author: CHEHARDY, Judge.

text:
    Joyce Hall DUPOR v. SCHWEGMANN BROTHERS GIANT SUPER MARKETS, INC.
    No. 11903.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied July 13, 1981.
    Michael M. Ogden, New Orleans, for plaintiff-appellee.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, William G. Tabb, III, New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Defendant, Schwegmann Brothers Giant Super Markets, Inc. (Schwegmann’s), appeals a district court judgment in favor of plaintiff, Joyce Hall Dupor, in the sum of $7,325.35 together with legal interest from date of judicial demand and for all costs of the proceedings.

This case arises from a slip and fall incident involving the plaintiff which occurred in front of Schwegmann’s on North Broad Street in New Orleans, on February 29, 1978. At a trial on the merits Dupor testified she had purchased a large amount of groceries and that after she exited from the store, she left her groceries at a booth in front of the store. There she received a number and a Schwegmann’s employee watched her groceries while she went to get her car. She then drove it to the loading area, where a Schwegmann employee assisted her by handing the bags over the railing to her. She said she then closed the car door and started to walk around the vehicle to get back in, when she fell forward at a point near the back part of the passenger side of the car and next to the iron railing of the booth. The plaintiff said that at the time of the incident she did not know what had caused her to fall and added she was assisted by employees of Schwegmann’s who took her back into the store, administered first aid, and wiped off a “substance” from under her shoes with paper towels.

Rita Alexander, an employee of the defendant who was stationed outside the store in the vicinity of the place where the accident occurred, testified by deposition that although she did not see Dupor fall, she saw her on the ground after she had fallen. Alexander also stated that after the plaintiff was taken inside the store, she saw a liquid of some kind on the ground where Dupor had fallen and which was later inspected by other store employees.

Donald Williams, a security officer at Schwegmann’s, testified by deposition that he first saw the plaintiff shortly after the accident, when she was brought to the security office. He stated that after he administered first aid to her he inspected the accident site located in front of the store and approximately 8 feet from the railing which prevents the shopping carts from being removed from the store. He added he found a “reddish” substance on the ground which he described as being more “slippery” than water and which was approximately 7 or 8 inches in diameter. He said he then called a porter to put cat litter on the substance. Williams also explained that the point where the accident occurred is not a parking lot but a “loading” area and that there are porters in the area to make sure the ground is kept cleared.

Defendant on appeal argues only that the plaintiff did not carry her burden of proof in the present case. We cannot agree.

In the case of Bolin v. National Tea Co., 359 So.2d 690 (La.App. 1st Cir. 1978), the court established that a storekeeper has a duty to keep areas away from the display areas of the store, such as a parking lot, in a reasonably safe condition and he may not permit hazardous conditions of which he has actual or constructive notice to exist.

In the case of Calecas v. Great Atlantic and Pacific Tea Co., Inc., 330 So.2d 619, 620 (La.App. 4th Cir. 1976), this court addressed itself to the issue of the plaintiff’s burden of proof in such a case as the present one:

“At this point it is appropriate to discuss burden of proof. In slip-and-fall cases the burden of proof is onerous and, as a general observation, the litigant upon whom the burden ultimately rests, loses. The evidentiary problem in these cases was analyzed in Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976). The Court held that once the plaintiff proves he or she slipped on a foreign substance in a store that was not there due to his or her fault, then the store owner must assume the burden of exculpating itself from negligence. We quote from this clear and concise opinion:
‘The duty of a store owner to protect his customers from foreign substances on the floor is one of reasonable care under the circumstances. Reasonable protective measures, including periodic inspections, must be taken to keep the aisles and floors free of substances or objects that may cause customers to fall. Kavlich v. Kramer, La., 315 So.2d 282 (1975); Tripkovich v. Winn-Dixie of Louisiana, Inc., La.App., 284 So.2d 80 (1973); Fontanille v. Winn-Dixie Louisiana, Inc., La.App., 260 So.2d 71 (1972), cert. denied, 261 La. 1064, 262 So.2d 44 (1972); Prosser, Law of Torts, § 61, pp. 392-393 (4th ed. 1971). * *’ ”

In Johnson v. Ins. Co. of North America, 360 So.2d 818, 819 (La.1978), the court held:

“When a customer in a self-service store proves injury resulting from a premise hazard, the burden shifts to the store operator to exculpate himself from the presumption of fault thereby arising and to establish his own freedom from fault. Gonzales v. Winn-Dixie Louisiana Inc., supra; Kavlich v. Kramer, supra. As these cases and the jurisprudence they cite illustrate, a premise hazard is a condition of the premises or of the store operation that results in an unreasonable risk of harm to customers under the circumstances. See Restatement of Torts 2d, Sections 282, 289, and 291.”

In the present case it was established that a premise hazard did exist, i.e., a puddle of a substance “slipperier than water” in an area where patrons of the store were required to load their cars with the groceries they had purchased in the store. Such a situation also requires customers, such as the plaintiff, to focus their attention on the loading activity and increases the risk of harm from anything present on the ground in the area, and, correspondingly, the duty of the storekeeper to minimize the risk by frequent inspections and cleanups. See Calecas v. Great Atlantic and Pacific Tea Co., Inc., supra.

Plaintiff in the present case established there was a hazardous substance present on the ground in the loading area, and this substance caused her, through no fault of her own, to slip and fall. The duty to exculpate itself then shifted to the defendant, Schwegmann’s, to show that periodic inspections were made of the ai aa and that other protective measures taken were reasonable. The defendant produced absolutely no testimony in that regard, and, therefore, failed to so exculpate itself.

For the reasons assigned, the district court decision is affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Henry L. LANDECHE, Jr., et al.
    No. 11897.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied July 13, 1981.

      William W. Irwin, Jr., Johnie E. Branch, Jr., Robert L. Ledoux, Bryan Miller, James C. Russell, Jr., Baton Rouge, for plaintiff-appellant.
    Abbott J. Reeves, Gretna, Leon C. Vial, III, Hahnville, for Henry L. Landeche, Jr., defendant-appellee.
    Becnel & Gravois, Larry C. Becnel and Jude G. Gravois, Vacherie, for James M. Gravois, defendant-appellant.
    Before BOUTALL, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Plaintiff, State of Louisiana, through the Department of Highways, and defendant James M. Gravois appeal a district court decision awarding Gravois $50,000 and defendants Henry L. Landeche, Jr., et al., $723,350 for damages sustained as a result of an expropriation of property owned by the Landeche family and leased by Gravois. The district court also awarded expert witness fees in the amounts of $350 each, and additionally awarded experts S. J. McClen-don and David Black the sum of $2,500 each for preparation of their testimony.

The Department of Highways brought this suit, claiming 34.373 acres of land belonging to the Landeche family and leased by Gravois for the purpose of farming sugar cane, in order to construct State Route La. 3127, part of the State Highway System, and designed as a Donaldsonville-New Orleans Highway. The project provided for construction beginning approximately 2.5 miles east of the St. John the Baptist Parish line and extending to a junction with State Route La-US 90, 0.7 of a mile southwest of Boutte, a distance of 9.044 miles; and the Killona Access Road beginning at Highway Survey Station 111 + 19.01 and extending northerly to a junction with State Route La 18 at Killona, a distance of 1.255 miles; and Access A Road beginning at Highway Survey Station 252 + 59.02 and extending northwesterly through the grade crossing of the Texas and Pacific Railroad, a distance of 0.702 of a mile; and the connection to State Route La-US 90, a distance of 0.649 of a mile, a total distance of 11.650 miles. The parties were unable to agree as to what constituted just compensation, and the matter was submitted to the trial court.

Peter J. Talluto, a real estate appraiser, explained that the taking provided a 300 foot wide right of way running in an east to west direction in the approximate mid-area of the Landeche property, and also an access road, varying in width from 80 to 90 feet.

Talluto said that there were no damages to the remainder of the Landeche property north or south of the main highway taking because the highest and best use of it was for industrial purposes. He added that the access road caused no damage because that which remained east of it had a higher use, possibly as a residential development or some other activity related to the industrial tract.

Talluto estimated, based on comparable sales in the area, that the value of the land actually taken at the time of taking was $1,500 per acre; and his estimate of just compensation for the 34.373 acres taken was $51,551.50 for the property and $1,555.50 for the sugar cane crop.

He also said that as a result of the highway intervention, special benefits in the amount of $120,000 accrued to the owners of the property taken, due to the fact that some of the property had increased in value from $1,500 to $3,000 an acre. As far as the operation of the property as a sugar cane plantation, Talluto said that, since the highest and best use of the property is industrial, that agricultural use of the property must be considered a business endeavor and not significant to the value of the land.

It was stipulated by counsel that if Joseph Billa were to appear, his testimony would be essentially the same as that of Talluto, with the exception that he would place the value per acre of the land taken at $1,600.

David E. Black, accepted by the court as an expert in the field of sugar cane appraisal, said that there was $1,23 i worth of sugar cane on the property taken, as of the date of the taking, and that of that amount only $27.50 worth of it was actually destroyed, the remainder harvested by the lessee. Due to the fact that there was a gravel road through the field which was part of the taking, he estimated the cost of building a new road, for access to the loading rack, would be $5,000.

