdictions for guidance. Other jurisdictions, with statutes similar to our own, have recognized that refusal to cross picket lines due to reasonable and genuine fear of injury does not render a claimant ineligible for benefits. See, for example, Wilson v. Employment Security Commission, 74 N.M. 3, 389 P.2d 855 (1964); Shell Oil Company v. Cummins, 7 Ill.2d 329, 131 N.E.2d 64 (1956); Holdridge v. Tecumseh Products Company, 80 Mich.App. 310, 263 N.W.2d 600 (1977); Texas Co. v. Texas Employment Commission, 261 S.W.2d 178 (Tex.Civ.App.1953); Unemployment Compensation Board of Review v. G. C. Murphy Co., 19 Pa.Cmwlth. 572, 339 A.2d 167 (1975).


author: DOUCET, Judge.

text:
    J. Minos SIMON, Plaintiff-Appellee, v. Bernard METOYER et al., Defendant-Appellant.
    No. 7461.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearings Denied May 29, 1980.
    J. Minos Simon, and Thomas D. Curtis, Lafayette, Gravel, Schley & Van Dyke by Cora Schley, Alexandria, for plaintiff-appellant.
    Gravel, Roy & Burnes, Anna E. Dow, Alexandria, for defendants-appellees.
    Before FORET, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

J. Minos Simon brought this suit to collect on a promissory note given in connection with a contract for legal services. Simon, an attorney, is the payee on a note for $20,000.00, which was signed by the defendant-makers, Bernard Metoyer, A. F. Balthazar, Fred Balthazar, and Cleo Balthazar. He appeals a judgment of the district court in favor of defendants, dismissing his suit at his cost.

The undisputed facts are that in October of 1976 defendants’ brother, Leslie Balthazar, was charged with first degree murder in Calcasieu Parish, Louisiana. On October 11, 1976, the accused’s father J. B. Balthazar, went to Simon’s office in Lafayette, Louisiana in an effort to employ him on behalf of his son. Although initially reluctant to take on the case, Simon agreed to defend Balthazar at the trial level for a fixed fee of $25,000.00, payable in advance. At that meeting, J. B. Balthazar paid $500.00 as a retainer for preliminary investigative services. He later paid $5,000.00 by check on November 1, 1976, and on December 21, 1976 defendants signed the promissory note for $20,000.00 in payment of the remainder of the fee.

Simon and his staff conducted an extensive investigation of the circumstances of the alleged crime. In addition to directing the investigation and analyzing its results, Simon filed and argued several pre-trial motions. His active representation of Leslie Balthazar continued until January 11, 1977, when he filed a motion to withdraw as Balthazar’s attorney. That action followed his receipt of a letter dated January 4, 1977 and signed by Leslie Balthazar and his father, informing him that he had been discharged and that other counsel had been employed. After a representative had contacted Balthazar in the Calcasieu Parish jail and verified the discharge, Simon withdrew from the case and rendered no further services.

After Simon’s dismissal, Balthazar was represented by the attorney employed by defendants in this case. On June 6, 1977, he was released from jail pending a trial set for June 20, 1977. The matter was never tried,, however, and on May 16, 1979 the charges were formally dropped.

Both at the trial level and on appeal, Simon has argued that the issue in this case is whether or not he is a holder in due course and, as such, entitled to payment on the note. Defendants maintain that he is not a holder in due course and urge as a defense the failure of the cause for the note’s issuance. In addition, they argue that a fee of $25,000.00 is excessive in light of the services rendered by Simon and that it should, therefore, be reduced.

The trial judge agreed with the position taken by defendants. His conclusions as to the issues and the applicable law are set out in his written reasons for judgment as follows:

“The plaintiff contends that the issue here is whether or not he is a holder in due course entitled to payment on the note. The Court, however, views the issues differently. Based on the above facts, the Court finds that the promissory note was given in contemplation of legal services. Under established principles of law and ethics, an attorney can only recover for legal fees actually earned. Therefore, the Court considers the question here to be the value of Simon’s services between October 11, 1976 and January 4, 1977.
“The appointment of an attorney is a mandate revocable at the client’s will. LSA-C.C. Art. 3028; Prophit v. McSween, Brook & Bolton, 347 So.2d 11 ([La.App.] 3rd Cir. 1977). An attorney is required to withdraw from representation if his client discharges him, Code of Professional Responsibility (1971), Disciplinary Rule 2-110(B)(4); in the event of withdrawal, the attorney has no right to retain fees not earned, Ibid, Disciplinary Rule 2-110(A)(3). When an employment contract between attorney and client is revoked, the attorney is entitled to recover for services actually performed on the basis of quantum meruit. The attorney has the burden of proving the value of his services and the extent of his actual expenses. Smith v. Westside Lines, Inc., 313 So.2d 371 ([La.App.] 4th Cir. 1975); Guilbeau v. Fireman’s Fund Insurance Company, 293 So.2d 216 ([La.App.] 3rd Cir. 1974); Kramer v. Graham, 272 So.2d 716 ([La.App.] 3rd Cir. 1973); Chiasson v. Law Firm of Dragon and Kellner, 335 So.2d 87, 90 ([La.App.] 3rd Cir. 1976).
“Plaintiff has attempted to avoid the application of the above principles by ignoring the origin of this note and the contractual relationship surrounding its issue. Toward this end, he urges the application of ordinary commercial laws. In light of the fiduciary obligation in* volved, the Court finds those rules inapplicable. Even if they did apply, plaintiff would still be subject to defendant’s [sic] defense as he has not attained holder-indue-course status under LSA-R.S. 10:3-302[1](a) and 3-303(a). Ashley v. Coleman, 219 So.2d 574 ([La.App.] 4th Cir. 1969).”

The provisions of the Code of Professional Responsibility, which were cited by the trial judge, state:

“DR 2-110. Withdrawal from Employment.
(A) In general.
******
(3) A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.
(B) Mandatory withdrawal.
A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:
******

(4) He is discharged by his client.” Clearly, if an attorney is prohibited from keeping any part of a pre-paid fee that has not been earned because of his discharge by his client, he is also prohibited from collecting any part of a fee that he has not earned for that reason. To the extent that the commercial laws would allow collection of the entire fee in such a case, they are in direct conflict with the above provision of the Code of Professional Responsibility.

The effect to be given to the Code of Professional Responsibility when its provisions conflict with legislative enactments was recently discussed by the Louisiana Supreme Court in its opinion on rehearing in Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1978). The court stated:

“In deciding this case we recognize as a primary consideration the Court’s duty to assert the authority conferred by the Constitution to regulate the practice of law, which stems from the grant of original exclusive jurisdiction of disciplinary proceedings against a member of the bar. La.Const. Art. V, § 5(B); see Louisiana State Bar Association v. Edwins, 329 So.2d 437 (La.1976). As set forth more fully in the dissent on original hearing, this Court’s prevailing judicial authority resulted in the adoption and promulgation of the Articles of Incorporation of the Louisiana State Bar Association, which Articles came to incorporate the Code of Professional Responsibility, in lieu of the Canons of Professional Ethics. The Code of Professional Responsibility which regulates attorneys’ practices has been recognized as having the force and effect of substantive law. As a result, these rules set forth by virtue of the Court’s exercise of its prevailing judicial authority override legislative acts which tend to impede or frustrate that authority; only legislative enactments in this area which aid the Court’s inherent powers will be approved.”

373 So.2d 115.

Saucier dealt with a contingent fee contract, which had been drawn and recorded in conformity with LSA-R.S. 37:218. The Court found that that provision was susceptible of an interpretation, which was harmonious with the Code of Professional Responsibility. However, it is clear from the above language that if there had been a conflict between the two, the rules of the Code of Professional Responsibility would have been applied to the exclusion of the statute.

In light of the above, we find it unnecessary to discuss Simon’s alleged holder-in-due-course status or his arguments with respect to the commercial laws. We conclude, as did the trial judge, that although Simon is entitled to remuneration for the services that he actually rendered, he cannot rely on the commercial laws to collect a fee that he has not entirely earned, due to his discharge by his client.

As the trial judge noted, the courts of this state have uniformly held that the appointment of an attorney is a mandate revocable at the client’s will. LSA-C.C. Art. 3028; Prophit v. McSween, Brook and Bolton, 347 So.2d 11 (La.App. 3rd Cir. 1977), writ denied 350 So.2d 902 (La.1977); Fiasconaro & Fiasconaro v. Orlando, 342 So.2d 1261 (La.App. 4th Cir. 1977). The general rule is that a client has the right to discharge his attorney with or without cause, and upon discharge of the attorney, the contract is at an end. Kramer v. Graham, 272 So.2d 716 (La.App. 3rd Cir. 1973). The contract provision concerning compensation is, therefore, unenforceable. Lynch v. Burglass, 286 So.2d 170 (La.App. 4th Cir. 1973); Cabral v. Heitkamp, 252 So.2d 353 (La.App. 4th Cir. 1971). However, at the time of his discharge, the attorney is entitled to compensation for services actually rendered on a quantum meruit basis.

The rule that a discharged attorney must seek his compensation on a quantum meruit basis has been applied uniformly, regardless of whether the fee arrangement with the client called for a contingent fee, Chiasson v. Law Firm of Dragon & Kellner, 335 So.2d 87 (La.App. 3rd Cir. 1976); Kramer v. Graham, supra; Wright v. Fontana, 290 So.2d 449 (La.App. 2nd Cir. 1974), or a fixed fee, Lynch v. Burglass, supra; Schiro v. Perkins, 240 So.2d 920 (La.App. 4th Cir. 1970), writ denied, 257 La. 458, 242 So.2d 578 (1971), or as in this case, a fixed fee paid in advance by means of a promissory note, Cabral v. Heitkamp, supra.

The only departure from this long-established general rule has been the case of Saucier v. Hayes Dairy Products, Inc., supra. As we noted earlier, that case dealt with a contingent fee contract drawn and recorded in conformity with LSA-R.S. 37:218. Because of the peculiar considerations associated with contingent fee contracts and the fact that the attorney in that case has complied with and relied on LSA-R.S. 37:218, the court devised a different means of determining the value of the attorney’s claim, which was based on the contract. The instant case is distinguished from Saucier in that it does not involve a contingent fee contract or special legislation aimed at protecting the attorney’s rights under such a contract. We, therefore, agree with the trial judge’s conclusion that quantum meruit is the proper basis for determining the value of Simon’s claim.