S. J. McClendon, also a real estate appraiser, said that at the time of the taking he determined that the property was in a “holding” or “transitional” state, although it would eventually end up as industrial property. He estimated that the entire tract of land held by the Landeche interests, approximately 1,315 acres, was valued at $2,748,350 before the taking for the highway, and $2,025,000 after the taking, a difference of $723,350.

McClendon explained he estimated the 315 acres of uncultivated land of the whole Landeche tract to be valued at $700 an acre and the usable land, based on comparables, to be worth $2,527 an acre. Of the land actually taken he estimated that the value of the 34.37 acres taken by the Highway Department was $87,038.

McClendon also testified that the taking resulted in damages by dividing the remaining Landeche property into three different fields, necessitating the inconvenience of crossing the highway and increased costs to work them; drainage problems caused by the highway ditches and rendering the east side of the access road not economically possible to grow sugar cane on; and also necessitating the building of a new farm road on which to move the agricultural equipment, due to the fact that the access road was too dangerous for that purpose. He estimated the cost of constructing another road to be $70,000 and “from his own experience” estimated the cost of constructing a crossing of the Texas and Pacific Railroad right of way to be $18,157.

On cross-examination, when McClendon was asked to itemize the value of the part taken and his estimate of damages so that they totaled $723,350, he said he did not total them; however, he said that figure included the part of land that was taken, plus damages. Also, when asked if he had any itemization per acre for this amount of damage, he said he “did not really put a dollar value on it” but that he was considering the inconvenience of crossing the highway, the vehicles coming under police power, and the loss of the use of some 50 acres of land to which there was no good access.

Defendant Henry L. Landeche, Jr., testified that after the taking there was no way to continue farming operations on his property, that he would have had to build two new farm roads and new sheds on one side of the highway, and it would have been impractical to cross the highway as many as two or three hundred times a day, as required in the harvest season. He also said the remaining property was eventually sold by the Landeche interests for $2,025,000 plus relocation expenses for the three houses that family members were living in.

Defendant James Gravois testified that he had a five-year lease (with a five-year option) with the Landeche interests to farm sugar cane on 782 acres of the property and 550 acres of that was actually planted in cane at the time of the taking. His lease began in 1966 and he exercised his option in 1970, shortly before the June 1971 taking.

Gravois said that as a result of the taking he was unable to farm 100 of his leased acres he previously utilized under the lease. It was also established that all of the 34.37 acres of land actually expropriated were leased by him (18.4 acres of which were actually planted with cane); and it was stipulated by both counsel that his damages for cane taken would be $7,500 if it was decided by the court that he had a right to compensation for this cane, or any amount of it proportionally taken. Gravois also testified that a total of $20,000 damages in increased expenses accrued to him in the years 1972, 1973, 1974 and 1975, as a result of the taking, due to increased hauling expenses, drainage problems and losses, although he said no damages accrued to him in 1971.

In his written reasons for judgment, the district court judge said:

“Plaintiffs case depends on the testimony of Mr. P. J. Talluto, an expert in the field of real-estate values and Mr. David Black, an expert in the field of sugar cane field values. Mr. Talluto was a most candid witness whose testimony relates that his client (the State) underestimated defendants’ value by some $9,000.00 The weakness in Talluto’s opinion is that each part of the 34.373 acres taken is of equal value, an opinion that this Court does not share due to the logical conclusion that if land is to be used in this area for any purpose, it must be drained, further that land used traditionally for a sugar cane crop differs from any other crop in that it is not seeded each year, but rather on a four-year cycle.
“Defendants’ expert, Mr. S. J. McClen-don, is given the greatest weight by this Court as being the most logical and practical of the appraisers. Mr. McClendon admitted that as much as 20% of the land in question was not usable for any purpose, a common finding in land such as that made the subject of this lawsuit. His evaluation was of the entire tract and its sale value to the Defendant at the time of the taking, which reduced to math, is as follows:
Value Before the Taking $ 2,748,350.00
Value After the Taking -2,025,000.00
Opinion of Damages $ 723,350.00
“As reflected by the Judgment, this Court feels the above estimate is excessive, however, the rational and candid testimony of McClendon is given great weight.
“A close examination of the record wherein Mr. McClendon lists through Defendants’ answer to the State’s Interrogatories supports his opinion of the value of the property owned by the Landeche Interests, namely:
(a) H. L. Chaisson, vendor, Boutte Estates, Inc., vendee, March 1970, COB 98, Polio 134 (erroneously cited as Polio 193 by counsel) $23,502.00
(b) Mary Lussan, vendor, Luling Estates, vendee, April 1971, COB 110, Folio 658 (erroneously cited as COB 150, Folio 646 by counsel) $ 9,793.00
(c) C. L. Perillous, vendor, Shell Oil, vendee, September, 1972, COB 132, Polio 82 $275,000.00
“Mr. McClendon also recognized that not all the land taken was of equal value and in reaching his opinion, he appraised some acreage as low as $700.00 an acre.
“In the opinion of the Court, the average value of each acre taken by a preponderance of the evidence as market value at the time of taking was $2,250.00 per acre X 34.373 acres = $77,339.25; cost of replacing plantation road $5,000.00; damages for replacement of Railroad Crossing, 0 (not proven); severance damages to remaining tract of land owned by Defendants (288.644 minus 34.373 = 254.27) at $700.00 per acre or $177,985.00. recapitulate: To
Value of Land taken by Expropriation $ 77,339.25
Road Replacement 5,000.00
Severance damages 177,985.00
Total Award, Landeche Interests $260,324.25
“There is no award included above for diminution of crop yield caused by impairment of drainage, this Court being of the opinion that same is prohibited by Department of Highways v. A. Wilbert’s Sons Lumber (346 So.2d 842) and many other opinions, and that the sole issue before this Court with respect to the Lan-deche interests is the value of the part taken and severance damages. Payment for replacement of the road is, of course, compensable (See Department of Highways v. Champagne, 371 So.2d 626). In this Court’s opinion, and after consideration of all experts, the sum of $700.00 per acre severance damages is fair to all parties. The State shall receive credit of $44,685.00, later increased t> $61,930.00 deposited with the Clerk of Court as the State’s evaluation of ‘just compensation’.
“Although the question of legal status of Defendant, Gravois was not raised at the Trial but was raised by way of exception prior to the Trial, this Court did not pass on the subject in the Judgment since it is settled that any exception not ruled on prior to Trial is presumed to have been dismissed. I have no trouble in recognizing Mr. Gravois’ right to compensation, a lease on land is a thing of value and, in fact, our laws provide a penalty in damages where a lessee is deprived of the land owned by the lessor (R.S. 9:3252).
“The problem of damages, although not as great, presents a more complex problem insofar as Gravois is concerned. His theory of adequate recovery presumes 100% crop success as well as being based on market value without fluctuation. This Court must award to Mr. Gravois the value of the crop taken and severance damages to what remains on his lease, or five years (Department of Highways v. Smith, [La.App.] 353 So.2d 322; Louisiana Highway Commission v. Dunn, [173 La. 998] 139 So. 324).
“In the opinion of this Court, the following sums in damages to Defendant James Gravois represents a fair application of the ‘cost to cure’ appraisal method: (four year crop rotation and planting).
$20,000.00 First Year Damage
15,000.00 Second Year Damage
10,000.00 Third Year Damage
5,000.00 Fourth Year Damage
$50,000.00 Total Damages
“This Court cannot award damages to Gravois for loss of the road as this is an immovable and became the property of the Landeche interests (Killona Access Road).
“The damages prayed elsewhere in Gravois’ answer were not awarded as he failed to show that the State’s action isolates him from the remainder of the leased land. (State v. Menefee, [La.App.] 266 So.2d 226, and State Highway Department v. Holmes, [253 La. 1099] 221 So.2d 811). It is true that Gravois has the right to remove any improvements placed on the premises by him, however, a lessee is limited to rights secured by the lease. This rule is justified that when property leased is expropriated, the lease is terminated (See 24 La.L.Rev. 849, etc.).
“Each expert witness was required to spend many hours in Court, as well as on the witness stand and the fee of $315.00 is both fair and equitable. Said fee is cast as costs to be paid by Plaintiff, as well as costs of Court and legal interest from date of demand.”

The $723,350 award made to the Lan-deche interests in the judgment of the district court is obviously contradictory to that total award of $260,324.25 arrived at in the written reasons given for the judgment. The district court judge was also in error in noting in the reasons that the remaining Landeche property, after expropriation of the 34.373 acres actually taken, was 254.27 acres. The record reflects the total amount of property owned by the Landeche family was actually 1,315 acres, and after the taking there remained approximately 1,280.6 acres of land of the tract owned by that defendant. Neither can this court find a basis in the record for the court’s determination that each acre of the remaining land suffered damage in the amount of $700 per acre, also as noted in the district court’s computations, as part of its written reasons. This court, therefore, reviewed the record most thoroughly in order to determine if the award actually given to the Landeche family in the judgment was manifestly erroneous.

The Department of Highways, in brief, does not contest the awards, as noted in the written reasons, for the property actually expropriated nor for the road costs; however, it strenuously objects to the additional severance damages awarded in the judgment, which raised the total award to $723,-350.

This court is aware that an award for severance damages is made vo an owner to compensate him for decrease in value of the remainder of his property due to partial taking and such damages are defined as the difference between the value of the remaining property before and after the taking. State, Dept. of Highways v. Anderson, 356 So.2d 1086 (La.App. 2d Cir. 1978).

This court is also aware that severance damages cannot be presumed and will not be allowed if based on speculation or conjecture but must be established by competent evidence showing that the land remaining has been diminished in value as a result of the taking; and inconvenience of the landowner, diversion of traffic or change in attending circumstances resulting from the expropriation are not proper elements of severance damages, unless they diminish the value of the owner’s remaining property. State, Dept. of Hwys. v. Ross Continental M. L., Inc., 315 So.2d 151 (La.App. 3d Cir. 1975), writ granted, La., 320 So.2d 206, affirmed, 328 So.2d 883 (La.1976).

The burden of proving severance damages, moreover, rests with the landowner and he must meet the burden with legal certainty and by a preponderance of the evidence and such severance damages are determined as of the date of trial. State, Through Dept. of Highways v. Champagne, 371 So.2d 626 (La.App. 1st Cir. 1979), reversed in part on other grounds, 379 So.2d 1069 (La.1980).

Also, much discretion is given to the trial court in evaluation and weight to be given to testimony of each expert witness in expropriation suits, and his findings of value, based on such evidence, will not be disturbed unless clearly erroneous. State, Dept. of Transp. v. Van Willett, 386 So.2d 1023 (La.App. 3d Cir. 1980); State, Department of Highways v. Hickman, 277 So.2d 525 (La.App. 3d Cir. 1973).

The contradictions between statements made by the district court judge in his judgment as opposed to those made in his written reasons, as well as the error in fact regarding the total amount of land actually owned by the Landeche interests as stated in the reasons, indicates clear error in the amount of total damages awarded in the judgment.

Moreover, in the present case, the district court judge, in giving his reasons, says that he finds a “weakness” in Talluto’s opinion that each part of the 34.373 acres taken is of equal value; however, later in his reasons he makes an award of $2,250 an acre for all of the 34.373 acres taken not making any distinction of value difference among those individual acres. He also cites, in giving his reasons for arriving at the amount of $2,250 an acre, a comparable sale to' C. L. Perillous, dated September, 1972. This is a sale dated after the date of the actual taking; and it was admitted by McClendon, when citing this comparable in his testimony, that he gave very little weight to that particular sale in arriving at his estimate of damages. In view of the above, and in view of the fact McClendon, in his testimony, was not able to break down, analyze or explain exactly how he arrived at his figure for severance damages, this court holds that the district court abused its discretion in accepting the testimony of that expert over that of Talluto and Billa, whom it was stipulated would testify exactly as Talluto had, with the exception that he would place the value of the land taken at $100 more per acre than Talluto’s estimate of $1,500.

Additionally, this court on review of the testimony of both McClendon and Tallu-to found that of Talluto to be the more concise, reasonable and professional of the two. We agree with his conclusions, i. e., that the highest and best use of a portion of the land is industrial rather than “transitional” and that what remained of the land other than that portion also had a higher use, possibly as residential. Due to the reason, as noted in Champagne, supra, that severance damages must be set as of the time of trial, and due to the convincing testimony of Talluto that some of the property had increased in value, as a result of the taking, as much as $500 an acre, and also because, as convincingly opined by him that the taking resulted in total special benefits to the owners of the property in the amount of $120,000 increase in value to the land, we hold that the Landeche interests did not carry their burden of proving severance damages with legal certainty and by a preponderance of the evidence as required by State, Through Dept. of Highways v. Champagne, supra.

As established in State, Dept. of Hwys. v. Ross Continental M. L., Inc., supra, such inconveniences experienced by Landeche in working the sugar plantation and changes in the circumstances that occurred in connection with these problems as established by the Landeche intérests are not proper elements of severance damages because they were not able to show that these results of the taking diminished the value of the land itself.

Because the State has not contested the proposed awards to the Landeche interests of $77,339.25 (as noted in the district judge’s written reasons) for the 34.373 acres actually taken by the State and $5,000 for the cost of replacing the plantation road, this court will follow the trial court’s written reasons in these respects and make the identical awards to the Landeche interests, totaling $82,339.25.

In considering the award made by the district court to Gravois of $50,000, a review of the record indicates that the “$9,000 or $10,000” in damages testified to by Gravois as the increased cost of hauling cane and the second “$9,000 or $10,000” in damages due to increased costs of not being able to use the road in other ways were estimates of Gravois’ entire losses over a three-year period, rather than estimates of his yearly losses in lease years following the expropriation. Moreover, it was stipulated between parties that his resulting damages for crops taken or lost due to the expropriation was $7,500.

This court holds, therefore, that the damage award to Gravois was an abuse of discretion as was the court’s use of the “cost to cure” method of determining severance damages which, in the present case, was speculative at best. Moreover, the cases cited by the district court judge in his reasons for judgment (State Through Dept. of Highways v. Smith, 353 So.2d 322 [La.App. 1st Cir. 1977]; Louisiana Highway Commission v. Dunn, 173 La. 998, 139 So. 324 [1932]) and the revised statute cited by him (LSA-R.S. 9:3252) are not relevant to the issue of damages before us.

Rather, this court notes the comments made by the appellate court in Champagne, supra, regarding the issue of setting damages of a lessee in an expropriation case:

“The general rule that a lessee is limited to rights secured by the lease advantage is bottomed on the theory that lease rights are personal and not real rights. When the property leased is expropriated, the lease is terminated and absent a contractual agreement to the contrary the lessee has no claim for damages against the lessor. C.C. art. 2697. The lessee has, however, certain claims against the condemnor. His share of the expropriation price is measured by the market value of the lease minus the rent owed by the lessee for the remainder of the lease. 24 La.L.Rev. 849, 873-875. The lessee may also have the right to remove any improvements placed on the premises by him and, if so, he is entitled to the value of those improvements less the cost of removal. The above are just two examples of ‘lease advantage.’ ” 371 So.2d at 636.

Since damages to a lessee are considered personal rights rather than real rights in an expropriation case, this court holds that, based on the testimony of Gravois himself and the stipulation of crop loss damages, total damages were only proven in the amount of $27,500.

We note that the judgment of the trial court did not cast the Department of Highways in judgment. Acting pursuant to LSA-C.C.P. art. 2164, the following judgment is rendered: It is ordered, adjudged and decreed that there be judgment in favor of the defendants, Henry L. Landeche, Jr., et al., and against the plaintiff, State of Louisiana through the Department of Highways, in the full sum of $82,339.25 subject to a credit for the amount deposited in the registry of the district court, together with all costs of these proceedings and legal interest from the date of judicial demand.

It is further ordered, adjudged and decreed that there be judgment in favor of James M. Gravois and against the plaintiff, State of Louisiana through the Department of Highways, in the sum of $27,500, together with costs and legal interest from the date of judicial demand until paid.

It is further ordered that the expert witness fees of Peter J. Talluto, David E. Black and S. J. McClendon be fixed at $350 each and that said expert S. J. McClendon is awarded an additional $2,500 for a preparation of trial testimony.

In all other respects, the judgment of the trial court is affirmed.

AMENDED IN PART; AFFIRMED IN PART.

       $1,500.00 an average acre, according to Talluto.

       Approximately three acres

       Approximately 1.25 acres

       Approximately 40 acres


author: KLIEBERT, Judge.

text:
    William C. MOCK v. Lashawnda Marie MOCK, Minor Child of Anna Washington Mock.
    No. 11906.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied July 13, 1981.

      Bradford H. Walker, Metairie, for plaintiff-appellee.
    Steiner & Hyman, New Orleans (Neil S. Hyman, New Orleans, Appointed Curator ad hoc), for defendant-appellant.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   KLIEBERT, Judge.

In this disavowal of paternity suit, the child, Lashawnda Marie Mock, through the court-appointed curator ad hoc, appeals from the judgment of the trial court decreeing that plaintiff, William Mock, is not the father of the minor child.

William C. Mock, plaintiff-appellee (hereafter Mock), and Anna Washington Mock, defendant-appellant (hereafter Anna), were married on October 25, 1969, ceased living together in 1974 (but were never legally separated), and have not lived together as man and wife since 1974. On May 12,1978, Anna Washington Mock gave birth to La-shawnda Marie Mock. On July 7, 1978, William Mock filed a petition to disavow paternity. He contends he is not the father of the child and that one Joe Stirgus is the father of the child. A curator ad hoc was appointed to represent the interests of La-shawnda Marie Mock. After trial on the merits, the trial court rendered judgment “in favor of plaintiff, William Mock, decreeing the minor child, Lashawnda Marie Mock, is not plaintiff’s child.” Lashawnda Marie Mock, through her curator ad hoc, appeals.

Appellant’s various assignments of error can be synthesized into one argument: William Mock, as the legal husband of the wife, has failed to overcome the presumption he is the father of Lashawnda Marie Mock.