In cases where an attorney is to be awarded compensation on a quantum meru-it basis, the attorney has the burden of proving the value of his services and the extent of his actual expenses. Chiasson v. Law Firm of Dragon & Kellner, supra. Simon introduced his entire file on the criminal case into evidence, and testified generally concerning the services that he rendered and the expenses that he incurred. On the basis of that evidence, the trial judge concluded that the $5,500.00 that he had already received was adequate compensation for those services, and for that reason dismissed the suit.

The question of the value of legal services rendered by an attorney is one that comes particularly within the expertise of the trial judge. Fiasconaro & Fiasconaro v. Orlando, supra; Lynch v. Burglass, supra. We are, therefore, reluctant to disturb the trial judge’s assessment of the value of Simon’s claim. However, after carefully reviewing the evidence in the record before us, we conclude that his finding that Simon’s services were worth no more than $5,500.00 is manifestly erroneous.

Simon’s file contains 532 pages of research, prepared pleadings, statements, etc. Much of it consists of transcripts of interviews with potential witnesses and summaries of those interviews prepared by Simon for use at trial. In addition to his research and his investigative work, • the superior quality of which is acknowledged by counsel for defendants, Simon filed four pretrial motions and wrote a number of letters in connection with the case.

In view of the serious nature of the criminal charge against Leslie Balthazar, the time expended by Simon and his staff in preparation for trial, and the high degree of skill reflected in his work product, we believe that the minimum amount to which he is entitled for his services is $10,000.00. Although the note is unenforceable for the reasons set out earlier in this opinion, defendants’ offer to pay for those services and Simon’s acceptance of it created an enforceable contract under which he is entitled to recover.

Accordingly, the judgment appealed is reversed and set aside and it is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, J. Minos Simon, and against defendants, Bernard Metoyer, A. F. Balthazar, Fred Balthazar, and Cleo Balthazar, jointly, severally and in solido, in the sum of $4,500.00 with legal interest from judicial demand. All costs of this appeal are assessed against the defendants.

REVERSED AND RENDERED.

      . Louisiana Code of Professional Responsibility, Articles of Incorporation, Louisiana State Bar Ass’n, Art. XVI, La.R.S. 37, Ch. 4, app.


author: CULPEPPER, Judge.

text:
    Ronald F. BREWER, Plaintiff-Appellant, v. Eric G. LOEWER et al., Defendants-Appellees.
    No. 7507.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearing Denied May 29, 1980.

      Camp, Carmouche, Palmer, Barsh & Hunter, G. Michael Bourgeois, Lake Charles, Jones, Jones & Alexander, J. B. Jones, Jr., Cameron, for plaintiff-appellant.
    Devillier & Ardoin, J. Winston Ardoin, Eunice, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   CULPEPPER, Judge.

Plaintiff, Ronald E. Brewer, is the lessee of 5,800 acres of farm land. After certain negotiations with defendants, Eric G. Loewer, et al, for a sublease, he permitted defendants to go on the land to prepare for planting. When there was no final agreement on the sublease, plaintiff sued defendants for eviction and damages. Defendants reconvened against plaintiff and the landowners, Katherine G. Brewer, et al., for the value of improvements completed during defendants’ occupancy of the land. After a trial by jury, judgment was rendered in favor of defendants against plaintiff for the sum of $50,000. Plaintiff appeals.

The issues on appeal are: (1) Did the trial judge err in allowing the testimony of an expert witness who failed to appear for a deposition? (2) Did the trial judge err in instructing the jury that, as a matter of law, neither party could recover for breach of contract? (3) Is the award excessive?

The facts are as follows. In 1966, Ronald Brewer obtained a lease on 5,800 acres of land known as the Circle B Ranch in Cameron Parish. Plaintiff cultivated approximately 1,000 acres, primarily in rice, and placed numerous improvements on the land, including a rice drier and six houses for tenants. Due to other business interests and to bad weather conditions over several seasons, Brewer decided to quit farming.

In October of 1975, Brewer and Frederick Loewer began discussing a sublease of the entire Circle B tract. Loewer wanted to expand his own agricultural operations. He proposed to cultivate approximately 4,000 acres of the Circle B in seed rice and soybeans. Loewer organized the Bauer Planting Company, Inc. to conduct operations on the Circle B. As the major stockholder and business manager, he negotiated for the company, acting subject to the approval of the other two stockholders.

Plaintiff’s attorney drafted a three part proposal used during negotiations. The proposal documents included: (1) an Act of Sale of the six frame houses for $60,000, accompanied by a Mortgage in the amount of $43,000; (2) an Agricultural Sublease for a term of one year, subject to renewal for a five-year term; (3) an Act of Sale of all buildings, machinery, appliances, equipment and the rice drier located on the leased property for the sum of $148,000, accompanied by a Chattel Mortgage in the amount of $91,000.

On the night of November 19,1975, plaintiff and Loewer reached what they considered to be an agreement as to the terms of the sublease. After shaking hands, they left the proposal documents with plaintiff’s attorney for final drafting and execution.

On the following day, plaintiff and Loewer went to the Circle B and informed employees that Loewer would be taking over production and would retain all employees. Within days, Bauer Planting began extensive operations, which continued over the next three months and included plowing some 800 acres, water leveling approximately 900 acres, land grading and irrigation maintenance.

During the week following November 19, Loewer went to the office of plaintiff’s attorney but did not sign any of the documents. According to Loewer, the price of the equipment comprising the rice drier was too high. He stated that he could not obtain financing to purchase the equipment because the price exceeded the appraised value. Negotiations continued on this point and Brewer eventually proposed a lease on this equipment. Loewer continued to refuse to sign the documents without a reduction in the equipment cost.

Defendants never did sign any part of the agreement. Plaintiff instituted these proceedings on February 19, 1976.

ADMISSION OF EXPERT TESTIMONY

Defendants’ witness, Dr. David Black, was the sole expert to testify on the value of the improvements made by defendants. Plaintiff’s objection to the admission of Dr. Black’s testimony is based on Dr. Black’s failure to appear at á scheduled deposition. Plaintiff contends LSA-C.C.P. Article 1426 requires a court order excusing appearance. This argument has no merit.

The record contains a written objection filed four days after the notice to Dr. Black was mailed on April 19, 1979. Dr. Black testified at trial, which started on April 30, 1979, that he did not receive the notice until approximately 11:00 A.M. on April 25, 1979, the day of the scheduled deposition. Plaintiff had known for months that defendant planned to use Dr. Black as an expert witness. Based on the above, the trial judge found that plaintiff had failed to give reasonable notice of the desired discovery and he allowed the testimony.

As we stated in Arnold v. U. S. Rubber Company, 203 So.2d 764 (3rd Cir. 1967):

“The trial judge, of necessity, must be vested with a great deal of discretion in limiting the right of parties to take discovery depositions. Dawson v. Lindsey, 143 So.2d 150 (La.App. 1st Cir. 1962).”

We find no abuse of discretion here.

IMPROPER JURY INSTRUCTIONS

Plaintiff’s second assigned error requires some explanation of procedural events. At the conclusion of trial and out of the presence of the jury, plaintiff • made an oral motion for a directed verdict that there was a valid sublease agreement between the parties. Plaintiff also requested the trial judge instruct the jury that since there was a valid sublease, defendants could not recover under the theories of quasi contract or unjust enrichment.

In denying plaintiff’s motions, the trial judge stated:

“THE COURT: This is a very unusual case. I am going to announce a decision that I believe will not conform with the request of either side. The Court has heard the evidence in the casé and denies the motions for directed verdict made by the Brewer group, and I would agree with counsel for the Loewer group that perhaps the whole question of this contract vel non would be turned over to the jury for some determination so that there’s no chance that it would have to be repeated, but I cannot. I’ve reviewed the pleadings and the evidence, this Court is of the opinion that it is a matter of law that Ronald Brewer cannot recover damages for breach of contract. It’s further my decision, the decision of this Court, as a matter of law the only remedies available to the parties who have made claims for damages are those embodied in the articles of the Civil Code dealing with Quasi Contract or those embodied in the jurisprudence arising from Civil Article 21 and described as unjustified enrichment. A full written opinion by this Court to explain the basis for these findings of law and my holding will be prepared and submitted upon request of counsel. . . . ” •

Plaintiff’s attorney then asked the following question:

“MR. BOURGEOIS: Your Honor, could I ask one question? Am I to understand that, then, the jury is to find that there is no contract?
“THE COURT: That is not strictly the case. The jury is going to be instructed, because it was my finding, that damages for breach of contract are not available. * * * You understand that the Court is not finding as a matter of fact that there was no agreement on November 19th. It is finding as a matter of law that there was no agreement on November 19th. It is finding as a matter of law that upon the filing of this suit that no contract ... no rights or no obligations are recoverable on the contract at that point.
“MR. BOURGEOIS: I understand.”

Apparently, neither party requested written reasons for the court’s ruling on the motion for directed verdict because none is contained in the record. The following colloquy occurred, however, at the beginning of trial the following day:

“THE COURT: Do you gentlemen have copies of the oral opinion of yesterday? The Court at this time is ready to hear objections and arguments on objections to the charges. Mr. Bourgeois, I think you initiated the .
“MR. BOURGEOIS: Your Honor, I want to say for my client the charges appear to be excellently drawn, and I thank the Court for the time it’s taken. One matter which we wish to raise by way of objection, Your Honor, in order to protect the record, is the listing under the Quaisi Contract articles, ... I understand from the posture of the pleadings and everything that there is no way the jury can find damages for breach of contract, but I do believe, and I do believe the Court will voice some opinion that maybe the jury in this case will have to resolve the question of whether or not there is an agreement, and those articles I would just suggest to the Court perhaps it would not make it easier for the jury to resolve that issue, and I would request that those particular articles be stricken
“THE COURT: Okay. I can understand that objection. Any other objections?
“MR. BOURGEOIS: No, Your Honor, there are none others.”

Subsequently, the following was included in the charge to the jury:

“Ladies and Gentlemen, we now enter that portion of the charge where I will tell you what principles of law apply to this case. As I stated previously, it is your function to determine what the facts are in this case and apply the law that I am about to present to you to those facts. It is of course my function to determine questions of law alone.
“Before we get into the law that applies to this case, I wish to inform you that I have determined as a question of law that neither Brewer nor the Loewer group can recover damages as a result of a breach of contract. But there may be a recovery under other principles of law. Therefore, your job will be to decide if there are sufficient facts to justify recovery under the provisions of law that I will now present to you.”

Plaintiff now complains that the trial judge erred in instructing the jury that, as a matter of law, neither party could recover for breach of contract. This instruction, plaintiff contends, decided a question of fact that should have been presented to the jury.