In 1976 the legislature repealed Civil Code Articles 191 and 192 and re-enacted Civil Code Articles 184 through 190. According to the legislative history for this legislation, it appears the legislation was enacted to do away with the former conclusiveness of the presumption of paternity for a child born during the existence of the marriage and to moderate the statutory and jurisprudential rules controlling actions for disavowal. For this former presumption, see Succession of Mitchell, 323 So.2d 451 (La.1975).

Article 184 of the Civil Code as re-enacted in 1976 provides as follows:

“The husband of the mother is presumed to be the father of all children born or conceived during the marriage.”

But Article 186 as re-enacted provides:

“The husband of the mother is not presumed to be the father of the child if another man is presumed to be the father.”

And, Article 187 as re-enacted provides:

“The husband can disavow paternity of a child if he proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father.”

The Official Revision Comments provide that Article 187 was re-enacted to provide that evidence used in an action for disavowal of paternity may consist of any facts which reasonably indicate the husband is not the father of the child. It then goes on to state that examples of the type of facts which may create a preponderance of evidence in an action to disavow may include (but are not limited to) scientific tests such as blood grouping or other reliable tests which precludes paternity of the husband or proves sterility of the husband or facts which show the remoteness of the husband from the wife that make the cohabitation unlikely at the probable time of conception.

While considering the Official Revision Comments, in Ogea v. Ogea, 378 So.2d 984 (La.App. 3rd Cir. 1979), the Third Circuit categorizes these examples as follows:

“We find the examples given to be of two types: (1) reliable scientific facts or tests which preclude the paternity of the husband; and (2) circumstantial facts showing that the husband lacked the opportunity to have intercourse with his wife at the probable time of conception. Therefore, any other examples or types of facts must include either reliable scientific proof that the husband cannot be the father, or proof that the husband lacked the opportunity to have intercourse with his wife at the probable time of conception. Absent either of these types of facts the presumption of paternity will not be overcome.”

and made the following observations relative to the particular facts of the case:

“In this case, as previously stated, none of the facts are of the three specified examples, nor do we find other facts presented of the type or calif re illustrated which would overcome the presumption of paternity against the husband. Testimony of the husband that he is not the father, when he had numerous opportunities to have intercourse with his wife at the approximate time of conception is not sufficient as a type of fact contemplated by the Legislature. Otherwise, the example of ‘remoteness’ would be incongruous.”

Unlike the Ogea case, the trial court here upheld the action of disavowal. The facts upon which the court concluded the husband was not the father of the child are as follows:

William Mock testified to living in New Orleans since the date of separation; first with his mother, and later with another woman. Mock denied ever dating his wife or visiting her since 1974, but he did admit to visiting her mother, stating that Anna was present during the visit. He related seeing his wife with another man in a public lounge on two occasions.

Samuel Mock, plaintiff’s brother, testified to seeing plaintiff about every day, and to the best of his knowledge, William and Anna Mock had not lived together since 1974. He denied ever seeing them together since the separation. However, he recalled seeing Anna Mock with Joe Stirgus at Club Bolivar, a barroom, and claimed he congratulated Joe Sturgis and was offered a cigar by Joe Sturgis when the baby was born. Samuel Mock further recalled seeing Anna pregnant, but he couldn’t remember the exact time or year, stating that his memory for dates was bad.

Kermit Baraford testified that to the best of his knowledge plaintiff and Mrs. Mock had not seen each other since separating in 1974.

Anna Mock, the mother, testified she and William C. Mock had stopped living under the same roof in 1974. She had been living with her parents since then. However, Mrs. Mock claimed to have cohabited with her husband two or three times at her house in 1976 and 1977. Initially, she stated that she had relations with Mr. Mock in August, 1977, and since he was the only man she had relations with at that time, he was the father of her child. Under cross-examination, she stated seeing Mr. Mock on “many occasions”, but corrected herself and finally settled on “twice”. Further, she stated that she had relations with her husband on her birthday on September 30,1977, instead of the August date she had stated under direct examination. Mrs. Mock admitted not trying to contact Mr. Mock or his family to discuss the pregnancy, and claimed to have only seen Joe Sturgis a couple of months, but didn’t enumerate what months. When pressed, she admitted seeing Joe Sturgis on a regular basis from approximately 1976 until she last saw him around Christmas, 1979. When questioned by the Court, she related seeing Mr. Mock another time after the birth, which was when Mr. Mock came to see the baby when the baby was either three weeks or three months of age. When re-examined, she stated only seeing the plaintiff twice since 1974.

Johnnie Richard, Anna Mock’s sister, lives with Anna at their mother’s house. She testified to having answered the door in 1976 when Mr. Mock came to visit Anna, to Mr. Mock taking Anna out, and, upon their return, to having spent the night. In 1977, she recalled having admitted Mr. Mock to the house on her sister’s birthday, but did not know of her own knowledge if Anna and William slept together. Further, the witness recalled William Mock’s having visited the baby sometime in 1978, but could not remember when specifically. Mrs. Richard knows Joe Sturgis, and recalled Anna having dated him around 1978, but she couldn’t remember Anna’s having seen Sturgis in 1976 or 1977.

The question presented is — did Mock prove by a preponderance of the evidence any facts which reasonably indicated that he was not the father? The trial court, in its oral reasons for judgment, noted that this was “a credibility question of believing one side of the witness against the other.” Noting that he was more impressed with the husband and his witnesses than the wife and her witness, the court entered the judgment for plaintiff. Under the jurisprudential rule for appellate review formulated by the Supreme Court, we can only change the finding of fact made by the trier of the facts when the findings are clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Given the record before us, we believe there was evidence before the trier of the fact which upon his reasonable evaluation of credibility furnishes a reasonable factual basis for the trial court ruling. Were we the original trier of the fact or the ultimate reviewing authority, we might conclude otherwise, but as an intermediate appellate court operating under the jurisprudential guideline of the superior court, we cannot conclude the trial court erred in its ruling.

William Mock denied any involvement with his wife since 1974. His brother relayed how the alleged natural father offered him a cigar after the baby’s birth. Anna Mock had numerous conflicts in her testimony which in the trial court’s opinion rendered her testimony unworthy of belief; (e. g., how many times she saw plaintiff since 1974, when she saw him in 1977 [August or September?] and when she was dating Joe Sturgis.) Furthermore, she was unable to corroborate that she and Mock had relations in 1977. (Her sister’s testimony was based on hearsay information.)

Given the foregoing, and the principle that credibility of witnesses is a matter to be determined solely by the trier of facts, and since we cannot say the trial court’s ruling is “clearly wrong”, the trial court’s judgment is affirmed.

AFFIRMED.

      . At the same time Code of Civil Procedure Article 5091.1 was enacted. This article provides for the appointment of an attorney to represent the child in a disavowal action. The attorney so appointed cannot represent any other party in the litigation.

      . She testified that her daughter had peeped through the door and saw William in bed with Anna. This daughter was not produced as a witness.


text:
    Dorothy Faye MATHEWS v. ELDER INTERNATIONAL et al.
    No. 11920.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied July 13, 1981.

      Charles E. Hamilton, III, New Orleans, for plaintiff-appellant.
    Gerard M. Dillon, Georges M. Legrand, Dillon & Cambre, New Orleans, for defendants-appellees.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   KLIEBERT, Judge.

Dorothy Faye Mathews, pla:ntiff-appel-lant (hereafter Mathews), was employed by the Louisiana Department of Education as a teacher of vocational skills at the Jefferson Parish Vocational-Technical School in Metairie in an educational program funded pursuant to the Comprehensive Employment and Training Act (CETA), which program was administered by the Office of Manpower Programs for the Parish of Jefferson (hereafter Manpower). In connection with her employment, Mathews was assigned a classroom space in a trailer located behind the school building. On February 8,1978, during a heavy rainstorm, Mathews walked from the trailer to the main building to transact school business. After completing her business, she returned to the end of the hall located nearest her trailer-classroom and observed the inclement weather which prevented her from leaving the main building. As she started to turn around to return to the office, she slipped and fell, injuring her back. Mathews sued for damages, alleging that she fell due to the accumulation of water and/or sleet within the doorway of the school building. Named defendants were Elder International, the designer and owner of a trailer adjacent to the building where plaintiff was injured, and Manpower. A supplemental and amending petition subsequently named as additional defendants PRE Corp. and Pre Corp Leasing, Inc. (alleged to be affiliates of Elder International) and the Parish of Jefferson (hereafter Jefferson). Manpower and Jefferson filed a motion for summary judgment.

In support of their motion for summary judgment, Manpower and Jefferson attached the affidavit of John L. D’Aubin, the Director of the Jefferson Parish Vocational-Technical School on February 8, 1978. The affidavit states that the school building and land on which it is situated were owned by the State of Louisiana; that funds for the operation of the school were received from the State of Louisiana; that those funds included salaries of personnel who cleaned, maintained and repaired the school building, and that the CETA program which employed Mathews was conducted in a trailer rented by CETA and was not owned by the Jefferson Parish Vocational-Technical School. Summary judgment was granted by the trial court. Mathews appeals.

On appeal, Mathews contends the court below erred as a matter of law because there is a genuine issue of material fact as to the legal obligation owed by Manpower and/or Jefferson to plaintiff. Mathews alleges negligence on the part of Manpower and Jefferson in failing to specify or approve provisions for a covered walkway or canopy between the trailer and the entrance of the school, which failure resulted in the dangerous condition, i. e., water and/or sleet accumulating on the surface at the school’s entrance. She also alleges that Jefferson was negligent in not providing adequate footmats and non-slip surfaces on the floor.