The record shows plaintiff made no objection to the trial judge’s instructions as required by LSA-C.C.P. Article 1793 which provides:

“Art. 1793. Instruction to jury; objections
“At the close of the evidence or at an earlier time during the trial as the court reasonably directs, a party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests pri- or to their argument to the jury.
“A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

On the basis of the above article, defendants argue that the plaintiff waived his right to appeal on this issue. We agree. In Bourque v. Olin Corporation, 346 So.2d 1373 (3rd Cir. 1977), we stated:

“[2, 3] Failure to timely object to the jury charge waives the right to urge on appeal errors in the charge as grounds for reversal and remand. Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3rd Cir. 1975) (writ denied, La., 321 So.2d 363); Renz v. Texas & Pacific Railway Company, 138 So.2d 114 (La.App. 3rd Cir. 1962), writ denied. Likewise, the right to attack on appeal an allegedly improper instruction given after the case has been submitted to the jury must be preserved by an objection made at the time the supplemental instruction is given. See Renz v. Texas & Pacific Railway Company, supra. The policy considerations underlying these rules are obvious. As Judge Tate stated in Renz, ‘Counsel may not permit or acquiesce in an easily corrected procedural error and then, after an adverse verdict, urge such error for the first time as a ground for setting aside the jury verdict reached by the expensive and cumbersome method of a jury trial.”

While we agree that the requirements of LSA-C.C.P. Article 1793 are applicable in this case, we give further attention to this matter because the jurisprudence of this State establishes that the right of a litigant to a jury trial is fundamental in character and the courts will indulge every presumption against a waiver, loss or forfeiture thereof. Champagne v. American Southern Insurance Company, 295 So.2d 437 (1974).

We have considered the pleadings and the evidence and find the trial judge was correct in his instruction. Plaintiff and defendants never entered into a contract for the sublease or for the sale of the subject property. The legal effect of the failure to execute the written agreement is a matter of law, properly determined by the trial judge.

As was stated in Stewart v. Schmauss, 191 So.2d 882 (1st Cir. 1966):

“The jurisprudence of this state is to the effect that when parties agree to reduce their contract to writing, the contract is not perfected, and there is no contract until the writing is duly executed. Dreyfuss v. Process Oil and Fuel Company, 142 La. 564, 77 So. 283.”

DAMAGES

Dr. Black was the only expert witness to testify in this case. He explained and gave reasons for his appraisal of the value of the improvements and work performed by the defendants. In light of his testimony, we cannot say there was any abuse of the much discretion granted to the trier of fact in fixing damages. Coco v. Winston Industries, Inc., 341 So.2d 332 (1976).

For the reasons assigned, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


author: STOKER, Judge.

text:
    Dr. James A. TRULY et al., Plaintiffs-Appellees, v. WOODARD-WALKER LUMBER CO., INC., Defendant-Appellant.
    No. 7516.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.

      Campbell, Campbell & Johnson, John T. Campbell, Minden, for defendant-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, Natchitoches, for plaintiffs-appellees.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This action was brought seeking a judicial establishment of boundaries between properties owned by the plaintiffs, James A. Truly, Harry L. Truly, Jr., and Mrs. Leora Truly, and the defendant, Woodard-Walker Lumber Company, Inc. Defendant appeals the judgment insofar as defendant was cast with all costs, arguing that the $3,472.50 surveyor’s fee should be divided equally between the parties. We affirm.

The sole issue before us on appeal is whether or not the trial judge properly taxed all the costs of the survey against the defendant-appellant.

FACTS

The location and placement of the boundary line is. not in dispute at this point and is not before us on appeal. For some time the plaintiffs, primarily through their attorney, attempted to persuade the defendant to agree to an extrajudicial fixing of the boundary in question. Plaintiffs ultimately concluded that the defendant would not agree to an out-of-court settlement of the boundary.. They then filed this boundary action. The boundary line which was the subject of the dispute was the south line of plaintiffs’ property and the north line of the defendant’s property. Plaintiffs describe their property in the petition as

A certain tract of land in Natchitoches Parish, Louisiana, containing 160 acres, more or less, being the North Half of the North Half of Section 15, Township 11 North, Range 8, Louisiana Meridian.

The defendant corporation owns the south half of the north half of Section 15 of the township and range indicated above. Thus, the property of defendant Woodard-Walker Lumber Company, Inc., lies south of the property of plaintiffs, the Trulys. The record reflects that on July 26, 1976, one of the plaintiffs, Doctor James A. Truly, wrote a representative of the defendant (apparently Mr. R. E. “Jack” Woodard) to advise him of the boundary problem and to suggest an amicable settlement. The letter appears to be a follow-up of previous oral discussions. In 1958, a boundary dispute arose between the then owner of the Truly tract, Henry L. Truly, Sr., and the owners of the tract to the north, J. W. Loftin and Jack Woods. That boundary was fixed in a boundary action in which a registered surveyor, A. J. Brouillette, was the court-appointed surveyor. .Brouillette’s line was established some 222 feet south of a line which had been earlier established by another surveyor, Henry M. Hyams. Therefore, the north line of the Truly property was established judicially on the basis of Brouillette’s survey some 222 feet south of what had been thought to be the north line of the Truly property. This resulted in what was referred to as a “short section”. Subsequent events reveal that the section was, perhaps, not actually short. However, both the plaintiffs and defendant assumed that it was because of their knowledge of the Hyams’ survey results and the subsequent different location established by Brouillette.