Kane v. Braquet, 368 So.2d 1176 (La.App.3rd Cir. 1979), writ refused 369 So.2d 1366, stated the requisites for a particular plaintiff to have a cause of action against a particular defendant, wherein it stated (at 1181):

“Under the prevailing duty-risk formula of tort liability, for the plaintiff to establish a cause of action against a defendant, the initial question that must be determined is whether there is a causal relation between his act or omission and the resulting injury to the plaintiff. If so, then it must be determined whether there is a duty on the part of the defendant to protect the plaintiff from the type of harm he suffered, and finally whether there has been a breach of that duty. Owens v. New Orleans Maintenance, Inc., 349 So.2d 494 (La.App. 4th Cir. 1977).”

It is doubtful that there is any causal relationship between Jefferson’s and Manpower’s alleged acts or omissions and Mathews’ injuries. Assuming, arguendo, that such a causal relationship did exist, it would not have the requisites to impose liability on appellee. Liability does not flow from every cause-in-fact of an accident, but only from those which involve violation of a duty. Welton v. Falcon, 341 So.2d 564 (La.App. 4th Cir. 1977); writ denied, 342 So.2d 872, 1109; Pepitone v. State Farm, 369 So.2d 267 (La.App. 4th Cir. 1979); writ denied, 371 So.2d 1343. Here, neither Jefferson nor Manpower was the owner of the building. Operations, maintenance and repair of the structure were handled by the State of Louisiana, through the Division of Administration. Neither Jefferson nor Manpower was Mathews’ employer. Given the foregoing, we find that neither the Parish of Jefferson nor the Office of Manpower owed a duty to protect Mathews against the particular risk alleged to be involved here. In the absence of a legal duty, neither Jefferson nor Manpower can be held liable for the alleged negligence. Since these two defendants cannot be held liable for the alleged negligence, there is no genuine issue of material fact.

Accordingly, the judgment of the trial court granting summary judgment to the Parish of Jefferson and Office of Manpower, Parish of Jefferson is affirmed. Appellant to pay all costs of this appeal.

AFFIRMED.


author: STOULIG, Judge.

text:
    John R. HUGHES v. Dennis J. TALLEY.
    No. 11841.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied July 13, 1981.
    Schaff & Currier, Val A. Schaff, III, New Orleans, for plaintiff-appellee.
    H. Book Hopkins, Gretna, for defendant-appellant.

      Before BOUTALL, CHEHARDY and STOULIG, JJ.
   STOULIG, Judge.

Defendant, Dennis Talley, has appealed a judgment awarding plaintiff, John R. Hughes, $5,000.00 plus 25% attorney fees and legal interest from judicial demand in a suit on a promissory note that was materially altered by the wife of the payee. The issue here is whether the alteration rendered the note null and void.

The instrument was given by Talley as partial consideration for the purchase of a Diamond T tractor and homemade trailer, which plaintiff sold for $7,000.00. Initially, defendant paid $2,000.00 and took delivery of the trailer, which he removed from plaintiff’s property with another tractor. At the time the truck was not running; therefore, defendant sent a mechanic to fix it.

On November 1, 1978, when the tractor was once again operational, defendant gave plaintiff a promissory note for he $5,000.00 balance of the sale price. Because plaintiff could not find the truck title the parties agreed defendant was to take delivery of the tractor at some unspecified time in the near future, when plaintiff found the title.

Meanwhile, defendant who had purchased this rig for use in performing a $29,700.00 contract to move two buildings, determined he could improvise with the trailer and the equipment he already owned to perform his contract, obviating the need for plaintiff’s tractor. Defendant never paid the $5,000.00 nor did he take delivery of the tractor. Hence this suit.

The note was drafted by the combined effort of Mrs. Hughes, plaintiff’s wife, and defendant and it is apparent that both were unfamiliar with laws regulating commercial paper. Using a form note for bearer paper each party filled in some of the blanks. Without detailing who wrote what we note the interest entry is the only one relevant to the issue. After Mrs. Hughes had partially completed the note, Talley finished the form before signing and in so doing he drew a line through the blank where the interest rate was to be inserted and noted near the bottom: “Bal to be Paid in 90 days, nine days from date.”

Everyone agrees none of the parties intended that the note stipulate interest. However, after defendant signed it Mrs. Hughes entered the numeral “8” over the slash mark defendant previously put in that blank, and wrote in the date November 1, 1978 in the blank indicating when interest would begin running. She did this, she explained, to make the note legal because she understood “... a note is not legal unless it has an interest in it ...”

Under R.S. 10:3-407(l)(c) Mrs. Hughes made a material alteration to the instrument by writing in an interest rate after the maker signed the note. The effect of the alteration is determined by (2)(a) of the same section:

“(2) As against any person other than a subsequent holder in due course
“(a) alteration by the holder which is both fraudulent and material discharges any party whose contract is thereby changed unless that party assents or is precluded from asserting the defense; * * * ” (emphasis supplied)

This quoted provision, effective since January 1, 1975, superceded R.S. 7:124, which provided:

“Where a negotiable instrument is materially altered without assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized, or assented to the alteration, and subsequent indorsers.”

Appellant cites cases applying the more stringent rule of R.S. 7:124; however, the present law does not void the note when the alteration is not fraudulent and thus reserves to the good faith creditor his right of action on the note.

The trial court found as a fact that the alteration made by Mrs. Hughes was not fraudulent and the evidence fully supports this conclusion.

For the reasons assigned the judgment appealed from is affirmed. Appellant to bear all costs of this appeal.

AFFIRMED.

      . Thompson v. Taylor, 192 So.2d 609 (La.App. 3rd Cir. 1966), decided under the now super-ceded negotiable instrument, held any material alteration voided the note. Under Thompson the holder who altered the note fraudulently not only voided the note but discharged the obligation the note was given to evidence, whereas the good faith holder retained the right to judicially enforce the original obligation.


author: JULIAN E. BAILES, Judge Pro Tem. REDMANN, Judge,

text:
    GENERAL ELECTRIC COMPANY v. Dr. Morton BROWN and Mr. Benjamin Brownstein.
    No. 11818.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied July 13, 1981.
    Bagot & Gniady, Michael H. Bagot and John H. Gniady, New Orleans, for plaintiff-appellee.
    Joel P. Loeffelholz, New Orleans, for defendants-appellants.
    Before REDMANN and KLIEBERT, JJ., and BAILES, J. Pro Tem.
   JULIAN E. BAILES, Judge Pro Tem.

Dr. Morton Brown, defendant-appellant, owner of a 29-unit apartment house named Mayfair, located at 1783 Coliseum Street in the City of New Orleans, undertook renovations on his own account. In furtherance of this work he placed an order with plaintiff-appellee for a variety of electrical appliances amounting to the sum of $10,253.25. The appliances were delivered to appellant at the apartment site, duly receipted for by an authorized representative and stored in the premises. Subsequently, the appliances were stolen. Dr. Brown refused to pay. This suit followed in which plaintiff sought recognition of its privilege resulting for its previously filed materialman’s lien and for a personal judgment against Dr. Morton Brown under the provisions of La. R.S. 9:4812.

Defendant answered denying the indebtedness, the right of plaintiff to file the materialman’s lien, and reconvened for: “... the wrongful and improper filing of said affidavit and creation of alleged lien, defendants have been disturbed in their chain of title; each has suffered a taint on his credit rating; and each has suffered great mental pain and anguish, humiliation, and embarrassment.”

The court a quo granted judgment in favor of plaintiff in the amount of $10,-278.25, together with legal interest from date of judicial demand until paid and for all court costs. All other demands were dismissed. Only defendant Dr. Morton Brown has appealed. We affirm.

Clearly, under the provisions of La. R.S. 9:4812, the plain tiff-materialman, General Electric Company, had a statutory right to file the materialman’s lien. The defendant, who undertook for his own account to make certain renovations to his property, had ordered from, receipted for delivery of the materials to the site of the work and had failed to pay. Plaintiff had a statutory right to a lien for at least a portion of the building materials delivered. The alleged theft of the materials might have defeated the privilege rights; however, we do not reach the question of privilege rights nor the effects of the alleged theft of the building materials thereon for the reason the trial court did not grant plaintiff recognition of a privilege. On the cont ’ary, only a money judgment was granted. Plaintiff has not appealed.

The record clearly supports the award of the money judgment against defendant-appellant.

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

AFFIRMED.

REDMANN, J., concurs.

REDMANN, Judge,

concurring.

“That Judge Garvey’s judgment confirms the lien is obvious,” appellant argues, “because in the petition the plaintiffs ask for [the $10,253.25 cost of the materials] plus the $25 costs of recording the lien or a total of $10,278.25 which is what Judge Garvey granted to them.”

Assuming that the expense of having a lien recorded is not recoverable unless the lien itself is valid, we must still affirm this aspect of this judgment. Mere proof of materials “delivered” entitles a material-man to a lien under La. R.S. 9:4812 (compare “furnished” and “used” in §§ 4801 and 4803) in the absence of proof of nonuse of all the materials, Hortman-Salmen Co. v. Raymond, 1930, 13 La.App. 490, 127 So. 452. Much of plaintiff’s materials were intended to be (and some were) incorporated into the building and thus the lien was valid (even if some of the material were not of a kind that would support a lien).


author: BOUTALL, Judge.

text:
    John Jay GRISAFFI v. Julian L. ROY.
    No. 11740.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1981.
    Rehearing Denied July 13, 1981.

      Favret, Favret, Demarest & Russo, J. Paul Demarest, Anthony J. Russo, New Orleans, for plaintiff John Jay Grisaffi.
    Charbonnet & Charbonnet, Kenny M. Charbonnet, New Orleans, for appellant Julian L. Roy.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court awarding damages to the plaintiff for the alleged acts of the defendant in using the judicial process to wrongfully stop the plaintiff from construction of a building which had previously been approved by the Zoning Variance Board and the Department of Safety and Permits for the City of New Orleans.

On May 21, 1976, Julian Roy filed suit against Edward C. Kurtz as director of the Department of Safety and Permits for the City of New Orleans (hereinafter referred to as the Department) seeking a writ of review and/or certiorari by the district court from a decision of the Board of Zoning Adjustments (hereinafter referred to as the Board). This Board had previously granted the request of John Jay Grisaffi on April 23,1976, to make certain construction changes to his property located at 540 Robert E. Lee Blvd. in New Orleans. On April 14, 1977, a building permit was issued to Grisaffi by the Department to permit him to make the construction changes to his property in accordance with the decision of the Board. Two weeks later on April 29, 1977, Roy, by an amended petition, requested that a temporary restraining order as well as a preliminary and permanent injunction be issued so as to restrain Grisaffi from construction. A temporary restraining order was issued beginning on May 3, 1977 thereby ordering the Board and the Department to recall the permits which they had previously issued to Grisaffi for construction on his property. In connection with this restraining order a stop-work order was issued by the Department on May 4,1977, as to the property owned by Grisaf-fi. The effect of this order was to halt construction on this building which had previously begun. Trial was conducted on May 20, 1977, after which the lower court ordered that the ruling of the Board be affirmed, thereby approving the zoning variation. The trial court further ordered that all other demands including the temporary restraining order and the request for a preliminary and permanent injunction be dismissed. Despite this judgment the stop-work order was not lifted by the Department and remained in effect. From this judgment Roy appealed suspensively. Approximately one year later the Fourth Circuit Court of Appeals upheld the judgment of the trial court. Roy v. Kurtz, 357 So.2d 1354 (4th Cir. 1978). This decision became definitive on June 30, 1978 when the Supreme Court denied an application for writs. Following the action taken by the Supreme Court, the stop-work order was lifted. Hence, the stop-work order as to the property owned by Grisaffi remained in effect for over one year.

On May 18, 1979, the plaintiff, Grisaffi, instituted legal proceedings against the defendant Roy to recover damages for the one year and three months delay in construction to the plaintiff’s building, which was allegedly caused by the defendant’s improper use of the legal process. Roy answered denying owing any liability unto Grisaffi and further filed several exceptions including no cause of action, no right of action, and prescription. The various exceptions were dismissed by the lower court. Upon trial of this matter the lower court entered judgment in favor of Grisaffi ind against Roy in the amount of $18,271.81. From this judgment Roy has appealed suspensively.

On appeal there are two basic issues before us. They are: 1.) Whether the defendant has committed any acts which render him liable unto the plaintiff; 2.) if so, whether the plaintiff has sustained any damages as a result of these acts.

In pursuing this matter Grisaffi has set forth two basic theories in order to establish liability on the part of Roy. The first concerns a claim of malicious prosecution. The basic requirements necessary for establishing a claim of this type are well known. In Kogos v. Rittiner, 228 So.2d 62, 69 (4th Cir. 1969) this court summarized these requirements as follows:

“(4) We recognize the fact that a suit for damages arising out of a ‘malicious prosecution’ is not limited to criminal prosecutions, but may also result from civil actions. * * * *
* * * * The test applied to determine liability in such cases was stated by our Supreme Court in Eusant v. Unity Industrial Life Ins. and Sick Benefit Ass’n, 195 La. 347, 196 So. 554, 556 (1940), and applied in later cases as follows:
‘ “An action for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements: (1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff. * * ” ’

Also See Junot v. Lee, 372 So.2d 707 (4th Cir. 1979).

Upon a review of the record before us we find that two of the six basic elements necessary to establish a claim for malicious prosecution have not been proved by Grisaf-fi. LSA R.S. 33:4727 permits any person who is aggrieved by a decision of the Board to present to the district court a request for a writ of certiorari directed to the Board for review of its decision. Roy brought fourth a claim pursuant to this statute. Furthermore, the grounds set forth in his petition requesting such a review were plausible. Accordingly, we find that the element of an absence of probable cause did not exist in connection with Roy’s claim. The second element which was not proved by Grisaffi was that of malice. Regarding this element there can be little doubt that the primary concern of Roy in prosecuting his claim was the protection of his property as well as that of his neighbors residing nearby.

The second theory asserted by Gri-saffi is based on the alleged acts of Roy in improperly using the judicial process which resulted in a stop-work order remaining in effect for over 1 year thereby causing Gri-saffi to sustain damages. This theory was adopted by the trial court in rendering its judgment. Based on the record before us we find that Roy is not responsible for the more than one year delay in lifting the stop-work order. The facts indicate that Roy amended his original petition on April 29, 1977 requesting that a temporary restraining order be issued and further that a preliminary and permanent injunction be issued upon proper hearing. Pursuant to this request a Temporary Restraining Order was issued for a period of 16 days. This action prompted the Department to issue a stop-work order as to the construction project begun by Grisaffi. Upon trial of the matter, on May 20, 1977, Roy’s request for an injunction was denied and the temporary restraining order was dissolved. As a result of the action taken by the trial court there was no longer any need for the stop-work order to remain in effect and further it should have been lifted. The fact that it was not lifted until over one year later after the Supreme Court denied writs does not place the blame upon Roy. One apparent reason for the delay is a lack of communication between the City Attorney’s Office and the Department as to the effect of the trial court’s decision. Another suggested reason is the lack of knowledge by Grisaffi of the effect of this decision. If the proper communication had been made or if Grisaffi had the proper knowledge and understanding then the stop-work order would have been lifted thereby permitting Grisaffi to continue construction without sustaining any damages due to delay.

As indicated above, the trial court in the case of Roy v. Kurtz as director of the Department dismissed the various types of injunctions requested and affirmed the decision of the Board. The trial court in the case before us in its reasons for judgment indicated that the suspensive appeal taken by Roy from the judgment in the first case had the effect of holding in abeyance the question of whether the permits issued by the Department and the Board were valid and therefore had the effect of causing the city to continue its stop-work order until a final judgment was rendered. We disagree with this finding for two reasons. First, the suspensive appeal taken by Roy from the judgment of the trial court which affirmed the decision of the Board merely held in abeyance the ruling of the trial court. It had no effect whatsoever on the decision of the Board. The only method for affecting the decision of the Board would be a restraining order issued by the trial court such as occurred for a short period in the first case but which was later revoked at trial on the merits. See LSA R.S. 33:4727. Secondly, the suspensive appeal taken by Roy from the trial court’s judgment denying the injunctions also had no effect on the Board’s decision. Since there was no injunction in effect, the suspensive appeal accomplished nothing for Roy since there was in reality nothing to suspend. Guillot v. Town of Lutcher, 368 So.2d 210 (4th Cir. 1979). This reasoning can be understood best by the illustration used by this court in Hibernia National Bank of New Orleans v. Mary, 167 So.2d 200, 203 (4th Cir. 1963). Our court stated:

“By way of illustration, let us assume that A seeks to enjoin B from demolishing a house and judgment denies preliminary injunction. A suspensive appeal is ordered and all further proceedings are stayed pending appeal. Certainly this would not stop A from proceeding with the demolition of the house.”

Despite our findings above, it appears that Roy should be liable for the wrongful issuance of the temporary restraining order. However, the record before us offers no evidence as to any damages sustained by Grisaffi as a result of the 16 day delay during which the stop-work order was in effect as a result of the wrongfully issued temporary restraining order. Moreover, LSA-C.C.P. Art. 3608 provides that damages for wrongful issuance of a temporary restraining order may only be allowed upon either a motion to dissolve or on a reconven-tional demand. Neither of these pleadings are present in the record before us. Accordingly, Roy is not liable for the wrongful issuance of a restraining order.

Having found that Roy is not liable unto Grisaffi there is no need for us to consider the second issue pertaining to damages. For the foregoing reasons, the judgment of the trial court is reversed.

REVERSED.


text:
    Henry E. YOES, Jr. and St. Charles Herald, Inc. v. ST. CHARLES PARISH COUNCIL.
    No. 11718.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1981.
    Rehearing Denied July 13, 1981.
    Emile R. St. Pierre, Destrehan, for appellants.
    Jeff M. David, amicus curiae, Denham Springs, for Louisiana Press Association, Inc.
    Manina D. Dubroca, Boutte, for River Parishes Guide intervenor-appellee.
    Harry J. Morel, Jr., Dist. Atty., St. Charles Parish, Hahnville, for St. Charles Parish Council defendant-appellee.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court denying the plaintiffs’ request for a permanent injunction seeking to enjoin the defendant newspaper company from acting as the official journal for St. Charles Parish.