The defendant corporation, Woodard-Walker Lumber Company, Inc., acquired its property from D. Crawford Young in 1962. Young acquired it from B. S. Adams, who had acquired the property from Henry L. Truly, Sr., in 1940. Truly had originally owned the entire north one half of Section 15, and no boundary had ever been established between the south half he sold and the north half he retained.

When the defendant, Woodard-Walker Lumber Company, purchased from Young, the latter indicated a line of painted trees as representing the northern boundary of the Young tract. Defendants believed this painted line had been fixed based on the Hyams’ survey. Defendants later had the 'line repainted. After the elder TruJy’s death, the Trulys discovered the painted line. By reference to other landmarks, the Trulys concluded that the painted tree line was some 222 feet inside their southern property line and assumed it was based on the Hyams’ line. In his opening letter to the defendant, Dr. Truly suggested that, if the section was short, the best solution was for each landowner to take a proportionate share of the loss. The defendant countered by suggesting that all owners within Section 15 located south of defendant be contacted, and their attitude toward adjustment of the lines be determined. This and other facets of amicable settlement were the subject of much correspondence between defendant and plaintiffs’ attorney until July 5, 1977. On that date plaintiffs’ attorney informed defendant that, as no progress had been made toward an extrajudicial boundary settlement, the matter would have to be taken to court. This suit resulted.

TRIAL COURT ACTION

The court appointed A. J. Brouillette to make the survey. Defendant objected on the ground that, because Brouillette had established the north line of plaintiffs’ property in the earlier boundary action mentioned above, he would be bound by it. Defendant felt that a surveyor uncommitted to the Brouillette line should be appointed in order to assure that the validity of the Brouillette line would be considered. The trial court acceded to defendant’s objection and registered surveyor Barrett Gremillion was appointed in Brouillette’s stead. To defendant’s disappointment, Gremillion accepted the Brouillette line as the north . line of plaintiffs’ property. Nevertheless, through Gremillion’s survey, both parties appear to have received equal quantities of land, and the amount of each is approximately what is contained in a regular or ideal government survey (20 by 80 chains). Under such, a survey each would have east and west boundaries of 20 chains (1,320 feet); Gremillion’s survey shows western boundaries of 19.715 chains for each tract. The eastern boundary is shown for the Truly tract only, and that is shown as 19.94. The eastern boundary of the defendant is not shown, but, by scaling the plat, it appears to be the same.

The plat of survey filed by Gremillion (P-1) shows that the painted tree line relied on by the defendant, and the boundary line fixed by Gremillion, began at the exact same point on the east boundary of Section 15 and ran westerly inside the Truly property so as to juncture on the western boundary of Section 15 at a point 119.46 feet (1.81 chains) north of the boundary established by Gremillion. Gremillion’s survey (P-1) is reproduced as an exhibit and made a part of this opinion. As may be seen, a long, narrow, triangular-shaped parcel, or strip, lies north of the boundary line established by Gremillion and south of the painted tree line. It measures 80.70 chains (5,362.2 feet) on the two long sides and has a base (west side) measuring 1.81 chains (119.46 feet). Therefore, this triangular strip, rather than a strip 222 feet wide running across the property the width of Section 15 (5,362.2 feet), fell to plaintiffs. This strip lay entirely below the painted tree line, which defendant maintained was the boundary line. Neither plaintiffs nor defendant lost entirely, at least insofar as their original assumptions were concerned. The total area in question (north one half of Section 15) was not as “short” as had been assumed. Although the boundary line shifted southward almost 120 feet on the west end from the painted tree line, both parties received almost all the acreage they could expect in a full quarter section.

On a rule to show cause why the survey of Gremillion should not be homologated and the line established by him should not be established by judgment of the court as the boundary line, the defendant filed an exception on the ground that the surveyor failed to comply with LSA-C.C.P. art. 3692. Primarily, the defendant argued that the survey failed to show the contentions of the parties and merely established a boundary line. Tr. 18-20. The exception was overruled. Tr. 22. A judgment approving and homologating the survey of Barrett Gremillion was signed on February 6, 1979. Tr. 46.

The case was tried on its merits on May 29, 1979. At this trial the defendant did not challenge the Gremillion survey or the boundary line which it fixed. The defendant entered a stipulation consenting to the fixing of the line as indicated by Gremillion, with the reservation that it had been opposed. The sole issue tried on the merits was whether the costs should be assessed equally between the parties or assessed entirely to defendant because of its failure to agree to an extrajudicial boundary fixing. Plaintiffs took the position that, with the consent of defendant to the fixing of the boundary line, nothing was left to be tried except the assessment of costs. They objected to any evidence relating to events leading up to the bringing of the petition to have the boundary fixed. Defendant contended it should be permitted to delve into the history of events in order to show that it was justified in requiring that the line be judicially fixed. The court allowed defendant’s evidence.

SURVEY REQUIREMENTS OF LSA-C.C.P. Art. 3692

Woodard-Walker Lumber Company, Inc., defendant, strenuously opposed the homolo-gation of the survey of Barrett Gremillion. In its brief defendant repeats its complaint, pointing out that LSA-C.C.P. art. 3692, as it read formerly, (and as it applies to this case) required, among other things, that the surveyor “[should] inspect the lands in question and to make plans showing the respective contentions of the parties.” [Emphasis supplied.] The survey does not specifically show what each party contends the boundary should be. However, the survey does show the yellow painted line which defendant contends should be the line. Defendant also knew where the north line of the Truly tract had been fixed in the earlier boundary action. Taking the north line of the Truly tract as a starting line, it would have been a simple task to approximate where the Tru-lys contended the south line should be. Insofar as the Gremillion survey is concerned, we may take it that the actual boundary line fixed by Gremillion is the line for which the Trulys contended.