On June 2, 1980, the St. Charles Parish Council, by Resolution #2072, selected the River Parishes Guide (hereinafter referred to as Guide) as its official journal for a period of one year. Following this action by the Council the plaintiffs Henry E. Yoes, Jr. and the St. Charles Herald (hereinafter referred to as Herald) filed suit against the Council for an injunction to enjoin it from allowing the Guide to act as the official journal of the parish. A temporary restraining order was issued. The St. Charles Parish Council filed an exception of no cause of action. Allen Lottinger and Guide filed a petition for intervention requesting that the temporary restraining order be dissolved and that they be awarded damages from the plaintiffs for the improper issuance of said order.

The matter was apparently heard on the merits of the claim. The trial court dissolved the temporary restraining order, denied the plaintiffs’ request for a preliminary or permanent injunction, and dismissed the plaintiffs’ suit, dismissing also the intervenor’s request for damages. From this judgment the plaintiffs have appealed devolutively.

On appeal there are two basic issues before us: 1.) Whether the St. Charles Parish Council is subject to state law in its efforts to select an official journal. 2.) Whether the River Parishes Guide satisfies the qualifications necessary for selection as an official journal for St. Charles Parish.

I

In approaching the first issue a review of the Home Rule Charter adopted by St. Charles Parish in December of 1977 must be considered in light of the 1974 Louisiana Constitution. Article I of the St. Charles Parish Home Rule Charter indicates that the local government is subject to the authority of the 1974 Louisiana Constitution. This article states: “St. Charles Parish is a local governmental subdivision as defined by Art. Ill § 44 of the La. Constitution of 1974. The Parish shall operate under this home rule charter under authority of Article VI, Section 5 of the constitution.” Under Article VI § 5(E) of the 1974 La. Constitution a home rule charter is permitted to provide for the structure, and organization, powers and functions of the local government. However, this subsection also reveals that the powers and functions of local government are subject to state law and the La. Constitution. This article states:

“(E) Structure and Organizations; Powers; Functions.
“A home rule charter adopted under this Section shall provide the structure and organization, powers, and functions of the government of the local governmental subdivision, which may include the exercise of any power and performance of any function necessary, requisite, or proper for the management of its affairs, not denied by general law or inconsistent with this constitution.”

The parties have strenuously argued to us that the selection of an official journal comes either within the structure and organization of government, or within the powers and functions of government. The first theory would lead to a conclusion that selection of the journal is solely under parochial dominion, and the second would lead to a conclusion that the state law may apply. Indeed, we must note that the trial judge rendered lengthy reasons for judgment, and rendered a very scholarly and enlightening discourse on the constitutional grant of broader powers to state government.

However, we do not consider that issue to be decisive of the questions raised here. Instead, we conclude that the selection of an official journal comes within the police power of the state and comes within the limitations of local governmental subdivisions as set out in the 1974 Constitution, Article 6 § 9(B): “Police Power Not Abridged. Notwithstanding any provision of this Article, the police power of the state shall never be abridged.”

Police power is a power inherent in every sovereignty to govern men and things, and thereunder the legislature may, within constitutional limits, prescribe regulations for promotion of public health, safety, morals and general welfare. It is, of course, important, indeed necessary, to our democratic form of government that the people shall be informed of the various activities of their government in order to not only be made aware of those ordinances which may affect the daily life or business of the individual, but also to be aware of the inner functions of government in order to form a basis for judging the efficiency and integrity of local government. To aid the acquisition of such knowledge it is equally important to require the information be made readily available and readily accessible. The state has a legitimate role in passing legislation to provide its citizens with the means of acquiring such knowledge under the exercise of its police powers.

To this end a series of such laws have been enacted and published as Title 43 of the Louisiana Revised Statutes. Chapter 2 provides for an official journal of the state and its departments, while Chapter 4 provides for the official journal of parishes, municipalities, and school boards, as well as official journals of other political subdivisions. Of direct concern in this case are R.S. 43:141, 142 and 143. They provide in pertinent part as follows:

“§ 141. Official journal to be selected by police juries, municipal corporations and school board
“The police juries, municipal corporations and school boards in all the parishes, the parish of Orleans excepted, at their first meeting in June each year, shall select an official journal for their respective parishes, towns or cities, for a term not exceeding one year.”
“§ 142. Qualifications of newspaper
“The newspaper shall have been published in an office physically located in the parish in which the body is located for a period of five years preceding the selection, shall not have missed during that period as many as three consecutive issues unless caused by fire, flood, strike or natural disaster, must have maintained a general paid circulation in the parish in which the body is located for five years, and shall have been entered in a U. S. post office in that parish under a second class mailing permit in that parish for a period of five consecutive years prior to the selection.
“The provisions of this section relating to the five-year requirement shall not contravene any contract existing between any governing body and a newspaper on and prior to May 11, 1970; nor shall the five year requirement herein be applied in assessing the qualifications of a newspaper which was in existence on May 11, 1970.”
“§ 143. Newspaper selected to be known as official journal; duties
“The newspaper selected shall be known as the official journal of the parish, town, city or school board, and it shall publish all minutes, ordinances, resolutions, budgets, and other official proceedings of the police jury, town or city councils, or the school board.”

While it may be argued that § 141 refers only to police juries and not to other forms of parochial government which may be created under a home rule charter, it is apparent that the term “police juries” is used synonymously with the term “governing authority” of the parish. This may be readily perceived from the statutory scheme of Title 43 as well as the provisions of § 143 which clear up some of the confusion which may result from § 141.

We conclude that the parish council of St. Charles Parish does not possess the authority under its Home Rule Charter to disregard the state law on selection of an official journal, and that it is required to follow the provisions of R.S. 43:141, et seq. It should be pointed out that the council has not adopted any specifications of its own for the qualification as an official journal, but has simply appointed by resolution the River Parishes Guide as its official journal. Accordingly, if the selection of the Guide fulfills the requirements of state law, then the police power of the state has not been abridged and the appointment is legal.

This second issue revolves about the qualifications possessed by the River Parishes Guide. The requirements are set out in R.S. 43:143, quoted above. The trial judge made the following factual finding with which we agree:

“(1) the Guide was published and printed in St. Charles Parish on this date and since its very beginning in 1969,
“(2) they have been in existence over two years; it’s been in existence since 1969,
“(3) the editor of the newspaper testified they have never missed any issues, thus, they haven’t missed three consecutive issues,
“(4) he indicated that they became entitled to second class mailing privileges in May of 1979.”

The pertinent day of qualification is June 2, 1980 on which date the resolution appointing the Guide was passed. A comparison of the qualifications possessed by the Guide to those required by the statute shows that the Guide does indeed meet the requirements except for some of the requirements of five years imposed therein. However, the statute further provides that these five year requirements shall not be applied in assessing the qualifications of a newspaper which was in existence on May 11, 1970. The Guide was in existence prior to that time, hence we do not consider the five year periods to be applicable in this case.

A final argument is made that the Guide was not “a newspaper ” which was in existence on May 11,1970. We are referred to the definition of newspaper contained in R.S. 43:201. That statute does not refer to official journals, but refers to requirements of publications in which judicial and legal proceedings shall be published. The definition therein contained should be restricted only to those types of publications and not to the specific other requirements relating to official journals.

For the reasons hereinabove expressed, we conclude that the St. Charles Parish Council complied with the restrictions of state law in appointing the River Parishes Guide as its official journal for a period of one year, and accordingly we affirm the judgment appealed from.

AFFIRMED.


author: REDMANN, Judge.

text:
    RIVERSIDE CITRUS FARM, INC. et al. v. LOUISIANA CITRUS LANDS, INC.
    No. 11003.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 1981.
    Rehearing Denied July 13, 1981.

      C. Ellis Henican, Henican, James & Cleveland, New Orleans, for plaintiffs.
    Martin A. Welp, Donald S. Martin, New Orleans, for defendant.
    Before SAMUEL, REDMANN and SAR-TAIN, JJ.
   REDMANN, Judge.

Defendant appeals from a preliminary injunction against any use of any phenoxy herbicide on any of its 30,000 acres of land in Plaquemines parish, extending about 12.5 miles along state highway 23. The question is whether the evidence sufficiently supports the trial judge’s factual findings as to warrant a preliminary injunction. We conclude that it does and we therefore affirm (without prejudice, of course, to a final determination of the facts, or even a different credibility evaluation, upon the trial of the demand for a permanent injunction).

The trial of this matter was ten days long, requiring a ten-volume record. There is a great deal of technical testimony, much to the effect that defendant’s more recent method of application of the herbicide, under the recorded wind conditions, could not have allowed the herbicide to spread to plaintiffs’ properties and therefore could not have caused the flu-like symptoms some plaintiffs experienced or damaged their citrus trees and vegetable plants. On the other hand, there was testimony from a California allergist that phenoxies cause flu-like illness and can even alter human genetic matter, and there was also evidence that plaintiffs’ trees and plants had been affected by phenoxies. Although defendant strenuously argues that there is no competent evidence to show that the phenoxies in question (2,4D and 2,4Db) are hazardous to human health, we believe that on the trial of a preliminary injunction the trial judge has the discretion to accept as prima facie proof the medical opinion of a doctor that may not be precisely within his formal specialty. We would respond similarly to defendant’s argument that the competence to decide such questions lies rather with a technically specialized administrative agency rather than the courts. There is no doubt merit to the consideration that an “expert” can be found to espouse almost any view, and it may well be doubted whether a single trial judge, unskilled in a highly technical area, should be allowed to make a “credibility call” by believing one “expert” who may be (even admittedly) very much in a minority position in that technical field.

Nevertheless “The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court, although that discretion is reviewable if erroneously exercised.” Smith v. West Virginia O. & G. Co., La.1979, 373 So,2d 488, 493. A plaintiff’s basic burden of proof is to merely “show that the injury, loss or damage he will suffer may be irreparable if the [preliminary] injunction does not issue,” but he need make only “a prima facie showing that he will prevail on the merits of the case.” General Motors A.C. v. Daniels, La.1979, 377 So.2d 346, 348.

Ordinarily, a preliminary injunction is a procedural device interlocutory in nature designed to preserve a status pending final determination of an action. The main difference between a preliminary injunction and a permanent injunction is that the former may be issued through summary (rather than ordinary) proceedings and may be based upon verified pleadings or affidavits, as well as upon ordinary proof, which present a prima facie case justifying its issuance, whereas the latter requires full proof by the preponderance of the evidence at (unless waived) a full trial under ordinary proceedings. Schwegmann Bros. G.S. Mkts. v. Louisiana Milk Com’n, La.1974, 290 So.2d 312, 316.

We conclude that, on the question of sufficiency of proof for preliminary injunction, allowing to the trial judge the discretion that is recognized as his, the record supports the preliminary injunction appealed from, without prejudice to defendant’s right to bring the matter to full trial on the question of whether a permanent injunction should issue. There is arguable prima facie proof of threat of irreparable harm to the health of plaintiffs that justifies the trial judge’s exercise of his discretion.

Affirmed.


author: GARRISON, Judge.

text:
    Ronald A. HALL v. The CITY OF NEW ORLEANS and New Orleans Sewerage and Water Board.
    No. 11983.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 1981.
    Rehearing Denied July 13, 1981.

      R. Ray Orrill, Jr., New Orleans, for plaintiff-appellant.
    John A. Gordon, Sp. Counsel, Vincent T. LoCoco, Gen. Counsel, Gerard M. Victor, Senior Counsel, Sewerage and Water Board of New Orleans, New Orleans, Yada T. Magee, Asst. City Atty., George R. Simno, III Deputy City Atty., Salvador Anzelmo, City Atty., New Orleans, for defendants-ap-pellees.
    Before GULOTTA, GARRISON, and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing plaintiff’s action for damages against the Sewerage and Water Board, sustained by him on June 30, 1978, when the drain cover upon which he was walking collapsed. Plaintiff also appeals from the trial court judgment granting the motion for a directed verdict made by the City of New Orleans. From that judgment, which we reverse in part and affirm in part, plaintiff appeals.

Civil Code Article 2317 provides in part as follows:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody ...” (emphasis added)

The only real issue on appeal is whether the defendants or either of them are liable under C.C. Art. 2317 and the reasoning of Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980).

In Jones, the Supreme Court held that neither actual nor constructive notice are required for C.C. Art. 2317 liability based on custody:

“Because the responsibility for preventing the unreasonable risk of injury to others is unconditional, the injured party seeking damages under article 2317 need not prove that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant that the thing had a vice or defect — that is, that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect. Loescher v. Parr, 324 So.2d 441 ([La.] 1976), at 446-447; Verlander, Article 2317 Liability: An Analysis of Louisiana Jurisprudence Since Loescher v. Parr, 25 Loyola L. Rev. 263 (1979).
The issue presented by the Court of Appeal’s application of article 2317 to the facts of this case is 'whether municipalities and other public bodies may be held liable for damages caused by things in their custody. The First Circuit had already found 2317 applicable in two prior cases but in Gallien v. Commercial Union Ins. Co., 353 So.2d 1127 (La.App.1977), in the context of a fact situation almost identical to the one presented here, the Third Circuit found that article 2317 was inapplicable. The Court of Appeal based that determination on “the long line of jurisprudence to the effect that actual or constructive notice to a public body is a prerequisite to its tort liability.” 353 So.2d at 1130.
This statement of the law says both too little and too much. Proof of notice of the defect is indeed required when a plaintiff contends that a public body was negligent, either by virtue of specific conduct of its employees which created the dangerous situation (which is itself construed as notice), or by virtue of its failure to correct a dangerous condition caused by others. But, as we have demonstrated, negligence is only one of the footings on which the codal structure of tort liability rests. Where delictual responsibility is based not on negligence but on legal fault, under article 2817, a public body’s knowledge of the existence of the danger is irrelevant. Liability is a consequence of the fact of ownership and custody in itself, not of the breach of a duty.
In Gailien, the Court of Appeal also indicated that public bodies should not be subjected to liability under article 2317 because their vast operations and extensive property ownership would lead to “chaotic results.” However, Article 12, § 10 of the 1974 Constitution states that “[n]either the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” It is not the function of the courts to create an exception to this unequivocal constitutional rejection of the doctrine of sovereign immunity.
The only remaining question is whether the proofs required for the application of article 2317 have been made. From the testimony of defendants’ employees, it is clear that the catch-basin and its cover were in the care or custody of the defendants; other testimony shows that the cover’s defect was the cause of plaintiffs’ damages. It is also obvious that the cover was defective, in the sense that the risk of falling four or five feet into a catch-basin as a result of stepping upon a presumably solid, firm meta1 surface is unreasonable. Once these elements are proved, the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Loescher v. Parr, supra. Because none of these defenses was proved, defendants are liable for plaintiffs’ damages.”
(At 739-740.) (Emphasis added.)

In the instant appeal, the trial judge found that the cracked cover was a danger, a trap and a defect. He further found that the plaintiff was injured as a result of the defect and that the thing which caused the accident was in the care or custody of the Sewerage and Water Board, which maintained the catch basin. Having thus found the two requisite elements of C.C. Art. 2317 liability, the Sewerage and Water Board could escape liability only by showing that the harm was caused by the fault of the victim, the fault of a third person or by an irresistible force. Inasmuch as the Sewerage and Water Board failed to prove any of the three elements which would relieve them of liability, the Sewerage and Water Board clearly is liable.

Turning to the issue of liability on the part of the City of New Orleans, we note that the City was dismissed as a party on a directed verdict midway through trial and that the trial continued against the Sewerage and Water Board as the sole remaining defendant. Upon review, we find that the evidence presented showed that the Sewerage and Water Board retained sole control and custody of the catch basin. Accordingly, the City was properly dismissed.

As we have found that the trial court committed an error of law in failing to find the Sewerage and Water Board liable under Jones, supra, it is incumbent upon this court to grant an award of damages.

Mr. Jones sustained injuries consisting of a one-inch laceration over the dorsad area of the right foot, as well as redness, swelling, drainage from the cut, and soft tissue inflammation. Additionally, he suffered a traumatic neuroma which resulted in increased sensitivity in the injured area. Mr. Jones may be forced to undergo minor surgery to remove the neuroma.

The record indicates that Mr. Hall’s past medical bills totalled $217.00 and that he has lost wages in the amount of $1,080.00. It further indicates that he will have future medical bills in the amount of $300.00 for future minor surgery and that he will lose one week’s wages or $180.00 as a result thereof. Additionally, this court finds that an award of $1,000.00 for past and future pain and suffering would be neither inadequate nor excessive.

For the reasons assigned, the judgment of the district court is affirmed in part and reversed in part and rendered as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that the motion of the City of ■ New Orleans for directed verdict is granted and, accordingly, there be judgment herein in favor of the defendant the City of New Orleans and against plaintiff, Ronald A. Hall, dismissing plaintiff’s suit.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of the plaintiff, Ronald A. Hall, and against the defendant Sewerage and Water Board, in the amount of TWO THOUSAND SEVEN HUNDRED SEVENTY-SEVEN AND NO/100 ($2,777.00) DOLLARS, plus legal interest from judicial demand until paid and costs.

REVERSED IN PART; AFFIRMED IN PART.

      . Defendants argue that they should be relieved of liability because plaintiff habitually parked his 18 wheel truck on top of the cover. Clara Boone testified that plaintiff parked his truck atop the cover. This testimony was in the nature of a casual remark. There was no effort to establish how often a truck was there, whether the truck was plaintiffs truck or belonged to someone else. There was no question asking Boone if she knew this from firsthand personal knowledge or the source of the statement. At the time of trial, it was an insignificant remark, hence, neither party pursued it any further.

        . Neuroma — “A tumor made up of nerve cells and nerve fibers; one growing from a nerve.” Medical Dictionary for Lawyers, Mallory, 3rd Ed. (Callaghan & Co., 1960) p. 521.