For the foregoing reasons there is no substance to defendant’s complaint in this regard. The trial court and this court, as well as the parties, may look at the plat of survey and see thereon the precise contentions of the plaintiffs and defendants. Therefore, there is no merit in defendant’s complaint concerning the surveyor’s failure to literally comply with LSA-C.C.P. art. 3692.

ASSIGNMENT OF THE COSTS

We have discussed the above issue because the issue was argued in defendant’s brief. However, both appellant and appel-lees agree that the sole issue is whether defendant-appellant should be assessed with all of the costs.

The applicable statutory provision relative to assessment of costs is contained in Article 663 of the Louisiana Civil Code which was replaced by Article 790 which became effective January 1, 1978. Article 663 provided:

Art. 663. He may compel his neighbors to fix and mark the limits of their estates which are contiguous to his.
The limits are established, and boundary stones or posts placed at their joint expense.

According to the Official Comments under new Article 790, no change in the law was intended. Comment (b) reads:

(b) According to well settled Louisiana jurisprudence, costs incurred in fixing boundaries are divided equally between the adjoining proprietors by application of Article 663 of the Louisiana Civil Code of 1870 only when there is an amicable settlement. In case of litigation, costs are apportioned equitably. Thus, the costs may be borne by a defendant who unjustifiably refused to cooperate with plaintiff toward an amicable settlement: Authement v. Theriot, 292 So.2d 319 (La.App. 1st Cir. 1974); Arnaud v. Barber, 225 So.2d 656 (La.App. 3d Cir. 1969); Miley v. Walker, 159 So.2d 38 (La.App. 1st Cir. 1964); Lirette v. Duplantis, 65 So.2d 639 (La.App. 1st Cir. 1953). The costs may also be borne by an unsuccessful plaintiff: Savoie v. Savoy, 262 So.2d 582 (La.App. 3d Cir. 1972); or they may be equally divided between the parties: Girard v. Donlon, 127 So.2d 761 (La.App. 3d Cir. 1961); Sharpless v. Adkins, 22 So.2d 692 (La.App. 2d Cir. 1945). Cf. 2 Toullier, Droit civil francais 50 (1833).

Although new Article 790 provides that the assessment of costs in a boundary action, that is, when the boundary is judicially fixed, is taxed in accordance with the rules of the Code of Civil Procedure, liberal jurisprudential rules existed under old Article 663 which applies in this case. The court stated the status-of the jurisprudence in Young v. Morvant, 358 So.2d 1292 (La.App. 3rd Cir. 1978) in a per curiam opinion:

Plaintiff-appellant seeks a rehearing from only that part of this court’s judgment which affirmed the trial court’s assessment of all court costs originally incurred in the trial court, including the cost of the court-appointed surveyor, to plaintiff-appellant. In support of his application appellant urges that under R.C.C. Article 663, and the numerous cases which have interpreted its provisions, the cost of the court-appointed surveyor is to be divided equally between the parties litigant.
We agree that generally cost of a survey in a boundary dispute is to be divided equally between the owners of the estates involved. Harvey v. Havard, 274 So.2d 917 (La.App. 1st Cir. 1973) affirmed, 287 So.2d 780 (La.1973). This general rule is not however, without exception, the provisions of the cited article being inapplicable under certain circumstances. Lirette v. Duplantis, 65 So.2d 639 (La.App. 1st Cir. 1953); Arnaud v. Barber, 225 So.2d 656 (La.App. 3rd Cir. 1969, writ refused, 254 La. 854, 227 So.2d 594; William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (La.1977).
In the instant case we concluded that the totality of the circumstances present warranted the trial court’s assessment of all court costs originally incurred in the trial court, including the cost of the court appointed surveyor, to plaintiff-appellant. We remain firm in this conclusion. Accordingly, appellants application for a rehearing is denied.

LSA-C.C.P. art. 1920 authorizes the trial court to make an equitable assessment of costs.

The trial court gave no reasons for its judgment assessing all the costs to defendant-appellant. From the record we conclude that some equity exists in favor of defendant-appellant, but the totality of circumstances favors plaintiffs and supports the discretion exercised by the trial court.

Dr. Truly’s opening letter of July 25, 1976, was cordial and suggested a mutual sharing of any loss of acreage. On November 24, 1976, plaintiffs’ counsel addressed a letter to defendant of similar import. Throughout the exchange of correspondence in the record, Woodard-Walker never, at any time, agreed to share any loss of acreage or survey costs. As much was admitted by R. E. Woodard, Jr., who testified for defendant. Tr. 77-81. Several times plaintiffs’ attorney proposed that surveyor A. J. Brouillette be hired to survey a line at the mutual expense of the parties. An estimate of approximately $3,000 was given by Brouillette as the probable cost of the survey.

Defendant wished to bring in all owners in the southern part of Section 15 and, also, apparently wished to challenge the north line of the section established by Brouil-lette. Plaintiffs gave defendant additional time to contact the owners and cooperated in furnishing the names of some of the owners of property to the south of defendant. However, plaintiffs pointed out the difficulty of obtaining the interest and consent of those owners. If Section 15 was deficient in acreage, prescription of titles would likely establish property lines which could not be disturbed. Therefore, it might prove impossible to shift some lines southward. In any event, defendant seemed to make no progress in enlisting the aid of the owners to the south of the Woodard-Walker property.

On July 12, 1977, plaintiffs offered to contribute 55 feet across their southern boundary to settle the controversy. Plaintiffs proposed a preliminary survey. On March 29, 1977, plaintiffs’ attorney advised defendant that he had examined the original government plats and was of the opinion that Section 15 was not a short section, and that there was no 222-foot discrepancy between plaintiffs’ and defendant’s boundary line. Under the circumstances, plaintiffs’ attorney advised that plaintiffs were left no alternative but to file suit.

On April 28, 1977, plaintiffs’ attorney advised defendant that Brouillette did not believe there was any shortage in the section. Again a survey was suggested to establish a boundary extrajudicially with the costs to be shared equally. On May 10, 1977, defendant’s counsel wrote plaintiffs’ counsel, in part, as follows:

As Jack Woodard has previously written to you, the primary concern of the company is that it get the acreage that it bought from Mr. Young. Mr. Hyams, as you know, showed the line of that acreage to be 220 feet further north than Mr. Brouillette, your present Parish surveyor, says that it is. If our property owners to the south are agreeable to a resurvey and a written boundary agreement, that will simplify matters. If they are not, then to avoid the loss of some 27Vz acres, we will have no choice except to a judicial fixing. Because of the expense involved, we would hope to avoid such an action.

The correspondence reflects that plaintiffs allowed defendants quite some time to negotiate with, the property owners to the south. On July 5, 1977, plaintiffs, through their counsel, advised defendant that they were unwilling to wait any longer and were preparing to petition for a boundary action. The correspondence over the affair lasted from July 25,1976, until July 5, 1977. Suit was filed on July 15, 1977.

Contrary to what the correspondence in the record reflects, the testimony of R. W. Woodard, Jr., indicates an attitude of setting tight on what defendant claimed. The following appears in the transcript on cross-examination (Tr. 79):

Q. Well, now listen. Isn’t it a fact that you were concerned that it was going to disturb your southern boundary?
A. No, sir. No, sir, I wasn’t disturbed at all.
Q. It’s your testimony that you were not concerned about it disturbing the southern boundary of your property?
A. I knew that it probably would affect it but I was not concerned. As I told Doctor Truly — I think he would verify this — we wanted only what was ours. We didn’t know where it was. We thought we had it properly located.

Defendant-appellant urges that a bona fide dispute existed relative to the boundary line. It contends that the Hyams survey would place the line 222 feet north of a line based on Brouillette’s earlier survey which was made in connection with a survey to establish the Truly’s north line. Defendant-appellant had apparently hoped to have the Hyams’ survey validated over the Brouillette survey. Under the circumstances the defendant-appellant argues that it was in good faith and had the right to have the boundary judicially determined without suffering penalty through being charged with all the costs. As has been noted, the Gremillion survey allotted defendant practically all it was entitled to.

It is our impression that defendant-appellant kept plaintiffs at bay for a considerable length of time without making any real move to resolve the conflict. It intended to stand without concession on the painted line which it then considered to be the line. Defendant brought no boundary action of its own. It is evident that the controversy would never have been settled had plaintiffs not brought the action. The trial court was within- its discretionary bounds. We will not disturb its ruling.

AFFIRMED.

      . This suit was filed July 15, 1977. Therefore, this litigation is governed by the articles of the Louisiana Civil Code in effect prior to January 1, 1978, relating to boundary actions. Title V of Book II of the Louisiana Civil Code was repealed by Act 170 of the Louisiana Legislature of 1977 which became effective January 1, 1978. The substance of the law of boundaries is now contained in Title VI of Book II of the Civil Code, Articles 784 through 796.

      . As of the time of the 'filing of plaintiff’s petition LSA-C.C.P. art. 3692 read as follows:
      The court shall appoint a surveyor to inspect the lands in question and to make plans showing the respective contentions of the parties.
      The article was amended by Act 169 of the 1977 Session of the Louisiana Supreme Legislature, effective January, 1978, to read as follows:
      The court may appoint a surveyor to inspect the lands and to make plans in accordance with the prevailing standards and practices of his profession indicating the respective contentions of the parties.

      . The stipulation and reservation appears on page 57 of the volume of the transcript containing the transcript of testimony. It reads:
      MR. CAMPBELL: If the court please, Mr. Arthur made the statement that we offer no opposition. While we have consented to the fixing of the line by, [sic] according to the Gremillion survey. But it was opposed[,] and until the line was established in the Gremil-lion survey, we had no idea where it was. And once we’ve seen that survey line, as established by him, we have consented that it be fixed in accordance with that survey. But we do not want the record to show that we offer no opposition to this. We want to show that that’s purely by consent on the part of the defendant.
      THE COURT: Let that statement by Mr. Campbell be made a part of the record.

      . LSA-C.C. art. 790 which replaces LSA-C.C. art. 663 effective January 1, 1978, (Act 169 of 1977) provides:
      Article 790. Costs
      When the boundary is fixed extrajudicially costs are divided equally between the adjoining owners in the absence of contrary agreement. When the boundary is fixed judicially court costs are taxed in accordance with the rules of the- Code of Civil Procedure. Expenses of litigation not taxed as court costs are borne by the person who has incurred them.